This is a reference made by the learned Additional Sessions Judge, Karachi recommending that the charge against the respon- dents/accused having been framed on no evidence be quashed.
Mr. Hamid Hussain has appeared in support of the reference whereas the accused/respondents have been represented by Mr. Z. U. Ahmad.
2. The facts giving rise to this reference are that an incident occurred on the 2nd of October 1967, in which one Muhammad Hussain received injuries. A complaint regarding the incident was filed by one Saeedullah on 4th November 1966, in the Court of A. C. M. No. XV, Karachi. This complaint was entertained and process under section 325/34, P. P. C. was issued.
3. After the issuance of process the trial Court has examined the evidence and as stated in para. 3 of the reference the injured, Muhammad Hussain, complainant, Saeedullah, and two other witnesses, namely, Moula Bux and Muhammad Yasin have been examined. Moula Bux and Muhammad Yasin have supported the prosecution case. In addition, Dr. Muhammad Alimul Haq was also examined and he produced the X-Ray plate and a certificate issued by Dr. Musheer Hussain.
4. On 31st March 1970, a charge was framed against the accused/respondents under section 325/34, P. P. C. The accused persons being aggrieved by the framing of this charge made a revision application before the Court of Session praying that a reference be made to this Court to quash the charge that has been framed.
5. The learned State counsel has argued that this is a case where the medical evidence was at variance with the ocular evidence and since the medical evidence showed that the injured was examined by the medical officer on the 12th of September 1966, a date prior in time to the date of the incident itself, the evidence of the prosecution could not be believed and no useful purpose will be served by keeping these proceedings before the Magistrate on his file. As stated above, five witnesses have been examined and on a consideration of their evidence charge has been framed.
No doubt the medical evidence does not support the prosecution case but the question is whether this Court in exercise of its inherent jurisdiction under section 561-A, Cr. P. C. will be acting rightly in quashing these proceedings specially when all the prosecution evidence has been recorded in the trial Court, charge has been framed and the case in all probability will come to an end very soon after the examination of defence witnesses, if any. I am clearly of the view that appreciation of evidence, at this stage, by the High Court, will not be in consonance with the principles laid down by their Lordships of the Supreme Court in the case of Ghulam Muhammad (1). Their Lordships have laid down that jurisdiction under section 561-A, Cr. P. C. is neither an additional jurisdiction nor an alternate jurisdiction. This jurisdiction is to be exercised only in exceptional cases where either by the party concerned has no remedy, whatsoever, or that the proceedings are designed to harass the party. Applying this principle to the facts of the present case, I find that evidence has been recorded by the trial Court, which, if believed, may result in conviction. That being so, it cannot be said that the proceedings have been instituted only to harass the accused. [10]
6. Mr. Hamid Hussain, the learned counsel for State, has referred to a Single Judge judgment reported in AIR 1955 Mys.
129. In this judgment the principle regarding the framing of the charge has been laid down as follows "Charge shall be framed when an offence appears to be proved."
Under section 254, Cr. P. C. a charge has to be framed when a Magistrate trying the case is of the opinion that there is ground for presuming that the accused has committed an offence. The case decided by Mysore High Court proceeds on a different principle with regard to the framing of the charge and, therefore, I am afraid, that case is of no guidance.
7. Mr. Z. U. Ahmad the learned counsel appearing for the accused in this case has urged that this case could not result in a conviction, and the proceedings, therefore, be quashed. He has relied on a Supreme Court decision reported in PLD 1971 SC 694. I am afraid this judgment does not help him as it enunciates principles for discharge of an accused and the principles are no other than that the accused should be discharged when prosecution evidence fails altogether and there is prima facie no believable evidence. I have already said above that the present case is not one where the prosecution evidence must fail, because, on the evidence recorded, a Court may come to the conclusion that an offence has been committed. Under these circumstances it cannot be said that this was a case of *no evidence' whatsoever or that the evidence recorded could not at all be believed. The facts of every case are different and it will be open to the trial Court to appreciate the evidence that is placed before it.
8. Even otherwise I am of the opinion that the entire prosecution evidence having been examined, this would not probably be a stage for quashment of these proceedings as the proceedings will come to an end very soon.
9. The result is that this reference is rejected and the trial Court shall proceed with this case and decide the same expeditiously. However, any observations that I have made in this judgment with regard to the evidence shall not be binding on the trial Court.
Reference rejected. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.