2005 P Cr (PLP)

Ch. Muhammad Akram for Respondents Nos.2 and

3. Muhammad Qasim Khan, A.A.‑G. Date of hearing: 27th April, 2004. Through this appeal under section 417(2‑A), Cr.P.C. read with section 561‑A, Cr.P.C. the appellant seeks setting aside of impugned order, dated 3‑11‑2003 passed by learned Judicial Magistrate Section 30, Chobarah, by which, he had acquitted the accused under section 249‑A, Cr.P.C.

2. Brief facts are that the appellant had got lodged F.I.R. No.203 of 2003, dated 14‑10‑2003 under sections 440/379/148/149, P.P.C. at Police Station Chobara, District Layyah alleging that respondents along with others had trespassed into the land of appellant along with tractor trolley and also started leading in the crop in the fields and on resistance the P.Ws. were threatened with dire consequences. According to the appellant her crop amounting to Rs.20,000 was stolen and remaining was damaged by ploughing. During the investigation respondents Muhammad Ismail and Muhammad Ishaq sons of Nazar Hussain were arrested and they were produced before the Magistrate for physical remand, which was granted but when they were produced on 3‑11‑2003 again they were acquitted of the charge under section 249‑A, Cr.P.C. on the ground that civil litigation was pending between the parties and the possession of the respondents stood established according to Revenue Record.

3. Learned counsel for the appellant contends that the order of acquittal under section 249‑A, Cr.P.C. can only be passed during the pendency of trial and admittedly the trial was not pending in the Court of learned Judicial Magistrate, who has passed the order of acquittal during the investigation, which having been passed without lawful authority is liable to be set aside.

4. Learned A.A.‑G. contends that the order is not maintainable as the provisions of section 249‑A, Cr.P.C. can only be enforced after the submission of report under section 173, Cr.P.C. at trial stage.

5. Learned counsel for the respondents opposes this appeal on the ground that it has been mentioned in section 249; Cr.P.C. that the order of acquittal can be passed at any stage. It is further contended that during the investigation the case having been found false was recommended by the police for cancellation and in this regard cancellation report was also prepared.

6. I have heard the learned counsel for the parties and also perused the record. There is no cavil to the proposition that an accused can be acquitted under section 249‑A, Cr.P.C. at any stage of the case but during the pendency of trial, which initiates after the submission of report under section 173, Cr.P.C. in Court. In this case the case was at the stage of investigation and the respondents were only produced for further remand when they were acquitted of the charge. It was not a stage to exercise powers under section 249‑A, Cr.P.C. Hence, the learned‑trial Court has committed a material irregularity and illegality in passing the impugned acquittal order. Moreover, under section 249‑A, Cr.P.C. the Magistrate is bound to issue notice to the State and this discretion can only be exercised after hearing both the parties, but after the submission of challan in Court. Hence this appeal is accepted, the impugned order of acquittal is set aside and the case is remanded for decision afresh. However, as the learned counsel for respondents has pointed out that the police has also found the case false during the investigation and recommended for cancellation of the same, if any report in this regard is produced before the learned Magistrate, it is directed that he will pass orders thereon in accordance with law without being influenced by this order, which has been passed purely on law point, without discussing merits of the case. H.B.T./S‑245/L Appeal accepted.