1992 P Cr (PLP)

(iii) That the Court ignored the fact that the complainant was in possession of the land since 1980, as this fact was satisfied by the Sub-Judge, who also happened to be a Magistrate and member of the trial Court. The above-mentioned objections were emphasised by the learned Counsel for the appellant with reference to 1976 P Cr. L J 40, 1990 P Cr. L J 113 and 1980 P Cr. L J

191. The contentions were opposed by the learned defence Counsel.

2. A perusal of the record reflects that the alleged incident took place on November 1, 1981. It relates to land comprising survey number

253. According to prosecution, the appellant was in possession of the land as a tenant on behalf of Mst. Nazira Begum, one of the owners. The accused-respondents made trespass in the land by assaulting on the complainant and inflicted injuries on him by pelting stones. Thus, they were found liable on the aforesaid charges. The trial Court acquitted the accused as prima facie no case was made out against them. It was held that the report was made after considerable delay. Moreover, the accusation was not well established to result in conviction of the accused.

3. The provisions of section 249-A, Cr.P.C. postulate that Magistrate is not prevented from acquitting an accused at any stage of the case if: (i) after hearing the prosecutor and the accused, for reasons to be recorded, he considers that the charge is groundless; or (ii) there is no probability of the accused being convicted of any offence. Chapter XX of the Criminal Procedure Code, which includes the provisions of section 249-A, steals with the commencement of proceedings before the Court. Thus, reference is made to the provisions relating to trial of cases under this Chapter. The legislature introduced the provisions of section 249-A by an amendment, to ensure speedy trial of criminal cases. Ordinarily, when Magistrate takes cognizance of an offence, he is enjoined upon to hold trial in the case and to decide it in the manner of acquittal or conviction. Thus, the Magistrate has to complete the trial by following the rules of procedure. The rules relating to trial were inflexible as the trial could not be dropped on either of the grounds described in section 249-A unless it was finally concluded. As the procedure laid down in the Chapter was deemed inflexible and severe even in cases where the Magistrate felt satisfied that the charge was groundless or that there was least possibility of conviction of the accused, it was deemed expedient to enforce amendment for speedy disposal of cases. Thus, by virtue of the provisions, the Magistrate was vested with discretion to acquit an accused in a case where, in the opinion of the Magistrate, the charge was groundless or there was no likelihood of conviction of the accused of the alleged offence.

4. The scheme of law devised by the legislature empowers the Magistrate to acquit an accused at any stage of the trial. Reference to the term "any stage" denotes that the Magistrate is empowered to record acquittal in exercise of judicial discretion when either of the aforesaid reasons satisfied his judicial, mind. Thus, the only conditions precedent in recording acquittal of an accused in exercise of powers under section 249-A, Cr.P.C were:

(i) that in the opinion of the Magistrate, the charge was groundless; or (ii) that there was `no probability of conviction of the accused of the alleged offence. These grounds obviously rested on the evidence placed before the Court.

5. The Magistrate takes cognizance of an offence on a complaint or police report, as the case may be. When a complaint is made, the Magistrate takes cognizance on making preliminary inquiry into the allegations made in the complaint. In case of police report, the report is submitted before the Magistrate in the light of the conditions laid down in section 173, Cr.P.C. Such report is accompanied by the evidence collected by the investigating officer. So, in both cases, the Magistrate is always in possession of evidence of the prosecution and lie is well in a position to pass appropriate order when called upon in exercise of powers under section 249-A, Cr.P.C.

6. The first ground inviting attention of the Magistrate to record acquittal, pertains to the groundless charge. The word "charge", referred in the section, has been used in its ordinary dictionary meaning. Ordinarily, "charge" means "a formal accusation of criminal liability". According to Black's Law Dictionary, the word "charge" has been defined as:-- "To impose a burden, duty, obligation, or lien; to create a claim against property; to assess; to demand; to accuse; to instruct a jury on matters of law. To impose a tax, duty, or trust. In commercial transactions, to bill or invoice; to purchase on credit. In criminal law, to indict or formally accuse." The aforesaid meaning of the word "charge", lead to an inference that the Magistrate has been empowered to act in a criminal case at any stage, irrespective of the stage relating to examination of the accused and recording of prosecution evidence.

7. In present case, the accused were acquitted as in the opinion of the trial Court, there was delay in the first information report and the substance of accusation ascribed to them was not sufficient to result in their conviction. Mr Muhammad Arif, the learned Counsel for the appellant emphasised that the trial Court misdirected itself in acquitting the accused on account of delay in the first information report. It was emphasised that the delay was well explained, as such the delay was not a sufficient ground for acquittal of the accused.

