1999 P Cr (PLP)

BASHARAT AHMAD SHAIKH, J.

The appellants and three pro forma-respondents were challaned in a case under sections 447, 427, 147, 148 and 149 of the Penal Code on 12th of September, 1991. The accused persons filed an application on 27th January, 1992 under section 249-A of the Code of Criminal Procedure for their acquittal on the basis that the case was groundless and there was no probability of conviction. The trial Court did not decide this application. After more than six years the accused persons moved the High Court under section 561-A of the Code of Criminal Procedure for quashment, of the case which has been dismissed. The High Court agreeing with the contention raised by the appellants, held that the trial Court had given undue latitude to the prosecution in connection with production of evidence but also took notice of the fact that the accused persons were also responsible for the delay. While dismissing the application, the High Court directed the trial Court to complete the trial as early as possible. Ch. Muhammad Riaz Alam, the learned counsel for the appellants, vehemently contended that the delay attributed to the accused persons is insubstantial and, in any case, was normal part of judicial proceedings. It was contended by the learned counsel that the High Court has wrongly stated that evidence of three prosecution witnesses was not challenged before the High Court. He submitted that it was argued before the High Court that the evidence of the prosecution witnesses does not make out a case for conviction. The same arguments have been reiterated before this Court. Ch. Muhammad Mushtaq, Additional Advocate-General, appeared for the State and opposed the appeal. As is well-settled that section 561-A of the Code of Criminal Procedure is applicable where there is no specific provision. If another provision is available, the Courts do not pass an order under section 561-A. This rule is not inflexible and can be departed from if there are special circumstances in a particular case. Section 249-A of the Code of Criminal Procedure was made part of Code of Criminal Procedure to authorise a Magistrate to acquit an accused person at any stage if the charge is groundless. An application under this provision of law was moved by the accused persons on 27th January, 1992 but this application was rejected on 26th July, 1992. The proper course for the appellants was to press the aforesaid application or make a fresh application to the trial Court that the charge was groundless or that there was no probability of the accused to be convicted and then the appellants could move the High Court in continuation thereof. The appellants have now moved the High Court but it was after five years which is not in continuation of the application under section 249-A. In these circumstances, there is no justification for setting aside the order passed by the High Court. Direction given by the High Court to the trial Court to complete the trial as early as possible meets the ends of justice in the present case. If no progress is made the appellants may move a fresh application under section 249-A or may move an application before the High Court that its order has been disobeyed. With these observations the appeal is dismissed. N.H.Q./310/SC (AJ&K)????????????????????????????????????????????????????????????????????? Appeal dismissed.