According to Abdul Khaliq, the first respondent in this Criminal Revision, on 4th September 1966, the applicant Kamal Khan and Nabo Jan, now deceased, had illegally constructed a bund in Manda Uch Khoola and thereby diverted the flow of water from the said Manda to Manda Hana. The first respon-dent therefore filed a complaint before the Distrate Magistrate-Quetta who referred the case to the E. A. C. and Magistrate, First Class, Quetta. The E. A. C. and Magistrate, First Class forwarded the complaint to the Tehsildar and Second Class Magistrate under section 202, Cr. P. C. for an enquiry, and this Magistrate in turn submitted his report to the E. A. C. and Magistrate, First Class, on 28th October 1966. The E. A. C. and Magistrate, First Class thus issued summons to the parties and proceeded with the case. He recorded the statements of the first respondent and of two of his witnesses Abdul Ghaffar and Abdul Razak and on 18th September 1968, he framed a charge against both the present applicant and Nabo Jan deceased under section 430, P. P. C. He then adjourned the case to the 7th of October 1968, for the evidence of the accused. But on the 1st of October they had filed a revision application in the Sessions Court so that the proceedings before the Magistrate was stayed and have been stayed ever since. The revision application of the accused was dismissed by the learned Sessions Judge, Quetta on 13-3-1969 on the ground that "it cannot be urged that there was absolutely no evidence on the record (against the accused)."
Aggrieved by this order, the two accused filed a revision in this Court which has now come up for hearing, and I may point out that Nabo Jan, one of the accused, died during the pendency of the revision in this Court.
2. As Nabo Jan is dead, I shall refer to Kamal as the applicant as it is only his case which can be pressed now. Mr. Basharatullah, who appeared for the applicant, very fairly conceded that he could not challenge the order of the Magistrate framing a charge against the applicant on the ground of an incorrect appreciation of evidence, but that he could succeed only if he made out a case of no evidence against the applicant. With this object he took me through the depositions recorded by the Magistrate and submitted that whilst the first respondent and Abdul Razak had clearly implicated the applicant in their evidence in chief, both the first respondent and Abdul Razak had admitted in cross-examination that they were not present when the illegal construction of the bund had taken place. It is therefore very clear that the evidence of the first respondent and of Abdul Razak is nothing more than hearsay, and if this were the only evidence on the record, the revision would have to be allowed. This was also conceded by the learned Advocate-General, but he referred me to the statement of the deceased accused Nabo Jan. The question whether the statement of a co-accused can be used against the other accused requires consideration. But Mr. Basharatullah's submission that the statement of Nabo Jan deceased before the Magistrate cannot be used against the applicant receives support from a judgment of a Division Bench of the West Pakistan High Court reported in Ghulam Muhammad v. The State . It is true that the judgment cited referred to a confession, but neither the learned Advocate-General nor Mr. Moquim Ansari, who appeared for the respondent, could refer me to any judgment wherein a different view was taken with regard to the statement of an accused before the framing of the charge. I do not think therefore that the statement of Nabo Jan helps the case of the prosecution. But even if I assume that that statement has to be excluded, it is admitted before me that the first respondent had on at least two occasions summoned three witnesses, namely, Abdul Ghaffar and Abdul Razaq, whom he had examined, and one Abdul Salam whom he did not examine. Both the learned Advocate- General and Mr. Moquim Ansari submitted that the prosecution would be entitled to examine the said Abdul Salam, therefore the charge against the applicant could not be quashed merely because the evidence recorded so far was not sufficient to sustain it.
3. The submission of the learned Advocate-General and of Mr. Moquim Ansari assumes that the evidence of Abdul Salam would implicate the applicant. But even if that is assumed, the question is whether Abdul Salam can be examined when he has not been examined before the framing of the charge. Here I have to point out that, although the respondent does not appear to have furnished a list of witnesses, he had twice summoned Abdul Salam, on 22nd February 1968, and again on 10th May 1968. It is not known why he did not summon Abdul Salam again when his other witnesses were examined on 25th July 1968, and 9th August 1968. Be that as it may, he has not made any statement closing his case, and as the learned Magistrate did not ascertain from him the names of his witnesses, despite the mandatory provisions of subsection (2) of section 252 of the Cr. P. C., he is clearly entitled to examine Abdul Salam after the framing of the charge. Further, this proposition was hardly disputed by Mr. Basharatullah, who merely submitted that if Abdul Salam was allowed to be examined, he would be (sic) to fill up the lacuna in the prosecution case against the applicant. A complainant is not required to examine all his witnesses before the framing of the charge, and learned counsel's objection relates not to the admissibility of Abdul Salarn's evidence but to its veracity, therefore the objection is premature.
4. Mr. Basharatullah then submitted that even though the first respondent was entitled to examine Abdul Salam after the charge, the legality and propriety of the charge had to be decided only by reference to the evidence on the record and any other view, according to learned counsel, would be contrary to the basic principle of our jurisprudence that the burden of proving the guilt of the accused is on the prosecution. Learned counsel further submitted that his argument was consistent with the provisions of sections 253 and 254 of the Criminal Procedure Code. On the other hand, according to the learned Advocate-General and Mr. Moquim Ansari, there was nothing in these two sections to support the view that the legality of the charge had to be decided only by reference to the evidence recorded before the framing of the charge. Further, all the learned1 counsel stated that the question thus raised was not covered by authority and had to be decided on general principles, I shall therefore examine the relevant provisions of Chapter XXI.
