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Criminal Appeal No.156 of 1980, decided on 13th January, 1983.

---Ss. 417 & 249-A--Penal Code (XLV of 1860), S.326/34-- Appeal against acquittal--Magistrate passing short order of acquittal under section 249-A, Cr.P.C. without touching evidence of witnesses already examined or medical evidence which could have proved injuries--Factum of injuries on person of complainant supported by witnesses--Magistrate showing undue haste in acquitting accused--Acquittal, held, unwarranted and set aside and case remanded for rehearing.--[Appeal against accquittal].

---S.249-A-- Penal Code (XLV of 1860), S.326/34-- Charge, if groundless and no probability of accused being convicted for any offence existing, Magistrate, held, may acquit accused after recording reasons.

Rashid Tariq for the State.

Abdul Khaliq for Respondents.

Date of hearing: 13th January, 1983.

-- This is criminal acquittal appeal filed against the judgment recorded by the learned Magistrate First Class Garden and Nabi Bux, Karachi on 10th December, 1979 whereby he has acquitted the two respondents Mahmood Ashraf Khan and Wazir Ashraf Khan under section 249-A, Cr.P.C.

2. Briefly the facts on which the two respondents were prosecuted are that the complainant Syed Sharif Hussain was working as a mechanic at the shop of one Sultan Ahmed (Pakistan Electronics Centre), situated near Aurangzeb Park, M.A.Jinnah Road, Karachi. Some time before the incident the two respondents Mahmood Ashraf Khan and' Wazir Ashraf Khan had come to the shop and gave their radiogram for repairs. On 22nd November, 1973 both the respondents visited the shop in question and expressed a desire to take away their radio-gram under any circumstances and without effecting the payment for the repair would carried out. The complainant refused to accede to the demand of the respondents. This infuriated the respondents who attacked the complainant and caused him injuries with a sharp-edged glass bottle and complainant sustained injuries on his left ear. It was also alleged that I, was assaulted by means of Danda. The radiogram was taken away forcibly without the payment of the repair work.

3. The police registered the case, inspected the place of occurrence and secured the broken pieces of bottle which were lying at the Vardat and the same were found to be blood-stained. The complainant was sent to the medical officer who issued certificate. The respondents were challaned subsequently under section 326/34, P.P.C.

4. The learned Magistrate had examined as many as 5 witnesses and the case was put off to 10th December, 1979 for examining the rest of the witnesses. On this date the learned Magistrate passed the impugned order under section 249-A, Cr.P.C.

5. The learned counsel for the State has made submissions that as many as 5 prosecution witnesses had supported materially and substantially the prosecution version. The learned Magistrate thereupon passed the impugned order without appreciating the evidence of the witnesses already examined. His further submission was that the learned Magistrate did not discuss the evidence in his order of acquittal or assign cogent reasons for discarding the prosecution evidence.

6. Mr. Qalbe I. Shah the learned counsel for the respondents was absent while the respondents were personally present. 7. In this case the learned Magistrate has passed a very short order r mainly basing it on the fact that only four witnesses were examined and that a long period of trial for six years is taken and hence no fruitful result will be achieved by adjourning the case. He, therefore, acquitted the respondents under section 249-A, Cr.P.C. He has not touched the evidence of those witnesses who were already examined nor did he bring on record the evidence of the medical officer. If the medical officer who had issued the certificate in respect of injured, was not traceable yet he A could have proved the injuries on the person of the complainant by examining some other medical officer who was conversant with the hand writing and signature of the said medical officer. This is the main lacuna in the impugned order. It was a serious case of injuries and the fact um of injuries on the person of complainant was to be proved and the comp lainant himself was examined supported by the witnesses. In view of the witnesses having supported the complainant, the learned Magistrate had shown unnecessary haste in acquitting the respondents.

8. Section 249-A, Cr.P.C. reads as follows:

"Nothing in this Chapter shall be deemed to prevent a 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, he considers that the charge is groundless or that there is no possibility of the accused being convicted of any offence."

9. What is, contemplated by section 249-A, Cr.P.C. is that if the charge is groundless or that there is no probability of the accused being convicted for any offence, the Magistrate may acquit the accused after recording the reasons. We find that the evidence available on record and if the medical officer is examined, the injuries on the person of complainant shall be proved and as such the order of acquittal is un warranted. We, therefore, conclude that the case against the respondents be reheard. We accordingly set aside the impugned order and remand the case back to the trial Court for completing the remaining evidence and then pass a judicial order on merits within six months. The two respondents are present. They are directed to appear before the trial Court and submit fresh sureties in the trial Court. R 8 Ps be sent immediately to the trial Court.

M . Y . H . Appeal against acquittal allowed.

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