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Criminal Appeal No. 564 of 1984, decided on 20th May, 1985.

‑‑‑Ss. 247 & 249‑A‑‑Complaint dismissed for non‑appearance of appellant‑complainant‑‑Accused acquitted‑‑Respondents accused having appeared on eighty dates‑‑Only four witnesses recorded on two dates of hearing‑‑Appellant nor his counsel, nor any witness appearing when case was called on date fixed for recording of evidence‑‑No affidavit of any of his two counsel having been filed in support of his contention‑ Impugned order having been passed under S. 247, Cr.P.C. held, could also be justified under S. 249‑A, Cr.P.C. because continuous non‑production of evidence could lead to inference that there was no probability of accused being convicted of any offence‑‑Appeal was, therefore, dismissed.

Raja Afrasiab Khan for Appellant.

Muhammad Saeed Bhatti for Respondent No. 1.

Ahmad Gul Khan for Respondent No. 2.

Ch. Muhammad Tufail Basra for Respondent No. 3.

Malik Muhammad Yousaf for the State.

Date of hearing: 20th May, 1985.

This is an appeal by Muhammad Munir‑ud‑Din Bhatti against the acquittal of Ashfaq Mirza and two others, respondents Nos. 1 to 3, of a charge under section 500, P.P.C.

2. The brief facts of the case are that Muhammad Munir‑ud‑Din Bhatti the present appellant, had filed a private complaint against Ashfaq Mirza, ex‑Councillor, and others, the present respondents Nos. 1 to 3, on the basis that in an inquiry report given by the ex‑Councillor, he and the other respondents had defamed him. After preliminary evidence was recorded, the three respondents were summoned on 21‑2‑1981 to face their trial under section 500, P.P.C. Thereafter, the case proceeded through eighty hearings, when, on 10‑7‑1984, the appellant and his witnesses being absent, the complaint was dismissed and the respondents were acquitted.

3. I have heard the arguments of the learned counsel for the appellant, the respondents and the State and have also perused the record. There cannot be any doubt that the respondents had to attend almost eighty hearings in the case. Four witnesses were examined on two dates of hearing, 10‑7‑1984 was fixed for the recording of the A evidence of the appellant‑complainant. When the case was called, neither the appellant‑complainant nor his Advocate nor any of the witnesses were present, with the result that the complaint was dismissed and the accused were acquitted. On behalf of the appellant‑complainant it is alleged that he, with his Advocate Mr. Safdar Hussain, appeared before the trial Magistrate on 10‑7‑1984 that the Magistrate asked the appellant complainant and his counsel to wait for an hour, because he was going for an urgent work that both then waited outside the Court Room for the Magistrate to appear, that at 11.30 a.m. the Reader of the Magistrate informed the appellant‑complainant and his counsel that the Magistrate would sit after 1.00 p.m., whereupon both of them left and that when they appeared in the Court at 1.00 p.m., they found that the case had been dismissed in default and the respondents had been acquitted. Surprisingly, the name of Mr. Safdar Hussain, Advocate, does not appear anywhere on the trial. Court record. The name of Mr. Safdar Hussain, Advocate, appears for the first time in the restoration petition filed by the appellant‑complainant before Sardar Ghulam Farid, Additional Sessions Judge on 11‑7‑1984 and in the revision petition filed before the Sessions Judge on the same date. There are no affidavits of M. Iqbal and Mr. H. A. Bhatti, learned counsel for the appellant‑complainant, whose powers of attorney stand on the trial Court record Mr Safdar Hussain, Advocate, appears to have come out of the blue to support the appellant‑complainant's petitions before the Sessions. Otherwise, he does not figure in the trial Court proceedings at any stage on or before 10‑7‑1984. Though the impugned order appears to have been passed under section 247, Cr.P.C., it can also be justified under section 249‑A, Cr.P.C. for continuous non‑production of evidence can lead to the inference that there is no probability of the accused being convicted for any offence, which would entitle them to secure an acquittal from the Court. Since the appellant‑complainant had been delaying the case and the respondents had attended almost eighty hearings I do not consider this to be a fit case in which I should interfere.

3. For the foregoing reasons, there being no merit in this appeal, the same is dismissed.

S.A. Appeal dismissed.

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