2012 P Cr. L J 507
[Lahore]
Before Abdus Sattar Asghar, J
ZAFAR IQBAL---Appellant
Versus
THE STATE and 5 others---Respondents
Criminal Appeal No. 444 treated as Criminal Revision No.225 of 2011/BWP of 2011, decided on 21st December, 2011.
(a) Criminal Procedure Code (V of 1898)---
----Ss. 417(2-A), 245, 249-A, 423 & 439-A---Penal Code (XLV of 1860), Ss.337-A(ii)/337-L(2)/34---Causing Shajjah-i-Mudihah and other hurt---Appeal against acquittal---Conversion of appeal into revision petition---Scope---Order of acquittal under S.249-A, Cr.P.C., was not appealable in terms of S.417, Cr.P.C. and could be assailed through revision under S.439-A, Cr.P.C.---Remarkable difference existed between the orders of acquittal passed under S.245, Cr.P.C. and under S.249-A, Cr.P.C.---Order of acquittal passed under S.245, Cr.P.C. would be appealable under S.417, Cr.P.C. as the Appellate Court could upset the order of acquittal under S.423, Cr.P.C. and pass the order of conviction accordingly---In case of acquittal under S.249-A, Cr.P.C., a finding of acquittal could not be converted into conviction in the absence of full evidence---In the present case, acquittal was granted under S.249-A, Cr.P.C. merely on the ground that prosecution had not produced any evidence showing lack of interest---Appeal being incompetent, was converted into revision petition in terms of S.439-A, Cr.P.C., in circumstances.
(b) Criminal Procedure Code (V of 1898)---
----Ss. 417, 249-A & 439-A--- Penal Code (XLV of 1860), Ss.337-A(ii)/337-L(2)/34--- Causing Shajjah-i-Mudihah and other hurt---Appeal/revision petition against acquittal---Before passing an order of acquittal in terms of S.249-A, Cr.P.C., after providing opportunity of hearing to accused and the Prosecutor, the Trial Magistrate was bound to apply his judicious mind on vital ingredients i.e. for reason to be recorded he considered that the charge was groundless or that no probability existed of accused being convicted of any offence---For that purpose he was obliged to look into the material available on record---Impugned order of acquittal had shown that acquittal in favour of accused was granted merely on the ground that prosecution had not been able to produce any evidence showing lack of interest---Delay in producing evidence by the prosecution, ipso facto was no ground to invoke the authority under S.249-A, Cr.P.C. and that alone could not be a valid ground for acquittal of accused under S.249-A, Cr.P.C.---Impugned order did not reveal that prosecutor was provided opportunity of hearing---Impugned order also failed to mention that the charge was groundless; or there was no probability of accused being convicted in any offence---Record had further revealed that since 18-2-2011 uptill 18-7-2011, the Trial Court had been passing the order to summon the witnesses through their bailable and non-bailable warrants of arrest---Trial Court had failed to record any result of warrants of arrest of the witnesses on any of the date of hearing---Interim orders also failed to refer any report of any process server upon the warrants of arrest---No reason was assigned in the said interim order for non-recording the statement of prosecution witnesses---Trial Court had not been able to take effective measures to procure the attendance of prosecution witnesses as provided in Chapter VI of the Criminal Procedure Code, 1898---Impugned order of acquittal under S.249-A, Cr.P.C., which was illegal, based on unlawful exercise of authority, was not tenable in the eye of law---Revision petition was allowed and impugned order was set aside, in circumstances.
Muhammad Ahmed Baloch for Appellant.
Ch. Asghar Ali Gill, D.P.-G. for the State.
Mian Noor Ali Watto for Respondents Nos. 2 to 5.
ORDER
ABDUS SATTAR ASGHAR, J.---Through this appeal under section 417, Cr.P.C. Zafar Iqbal appellant/complainant of case F.I.R. No.219 of 2010, under section 337-A(ii)/337-L(2)/34, P.P.C., Police Station Mandi Sadiq Gunj has impugned the order dated 13-10-2011 passed by learned Judicial Magistrate Ist Class Minchinabad whereby respondents Nos.2 to 6 accused of the above noted F.I.R. have been acquitted under section 249-A, Cr.P.C.
2. As per F.I.R., lodged on the statement of complainant allegation against the accused/respondents Nos.2 to 6 are that they while armed with deadly weapons like hatchets; and sotas caused multiple injuries on the various parts of body of the complainant.
3. In response to pre-admission notice learned counsel for respondents Nos.2 to 5 is in attendance and accepts the service by filing power of attorney.
