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Criminal Miscellaneous Application No. 1714 of 1986, decided on 22nd April, 1987.
‑‑‑Ss. 249‑A & 561‑A‑‑Penal Code (XLV of 1860), S. 448‑‑Exercise of jurisdiction‑‑Magistrate ordering acquittal under S. 249‑A, Cr.P.C.‑ Complainant filing revision before Sessions Judge‑‑Order of acquittal set aside in revision‑‑Order of acquittal by Magistrate, passed without hearing prosecutor and not based on proper appreciation of evidence‑ Evidence not discussed in said order‑‑Complainant and witnesses not examined‑‑Order of Magistrate, held, was rightly set aside by Sessions Judge‑‑Jurisdiction under S. 561‑A, not exercised in circumstances.
Faizanul Haq for Petitioner.
Imran Ahmad for Respondent No. 1.
Jalaluddin Baluch for the State.
Date of hearing: 22nd April, 1987.
This criminal miscellaneous application under section 561‑A, Cr.P.C. has been filed to challenge the judgment, dated 31st August, 1986 of IVth Additional Sessions Judge, Karachi (South) in Criminal Revision No. 40 of 1985.
The relevant facts are that case against applicant Muhammad Saleem and two others under section 448, P.P.C. was challaned in the Court of Additional City Magistrate VII, Karachi who by an order, dated 8th July, 1984 acquitted the accused under section 249‑A, Cr.P.C. Respondent Muhammad Ismail who is complainant challenged the order of the Additional City Magistrate by way of revision. The learned Additional Sessions Judge set aside the acquittal order of the Magistrate and directed him to examine all the prosecution witnesses and decide the case on merits. Being aggrieved with the above order this criminal miscellaneous application has been filed.
Advocate for the applicant Mr. Faizanul Haq has argued that acquittal appeal has not been filed, therefore, learned Sessions Judge was not competent to reverse the findings of the Magistrate.
Mr. Imran Ahmed appearing for the respondent No. I argued that applicant was not acquitted on the merits and even complainant was not examined, therefore, the learned Additional Sessions Judge has rightly set aside the order passed under section 249‑A, Cr.P.C. He has referred to the cases reported in 1984 P Cr. L J 198 and 1981 P Cr. L J 458.
Mr. Jalaluddin Baloch appearing for the State does not support this criminal miscellaneous application.
From the order of the Additional City Magistrate, dated 8th July, 1984 it appears that Magistrate has passed an order under section 249‑A, Cr.P.C. without hearing the prosecutor. Section 249‑A, Cr.P.C. reads as under:‑
"249. 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 probability of the accused being convicted of any offence."
According to the above provisions the Court before passing the order has to hear the prosecutor as well as accused. The acquittal has not been based on the proper appreciation of evidence. According to the order, the Magistrate has stated as under:‑
"Case has linger for more than 3 years and complainant has not been examined and the witnesses of the prosecution have not supported the case of complainant. The order further goes to say that advocate for the accused has also made an application under section 249‑A, Cr.P.C. and had vehemently argued that charges against the accused are groundless:"
it is very clear that the P.S.I. was not given any notice or heard before passing the order under section 249‑A, Cr.P.C. The Magistrate has also not discussed the evidence of the witness in the impugned order. Complainant and other witnesses were not examined. In these circumstances I am of the view that learned Additional Sessions Judge has rightly set aside the order of the Magistrate. I do not find any error in judgment as such this application is dismissed.
S.A./M‑105/K Application dismissed.
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