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Criminal Acquittal Appeal No. 157 and Criminal Miscellaneous No. 1403 of 1985, decided on 11th February, 1987.

‑‑‑S. 249‑A‑‑Penal Code (XLV of 1860), S. 323/341/379/147‑‑Cognizance taken by Magistrate‑‑Complainant examined whereas other witnesses of complainant yet to be examined‑‑Admittedly complainant fully supporting prosecution case nevertheless, Trial Magistrate acquitting accused on ground of delay in filing complaint, without giving complainant further opportunity to prove his case against accused‑‑Delay in filing complaint, held, per se no ground for recording acquittal of accused under S. 249‑A, Cr.P.C. at preliminary stage‑‑Order set aside and case remanded for disposal in accordance with law.

Talmiz S. Burney for Appellant.

Fariduddin for Respondents.

Sanaullah Khan for the State.

Date of hearing: 11th February, 1987.

‑‑This judgment would dispose off the criminal acquittal appeal filed by the appellant against the private respondents and some other accused who have been declared absconders. A private complaint was filed by the complainant S.M. Yaqoob against the private respondents under section 323/341/147/379/34, P.P.C. The prosecution case in brief is that the Estate Officer, Government of Sind allotted two rooms to Industrial Relations Advisors Association for their Bar Room and Library vide Allotment Order, dated 21‑1‑1977. The possession was handed over to the complainant on 31‑1‑1977 but on 24‑ 9‑ 1977 one Muhammad lqbal forcibly occupied the premises by breaking open the locks. It was through intervention of various authorities that the rooms were vacated and the complainant was informed to take over possession. On 5‑2‑1978 at about 10‑30 when the complainant wanted to unlock the rooms the accused persons arrived there and beat them and forcibly took them to the office of the accused Talat Hussain. It is alleged by the complainant that accused caused simple injuries to him and kept him in wrongful confinement. The complainant went to the S.H.O. Artillery Maidan from where lie was sent to civil hospital but police did not take any action. Formal charge was framed against the accused to which they pleaded not guilty.

2. The prosecution examined the complainant/appellant who supported the complaint and deposed that he was assaulted by the accused persons who caused injuries to him and his companions. They were forcibly dragged to the office of Talat Hussain where the complainant and his companions were made to sit against their will. The accused Nos. 2 to 7 forcibly snatched the electric equipment and other articles. Charge was framed on 12‑2‑1983 but before framing of charge an application under section 249‑A was moved by the accused persons on 19‑4‑1980 but that application was rejected by the learned Magistrate. Again on 22‑5‑1985 another application under section 249‑A, Cr.P.C. was moved by the accused. That application was accepted by the learned Magistrate by means of order, dated 21‑8‑1985. It has been observed in the order that the complainant has fully supported the complaint but the accused were acquitted on the ground that the complaint was lodged after two months which is meant that it is afterthought story. It is further stated that the complainant had no concern with the Government rooms nor he has proved regarding himself to be the allottee of the said disputed rooms. On these two grounds the learned Magistrate accepted the application moved under section 249‑A and acquitted the accused.

3. We have heard learned counsel for the appellant, counsel for the private respondents and Mr. Khan Sanaullah learned State counsel. The admitted position is that the cognizance had been taken by the learned Magistrate and thereafter, only complainant has been examined. Other witnesses of the complainant had not been examined. According to the learned Magistrate himself the complainant had supported the prosecution case. It cannot be said that the charge was groundless. The complainant was not given appropriate opportunity to prove the case against the accused persons. The two grounds which prevailed with the learned Magistrate in acquitting the accused are not applicable in this case. Delay per se is no ground for the acquittal of the accused at the preliminary stage. The complainant had given his explanation for lodging the direct complaint. The effect of delay would only be considered after the complaint closes his side. The second ground is also not attracted as the allotment had been made by the Government. In fact the application has not been disposed off on merits. The complainant has to examine his witnesses in support of his assertion, therefore, we accept this appeal and set aside the order of acquittal and remand the case to the learned Magistrate for disposal of the main case within three months. Learned counsel for the appellant/complainant has submitted that he would produce all the witnesses during this period. The appeal is accepted as such.

S.G.D./S‑16/K Appeal allowed.

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