ALI BAQAR NAJAFI, J.---Through this revision petition, the order dated 11-3-2013 passed by the learned Additional Sessions Judge, Chiniot is challenged by the petitioner seeks a direction to the trial court to delete the offence under section 302, P.P.C. And send the case to the Area Magistrate for trial.
2. Briefly, FIR No, 418/2011 under sections 392/411/302, P.P.C. Was got registered against unknown persons by respondent No,2, in which the petitioner along with three co-accused persons were arrested who were later granted post-arrest bail. A report under section 173, Cr.P.C. Was submitted before the Court of Session. Meanwhile, dissatisfied with the investigation, respondent No,2 filed a private complaint by adding one accused under section 109, P.P.C. In which charge has been framed on 30-7-2012. The petitioner filed an application for deletion of an offence under section 302, P.P.C. Before the learned Additional Sessions Judge on the ground that on the report of post A mortem as well as report of Forensic Histopathology, charge under section 302, P.P.C. Was not made out. However, the said application was dismissed. Hence, this revision petition.
3. The main argument of Malik Saeed Hassan, Senior Advocate Supreme Court of Pakistan, is that there was no mark of ligature from the neck of deceased and no sign of violence on any part of the body of the deceased-lady who was aged about 80 years and no poison was detected in the report of Chemical Examiner, therefore, section 302, P.P.C., was not made out. He further submits that two charges under sections 302 and 392, P.P.C. Are not similar in nature and that the Judge is not to act as a post office but has to apply his judicious mind while framing the charge on the basis of the FIR and the material so far collected. Further adds that there was no motive behind the murder of a poor lady and she had died due to shock of dacoity and the same cannot be termed as homicide.
4. Mr. Aslam Nisar, Advocate for the complainant/respondent No,2 while opposing this revision petition submits that if after framing of charge under section 302, P.P.C. Trial Court reaches on a conclusion that the same is not made out, then the petitioner may be acquitted but if the charge under section 392, P.P.C. Is framed by the Area Magistrate while finding that the charge under section 302, P.P.C. Is made out, then the case will have to be sent to the court of learned Additional Sessions Judge. Places reliance upon the cases of (Jiand v. The State) 1991 SCMR 1268 (Muhammad Wakeel v. The State) 2006 SCMR 1731, (Muhammad Sultan v. The State) 2008 YLR 1453 and (Amir Bakhsh v. The State) PLD 1960 (W.P) Lahore 15.
5. I have heard the learned counsel for the parties and perused the available record.
6. The precise question which is cropped up before this Court is as to whether, in view of the final opinion submitted in the postmortem report declaring cause of death to be a Ischemic Heart Disease but not ruling out the possibility of psychic stress due to robbery, charge under section 302, P.P.C. Can be framed.
7. To answer this, the word "charge" under section 4(c) of the Code of Criminal Procedure "includes any head of charge" the purpose of which is to tell the accused precisely and concisely as possible about the matter which the prosecution intends to prove against him in order to afford him an opportunity to defend himself as observed by a Division Bench of this Court in a case reported as 2012 PCr.LJ 91 [Lahore] (Asif Jabal etc. v. The State etc).
8. The framing of charge thus calls for application of judicious mind on the facts placed on the record by the prosecution on the basis of investigation. Here it will not be out of place to reproduce section 265-D, Cr. .P.C .
"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."
9. As far as the contents of the charge are concerned, section 221, Cr.P.C. Makes it mandatory upon the court to state specific name of the offence and its description so as to fulfil the legal requirements to constitute the offence charged in the particular case.
10. If the above stated test is applied in the case in hand where the deceased namely, Ummat-ul- Majeed, aged 80 years was found dead and the witnesses namely, Shabbir Ahmed Butt and Mubashar Ahmad, had statedly seen the petitioner leaving the house who have subsequently been identified in the test identification parade dated 3-12-2011 requires the court to frame charge under section 302(b), P.P.C. This is being said also because if the charge under section 392, P.P.C. Is framed by the Area Magistrate and subsequently the offence under section 302(b) or 396, P.P.C. Is found to have committed, the case will be sent to the Court of Session. However, it is observed that by merely framing a charge under section 302(b), P.P.C. Will not make it mandatory for the court to convict the petitioner only under section 302(b), P.P.C. Regardless of the insufficiency of the requisite evidence as observed by the apex Court in PLD 2006 SC 153 (M. Youngs Habib v. The State).
"------ If the High Court was of the view that the evidence was deficient to prove the charge or it was not a case of conviction, the Court could proceed a mandated in law.----"
It will not be out of context to reproduce 2009 MLD 13 (Mst. Sughran Bibi v. Sajjad Hussain and 4 others) in which it was held as under:-- "--------The framing of charge does not per se means that the accused is held guilty. He is, only made aware about the case of the prosecution borne out on the record referred to section 265D, Cr.P.C. Upon which he has to be prosecuted. The object of the charge being just to enable the accused to know about the precise accusations against him and nothing more. This does not preclude him from advancing his version neither a charge has ever constrained a Court nor does it place any clog on the Court to arrive at a judgment of conviction or otherwise. It, therefore, just enables the Court to start with the trial and after recording evidence decide whether a charge has been established beyond reasonable doubt against the accused. Consequently, it is the ultimate conclusions reached by the Court which are to determine as to what offence an accused had committed or whether at all a case has been made out against him.------"
It will be equally important to refer to S.A.K. Rehmani v. The State (2005 SCMR 364) wherein it was held that:-- "----the main object of framing of charge is to ensure that the accused had sufficient notice of the nature of accusation with which he was charged and secondly to make the Court concerned conscious regarding the real points in issue so that evidence could be confined to such points---"
11. For what has been stated above, in my humble opinion the material in the form of FIR (registered under section 302, P.P.C.) the medical opinion, identification parade etc. Are enough to frame a charge under section 302-b, P.P.C.
12. In this view of the matter, this petition having no merits is hereby dismissed.