8. It is evident from the record that the alleged incident of trespass and assault took place on November 1, 1981. The report was made in writing on November

18. There was an evident delay of 17 days. The written report made by the appellant carried no explanation for the delay. However, in police proceedings, it was explained that delay was made in order to obtain copies of the record of rights relating to the land, the place of incident. The copy of Khasra Girdawari for the year 1980-81 was issued by the Patwari on November,

17. The other copies were issued on November 22, i.e. four days after making, the report. These copies do not show as to when the appellant applied to obtain the same.

9. The first information report is deemed as the corner stone of t prosecution's case. Ordinarily, it is expected that the first information report should immediately follow the event. Delayed report is looked with suspicion as the concensus is that invariably the police records the first information report after making preliminary investigation. Thus, the sanctity of the report is tampered with. This is how and why the superior Courts insist that the report J should be made promptly.

10. Delay in the first information report, per se, is not deemed a ground l for acquittal of the accused. But such delay is always taken into consideration, alongwith other material particulars of the prosecution's case. When the first I information report is found concocted or tampered with, in such case delay in' making the report is always considered fatal. Conversely, when a report is considered valid and bona fide, delay in the same, when explained, is not deemed fatal to the case of prosecution. Thus, the point of delay in the report is always considered in relation to the surrounding circumstances of the case. In present case, delay is there. It is also noticed that the copy of Khasra Girdawari was issued by the Patwari on November 17 but it does not explain as to when the Patwari was approached for the first time to issue the copy. Be that as it may, there are other factors also in this case which support the impugned order of acquittal. These factors are:- (a) The main charge ascribed to the accused is that they made trespass in the land, the place of incident. The land is covered under survey number

253. The Jamabandi placed before the Court by the prosecution shows the possession of the land by Jhandoo Khan, Jawahar Khan and Gul Ahmad Khan. All the aforesaid three persons arc admittedly the elders of the accused persons. Their possession was entered with effect from Rabi 1969 till Rabi 1980. The complainant, according to his allegation, occupied the land in Kharif 1980 on behalf of Mst. Nazira Begum, one of the owners. Thus, the Jamabandi, which carries the presumption of truth, prima facie, supports the possession of the accused party instead of the complainant; (b) The report contained the names of 20 accused persons, including ladies. The investigating officer sent to trial nine accused only and dropped the rest for want of sufficient evidence. The trial Court also issued notice to nine accused. The nature of accusation is identical against all the 20 persons. The appellant felt satisfied with the trial of nine accused instead of the 20 persons. No private complaint was addressed nor the attention of the trial Court was invited to the accusation against the other persons who were dropped from trial by the investigating agency. This suggests that 11 accused persons were roped in the case despite their innocence and non-participation in the incident; (c) The key-notes of the site plan prepared by the Patwari reflect that the initial quarrel took place amongst the ladies of the parties. It was shown that the ladies belonging to the group of the complainant party were packing the grass bundles when they were attacked by the ladies of the accused party. One of the ladies also received injuries. None of the ladies involved in the initial quarrel and having received injuries, was listed amongst the witnesses of the prosecution. The key-notes do not show that the complainant was assaulted by the accused. Rather, his presence was shown on the place of incident in the position of other eye-witnesses. This suggests that, prima facie, the story of assault on the complainant and infliction of injuries by pelting stones, was cooked up to establish the alleged possession of the complainant party in the land, the place of incident. During arguments, it was explained by the learned Counsel for the parties that civil litigation was also going on over the land in dispute. Both the parties alleged their possession over the land. Therefore, the criminal proceedings seem to be a part of the plan to establish possession over the land in question; and (d) Mst. Nazira Begum, one of the owners of the land in dispute, was a necessary witness to support the prosecution's version. This was so, as according to the prosecution's case, the complainant occupied the land on behalf of Mst. Nazira Begum. He occupied a secondary position to claim the possession. Thus, unless Mst. Nazira Begum appeared in the Court to support the claim of possession of the land as alleged by the complainant, prosecution was not likely to succeed in conviction of the accused-respondents. Thus, the inference flowing from the evidence placed before the Court, definitely supports the ultimate conclusion arrived at by the trial Court. The accusation ascribed to the accused was groundless and there was no likelihood of conviction of the accused of the alleged offence of trespass and causing hurt to the complainant.

11. The authorities relied on by the learned Counsel for the appellant do got support his contention. In Arbab Shah's case, 19.76 P Cr. L J 40, the order of conviction by the trial Magistrate was reversed into acquittal and delay n the first information report was taken into consideration alongwith other leading factors constituting the alleged accusation against the accused persons. The other two cases were also not of any help on account of distinguishable facts and different propositions of law.

12. It is a well-accepted rule that an order of acquittal is not lightly interfered with unless it is found preposterous and perverse. The aforesaid analysis leads to the conclusion that the impugned order does not suffer from any of the aforesaid legal defects, as such it does not warrant interference of this Court. The impugned order is sustained and the appeal is dismissed. N.H.Q4123/Sh.CA. Appeal dismissed.