July 2023

PLJ 2023 Cr.C. 685
[Islamabad High Court, Islamabad]

Present: Aamer Farooq, C.J,

AMMAD YOUSAF--Petitioner

versus

GHULAM MURTAZA Chandio & another--Respondents

Crl. Rev. No. 07 of 2023, decided on 14.2.2023.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 173--It is only while interpreting various sections of referred Act that Hon’ble Lahore High Court laid down criteria, which prosecution has to see and furnish opinion thereupon in order for a report under Section 173, Cr.P.C. to be filed and acted upon--The Hon’ble High Court, while dismissing criminal revision, directed learned trial Court to examine report under Section 173, Cr.P.C. along with its annexures including opinion/report of prosecution and proceed to frame charge accordingly--In Islamabad Capital Territory (ICT), there is no stature equivalent to Act of 2006 and prosecutor generally examines report under Section 173, Cr.P.C. and provides a certificate for suitability of report under Section 173, Cr.P.C. to be presented in Court for trial. [Pp. 687 & 688] A & B

PLD 2005 SC 408.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 265-D--The general principle laid down in PLD 2005 SC 408 supra would be more appropriate in facts and circumstances, which provides that in exercise of powers under Section 265-D, Cr.P.C., trial Court has to arrive at conclusion that even prima facie case for framing of charge is made out under Section 265-D, Cr.P.C., all Court has to see is that there are grounds for proceeding with trial--At this juncture, High Court is not to delve into veracity of documents or statements made by witnesses; even admissibility of documents or otherwise, is also not domain of Court at this stage or otherwise, it would be holding a trial within trial--The sole purpose of Section 265-D ibid is that report under Section 173, Cr.P.C. and statements and documents submitted provide prima facie basis to proceed with trial; if prima facie case is made out, trial Court is to continue with framing of charge and commencement of trial, otherwise it may not to extent of accused(s) in any case--The Court in making above observations and reaching conclusion relied on earlier judgments of Supreme Court of India--A built in mechanism is provided in Code of Criminal Procedure to safeguard interests of accused person by way of remedy of application under Section 265-K, Cr.P.C., which provides jurisdiction to learned trial Court to discharge/acquit accused, if it considers that there is no probability of accused being convicted of offence--In view of above, instant petition lacks merit, as impugned order does not suffer from error of law or of jurisdiction calling for interference by High Court.

[Pp. 688 & 689] C, D, E, F & G

PLD 2007 SC 9.

M/s Qaiser Imam Chaudhry, Shuja Ullah Gondal and Ehtisham Aslam Khan, Advocates for Petitioner.

Raja Rizwan Abbasi, Advocate and Mr. Zohaib Hassan Gondal, State Counsel for Respondents.

Date of Hearing: 14.2.2023.

Judgment

The petitioner is one of the accused in case FIR No. 691 dated 09.08.2022 under Sections 120-B, 121-A, 124, 131, 153, 153-A, 505, 506, 201, 109/34, PPC registered with Police Station Kohsar, Islamabad; he is currently on bail. After presentation of report under Section 173, Cr.P.C., the petitioner along with co-accused were summoned for framing of the charge; he moved an application under Section 265-D, Cr.P.C. to the effect that in the facts and circumstances, no case against him is made out and to his extent, charge ought not be framed. Learned trial Court, through consolidated order, whereby a number of other applications were also filed by the co-accused, dismissed the application on 12.12.2022, hence the petition.

2. Learned counsel for the petitioner inter alia contended that there is no tangible evidence against the petitioner. He submitted that petitioner is the Director News Desk in ARY at Karachi and has no direct or indirect role in the programme aired on 08.08.2022. It was submitted that sole evidence available against the petitioner is in the form of transcript, which was recovered apparently from the possession of main accused Shehbaz Gill. Learned counsel contended that referred piece of evidence is not admissible and carries no weight in law for a person to be convicted. Learned counsel placed reliance on the judgment of the Hon’ble Lahore High Court in case titled Muhammad Usman Ghani vs. The State etc. (Crl. Rev. No. 05-2022) to argue that a comprehensive test is to be undertaken by the Court while framing charge in light of the said judgment and failing to do so would amount to depriving an accused of his fundamental right of liberty as enshrined in the Constitution.

