Stereo.
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Judgment Sheet
IN THE LAHORE HIGH COURT, MULTAN
BENCH, MULTAN
(JUDICIAL DEPARTMENT)
JUDGMENT
Criminal Revision No. 05 of 2022
Muhammad Usman Ghani Versus The State etc.
Date of hearing 14.02.2022
Petitioner by: Mr. Muhammad Tariq Khan, Advocate
The State by Mr. Hassan Mehmood Khan Tareen,
Deputy Prosecutor General.
Respondent No. 2 by Rana Muhammad Nadeem Kanju,
Advocate.
MUHAMMAD AMJAD RAFIQ, J. Through this revision, the
petitioner has challenged the order dated 09.11.2021, passed during the
trial in case FIR No. 119/20 dated 19.02.2020 u/s 302/324/364/337A1/
337A (v)/337Fii/148/149 PPC, P/S Jahanian, District Khanewal
whereby the learned Additional Sessions Judge, has summoned the
petitioner/accused and others without examining the material available on
record, though their names were placed in Column No.2 of the Challan.
2. Learned counsel for the petitioner contends that it was incumbent
upon the learned trial Court to go through the relevant material before
summoning the petitioner and others which stance was controverted by
the learned respondent’s counsel, stating that the petitioner and others
were missed in summoning despite their names were placed in Column
No. 2 of the Challan. Petitioner’s proponent however, prayed that at least
at this stage learned trial court should see the material available on record
before framing of charge as contemplated under Section 265-D Cr.P.C
which prayer was not opposed by the other side. Allegedly question arises
as to what material should be examined before framing of charge within
the scope of section 265-D Cr.P.C. and does it authorizes the court to
discharge the accused if sufficient incriminating material is not available.
Crl. Revision No.05 of 2022 2
3. Charge or discharge phenomenon goes side by side depending upon
the material then available to push the expeditious trial or to keep away the
hurdles unnecessarily impede the process is the function to be carried out
by the court with utmost care and caution because it directly touches the
fundamental rights of individuals for to be treated in accordance with law
as enshrined in Article 4 of the Constitution of Islamic Republic of
Pakistan, 1973. For reference it is reproduced:-
“4. (1) To enjoy the protection of law and to be treated in accordance
with law is the inalienable right of every citizen. Wherever he may be, and
of every other person for the time being within Pakistan.
(2) In particular—
(a) no action detrimental to the life, liberty, body, reputation
or property of any person shall be taken except in accordance
with law;
(b) no person shall be prevented from or be hindered in
doing that which is not prohibited by law; and
(c) no person shall be compelled to do that which the law
does not required him to do.”
It is command of the Constitution that no action detrimental to the life,
liberty, body, reputation or property of any person shall be taken except in
accordance with law. Involving any person in a criminal process without
sufficient evidence reflects against his right to life, liberty, body, reputation
or property; therefore, such an action would be against the spirit of above
Article: Court is duty bound to adhere to the law and follow precedents to
safeguard this Constitutional right.
4. The Constitution being the supreme document, mother of all
legislation in the country is to be respected in all circumstances particularly
when anything not specifically prohibited in the statutory law. If the doing
of anything under a law is conditional with certain proof or material then
converse right accrues due to absence of such material. Charging is not an
automatic phenomenon; court has to see the material available before it, in
the form of Report u/s 173 Cr.P.C. and all other documents and statements
filed by the prosecution. To better appreciate the question, let’s see what
section 265-D Cr.P.C. says;
265-D When charge to be framed: If, after perusing the police report or, as the
case may be, the complaint, and all other documents and statements filed by the
prosecution, the Court is of opinion that there is ground for proceeding with the
trial of the accused it shall frame in writing a charge against the accused.
