2006 PLP 273 (YLR)

CH. IJAZ AHMAD, J.

The petitioners have challenged the vices of the order dated 24-11-2004 passed by the Judge Special Court (Offences in Banks), Punjab, Lahore.

2. The brief facts out of which the present case arises are that the petitioners are involved in case F.I.R. No.7 of 1993 which was registered against the petitioners under sections 409, 420, 468 and 471, P.P.C. read with section 5(2) 47, P.C.A. at Police Station, F.I.A., Rawalpindi on 20-4-1993. The petitioners submitted an application under section 249-A, Cr.P.C. which was dismissed by the Judge Special Court on 24-11-2004, hence, the present petition.

3. The learned counsel of the petitioners submits that the Judge Special Court has passed the impugned order without application of mind and without adverting to the documentary evidence available on the record. The case was registered against the petitioners on 20-4-1993. The F.I.A. Authorities directed the Bank Authorities to initiate departmental proceedings against the petitioners. The original record has also been returned by the F.I.A. Authorities to the Bank Authorities vide letter dated 26-7-1994. The Bank Authorities initiated departmental proceedings against the petitioners and reinstated them in service on 28-12-1995. The petitioners were allowed to avail Golden Hand Shake Scheme issued by the competent authority of the National Bank of Pakistan. The General Manager (Admn.) also issued certificate to the extent on 19-1-1998 that petitioners are not involved in any fraud/forgery or disciplinary case in which they are likely to be punished. The learned counsel of the petitioners submits that the Judge Special Court has passed the impugned order without application of mind and without considering the aforesaid documents.

4. The learned standing counsel submits that the Banking Court after perusing the aforesaid documents found that the case could not be decided without recording the evidence, which is valid in terms of the law laid down by the superior Courts. In support of his contention, he relied upon Hamid Siddiqui and another v. The State 1991 MLD 540 and Warner Brothers v. Imtiaz and 3 others 2000 PCr.LJ 752.

5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.

6. It is better and appropriate to reproduce section 249-A, Cr.P.C. to resolve the controversy between the parties:-- Section 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 of the accused being convicted of any offence. Mere reading of the aforesaid provisions of law reveals that the Magistrate is not prevented from acquitting an accused at any stage of the case after completing the following prescribed conditions in the said section: (i) After hearing the prosecutor and the accused and for reasons to be recorded, he considers that the charge is groundless; (ii) There is no probability of the accused being convicted of any offence. It is pertinent to mention here that Chapter XX of Cr.P.C., which contains the provision of section 249-A, deals 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. The provision of law is itself a Code which prescribes the scheme of law. Specific words were contained in section itself "any stage", which shows that the Magistrate is empowered to record acquittal in exercise of judicial discretion when either of the aforesaid reasons satisfied his judicial mind. As mentioned above, the legislature in its wisdom mentioned specific words in section 249-A, Cr.P.C. "at any stage" which clearly shows that such power can be exercised even before the charge is framed or after framing the charge subject to fulfilling the aforesaid conditions prescribed in section itself. In arriving to this conclusion, I am fortified by the law laid down in the following judgments:-- Muhammad Haroon's case 1993 PCr.LJ 524; Ashiq Ali Bhutto's case 1993 SCMR 523; Din Muhammad's case 1979 PCr.LJ 59; Aarub Khan's case PLD 1996 Karachi 253; Muhammad Tufail alias Muhammad Yasin's case PLD 1995 Lahore 293; It is better and appropriate to reproduce the operative part of the impugned order to resolve the controversy between the parties keeping in view the mandate of section 249-A, Cr.P.C.:-- "After hearing the learned counsel for the petitioners and the learned PPs I hold the view that after the submission of the challan under section 173, Cr.P.C. and present assertion of the complainant, Bank, the petitioners cannot be acquitted under section 249-A, Cr.P.C. It is proper to mention that the charge has already been framed against them." Mere reading the aforesaid operative part of the impugned order reveals that the trial Court has passed the impugned order without judicial application of mind, which is condition precedent as per law laid down by the Honourable Supreme Court in the following judgments:

Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC 173; Gouranga Mohan Sikdar v. The Controller of Import and Export and 2 others PLD 1970 SC 158; The operative part clearly reveals that it was passed by the trial Court in a mechanical manner. Such type of orders passed by the trial Court under section 249-A, Cr.P.C. are not in consonance with the law laid down by the superior Courts. It is also settled principle of law that justice should not only be done c but also seems to have been done. It is the duty of the Court to discuss evidence already on record while deciding the application under section 249-A, Cr.P.C. D In arriving to this conclusion, I am fortified by the law laid down in the following judgments:-- Aziman's case NLR 1988 UC 539; Ch. Muhammad Ashraf's case 1988 PCr.LJ 1077; Mehmood and other's case 1984 PCr.LJ 2423; Jahan Shah's case 1990 PCr.LJ 638; Abdul Sattar's case 1992 PCr.LJ 2054; Shaukat Ali's case 1992 ALD 243(1); The public functionaries are duty bound to decide the cases of the citizens with reasons after addition of section 24-A in the General Clauses Act as per law laid down by the Honourable Supreme Court in the following judgments:-- Messrs Airport Support Services v. The Airport Manager 1998 SCMR 2268 and Zain Yar Khan v. The Chief Engineer 1998 SCMR 2419. It is pertinent to mention here that the petitioners have not attached copy of the F.I.R. and challan submitted by the police along with this petition; therefore, it is not borne out from the record that the documents attached by the petitioners along with the application under section 249-A, Cr.P.C. before the trial Court were produced by the police along with the challan or not. The proposition of law in such circumstances is considered in Syed Anwar Ali Shah's case 1986 PCr.LJ 1278 and laid down the following principle:-- "But the order of acquittal to be passed by him should not only be supported by cogent and convincing reasons but should also be grounded on the material, which the Magistrate is legally permitted to take into consideration. Until the evidence is recorded, the only material available to the Magistrate is the police papers which are laid before him along with the charge sheet. On perusal of the police papers if he comes to the conclusion that no offence is made out or the material contained in the police papers is so scanty that it is most unlikely to lead to convict, the accused can be acquitted even at that early stage. But it must be borne in mind that for purpose of exercising jurisdiction under section 249-A, Cr.P.C. the Magistrate is not competent to consider any extraneous material. In other words he cannot make such material as basis of his order which has not been brought on record in accordance with the law. The material produced by the accused not in course of proceedings either through witnesses examined by him in his defence or at the time of giving his statement under section 342, Cr.P.C. cannot be considered, much less made the basis of his acquittal under section 249-A, Cr.P.C." The judgments cited by the learned Standing Counsel are distinguished on facts and law. It is settled principle of law that each and every case is to be decided on its own peculiar circumstances and facts, as per law laid down by the Honourable Supreme Court in Trustees of Port of Karachi v. Muhammad Saleem 1994 SCMR 2213. In view of what has been discussed above, the impugned order was passed by the Judge Special Court without application of mind; therefore, petition is accepted and the case is remanded to the Judge Special Court to decide the application of the petitioners afresh after judicial application of mind in accordance with law. Meaning thereby the application under section 249-A, Cr.P.C. filed by the petitioners shall be deemed to be pending adjudication before the Judge Special Court. Parties are directed to appear before the Judge Special Court on 20-9-2005, who is directed to decide the application of the petitioners afresh in accordance with law after judicial application of mind. H.B .T./M-1298/L Petition accepted.