2020 PLP 684 (MLD)

RAJA SAJJAD AHMAD KHAN, J.

This revision petition has been directed against the order of Tehsil Court of Criminal Jurisdiction, Court No.I Rawalakot dated 20.08.2018, whereby the application under section 249-A, Cr.P.C. filed by petitioner was dismissed.

2. Brief facts forming background of the instant revision petition are that accused respondent was facing trial before Tehsil Criminal Court, Court No.I, Rawalakot in offences under section 457, A.P.C. and 14 of the Offences Against Property (Enforcement of Hadd) Act, 1985. During trial statements of only two P.Ws. were recorded when the accused petitioner moved an application under section 249-A, Cr.P.C. before the Court. The trial Court after hearing arguments of the parties dismissed the same vide impugned order dated 20.08.2018, hence this revision petition.

3. Sardar Tabikh Anwar, the learned counsel for the accused-petitioner reiterated the arguments already made in the revision petition and submitted that trial Court failed to consider the fact that application under section 249-A, Cr.P.C. and it is admitted that petitioner was falsely implicated in the case with mala fide intention. He further submitted that during investigation the Police could not recover anything from the petitioner rather the investigating agency made withdrawal from all other allegations in the FIR and categorically mentioned charge sheet that complainant/respondent No.1 failed to produce any proof of evidence regarding the alleged stolen articles/items, on the basis of petitioner cannot be convicted for the offence from with prosecution made withdrawal. He further submitted that according to the facts of the case 14 E.H.A is not applicable in the instant case and if allegation is presumed true even then accused cannot be convicted under section 14 E.H.A as LED was recovered from inside the house of complainant. The learned counsel finally prayed for acceptance of revision petition and acquittal of petitioner from the charge.

4. On the other hand, Raja Ajaz Ahmad, Advocate and learned Additional Advocate General fully opposed the contention of learned counsel for the petitioner and defended the impugned order on all counts. They finally prayed for dismissal of the revision petition.

5. I have heard the learned counsel for the parties and gone through the record of the case.

6. At the very outset, it will be pertinent to mention here that an application under section 249-A, Cr.P.C. can be moved during trial at any stage and the proceedings under section 249-A, Cr.P.C. enables an accused during trial to obtain an order of acquittal, even before examining any witness, if from the material placed on the record the Court is satisfied that the charge is groundless or there is no probability of the accused being convicted, but for the safe administration of justice it will not be adverse if the evidence of remaining prosecution witnesses, including complainant, recovery witnesses and Investigating Officer is recorded.

7. In the instant case, a minute perusal of the file reveals that seven witnesses have been cited in the calendar of Challan and evidence of only two witnesses has been recorded and evidence of five witnesses including complainant is yet to be recorded when the accused petitioner moved an application under section 249-A, Cr.P.C. The evidence of remaining important witnesses i.e. complainant, recovery witnesses and Investigating Officer is essential for just decision of the case, therefore, the trial Court rightly dismissed the application under section 249-A, Cr.P.C. The argument of learned counsel for petitioner that 14 E.H.A. is not applicable in the instant case, if presumed correct even than section 457, A.P.C. is also present and it can only be concluded after recording whole evidence that whether the accused committed the alleged offences or not. In the light of above position, finding no force in this revision petition, it is hereby dismissed. However, the trial Court is directed to expedite the proceedings and conclude the controversy within a period of two months from the receipt of this order. SA/63/HC(AJ&K) Revision dismissed.