Crl. Revision No.05 of 2022 3
5. Before proceeding further, it is to be seen the way a duty cast upon the
police to prepare the report u/s 173 Cr.P.C. in the current regime of
legislation and then what documents and material are to be produced along
with such report. Report u/s 173 Cr. P.C. is to be submitted by the SHO
concerned as mentioned in section 173 Cr.P.C., on a prescribed form as set
out in Police Rules, 1934 and attached with it all statements and documents
as mentioned in 265-C Cr.P.C. and other documents necessary to be used as
evidence to prove the case. if the investigation was conducted by a junior
officer even then report must be submitted by the SHO as set out in section
168 of Cr. P.C. Report u/s 173 Cr. P.C would also be submitted through
senior officer in any cases if directed by the Provincial Government by
special or general order as reflected from sub-section 2 of Section 173
Cr.P.C. In any particular case Government can direct routing of report
through any superior officer, yet to achieve this end, government has already
introduced an institution of supervisory officer under Police Order, 2002;
relevant sub-Articles of Article 18 are as under;
(9) The supervisory officers–
(a) shall ensure timely completion and verification of investigation; and
(b) may summon the investigation officer or team of officers, review the
case file, evaluate the evidence and, in that case, shall issue
instructions to the investigation officer or team of officers in the form of
case diary.
(10) A supervisory officer not below the rank of a Deputy Superintendent of
Police may verify the correctness of the investigation and accuracy of conclusions
of investigation by writing a case diary before submission of report in the court.
This check in fact is a step to ensure protection of fundamental right that no
one should be put into a situation where his liberty is curtailed due to the
rigors of criminal process if no evidence is available. To avoid the tunnel
vision approach by the police and a different ideology which they follow
that every person is guilty unless proved innocent, Government has also
intercepted the process of tagging a suspect with criminal liability through
introduction of an institution of Prosecution, primarily in year 1992 through
Code of Criminal Procedure (Amendment) Act XXV of 1992 but later
through promulgation of Punjab Criminal Prosecution Service (Constitution,
Functions And Powers) Act, 2006, hereinafter called as CPS Act. As per
section 9(5) of CPS Act, prosecutors are obliged to scrutinize the police
reports, forward it to the court if it is fit for filing or return the same for
Crl. Revision No.05 of 2022 4
removal of defects, that can be of any types including applicability of proper
offences or collection of any particular evidence. Reliance is on cases
reported as “AZIZULLAH KHAN Versus S.H.O. POLICE STATION SADAR
MIANWALI and 4 others” (2013 P Cr L J 1411) & “NADEEM alias DEEMA versus
DISTRICT PUBLIC PROSECUTOR, SIALKOT and 7 others”(2012 P Cr. L J 1823).
This is time bound exercise to be done within three days as postulates in the
section and prosecutors can also specify the time for removal of defects
which the police are bound to follow as per section 12(2) of CPS Act.
6. The scrutiny carried out by the prosecutors is twofold, one for the
police for removal of procedural defects in the Report including collection of
relevant evidence; and, other for courts about preliminary and tentative
assessment of evidence on record. Prosecutor General is authorized u/s 17 of
CPS Act to issue code of conduct for prosecutors and as per section 17(2),
all the prosecutors are bound to perform their function under the Act in
accordance with the code of conduct so issued. Section 9(7) of CPS Act
requires from the prosecutor to submit case review in following terms;
(7) The Prosecutor shall submit, in writing, to the Magistrate or the Court, the
result of his assessment as to the available evidence and applicability of offences
against all or any of the accused as per facts and circumstances of the case and
the Magistrate or the Court shall give due consideration to such submission.”;
7. Submission of result of his assessment as to the availability of
evidence and applicability of offences against all or any of the accused is a
clear indication that no offender should be recommended for prosecution if
the evidence is scanty or the offence is not attracted as per facts and
circumstances. If the prosecutors assess that though evidence is available in
the case but not against all the accused, they can single him out by
recommending discharge so as to narrow down the process for expeditious
disposal of case; even otherwise their opinion are suggestive in nature
though not binding on the courts yet court is bound to give it due
consideration as mentioned in above section. The prosecutors are required to
undertake the assessment of evidence in accordance with the code of
conduct issued u/s 17 of CPS Act. According to para 5 of the code of
conduct for prosecutors, they are required to apply Full Code Test which is
as under;
5.1 The Full Code Test comprises two tests applied one after the other. These
Crl. Revision No.05 of 2022 5
tests are the Evidential Test and the Public Interest Test.
5.2 The Full Code Evidential test must be applied when the investigation is
complete and no key evidence remains to be collected. The Public Interest test
should be applied when a case clears the Full Code Evidential Test.
