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Criminal Miscellaneous No. 343-Q of 1977, decided on 10th January, 1978

-- Ss. 561-A & 249-A - Penal Code (XLV of 1860), S. 392 Quashing of proceedings - Proceedings under S. 392, P. P. C. pending in Magistrate's Court-Power to acquit accused at any stage of case open to Magistrate-Accused directed first to approach Magistrate for the purpose before coming to High Court for quashing of proceedings.

Ilyas Komal for Petitioners.

Ch. Muhammad Saeed for Respondents.

Kh. Muhammad Ashgar for the State.

Date of hearing : 18th October, 1977.

Asif Mahmood petitioner, by means of this petition under sec tion 561-A, Cr. P. C., seeks quashment of the proceedings under section 392, P. P. C., pending against him and respondents Nos. 1 to 4 in the Court of Mr. Shaukat Ali Chaudhry, Magistrate 1st Class, Lahore.

Petitioners and respondents Nos. 1 to 4 are accused in case F. I. R. No. 190, which was lodged by Syed Muhammad Javed Tahir at Police Station Tibbi, Lahore, on 20th March, 1975. Respondent No. 1 is an absconder ; remaining accused are on bail.

2. The prosecution case is that on 20th March, 1975 Syed Muhammad Junaid Tahir alongwith his brother Syed Muhammad Javed Tahir was going to Badamibagh on a motorcycle. Syed Muhammad Javed Tahir had a bag which contained Rs. 13,000 in cash, Cheque Book, a Diary and some other papers. When they reached Darbar Sher Shah Wali, a Toyota car No. KAK-297, came very close to them from the left side man sitting on the rear seat tried to snatch away the bag but he did not succeed. The car then hit the motor-cycle and both the brothers fell down. Then all of a sudden two persons came out of the car from the back seat, took away the bag and drove off. The complainant did not mention the names of the criminals in the first information report but gave their full description.

3. The petitioner has filed this application for quashment, inter alia, on the following grounds. That neither the petitioner nor his co-accused were named in the first information report ; no identification parade was held ; the alleged recovery witnesses, namely, Rehmat Ali and Ghulam Muhammad did not support the prosecution case ; that the entire material evidence had been recorded but that does not incriminate the petitioners hence it is a case of no-evidence. In such circumstances, if the proceedings are allowed to continue then it would amount to an abuse of the process of the Court.

4. As I had called for the record, learned counsel for the petitioner took me through the evidence and laid great emphasis on the fact that there is not an iota of evidence to connect the petitioner with the alleged crime and whatever little evidence is yet to be recorded that would not in any way improve the prosecution case.

I have considered the points raised by the learned counsel for the petitioner but I am not inclined to give any specific finding on those, the reason being that it is now open to the Magistrate to acquit an accused at' any stage. This power has recently been given to the Magistrate by insertion of section 249-A of the Cr. P. C. which reads as follows :-

"Power of Magistrate to acquit at any stage.-Nothing in this Chapter shall be deemed to prevent the Magistrate from acquitting an accused at any stage of the case if after hearing the prosecutor and the accused and for reasons to be recorded, there is no probability of the accused being convicted of any offence."

Although when this petition was filed the aforesaid provision of law had not come into force but now that it is operative, I think it will be more appropriate if the petitioner first approaches the Magistrate. There he shall be entitled to raise all these points which the learned Magistrate shall dispose of in accordance with law. With these observations this petition is disposed of. The record of the lower Court be returned forthwith.

M. Y. H. Petition disposed of.

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