4. It is argued by learned counsel for the appellant that the accused/respondents were found guilty in the police investigation and challaned under section 173, Cr.P.C. in the offences under section 337-A(ii)/337-L(2)/34, P.P.C.; that the injuries attributed to the respondents/accused have been duly verified by MLC No.134 of 2010 of the complainant; that charge was framed by the learned trial Court on 22-1-2011; that on 28-7-2011 complainant's witness namely Muhammad Tahir was present in the Court when accused lodged an application under section 249-A, Cr.P.C.; that the learned trial court instead of recording the statement of Muhammad Tahir P.W. adjourned the case for 7-9-2011 for arguments on the application under section 249-A, Cr.P.C. and prosecution evidence; that on 7-9-2011 learned trial Court again adjourned the case for prosecution evidence to 13-10-2011 and on the said date acquitted the accused under section 249-A, Cr.P.C. in his absence.
5. Learned counsel for respondents has argued that since framing of charge on 22-1-2011 the prosecution was provided as many as seven opportunities to produce the evidence but miserably failed to bring the witnesses, therefore, learned trial Court has rightly acquitted the accused in terms of section 249-A, Cr.P.C.
6. I have given patient hearing to learned counsel for the parties, learned DPG for the State and gone through the record.
7. At the outset it is pertinent to mention that an order of acquittal under section 249-A, Cr.P.C. is not appealable in terms of section 417, Cr.P.C. However, it can be assailed through revision under section 439-A, Cr.P.C. There is a remarkable difference between the orders of acquittal passed under section 245, Cr.P.C. and under section 249-A, Cr.P.C. An order of acquittal passed under section 245, Cr.P.C. would be appealable under section 417, Cr.P.C. as the Appellate Court can upset the order of acquittal under section 423, Cr.P.C. and pass the order of conviction accordingly. Whereas, in a case of acquittal under section 249-A, Cr.P.C. a finding of acquittal cannot be converted into conviction in the absence of full evidence In this case acquittal is granted under section 249-A, Cr.P.C. merely on the ground that prosecution has not produced any evidence showing lack of interest, therefore, instant appeal being incompetent is converted into criminal revision petition in terms of section 439-A, Cr.P.C. Office is directed to number it as criminal revision.
8. At this stage I would like to reproduce the provision of section 249-A, Cr.P.C,, which reads below:--
"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."
9. It is pertinent to mention that before passing an order of acquittal in terms of section 249-A, Cr.P.C. after providing opportunity of hearing to the accused and the Prosecutor the learned trial Magistrate is bound to apply his judicious mind on vital ingredients i.e. 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. For this purpose he is obliged to look into the material available on the record.
10. Perusal of the impugned order dated 13-10-2011 transpires that acquittal in favour of the accused is granted merely on the ground that prosecution has not been able to produce any evidence showing lack of interest. Delay in producing evidence by the prosecution ipso facto is no ground to invoke the authority under section 249-A, Cr.P.C. Therefore, it alone could not be a valid ground for acquittal of the accused under section 249-A, Cr.P.C.
11. Impugned order does not reveal that Prosecutor was provided opportunity of hearing. Impugned order also fails to mention that the charge is groundless or there is no probability of accused being convicted in any offence. Perusal of record further reveals that since 18-2-2011 uptill 18-7-2011 the learned trial Court has been passing the order to summon the witnesses through their bailable and non-bailable warrants of arrest. However, learned trial Court miserably failed to record any result of warrants of arrest of the witnesses on any of the date of hearing. Interim orders also fail to refer any report of any process server upon the warrants of arrest. It is also evident on the record that on 28-7-2011 Muhammad Tahir P.W. was present in the Court but the learned trial Court did not bother to record his statement. No reason is assigned in the said interim order for non-recording the statement of Muhammad Tahir P.W.
12. Chapter VI of the Criminal Procedure Code 1898 regulates the procedure for processes to compel appearance of any accused, witness or person whose appearance is required by the Court. Sections 68 to 74, Cr.P.C. provide procedure to issue summons. Sections 75 to 86, Cr.P.C. provide procedure for issuance of warrants of arrest and sections 88 and 89, Cr.P.C. provide procedure for proclamation and attachment of property of any person avoiding to appear before the Court. Whereas sections 91 to 93, Cr.P.C. empower the Court to issue warrant in lieu of or in addition to summons to procure appearance of any person required by the Court
13. Perusal of record in this case transpires that the learned trial Court has not been able to take effective measures to procure the attendance of the P.Ws. as provided in Chapter VI of the Criminal Procedure Code, 1898.
14. For the above discussion and reasons I am of the considered view that the impugned order of acquittal under section 249-A, Cr.P.C. is illegal, based on unlawful exercise of authority and thus not tenable in the eye of law, therefore, this revision petition is allowed and the impugned order dated 13-10-2011 is set aside.
15. Before parting with this order keeping in view the delay already caused in the conclusion of the trial, learned trial court is directed to conclude the trial in accordance with law within a period of sixty days after receiving the copy of this order under intimation of Deputy Registrar (J) of this Court. A copy of this order be also sent to the District and Sessions Judge concerned to ensure compliance.
H.B.T./Z-1/L Petition allowed.
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