Exceptions to this rule are cases in which public interest is clear and no
amount of evidence will override the public interest.
5.3 A case, which does not pass the evidential stage, must not proceed, no
matter how serious or sensitive it may be.
Standard that the prosecutors apply on evidence is either prima facie case
known as 51% Rule and realistic prospect of conviction case; all such
standards are less than the standard which the court apply that accused is
guilty beyond reasonable doubt.
The utility and efficacy of evidential test is increased if following
factors are properly considered as highlighted in the cited code of conduct as
under; para 5.6 is relevant;
a) Can the evidence be relied upon?
In determining the reliability of evidence, the prosecutor must bear in
mind the process of collection of evidence and the credibility of witnesses.
Any violations of the legally acceptable or mandated process of
collection/recording may lead to its becoming unreliable. Witnesses may
be unreliable because of various factors such as old age, inability to
remember past events, relationship with the victims and/or the
complainant; any likely motives for the commission of perjury, such as
financial gain, duress, past history of witnesses, lack of requisite
knowledge or experience etc. However, the prosecutor must not deem
evidence collected by police to be inadmissible and/or tainted unless its
unreliability is clear and obvious.
b) Is the evidence sufficient?
Evidence must be present on all counts and sufficient to bring home the
point. For instance, if the same event has been seen by a large number of
witnesses, a lesser level of scrutiny may suffice. However single witnesses
must pass a higher level of scrutiny. Similarly, the prosecutor must ensure
that the requisite tests have been conducted on physical evidence.
c) The defence perspective
When a line of defence is adopted or is open to be adopted by a suspect or
accused, the Prosecutor should also consider it, and in an objective
manner. In other words, a line of defence or potential line of defence
should be reasonably taken into account by the Prosecutor on the basis of
available evidence.
5.7 In the institution of criminal proceedings, prosecutors will only
proceed when a case is well founded upon evidence reasonably believed to
be reliable and admissible, and will not continue with a prosecution in the
absence of such evidence; throughout the course of proceedings, the case
will be firmly but fairly prosecuted; and not beyond what is indicated by
the evidence.
8. Once the prosecutor considers that case passes the evidential test, he
shall apply public interest test which has been explained in the code of
Crl. Revision No.05 of 2022 6
conduct as under;
The Public Interest Test
5.8 In every case where there is sufficient evidence to justify a prosecution a
prosecutor must go on to consider whether a prosecution is required in the
public interest.
All prosecutions are in the public interest unless there are factors in
existence that require that a prosecution may not be made. The factors to be
considered while applying public interest test are broadly noted in the code
of conduct as under;
a) How serious is the offence?
b) The extent of culpability of the offender?
c) The circumstances of the victim
d) The age and circumstances of the offender
e) The impact of the offence on the community
f) The remorse shown by the offender or actions taken by him to undo the wrong
g) Is prosecution a proportionate response?
It is mentioned in the said code that in deciding the public interest, the
prosecutors must take into account the views of the victims, however this is
not the determining factor. The CPS does not act for victims or their families
in the same way as lawyers act for their clients, and prosecutors must form
an overall view of the public interest.
9. Introduction of evidential test and public interest test clearly indicates
that the constitutional guarantee of equal protection of law and to be treated
in accordance with law has well been met in the procedure given above so as
to save the person subject of criminal process from the expected rigors. This
procedure should be followed by the prosecutors while submitting their
reports u/s 9(7) of CPS Act; they can recommend discharge of an accused
against whom evidence is deficient.
10. Coming back to section 265-D Cr.P.C which requires the court to
peruse the police report or, as the case may be, the complaint, and all other
documents and statements filed by the prosecution before framing of charge.
As the document in the form of report u/s 9(7) CPS Act is also filed by the
prosecution along with report u/s 173 Cr.P.C.; therefore, it is to be perused
by the Court before framing of charge against the offender/suspect and also
Crl. Revision No.05 of 2022 7
bound to give it due consideration on the touch stone of evidential test and
public interest test.
