ZEWAR KHAN vs State S — 2021 MLD 855 PESHAWAR-HIGH-COURT

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ZEWAR KHAN VS State S.324---Criminal Procedure Code (V of 1898), S.497---Attempt to commit qatl-i-amd---Bail---Insertion of provisions of law governing the hurt---Scope---Question before High Court was whether in cases of attempt to commit qatl-i-amd, it would be legally justified at bail stage to send the case to the prosecution for insertion of provisions of law governing the hurt caused to injured of the case---Held; S.324, P.P.C., provided two types of punishments, one for the offence of an attempt to commit qatl-i-amd and another for the hurt caused, in addition to the punishment of the offence of attempt to commit qatl-i-amd---What the court(s) was required at bail stage to do was the determination of prima facie connectivity or otherwise of an accused seeking bail in the light of the tentative assessment of the material on record coupled with the story of the prosecution in the FIR---Even if any provision of law had been omitted by the prosecution, the court might take the same into consideration from the material on record---Court was not bound to deal with the case in the light of the provision of law levelled by the prosecution rather what offence(s) could be made out from the material on record would be taken into consideration---On legal premise, insertion of provision of law in a case was the sole prerogative of the Investigating Agency at the investigation stage; secondly, by the Prosecution Branch and lastly, the Trial Court at the time of framing of charge on the basis of the material available on file against an accused---Under S.227, Cr.P.C., the court may alter or add to any charge at any time before judgment was pronounced---Even otherwise, without alteration of charge, the Trial Court had ample powers under Ss.237 & 238, Cr.P.C., to award punishment under a penal provision, irrespective of the fact that charge under the said provision had not been framed, particularly, in the circumstances when charge had been framed in a provision providing major punishment, whereas the accused was being awarded minor punishment---Sending of case to the prosecution at bail stage for insertion of provision of law by High Court would amount to interference in investigation.

ZEWAR KHAN vs State S — 2021 MLD 855 PESHAWAR-HIGH-COURT

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