2021 PLP 1532 (MLD)

SYED MUHAMMAD ATTIQUE SHAH, J.

Through instant criminal revision, petitioner/complainant Nasir Ali, has challenged the impugned order dated 3.6.2019, rendered by learned Additional Sessions Judge, Katlang Mardan; whereby accused/respondent Mst. Zakia was discharged from the allegation so levelled against her in case FIR No.830/2018 dated 26.09.2018, under sections 302/109, P.P.C., Police Station Katlang, Mardan.

2. As per prosecution case, complainant Nasir Ali on receiving information qua murder of his brother Muhammad Zeb, rushed to the spot; where his dead body was found; which was shifted to the hospital, where he lodged the report against unknown accused. Lateron, in his supplementary statement so recorded under section 164, Cr.P.C, charged the accused/respondent along with co-accused Riaz Akbar for commission of offence.

3. After completion of investigation, complete challan against accused/respondent was submitted only for trial; as co-accused Riaz Akbar was murdered prior to commencement of trial; for which a case vide FIR No.847 dated 5.10.2018, was registered at Police Station Katlang, under Section 302, P.P.C., against unknown accused. The teamed trial Court vide impugned order dated 3.6.2019 discharged the accused/respondent from the allegation so levelled against her without framing of charge against her; who was only nominated for abetment in the commission of offence; hence instant criminal revision has been preferred by complainant/petitioner.

4. Arguments heard and record perused.

5. Indeed, initially no one was charged for commission of offence in the FIR; however, subsequently, the complainant/petitioner nominated the accused/respondent along with co-accused Riaz Akbar; in his supplementary statement so recorded under Section 164, Cr.P.C., on 29.09.2018; after three days of initial report. Available record reflects that no source of satisfaction qua involvement of accused/respondent in the commission of the offence has been disclosed by the petitioner/complainant. Even no independent person has been examined by investigation Agency; in whose presence the entire conspiracy qua murder of deceased Muhammad Zeb (husband of accused/respondent) was planned by respondent with the co-accused Riaz Akbar (brother of deceased). The co-accused Riaz Akbar has already been murdered by unknown accused and; an FIR to that extent had also been registered in the concerned Police Station. Moreover, there is no direct or circumstantial evidence against present accused/respondent, which could connect her with the commission of offence. During investigation, one Rizwan; being friend of co-accused Riaz Akbar was examined under Section 161, Cr.P.C.; who disclosed that his pistol was demanded by co-accused; which he as per his instructions, handed over to the accused/respondent; but mere handing over of pistol to the accused respondent is not sufficient to link her with the commission of offence, particularly when the said pistol had not been recovered by the Investigation Officer during the course of investigation.

6. After commencement of trial as well as compliance of provisions of Section 265-C, Cr.P.C., formal charge has to be framed against an accused; if the trial Court is of the opinion that there is ground for proceedings with the trial of accused. For sake of convenience, section 265-D, Cr.P.C. is reproduced 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; albeit, 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 arc not conferred on a Magistrate, who tinder 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 so conferred under section 265-D are to be exercised sparingly. However, ordinarily and; in normal course of nature, the prosecution should be allowed to produce its 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, then, the Courts 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 ipse-dixit of police and; if the material on record is not sufficient; then, the Court may discharge the accused under section 265-D, Cr.P.C.

9. We have also gone through the material available on record of the case with the valuable assistance of the learned counsel representing the parties and; the worthy AAG as well and; came to the conclusion that the conclusion so drawn by the trial Court is in accordance with the spirit of section 265-D, Cr.P.C., and the trial Court has rightly so 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. 2017 MLD 916 titled, "The State v. Shukoor Jan and another".

10. The learned trial Court has exercised the powers under section 265-D, Cr.P.C., thereby discharging the respondent from the charges levelled against him through a well reasoned judgment, which needs no interference by this Court. Hence, this criminal revision petition is dismissed. JK/92/P Petition dismissed.