Ss. 249-A & 265-K--- Power of Trial Court to acquit the accused at any stage of the proceedings --- Scope and principles relating to sections 249-A & 265-K , Cr.P.C stated .
The Code has granted an inherent jurisdiction by virtue of
sections 249-A and 265-K to the trial courts, as the case may be, to acquit any
or all accused at any stage of the judicial proceedings for reasons to be
recorded, after providing an opportunity of hearing to the parties. The words
“any stage” used in both the sections include the stages before or after
framing of the charge or after recording of some evidence. Such power can only
be exercised where the Court is of the opinion that no charge could be framed
because of lack of jurisdiction; because the material available before it is
insufficient for the purposes of constituting an offence; that if charge is
framed, but the Court considers it to be groundless and to allow the
prosecution to continue with the trial would amount to an abuse of process; or
that in all circumstances, where there is no probability of conviction of the
accused, even after a full-fledged trial. Thus, if circumstances for exercise
of inherent powers exist, the Court must use such powers at any stage of the
proceedings on its own or upon an application by the accused, provided that an
opportunity of hearing is afforded to the parties before making any order. The
power assigned to the Courts by the legislature is to avoid the abuse of
process of the Court; to protect the integrity of the criminal justice system;
to safeguard a person involved in the case from the agony of a purposeless,
malicious, and frivolous criminal prosecution; or otherwise, to secure the ends
of justice. The exercise of the inherent powers is mandatory in nature,
therefore, any departure therefrom would be a violation of the substantive
provisions of law and would prejudice the interests of the accused, which is an
illegality. If the Court considers that the available material is sufficient to
proceed with the trial and refuses to quash the judicial proceedings, it does
not preclude the Court from exercising its inherent power subsequently after
recording some evidence or surfacing any material for the purpose of quashing
the proceedings. However, the exercise of such power by the Courts must be in
exceptional circumstances, with great caution and by applying its mind
judiciously.
Crl.P.L.A.225/2023
Ammad Yousaf v. The State through Advocate General, Islamabad and another
P L D 2024 Supreme Court 273
Ss . 120 - B , 121 - A , 124 , 131 , 153 , 153 - A , 196 ,
505 , 506 , 201 , 109 & 34 --- Prosecution for offences against the State
--- Procedure provided under section 196 , P.P.C not followed --- Effect -
Criminal proceedings , quashing of --- After permission was obtained from the
Secretary , Ministry of Interior , the Magistrate registered an FIR under
sections 120 - B , 121 - A , 124 , 131 , 153 , 153 - A , 505 , 506 , 201 , 109
& 34 , P.P.C against the main accused , who appeared live on a news channel
and allegedly made some remarks against the armed forces --- Petitioner was
subsequently implicated in the case during the investigation , on the pretext
that as Director of the news channel , he conspired with the main accused for
the commission of the alleged offences --- Legality --- Record reflects that
vide a Notification , the Federal Government had empowered the Secretary to
file complaints on its behalf , against a person ( s ) for the offences
mentioned in section 196 , P.P.C --- Admittedly , the Secretary did not file
any complaint against the petitioner , rather , the FIR was registered against
the main accused by the Magistrate after getting permission from the Secretary
--- Secretary being a delegate himself , had no jurisdiction to redelegate the
authority to anyone else --- In the present case , the FIR was registered with
permission of the Secretary without considering the provisions of section 196 ,
P.P.C that no Court shall take cognizance of any offence punishable under the
offences mentioned in section 196 , P.P.C --- Neither an FIR can be registered
nor can a permission from the Secretary justify the act of the Magistrate ---
As contemplated in section 196 , P.P.C , no Court shall take cognizance of the
offences of the P.P.C. , mentioned therein , unless upon a complaint filed by
the authorities concerned , therefore , the Trial Court had no jurisdiction to
take cognizance of sections 121 - A , 124 , 153 - A & 505 of the P.P.C. ,
on the basis of the FIR , hence , the judicial proceedings initiated by it to
the extent of such offences were coram non judice --- Admittedly , the
petitioner was not nominated in the FIR - During the investigation , the
Investigating Officer reached a conclusion that the petitioner is a conspirator
along with the main accused , therefore , subsequently through a supplementary
statement he was involved in this case --- Even if the alleged views orally
expressed by the main accused during the live telecast are believed to be true
and in violation of any reasonable restriction imposed by law , a question
arises as to how the petitioner , can be held responsible for the act of the
main accused , merely on the ground that he being a member of the
administration of the broadcaster , is equally responsible - Manner in which
the petitioner was proceeded against , amounts to inciting fear not only
amongst the entire administration of the broadcaster , but will also have an
impact upon rest of the print and electronic media , which will certainly
obstruct their constitutional right --- On the basis of the material available
on the record , no case was made out against the petitioner --- Petition for
leave to appeal was converted into appeal . and allowed , and the proceedings
initiated against the petitioner , pursuant to the FIR were quashed to his
extent , and he was acquitted from the
case .
