1999 P Cr (PLP)

‑‑‑‑Ss. 249, 249‑A & 561‑A‑‑‑Penal Code (XLV of 1860), Ss.302, 324 & 34‑‑ Keeping the proceedings in abeyance‑‑‑Evidence of eight formal witnesses was recorded by Trial Court‑‑‑Complainant and an eye‑witness were not available as. they had absconded in some other murder case‑‑‑Application under S.249‑A, Cr.P.C. for acquittal of the accused persons were rejected by Trial Court and proceedings were kept in abeyance‑‑‑Validity‑‑‑Adjudication in a murder case could only be made after examining the ocular witnesses who were not available‑‑‑Trial Court, thus, could not pass any order inder S.249‑A, Cr.P.C. which entitled acquittal of the accused persons‑‑‑Safest course available with the Trial Court, therefore, was to keep the proceedings in abeyance. Khawaja Muhammad Khan for Petitioners. Petitioners, Qadeem Shah and Naushad, have preferred the present petition under section 561‑A, Cr.P.C. against the order of the learned Judge, Special Court, Mardan whereby the prayer of the accused‑petitioners under section 249‑A, Cr.P.C. was turned down and instead proceedings against them in case F.I.R. No.578, dated 9‑6‑1994 for offences under section 302/324/34, P.P.C. of Police Station "B" Division, Mardan were stopped under section 249, Cr.P.C.

2. The aforementioned case was, pending trial in the Court of Sessions Judge, Mardan. Challan in the case was submitted, formal charge was framed to which the accused did not plead guilty and claimed trial. The trial Court examined 8 prosecution witnesses in the case but the testimonies of the ocular witnesses namely, Gul Sher and Hazrat Hussain, could not be recorded as they were declared as proclaimed offenders in another murder case registered against them vide F.I.R. No.1694, dated 30‑12‑1996. Since the aforementioned witnesses could not be made available by the prosecution, therefore, the petitioners moved an application under section 249‑A, Cr.P.C. The State resisted the aforementioned petition, the learned Special Judge/Sessions Judge, Mardan was of the opinion that the case before him was a murder case in which a correct decision can only be arrived, on the basis of the testimonies of the complainant and the eye‑witnesses mentioned in the report. The learned Judge was of the view that upon the evidence of the formal witnesses he cannot exercise jurisdiction under section 249‑A, Cr.P.C. as he could not appreciate the evidence with regard to the guilt or innocence of the accused. He, therefore, passed the impugned order by keeping the proceedings in abeyance and directed that Qadeem Shah petitioner shall remain on bail on the same bail bonds executed already by him while Naushad accused was directed to furnish bail bonds in the sum of Rs.2,00,000 with two sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate with a direction that both the petitioners were bound to appear in Court whenever summoned. The case property and record were directed to be kept in safe custody till the final decision.

3. I have heard the learned counsel for the petitioner at great length.

4. It is a murder case in which the adjudication can only be made after examining the ocular witnesses. Since the two ocular witnesses are not available at the moment, therefore, the learned Special Judge could not pass any order under section 249‑A, Cr.P.C. which entails acquittal of the accused. The only safest remedy available to the Special Judge was to pass the impugned order. I; therefore, see no merit in the petition and the same is dismissed in limine. Q.M.H./M.A.K./218/P Petition dismissed.