11. If after considering the police report, case review/result of assessment,
statements of witnesses and any other document, court is of the view that
sufficient material is available to frame the charge, it shall proceed
accordingly; but if not, then in converse would oblige to discharge the
accused. Discharge of accused is a legal requirement that can be resorted to
u/s 265-D of Cr.P.C. Honourable Supreme Court has held in the case
reported as “CHIEF EHTESAB COMMISSIONER, CHIEF EHTESABH
COMMISSIONER’S SECRETARIAT, ISLAMABAD versus AFTAB AHMAD KHAN
SHERPAO, EX-CHIEF MINISTER, N.-W.F.P. FESHAWAR and others” (PLD 2005
SC 408) as under;
“Since in these matters, respondents have been discharged under
section 265-D, Cr.P.C., though applications were moved by them for
their acquittal under section 265-K, Cr.P.C. Undoubtedly, it is within
the domain of trial Court to examine the entire material placed on
record by prosecution before exercising the powers under section
265-D, Cr.P.C. It was in exercise of the powers conferred under this
provision of law, learned Ehtesab Bench has arrived to the conclusion
that even prima, facie case for framing of charge against respondents
was not made out.”
Some more judicial precedents also carry similar findings which are
mentioned below for reference and reliance.
“SARFRAZ AHMED versus PAKISTAN and 2 others” (PLD 1982 Lahore 120),
“Mst. ASHRAFUNNISA versus THE STATE and 8 others” (1983 P Cr. L J 1428
KAR), “UMUBYEYIU CHRISTINE versus THE STATE” (1993 P Cr. L J 1606
KAR), “ABDUR RAZZAQ and another versus THE STATE” (1997 P Cr. L J 741
Lahore), “THE STATE versus AFTAB AHMED KHAN SHERPAO and another” (1998
MLD 209 (Pesh), “MAHAZULLA versus THE STATE” (2000 P Cr. L J 534
FSC), “The STATE versus SHUKOOR JAN and another” (2017 MLD 916 GB),
“NASIR ALI versus Mst. ZAKIA” (2021 MLD 1532 (Pesh), “MONIA JEE and others
versus THE STATE and another” (2004 YLR 1802 (Lahore), “IDREES KIANI and
others versus THE STATE through Advocate General” (2004 MLD 1762 (AJ & K).
12. The court when opts to summon any accused in the process at early or
subsequent stage should also attend to such consideration as set out above
because mere mentioning of the name in the police report or deposing it by a
Crl. Revision No.05 of 2022 8
witness is no ground to issue process in blindfold. However, if an accused
has been summoned to face the process, even then before framing of charge,
material must be examined in the light of criteria highlighted which is the
command and mandate of law. A discharged accused can be summoned at
any subsequent stage if any evidence worth appreciation is made available
against him; reliance is on case reported as SHER MUHAMMAD UNAR and
others Versus THE STATE (P L D 2012 Supreme Court 179)
13. In a Magisterial trial where a provision like 265-D Cr.P.C. is not
available yet there is no prohibition in section 242 Cr.P.C. as to not consider
the material before framing of charge. The situation is now clearer in the
light of provision of CPS Act that requires the court to give due
consideration to the result of assessment submitted by the prosecutor. CPS
Act being special law shall prevail over the general law. if the prosecutor
recommends, the case as not worthy of prosecution or discharge of accused
due to deficient evidence but the Court had a different observation and
expects that evidence can be made available, it can frame the charge but
otherwise court still has two option for the time being either to discharge the
accused or stay the proceedings u/s 249 of Cr. P.C. which says as under;
249. Power to stop proceeding when no complaint: In any case instituted
otherwise than upon complaint, a Magistrate of the First Class, or with the
previous-sanction of the Sessions Judge, any other Magistrate may for reasons to
be recorded by him, stop the proceedings at any stage without pronouncing any
judgment either of acquittal or conviction; and may thereupon release the
accused.
It is clear that above section is applicable only to the case instituted upon
police report and not in private complaint case. (in some books word “complaint” has
been misprinted as “complainant” which has mislead the true interpretation).
14. For what has been discussed above, this revision petition is dismissed;
however, learned trial court before framing of charge against the petitioner
and others shall see and weigh the incriminating material in the light of legal
requirement as settled above.
(Muhammad Amjad Rafiq)
Judge
Approved for reporting.
Judge.
Jamshaid*
