2001 PLP 334 (MLD)

Habibur Rasheed for the State. This matter is at Katcha Peshi stage and the learned counsel appearing for the parties have agreed for the final disposal of appeal. This acquittal appeal is filed against the order passed by IIIrd Judicial Magistrate, Karachi Central in Case No. 147 of 1998 (State v. Abdul Aziz and another) arising out of F.I.R. 172 of 1996 of Police Station Nazimabad for offence under section 448/506‑B, P.P.C. read with section 14, E.H.O. The learned counsel for the appellant submits that the incident of this case alleged to have taken place on 10‑4‑1996 and F.I.R. was registered on 16‑5‑1996 and challan was submitted on 5‑8‑1997, wherein the accused were shown as absconders. The proceedings under sections 87 and 88, Cr.P.C. were also taken against absconders/private respondents. The respondents appeared in Court and filed application under section 249‑A, Cr.P.C. which was allowed on 20‑4‑1999, resultantly the accused were acquitted. The learned counsel for the appellant has argued that the accused/respondents were acquitted by the Judicial Magistrate (1) that the challan was submitted after delay of more than 17 days of the registration of F.I.R. and the charge framed against the respondents was groundless. The learned counsel for the appellant submits that the respondents were shown as absconder and therefore, the submission of challan after 17 days of registration of F.I. R. was not fatal to the prosecution and (2) as far as charge being groundless is concerned it is not correct as the charge was not framed at all. According to him the application under section 249‑A, Cr.P.C. was premature. Mr. Habibur Rasheed appearing for the State does not support the impugned order as the same was not properly passed. The charge was not framed and application filed by the private respondents was not maintainable. Mr. Panhwar, Advocate appearing for the private respondents is not able to controvert the submissions made by the learned counsel for the appellant. He only states that the possession of the disputed property has been taken over and civil suit in respect of the disputed property between the appellant and respondent, is pending decision and under such circumstances order passed by the trial Court is legal and proper. I have considered the arguments by the learned counsel for the parties. Admittedly section 249‑A, Cr.P.C. comes in picture when the charge is framed. Section 249‑A, Cr.P.C. reads as under:‑‑ "249‑A. Power of Magistrate to acquit accused at any stage.‑‑ 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 e of the accused being convicted of any offence." In view of the position and the circumstances, this Criminal Acquittal Appeal is allowed and the acquittal order passed by the trial Court is set aside. The trial Court will proceed with the matter in accordance with law. The respondent however, may repeat the application under section 249‑A, Cr.P.C., before the trial Court when the charge is framed or after framing of charge and recording some evidence as may be deemed fit in the circumstances of the case. H.B.T./K‑18/K Appeal allowed.