At the instance of the complainant, Abdul Rasheed, the case FIR No, 560/2008, dated 3.12.2008, under Sections 148 and 149 PPC, was lodged at Police Station City Chishtian, District Bahawalnagar, against Muhammad Ashraf, petitioner and five others.
2. The allegation was that the accused had not only committed mischief after preparation made for causing assault but also destroyed the standing crop and inflicted injuries on the person of the complainant, his son as well as his old father. On 13.12.2006, father of the complainant expired resulting in addition of offence under Sections 302/337-F(ii)/(vi), 337-L(ii)/109 PPC in the FIR. In due course of time, the challan of the case was submitted before the learned Sessions Court, which was partly incomplete only because report of the Histopathologist was still awaited.
3. Before the charge could be framed against the accused, the police embarked upon the matter and referred the same to the medical officer for recording his opinion about the cause of death. In the interregnum, the report of the Histopathologist had also been received. The medical officer took into consideration this report as well and gave the opinion that the cause of death was cumulative effect of chronic decease. By submitting the final challan with the report of the Histopathologist, the police, including therein the opinion of the medical officer also through its report adding at the same time that according to the medical report, the deceased had expired because of ailment and not due to the alleged injuries and as such the offence under Section 302 PPC was not made out. It was also observed in the report by the police that interim challan having already been submitted to the Court under Section 302 PPC the final challan in the same sequence may be forwarded to the learned Court.
4. It seems from the impugned order that in view of the aforesaid developments, the report under Section 173 Cr.P.C. was referred to the learned Sessions Judge, who while entrusting the same to the learned Additional Sessions Judge, on 25.6.2007, had observed that mere submission of new challan report under Section 173 Cr.P.C. was not sufficient to oust the jurisdiction of the Sessions Court for taking the cognizance of the case, as the Court was not bound to accept the documentary statement of the Investigating Officer and thus, sent the case back to the learned Additional Sessions Judge for disposal, in accordance with law.
5. While framing the charge the learned Additional Sessions Judge was confronted with the plea of the present petitioner/accused that the charge may not be framed under Section 302 PPC and the case may be sent to the Court of Magistrate empowered to try the remaining offences. The learned Additional Sessions Judge dismissed the application of the petitioner/accused with the observation that the controversy regarding the commission of the offence under Section 302 PPC would be considered in evidence while perusal of the challan report under Section 173 Cr.P.C. and the statements of the P.Ws. provided sufficient material on the record to proceed with the trial of the accused persons and for framing the formal charge against them. It is this order of the learned Additional Sessions Judge, which has been challenged through the instant Criminal Revision.
6. Learned counsel for the petitioner has maintained that it is incumbent upon the Court to satisfy itself whether the provision with which the accused persons are to be charged is triable by it; whereas, in this case offence under Section 302 PPC has not been committed and the charge in that regard could not be framed nor the case could be tried by the learned Additional Sessions Judge. It is further argued that jurisdiction of every Criminal Court to try a particular offence is derived from a Statute, which creates the Court or from the Statute, which defines the offence, and that the Criminal Procedure Code provides that an offence under Sections 440 and 137 PPC shall be triable by the Court of a Magistrate. In this behalf, she also relied upon Article 175(2) of the Constitution of Islamic Republic of Pakistan, 1973, inter alia providing that no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under the law.
7. It may be stated, at the very outset, that the grievance of the petitioner/accused raised through this criminal revision was pre-mature in that the learned Additional Sessions Judge had not yet framed the charge and simply the report under Section 173 Cr.P.C. had been entertained. Mere entertaining of the report under Section 173 Cr.P.C. could not lead to a conclusive presumption that the charge would be framed under a specific Section especially when the material had not yet been examined by the learned Court for the purposes of framing the charge. The report under Section 173 Cr.P.C. is submitted by the police for providing, the information and the material to the Court enabling it to commence the trial of the accused, which includes the material calculated by it through the investigation of the case registered on the receipt of information regarding the commission of an offence.
8. The trial of an offence is permissible under the law on the basis of an interim report under Section 173 Cr.P.C. The learned trial Court was competent to frame the charge even on the basis of the interim report and as at that point of time the opinion of the medical officer had not yet been added by the police in its report, then had the learned Court framed charge under Section 302 PPC, it could not have been lawfully disputed by the petitioner/accused persons.
9. Under the law the charge has to be framed by the Court on the basis of the material placed before it and in doing so the Court is not bound by the report submitted under Section 173 Cr.P.C.
The Court has to frame the charge under Section 265-D Cr.P.C. after perusing the police report or complaint and the material provided by the prosecution. Reliance in this behalf can be placed upon the case reported as Muhammad Saddique and others V. The State (1991 P.Cr.L.J. 630) in a Sessions trial the Court has to frame charge under Section 265-D Cr.P.C. If on consideration such material, the Court is of the opinion that there is ground for proceeding with the trial, the Court would frame the charge. Hence, the learned trial Court while passing the impugned order was justified to observe that the controversy regarding the commission or otherwise of offence under Section 302 PPC could be determined through the evidence only. It also cannot be disputed that the charge once framed does not become rigged or irrevocable. It can be altered or changed under Section 227 Cr.P.C. if it is so warranted by the circumstances as held in Ali Ahmad Vs. The State and another (2001 M LD 1125 (Lahore).
10. It is pertinent to note that the cause of death as pressed into service by the petitioner is only an opinion formulated by the medical officer with reference to the circumstances. The opinion of an expert, at the pre-trial stage, will not be a sufficient reason to frame the charge disregarding the other overwhelming material available on record. Of course, the controversy can be looked into at the stage of evidence because if the opinion is subjected to the rules of evidence, it can lead the Court to a proper conclusion and as under the law the charge can be modified, the observation of the learned trial Court is unexceptionable.
11. The submission of the "final challan", especially when the only lacking material was a formal report of the Histopathologist, does not by itself, change the perspective of the case unless the material introduced by it becomes part of the evidence. In these circumstances, it is clear that the impugned order does not suffer from any illegality or material irregularity warranting interference of this Court in exercise of revisional jurisdiction.
Dismissed in limine.