2017 PLP 916 (MLD)

MALIK HAQ NAWAZ, J.

The prosecution story has been highlighted in the judgment under challenge, however precise gist of the occurrence is that on 27.7.2015, an information was conveyed by SGC Adil Jan to SHO Police Station Yasin that two boys have fallen into river and dead body of one boy has been recovered while search is going on for recovery of the missing boy. On receipt of this information SHO started proceeding under section 157, Cr.P.C. The recovered dead body was identified as Sadam Hussain, and the proceedings were then converted into Section-174, Cr.P.C., and on 26.7.2015, the other dead body was recovered and was identified as Ibrahim alias Mola Dad. The SHO recorded the statements of prosecution witnesses under section

161. Cr.P.C, and after completion of investigation, he submitted the challan of the case before the trial Court.

2. On 11.4.2010 the case was fixed for framing of charge but instead of framing the charge the learned trial Court discharged the accused under section 265-K, Cr.P.C., vide judgment/order dated 11.04.2015.

3. The State being aggrieved has filed the instant appeal under section 417, Cr.P.C., which has come t9day for hearing.

4. The learned Dy. A.G, submitted that the order of the learned trial Court is not a speaking order and against the judicial wisdom, which requires that the judgment should be well reasoned and in detail capitulating all the facts and law and view point of both the parties should have been recorded. The learned Dy. A.G further contended that two persons lost their lives because of a well planned conspiracy by the respondents and there is sufficient evidence available on record to connect the respondents with the alleged offence. Lastly the learned Dy.A.G, requested that the case be remanded to the trial Court for further proceeding and recording of evidence.

5. On the other hand the learned counsel for the respondents submitted that there is no worth reliance evidence on record to connect the respondents with the alleged offence. The learned counsel threw a challenge that neither any ocular or circumstantial evidence is on record, which may point out the involvement of the respondents ;.n the crime. Per learned counsel both the deceased committed suicide for which they themselves were responsible and none other. He prayed that the judgment of the trial Court is well reasoned and does not warrant any interference by this Court.

6. After hearing both the parties and going through the record, I deem it fit and proper to re-produce section 265-D Cr.P.C. for ready reference which is as under:-- S.265-D. When charge is 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.

7. Section 265-D, Cr.P.C, does require the trial Court to peruse all the documents filed by the prosecution to see whether there is ground to proceed further with the trial of the accused or not and such scrutiny is carried out before framing of charge against the accused, but it may be noted that the powers to examine the record before framing of charge is confined to the trials before the High Court and Court of Session under Chapter XXII-A and such powers are not conferred on a Magistrate, who under section 242, Cr.P.C. is not left with any option but to frame a formal charge when the accused appears before him. However, the powers conferred under section 265-D are to be exercised sparingly and ordinarily and in normal course of nature the prosecution should be allowed to produce their evidence but at the same time in appropriate cases, when the facts alleged by the prosecution does not constitute, or commission of an offence is prima facie not established, the Court cannot and should not desist to discharge an accused under section 265-D, Cr.P.C.

8. The framing of charge is not an automatic process and the trial Courts are not supposed to act like a post office just to stamp on the ispe-dixit of police and if the material on record is not sufficient the Court may discharge the accused under section 265-D, Cr.P.C.

9. I have also gone through the file and after going through whole of the case came to the conclusion that the conclusion reached by the trial Court is in accordance with the spirit of section 265-D, Cr.P.C., and the trial Court has rightly discharged the accused from the groundless accusations, which were not sufficient to hold the accused guilty after carrying out a long and futile exercise of trial.

10. On the last date of hearing the learned counsel for respondent/ accused Shukoor Jan submitted an application under section 540-A for exemption of accused from personal appearance as he statedly has been recruited in Pakistan Army and was directed to join the training center on 02-06-2016. The learned counsel submitted that he will attend the Court on each and every date of hearing. Exemption was allowed to save the career of the accused, keeping in view that if exemption is not allowed, he will not be allowed to join Army after due date. A judgment can be announced in the absence of an accused, if he has been exempted. For the purpose of convenience section 366, Cr.P.C. is re-produced as under:-- Section 366, Cr. P. C. (a)

(b)

(2) The accused shall, if in custody, be brought up, or, if not in custody, be required be the Court to attend, to hear judgment delivered, except where his personal attendance during the trial has been dispensed with and the sentence is one of the fine only or his acquittal, in either of which cases it may be delivered in the presence of his pleader. (3) No judgment delivered by any Criminal Court shall be deemed to be invalid by reason only of the absence of any party or his pleader on the day or from the place notified for the delivery thereof, or of any omission to serve, or defeat in serving, on the parties or their pleaders, or any of them, the notice of such day and place.

11. The bare reading of the above section stipulates that a judgment of an acquittal could be announced in absence of the accused, if his personal attendance has been dispensed with. Since the judgment in hand is one of acquittal, therefore, there is no legal impediment to announce the same in absence of the accused when his co-accused and his learned counsel are present in the Court.

12. The learned trial Court has exercised the powers under section 265-D, Cr.P.C., and not under section 265-K, Cr.P.C., as reflected in the judgment/order dated 11.4.2016 and the judgment of acquittal is well reasoned and has been delivered after due diligence which does not require interference by this Court. The insertion of section 265-K, Cr.P.C., instead of section 265-D, Cr.P.C., seems to be a typographical mistake. The appeal filed by the State is dismissed being meritless. HBT/46/GB Appeal dismissed.