2014 P Cr (PLP)

FAROOQ ALI CHANNA, J.

The appellant in this Criminal Appeal has challenged the order dated 6-7-2011 passed by learned IIIrd Civil Judge and Judicial Magistrate, Karachi South acquitting the respondent Mst. Humaira Ashraf under section 249-A, Cr.P.C. in Cr. Case No.1413 of 2011 culminated F.I.R. No.52 of 2011, Police Station Clifton under sections 420/489-F, P.P.C. lodged by appellant Muhammad Zafar Ali Khan that the respondent Humaira Ashraf and her husband Najeeb Ashraf were looking after all affairs of his business at his Islamabad based office, he used to send goods as per their demand. In the month of December, 2009 he came to know that the above named persons have cheated him and sold his goods in bulk at low price, usurped the said amount and caused losses worth Rs, 22,23,55,255 to his company. On verification of accounts Najeeb Ashraf admitted the cheating and promised to pay all amount, he delivered two cheques amounting to Rs. 3 crore of Askari Bank, Clifton Branch to appellant/complainant which on presentation were dishonoured, hence he lodged F.I.R.

2. The I.O. after investigation submitted challan, the trial Court took the cognizance, during pendency of trial the respondent Humaira Ashraf filed application under section 249-A, Cr.P.C. which was allowed and she was acquitted.

3. The trial Court while acquitting the respondent under section 249-A, Cr.P.C has observed that the prosecution has failed to bring on record anything showing the involvement of respondent in the alleged cheating. The trial Court has emphasized the statement under section 161, Cr.P.C of appellant wherein it is stated that the name of respondent Humaira Ashraf was given by him mistakenly, he has no proof against her nor he intends to proceed against her. Learned Counsel for the appellant during arguments has disowned such statement under section 161, Cr.P.C., and has contended that the appellant has not made such statement exonerating the respondent Humaira Ashraf. Learned Counsel has further contended that the appellant is still pursuing his case against all the accused nominated in F.I.R. including Mst. Humaira Ashraf. Conversely learned Counsel for the respondent has contended that absolutely there is no evidence collected by the Investigating Officer during investigation to show the involvement of respondent, she being lady has no concern with the business of her husband Najeeb Ashraf this fact was in the knowledge of appellant, however he has nominated Mst. Humaira Ashraf in order to develop undue pressure upon her husband Najeeb Ashraf and when he realized his mistake, he recorded his statement before I.O exonerating the respondent, in these circumstances if the entire evidence collected during investigation is led before the trial Court, there would be no probability of the respondent being convicted and further proceedings against respondent would be an abuse of law. Learned A.P.G. in addition to the arguments advanced by the learned Counsel for the respondent has contended that the impugned order is proper and in accordance with law, it does not suffer from any illegality or infirmity.

4. There is no cavil to the powers conferred upon a Judicial Magistrate under section 249-A, Cr.P.C. to acquit the accused at any stage of proceedings if the trial Court is of the opinion that the charge against the accused is groundless or evidence for recording conviction is insufficient. However in a contested case the Courts have no free hand to acquit the accused at any stage of the case when complainant is pursuing his case and is ready to give his evidence to pour himself to cross-examination by accused or his advocate, in such case acquittal of accused under section 249-A, Cr.P.C., without providing opportunity to complainant to record evidence, would not be sustainable in law.

5. In this case the trial Court has acquitted the respondent relying upon the statement under section 161, Cr.P.C. of appellant wherein he has exonerated the respondent, such statement is disowned by the appellant as such the proper course for trial Court would be to record the evidence of appellant/complainant and the Investigating Officer, with an opportunity of cross-examination to the respondent/accused so as to ascertain the sanctity of statement under section 161, Cr.P.C. of appellant who in his F.I.R. has alleged specifically against the respondent Mst. Humaira Ashraf that she and her husband Najeeb Ashraf were looking after his business affairs.

6. In view of above circumstances, the impugned order of acquitting the respondent Mst. Humaira Ashraf under section 249-A, Cr.P.C. is set aside. The trial Court is directed to record evidence of appellant and Investigating Officer, thereafter the respondent/accused Mst. Humaira Ashraf would be at liberty to repeat application under section 249-A, Cr.P.C, the trial Court shall decide the same strictly on merits keeping in view the evidence brought on record. However the respondent being lady is said to residing at Islamabad, her appearance before the trial Court is dispensed with in terms of section 205, Cr.P.C. till her personal appearance is required by the trial Court. In view of above the Criminal Acquittal appeal is allowed. MWA/M-107/K Appeal allowed.