FAROOQ HANDER, J.- Through this revision petition, following prayer has been made;- "Keeping in view of above facts and circumstances by accepting the instant Criminal Revision petition an appropriate suitable, order may kindly be issued to the learned respondent No.1, to set aside/recall the impugned order dated 30.08.2023 of learned respondent No.2, may very kindly be ordered to learned respondent No.2 to adjudicate upon the said matter in Challan Case FIR No.453/22 dated 08.06.2022 offence u/s 354 PPC Police Station City Chunian, District Kasur and graciously be further directed to the learned respondent No.1 to return the said case to the learned respondent No.2 without further pass any judicial orders to adjudicate upon the said case between the parties in the best interest of justice.
Any other relief which this Hon'ble Court deems, fit proper suitable, and appropriate may also be awarded to the petitioner to safe Administration of justice."
Brief and necessary facts for decision of the instant petition are that the petitioner got registered case vide FIR No.453/2022 dated 08.06.2022 u/s 354 PPC at Police Station City Chunian, District Kasur, copy of FIR is available as annexure-H with this petition and the same is hereby scanned below for ready reference.
Challan report u/s 173 Cr.P.C. was prepared in the case (copy of the same is available at page Nos.18 & 19 of this petition) and sent to the Court of learned Magistrate Section-30, Chunian, District Kasur, who after scrutiny of file of the case observed that offence u/s 354 PPC is a Schedule offence and the same is exclusively triable by the Special Court established under the Anti Rape (Investigation & Trial) Act, 2021 (Act), and sent the file to learned Sessions Judge, Kasur vide order dated 29.03.2023, copy of the said order is available at page No.22 of this petition. Learned Sessions Judge, Kasur, after receiving file of the case entrusted the same to learned Addl. Sessions Judge, Chunian on 04.04.2023.
2. After receipt of file of the case, without framing charge in the case, learned Addl. Sessions Judge, Chunian, while observing that offence u/s 354 PPC is not attracted, ordered for transmitting the case to the learned Area Magistrate for conducting trial to the extent of remaining offences vide order dated 30.08.2023, which has been impugned through the instant petition, copy of the same is also available at page No.25 of this petition.
3. Learned counsel for the petitioner submits that the impugned order is against the law as well as facts of the case; adds that there was only one offence in this case i.e. 354 PPC and only during the course of trial i.e. after framing of the charge, trial Court can make the opinion that any schedule offence has been committed or not; further adds that even there is no other offence except the offence u/s 354 PPC in the case but the said aspect of the case has not been taken care of while passing the impugned order and mentioning therein that case is transmitted to the learned Area Magistrate for conducting trial of the accused to the extent of remaining offences. Finally prays for setting aside the impugned order and remanding the matter to learned Addl. Sessions Judge, Chunian for passing afresh order after taking into consideration the relevant provisions of law particularly section 16(3) of the Anti Rape (Investigation & Trial) Act, 2021 as well as facts of the case.
4. Learned Additional Prosecutor General and learned Deputy Prosecutor General very fairly submit that they do not support the impugned order and it would be appropriate to refer the matter back to the leaned Addl. Sessions Judge, Chunian for passing fresh order, while taking into consideration relevant provisions of the law and facts of the case.
5. Both learned counsel appearing on behalf of respondents No.5 to 9 submit in unison that they also do not have any objection on setting aside the impugned order and remanding the matter to learned Addl. Sessions Judge, Chunian for passing fresh order while taking into consideration relevant provisions of law on the subject.
6. Arguments heard and available record has been perused.
7. It has been noticed that under section 16(3) of the Act ibid, special Court can form and record the opinion that offence in the case is not a scheduled offence in the course of a "trial" and for ready reference same is hereby reproduced as under;- "If, in the course of a trial, the Court is of the opinion that any of the offences which the accused is alleged to have committed is not a scheduled offence the Court shall record such opinion and try the accused only for such offences, which are scheduled offences."
(Underline provided for emphasis)
It is trite law that trial commences after framing of the charge and in this regard guidance has been sought from the case of "Haqnawaz and others v. The State and others" (2000 SCMR 785) and case of "NIAZ AHMED and another v. AIJAZ AHMED and others" (PLD 2024 Supreme Court 1152), relevant portion from the latter case law is hereby reproduced as under;- "There is no cavil to the proposition that taking of cognizance is not commencement of the trial.
Trial of a case commences with the framing of the charge against the accused."
(emphasis added)
Admittedly charge was not framed in the case till the passing of the impugned order. Meaning thereby that the case was not in the course of trial. So, it was not the stage to opine that offence which the accused is alleged to have committed is not a scheduled offence. It is also noticed that in the impugned order, it has been mentioned that report u/s 173 Cr.P.C. is transmitted to the learned Area Magistrate to conduct the trial of the accused to the extent of remaining offences in accordance with law but there is no other offence except offence u/s 354 PPC. By now, it is also well settled that when a thing has been prescribed by law to be done in a particular manner then it should have been done in that manner or not at all and in this regard the famous maxim 'A communi observantia non est recedendum' can also be referred. So, when special law i.e. Anti Rape (Investigation & Trial) Act, 2021, provides power only under section 16(3) of the ibid Act to render opinion that scheduled offence has been made out or not during course of the trial i.e. after framing of the charge then impugned order passed prior to that stage in the case is not in accordance with said law, hence, not sustainable rather liable to be set aside.
8. In view of what has been discussed above and with the concurrence of learned counsel for the petitioner, learned Law Officers and learned counsel for respondents No.5 to 9, the impugned order dated 30.08.2023 passed by the learned Addl. Sessions Judge, Chunian is hereby set aside and matter is remanded to the learned Addl. Sessions Judge, Chunian, who will pass fresh order while keeping in view settled principles on the subject as well as facts and circumstances of the case.
Instant petition is allowed in the above terms.