3. Raja Rizwan Abbasi, Advocate Supreme Court, who is learned Special Prosecutor, appearing for the State, argued that at the time of framing of charge, the Court has to see prima facie the evidence available on the basis of statements and documents filed along with report under Section 173, Cr.P.C.; in this behalf, learned Special Prosecutor pointed out that test is that there should be a prima facie case for framing of charge against the accused.[[1]] He also contended that test provided in Section 265-D, Cr.P.C. is that whether there is ground for proceeding with the trial. It was submitted that referred concept has also been used in Section 204, Cr.P.C. and has been interpreted by Hon’ble Supreme Court of Pakistan in cases reported as[2] to mean that there is a prima facie case against the accused person. It was contended that evidentiary value of the transcript in question can only be determined in the trial and not at this stage.

4. Submissions made by learned counsel for the parties have been heard and the documents, placed on record, examined with their able assistance.

5. As noted above, the petitioner requested learned trial Court that charge ought not be framed to his extent on the basis that there is no evidence available against him.

6. The impetus provided by learned counsel for the petitioner for acceptance of instant Criminal Revision was the judgment of the Hon’ble Lahore High Court.[[3]] The reading of the referred judgment shows that it primarily is based on the statutory content as provided in Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006. It is only while interpreting various sections of the referred Act that the Hon’ble Lahore High Court laid down the criteria, which the prosecution has to see and furnish opinion thereupon in order for a report under Section 173, Cr.P.C. to be filed and acted upon. The Hon’ble Lahore High Court, while dismissing the criminal revision, directed learned trial Court to examine the report under Section 173, Cr.P.C. along with its annexures including opinion/ report of the prosecution and proceed to frame the charge accordingly.

7. In Islamabad Capital Territory (ICT), there is no stature equivalent to the Act of 2006 and the prosecutor generally examines the report under Section 173, Cr.P.C. and provides a certificate for the suitability of the report under Section 173, Cr.P.C. to be presented in the Court for trial. Relying on the said judgment of Hon’ble Lahore High Court in ICT, would not be an apt course, however, the general principle laid down in PLD 2005 SC 408 supra would be more appropriate in the facts and circumstances, which provides that in exercise of the powers under Section 265-D, Cr.P.C., learned trial Court has to arrive at the conclusion that even prima facie case for framing of the charge is made out under Section 265-D, Cr.P.C., all the Court has to see is that there are grounds for proceeding with the trial. Similar words/phrase received judicial opinion in cases reported as PLD 2007 Supreme Court 9 and 2015 SMR 56 supra which also is to the effect that there has to be a prima facie case for the Court to proceed with the trial. At this juncture, this Court is not to delve into the veracity of the documents or the statements made by the witnesses; even admissibility of the documents or otherwise, is also not the domain of the Court at this stage or otherwise, it would be holding a trial within trial. The sole purpose of Section 265-D ibid is that the report under Section 173, Cr.P.C. and the statements and documents submitted provide prima facie basis to proceed with the trial; if prima facie case is made out, learned trial Court is to continue with framing of charge and commencement of trial, otherwise it may not to the extent of accused(s) in any case. The High Court of Gujrat at Ahmedabad in Gopalsinh Bhimsinh Rathod versus State of Gjurat (Criminal Revision Application No. 92/2003) (MANU/GJ/0239/2003), while interpreting Section 227 of the Code of Criminal Procedure of India, which is somewhat counterpart of Section 265-D of Pakistan Code of Criminal Procedure, observed as follows:-

“The phrase appearing in Section 227 of the code that “there is no sufficient ground for proceeding against the accused” is meaningful and wider. The Court after considering the record of the case, the document submitted, shall come to conclusion that whether there is prima facie material on record to proceed against the accused for judicial finding. Even if the material indicates strong and serious suspicion about the complicity of the accused in the crime, then the Court has to frame the charge. It must be borne in mind that truth, veracity and effect of evidence is not required to be adjudicated at the stage of framing of the charge. The strict standards of proof and the test of scrutiny of the evidence as to the guilt or otherwise of the accused is not to be applied by the Courts at this stage. So far as possible, an exercise be undertaken to assess the

[1]. Chief Ehtisab Commissioner, Chief Ehtisab Commissioner’s Secretariat, Islamabad vs. Aftab Ahmed Khan Sherpao, Ex-Chief Minister, NWFP, Peshawar (PLD 2005 SC 408).

[2]. Noor Muhammad vs. The State and Others (PLD 2007 Supreme Court 9) & Reham Dad vs. Syed Mazh ar Hussain Shah and others (2015 SCMR 56).

[3]. Muhammad Usman Ghani vs. The State etc. (Crl. Rev. No. 05 of 2022).