5. Section 252 requires a Magistrate to hear the complainant, to "take all such evidence as may be produced in support of the prosecution", and to ascertain from the complainant the names of his witnesses. Under section 253 if, after taking all the evidence referred to in section 252, and examining the accused, if necessary, the Magistrate finds that no case has been made out against the accused, he shall discharge him, but by virtue of subsection (2) he is free to do so at any previous stage of the case if he considers the charge to be groundless. Finally, section 254 is the section under which the charge is framed. This section reads as follows:-- "254. If, when such evidence and examination have been taken and made, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try, and which, in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused."
6. Thus from a perusal of the sections, it will be seen that whilst the prosecution is not required to examine all its witnesses before the framing of the charge the Magistrate has to frame the charge on the basis of the evidence "taken" and the examination of the accused. In my humble opinion, on a plain reading of the section, it is clear beyond doubt that a charge can only be framed on the basis of the statements recorded under sections 252 and 253, because that alone is evidence.
However, even if I am wrong in thinking that the intention of the Legislature is so clear, at the highest, there is an ambiguity in the statute which has to be resolved according to the settled principles for the construction of statutes. As the section has a heading. I may, with advantage, quote here the observations of S. A. Rahman, C. J., in Nawabzada Muhammad Umar Khan v. The Tehsildar, Mardan . In that case, with reference to the headings prefixed to sections, S. A. Rahman, C. J. observed at page 129: "The headings prefixed to sections are regarded as preambles to these sections and can properly be used as giving the key to the interpretation of the section unless the wording of the section is inconsistent with such interpretation."
The heading to section 254 states: "Charge to be framed when offence appears proved." The words "appears proved" are significant, and can only have reference to the depositions recorded by the Magistrate under section 252, Cr. P. C. They cannot possibly cover the possibility that a witness not examined might implicate the accused in his trial. There is also nothing in the language of the section to support the view that a charge can be framed on the possibility that a witness not examined might implicate the accused, therefore this fortifies me in my conclusion that the charge in the present case cannot be sustained because the evidence of Abdul Salam, when recorded, might implicate the appellant.
7. Again this section has to be read with section 253, and section 253 imposes an obligation on the Magistrate to discharge the accused when "he finds that no case against the accused has been made out which, if unrebutted, would warrant his conviction". This section shows the solicitude of the Legislature to protect the accused against harassment by false charges, and similar provisions are to be found in sections 203 and 209, Cr. P. C. But the view that a charge can be framed even though the evidence taken does not support it, would not only lead to harassment and jeopardise the liberty of the citizen but, as an accused has to be discharged if the evidence recorded fails to make out a case against him, it is clear that if I accept the learned Advocate-General's construction of section 254, it would nullify the provisions of section 253. On this ground also Mr. Basharatullah's construction of the section is to be preferred.
8. Finally, as submitted by Mr. Basharatullah, a fundamental principle of our jurisprudence is that an accused person is presumed to be innocent until his guilt is proved. The accused does not have2 to prove his innocence. It is for the prosecution to prove his guilt. That is a principle deeply rooted in our jurisprudence, and the provisions of the Criminal Procedure Code are designed to ensure that an accused shall not be harassed by a criminal trial unless there is material prima facie justifying such a trial. It is also obvious that Mr. Basharatullah's submission that a charge can be framed only on the basis of the evidence taken inconsistent with this principle, whilst the construction of section 254 suggested by the learned Advocate-General and Mr. Ansari, is inconsistent with this principle because it would relieve the prosecution of making out a prima facie case against the accused for the purpose of framing a charge, therefore Mr. Basharatullah submitted that this construction of section 254, was to be preferred. I agree with Mr. Basharatullah's submission. As observed by Maxwell in his Construction of Statutes, 12th Edition, page 116: "It is thought to be in the highest degree improbable that parliament would depart from the general system of law without expressing its intention with irresistible clearness, and to give any such effect to general words merely because this would be their widest, usual, natural or literal meaning would be to place on them a construction other than that which Parliament must be supposed to have intended."
As I see nothing in the section to support the view that the Legislature intended to make a departure from the Settled law; on this ground also Mr. Basharatullah's construction of section 254 is to be preferred, and I hold that charge can be framed only when in the words of the headnote, it "appears proved".
9. The Revision Application is allowed, but while I quash the charge against the applicant, I see no reason why the prosecution should not be permitted to examine Abdul Salam. I therefore remand the case to the Magistrate for this purpose, and it will be open to him to frame a fresh charge against the applicant if, on the basis of Abdul Sala m's evidence, a prima facie case is made out against the applicant under section 254. As the applicant will be entitled to cross-examine Abdul Salam, no prejudice will be caused to him by this order. But he has been harassed by the charge illegally framed against him, and I am also aware of the unfortunate tendency to resort to the Criminal Courts for the purpose of settling civil disputes. This tendency is to be deplored, and in order to prevent harassm ent to the applicant, the case must be disposed of expeditiously by the learned Magistrate. The record of the case shall be returned forthwith to the Magistrate who shall complete examination of Abdul Salam within one month of the receipt of the record by him. If Abdul Salam is not examined within this period, or if his evidence fails to make out any case against the applicant, the applicant shall be discharged as of right. PLD 1961 Lah. 146 PLD 1958 Lah. 120