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Criminal Appeal No. 991 of 1979, decided on 1st October, 1979.

--‑‑Ss. 417 (2), 247 & 249‑A‑‑Appeal against acquittal‑Orders of trial Court showing case at no stage having been set down for evi dence‑Second proviso to S. 247, Ct. P. C. not empowering Magistrate to acquit respondents merely for absence of petitioner and application of S. 249‑A, Cr. P. C. being erroneous‑Statement of petitioner and preliminary, evidence making out a prima facie case against respondents‑Case having not dragged on for number of hearings due to non‑production of evidence by petitioner, not possi ble to say petitioner having had no evidence in support or not interested in prosecution of respondents‑Acquittal of respondents, held, erroneous and case remanded back to Magistrate for trial from point at which he acquitted respondents.‑[Appeal against acquittal‑Remand of case].

Dil Muhammad Tarar‑ for Appellant.

Hassan Ahmad Khan Kanwar for Respondents Nos. 1 to 5:

Nemo for the State.

Date of hearing : 26th September, 1979

This is a petition under section 417 (2), Cr. P. C. for Special leave to Appeal against the order dated 14th July, 1979 passed by Ch. Akbar Ali, Magistrate Section 30, Sahiwal Camp at Okara acquitting Amir and others, respondents Nos. 1 to 5, of the charges under sections 366;376, 148.' 149, P. P. C.

2. The brief facts of the case are that Mst. Zulekha petitioner filed a complaint an 20th January, 1979 under sections 366/376, 379/452, 148/149, 342, P. P. C. against Amir and four others respondents I to 5 in the Court of Magistrate Section 30, Okara. After the statement of the complainant and the preliminary evidence was recorded, the Magistrate on 11th Febru ary, 1979 summoned the respondents 1 to 5 to face trial under sections 366/376, 452, 148/149, P. P. C. The formal charge against the said respon dents was framed on 7th March, 1979 and the case was adjourned to 18th April, 1979 for evidence of the complainant. On 18th April, 1979 the petitioner‑complainant was present but the counsel for the respondents 1 to 5 filed an application praying that certain copies of preliminary evidence which he had applied for had not been received and that the evidence should be deferred. The counsel for the petitioner‑complainant also filed an application on behalf of his client alleging that the petitioner‑complai nant feared abduction while attending the Court and desired police protec tion. Both these applications were adjourned for arguments to 23rd May, 1979. On the next date of hearing, the petitioner‑complainant was present and so were the respondents but the Presiding Officer being away, the case was set down by the Reader for 21st June, 1979 for proper orders: In the meantime, the case was transferred to the Court of Ch. Akbar, Magistrate Section 30, Sahiwal camp at Okara. On 21st June, 1979 the transferee Court noted that the case had been transferred from another Court and should be registered. The presence of the respondents and their counsel was noted. The petitioner‑complainant and her counsel being absent, the Court ordered the issuance of notice to the petitioner for 2nd July, 1979. On 2nd July, 1979 the petitioner‑complainant was absent but her counsel was present. The respondents were also present personally and their counsel was also present. In view of the absence of the peti tioner‑complainant the Court fixed 14th July, 1979 for appearance of the, petitioner in Court.

3. On 14th July, 1979 neither the petitioner nor her counsel was present though the respondents were represented. The learned Magistrate acquitted the accused‑respondents under section 249‑A, Cr. P. C. by hold ing that as the complainant‑petitioner was not present on three dates of hearing she was neither interested in the prosecution of the respondents nor she had any evidence in support of her complaint. Being aggrieved by the said order, the petitioner made an application under section 417 (2), Cr. P. C. for special leave to appeal against the same, which is now before, me for disposal.