Crl.P.L.A.225/2023
Ammad Yousaf v. The State through Advocate General, Islamabad and another
P L D 2024 Supreme Court 273
Prosecution for offences against the State - Politically
motivated FIRs against politicians , political workers , media persons , and
human rights - Court activists - Observations recorded by the Supreme regarding
adverse consequences of such politically motivated FIRS and how the same
deprive citizens from their fundamental rights provided .
Crl.P.L.A.225/2023
Ammad Yousaf v. The State through Advocate General, Islamabad and another
P L D 2024 Supreme Court 273
The legislature was mindful of the heinousness, gravity,
and sensitivity of the offences, therefore, the above mechanism has been
provided. According to the said section, cognizance can only be taken by a
Court upon a complaint made by the Federal Government, the Provincial
Government concerned or some officer empowered in this behalf in respect of the
offences mentioned therein. As per Articles 90 and 129 of the Constitution of
the Islamic Republic of Pakistan, 1973 (“Constitution”), “Federal Government” consists
of the Prime Minister and the Federal Ministers, whereas the “Provincial
Government” consists of the Chief Minister and the Provincial Ministers,
respectively. The word “Government” has been further interpreted by this Court
on the basis of the stated constitutional provisions in Mustafa Impex. The
principle of Delegatus Non-Potest Delegare is a Latin legal maxim that
generally applied to the delegation of power or authority by one person or
entity to another. According to this Maxim, if a person or entity to whom a
power or authority is delegated, cannot himself further delegate that power or
authority to someone else. However, such power can be delegated in
circumstances where the law expressly permits to do so, or in the absence of a
law, where the original delegation explicitly authorizes it. In such view of
the matter, section 196 of the Code mandates that no person or authority other
than the Federal Government or the Provincial Government or any officer
empowered by the respective Governments in this behalf is competent to file a
complaint in respect of the offences mentioned in section 196. Chapter XVI of
the Code provides a forum and procedure for filing of a complaint and
authorizes the Court to conduct a preliminary inquiry and, if need be, to
investigate the matter in order to ascertain its veracity. If the Court finds
that no case is to be made out from the material available on the record, it
has to dismiss the complaint by exercising powers under section 203 of the
Code. Where the Court is of the opinion that there are sufficient grounds to
take cognizance of the matter upon the complaint, only then the judicial
proceedings can be commenced by adopting a method as provided under Chapter
XVII of the Code.
Crl.P.L.A.225/2023
Ammad Yousaf v. The State through Advocate General, Islamabad and another
P L D 2024 Supreme Court 273
Every citizen has a right of political and
social justice, freedom of speech and thought. Print and electronic media are
the means of receiving and providing such information to and from the people.
Upon exercise of right of freedom of speech and expression, politically
motivated FIRs are being registered for offences under sections 121-A, 124,
153-A, 505 of the PPC, without following the procedure, as provided in section
196 of the Cr.P.C., which is an illegality. The Government must tolerate the
criticism of its political opponents being the chosen representatives of the
people, instead of considering them as enemy of State.
When a law stipulates that some thing has to be done in a
prescribed manner , it must be done in that manner and should not be done
otherwise .
Framing of Charge--- Duty of Trial Court--- Object and
purpose of section 265-D, Cr.P.C. stated .
In our criminal justice system, the provisions of Chapter
XXII-A of the Code are mandatory in nature, which provide a procedure for the
Courts to ensure a just and fair trial for the accused, the prosecution as well
as the complainant, therefore, the same must be complied with in their true
letter and spirit. One of the provisions of the said chapter is section 265-D,
which casts a duty upon the Trial Court to frame a charge. A charge is a gist
and precise statement of the allegation(s) made against a person(s), which is
the foundation of a criminal trial. It specifies the offence with which an
accused is charged, by giving a specific name, if any, and the relevant
provision(s) of law(s). Section 265-D provides that before framing of a charge,
the Court must consider the FIR, the police report, all the documents, and the
statements of the witnesses filed by the prosecution available before it in
order to determine whether it has jurisdiction to take cognizance of the
matter. If the Court is of the opinion that it is competent to take cognizance
and prima facie reasonable grounds exist for proceeding with the trial of the
accused, only then, charge has to be framed. Its object and purpose are to
enable the Court to initiate judicial proceedings against an accused. It is a
fundamental right of the accused to know the exact allegation(s) and offence(s)
with which they are charged, in order to defend themselves so as to prevent
prejudice. Upon considering all the material available before it, if the Court
is of the opinion that it lacks jurisdiction and sufficient material or there
exist no grounds for proceeding with the trial of the accused, it should
refrain itself from framing charge, so as to avoid a purposeless and frivolous
prosecution and abuse of process of the Court.
Crl.P.L.A.225/2023
Ammad Yousaf v. The State through Advocate General, Islamabad and another
P L D 2024 Supreme Court 273
.jfif)
