1986 P Cr (PLP)

‑‑‑S. 512‑‑Statement of witnesses when accused absconded with no immediate prospects of their arrest, statements of witnesses could be recorded in their absence and as soon as accused are arrested and put to trial, evidence so recorded in their absence, if witnesses could not be made available, could be treated as substantive piece of evidence‑ Case could be reopened on arrest of accused. (c) Criminal Procedure Code (V of 1898) --‑‑‑Ss. 245(1), 249‑A & 417‑‑Acquittal by Magistrate‑‑Magistrate after recording evidence and examining accused could record acquittal as provided under S.245(1), Criminal Procedure Code‑‑Acquittal can only be challenged by way of an appeal under S.417, Criminal Procedure Code‑‑Magistrate, held, not competent to discharge or acquit an accused except as provided in S.249‑A, Criminal Procedure Code, but procedure for trial before High Court and Sessions Court is different one. Mumtaz Hussain Shah for Applicants. Imam Bux Shaikh for the State. Date for hearing: 9th April, 1986. By this application, the applicants have come to seek quashment of an order passed by A.C.M XVIII South. Karachi whereby he has directed the applicants to appear before his court and face the trial. The facts leading to the filing of this application are that case under sections 323, 427 and 147 was registered against the applicants at police station Kalakot, Karachi on 12‑1‑1983. The police after usual investigation challaned the case. The trial Court issued summone to the prosecution witnesses but none of them appeared. Magistrate after lapse of one year, passed an order under section 249, Cr.P.C. and stayed the proceedings. He released the accused and their bail bonds were cancelled. On 15‑7‑1984, witnesses appeared before the Magistrate and applied that they should be examined as they could not appear due to sickness of their father. The summons were issued to the accused for their attendance. An application under section 249‑A, Cr.P.C. was filed on the ground that the Magistrate was not competent to re‑open the case. Magistrate dismissed the application. Mr. Mumtaz Hussain learned counsel appearing for the applicants contended that Magistrate's order passed under section 249, Cr. P. C. amounts to acquittal, therefore, proceedings could not be re‑opened by him when acquittal has not been challenged by the State as no acquittal appeal has been filed. He has relied in a case reported in P L D 1962 S C

242. Mr. Imam Bux Shaikh appearing for the State submitted that the order passed under section 249 is not an acquittal therefore, accused could be summoned at any stage when witnesses appear. The case admittedly is triable by Magistrate. He after recording the evidence and examining accused can record acquittal as provide under section 245(1), Cr.P.C. Acquittal can only be challenged by way of an acquittal appeal under section 417, Cr.P.C. The Magistrate is not competent to discharge or acquit the accused except is provided by section 249 A, Cr.P.C. But the procedure for trial before the High Court and Sessions Courts is different one. For instance under section 265‑D, Cr.P.C. the Sessions Judge or the High Court as the case may' be after perusing the police report or, the complainant, and other documents and statements filed by the prosecution and after the Court is of opinion that there is ground for proceeding with the trial of the accused then charge shall be framed. But Magistrate shall have to frame charge under section 242, Cr.P.C. when accused is brought or appears before him. It, is, therefore, clear that impugned order is not an order of acquittal. In cases where accused do not appear and abscond and there are no immediate prospects of their arrest the statements of the witnesses could be recorded in their absence and as soon as they are arrested and put to trial, the evidence so recorded in their absence H if the witnesses could not be available or their attendance could not be procured could be treated as substantive piece of evidence. The procedure is laid down under section 512 Cr.P.C. The case could be re‑opened on the arrest of accused. The order under section 249, Cr.P.C. Was not passed on merits. The proceedings have been stopped due to ion‑appearance of the witnesses. In my view the accused in these circumstances cannot claim an acquittal. Even in cases where accused are discharged for non‑appearance of the complainant or the other circumstances it is always open to complainant to file fresh complaint or even police can put up challan on the fresh grounds before the competent Court. The facts of the case cited by the learned counsel are‑ different. In that case acquittal was recorded, therefore it has rightly been held that no re‑trial could be ordered. For the reasons stated above the order of the Magistrate for starting proceeding is proper one and calls for no interference. The application is dismissed. M.Y.H. Petition dismissed.