4. The learned counsel for the petitioner has submitted that only one date of hearing was fixed when the petitioner was directed to produce evidence and that was 18th April, 1979, but other than this, no date was fixed for The petitioner's evidence. As regards the hearing fixed for 18th April, 1979, the respondents' counsel had filed an application desiring certain copies of the preliminary evidence recorded by the Court, which application, together with the petitioner's application requesting the Court for being granted police protection whilst appearing in Court, were both adjourned for argument .for 23rd May,. 1979 and that since the learned Iv4agistrate was absent on that date and the case was fixed for proper orders for 21st June, 1979 and the transferee Court had issued notice for her appearance for 2nd July, 1979, on which date the counsel for the peti tioner was present, it could only be said that she was absent on 2nd July, 1979 and 14th July, 1979. As regards the hearing of 2nd July, 1979 her counsel was present to argue the two applications but the Court did not apply its mind to that aspect of the matter. As regards the hearing on 14th July, 1979, she along with her companions started from her village to board a bus for Okara, but being informed that certain persons had been hired by the respondents to ambush and abduct her, the petitioner changed her way and went to Wan Radha Ram from where she boarded a bus and reached Okara, but when she reached the Court at 9‑30 a. m. she was informed that her complaint had been dismissed and the respon dents had been acquitted. It was submitted that offences under sec tion 366/376, P. P. C. were cognizable offences and under the second proviso to section 247, Cr. P. C. the Magistrate could not acquit the respondents. It was also submitted that section 249‑A, Cr. P. C. could not be pressed into service as on none of the last three dates of hearing the case was fixed for evidence and the question therefore that the petitioner did not produce the evidence or had no evidence to support the charge was groundless. Under these circumstances, it was submitted that leave to appeal be grant ed against the order of acquittal dated 14th July, 1979.

The learned counsel for the respondents 1 to 5 who strongly opposed the petition submitted that section 244 read with section 247, Cr. P. C. gave complete power to the Magistrate to acquit the accused if the complainant remained absent and that the present petition under sec tion 417 (2), Cr. P. C. was incompetent.

6. Having heard the able arguments of the learned counsel for the petitioner and the respondents 1 to 5 in respect of P. S. L. A. No. 45 of 1979, leave was granted and with the consent of the learned counsel for the respondents, the petition was converted into appeal and the arguments were also heard in appeal. The office will now give a number to this appeal and this order will therefore dispose of both the petition and the appeal.

7. It is clear from the last three orders of the learned trial Court that at no stage the case was set down for evidence: Two applications, one filed on behalf of the petitioner/appellant and the other on behalf of the respondents had to be argued. On 2nd July, 1979 the counsel for the complainant was present and the applications should have been dis posed of. In any case, at worst on 14th July, 1979 the Court could have dismissed the complainant's application and set down the case for evidence and given a last chance to the complainant to produce evidence. Earlier, whether date was fixed for evidence, the respondents had sought an ad journment by filing an application for, securing copies of some preliminary evidence. It these circumstances and in view of the second proviso to section 247, Cr. P. C. the Magistrate could not have acquitted the respon dents merely in view of the absence of the petitioner. As regards the application of section 249‑A, Cr. P. C. by the Magistrate, the same was erroneously applied. In the first instance, the accusation against the respondents was not groundless as the statement of the petitioner and the preliminary evidence recorded on her behalf had made out a prima facie case against the respondents. Since the case had not dragged on for any number of hearings due to the non‑production of evidence by the petitioner it could not be said that she had either no evidence in support of her complaint or that she was not interested in the prosecution of the respon dents. The case was also not fixed for evidence on 21st June, 1979, 2nd July, 1979 and 14th July, 1979. In these circumstances, the order of the learned Magistrate acquitting the accused respondents under section 249‑A, Cr. P. C. has been passed on erroneous grounds.

8. For the foregoing reasons, this appeal is accepted and the case is remanded back to the learned Magistrate for trial from the point at which he acquitted the respondents. He shall now first dispose of the two pending applications filed on behalf of the petitioner and the respondents and thereafter fix a date for the recording of the petitioner's evidence and continue the case from that point onwards. This case will now be laid before some other competent Magistrate.

Appeal accepted. Case remanded.

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