1986 P Cr (PLP)

(g) Criminal Procedure Code (V of 1898) ‑‑‑S. 249‑A‑‑Exercise of jurisdiction conferred by S. 249‑A Growing tendency amongst Courts to frequently invoking of S.249‑A disapproved‑‑Magistrate, held, would not be competent to consider any extraneous material or make such material as basis for his order which had not been brought on record in accordance with law‑‑Material produced by accused not in course of proceedings either through witnesses examined by him in his defence or at time of giving his statement under S.342, Criminal Procedure Code could not be considered much less made basis of acquittal under S.249‑A, Criminal Procedure Code. Rashid A. Rizvi for Petitioner. Ahmed Saeed Qureshi for Respondents. Date of hearing: 4th February, 1986. By this Criminal Revision Application the applicant Syed Anwar Ali Shah has prayed for setting aside the order of IVth Additional City Magistrate, Karachi East, dated 22‑8‑1983. whereby, in exercise of powers conferred by section 249‑A. Cr.P.C., he acquitted the four respondents who were accused in the criminal case pending before him. Briefly stated the facts of the case are that on 12‑5‑1983 at 10‑20 a.m. the applicant filed F.I.R. at police Station Gadap, alleging therein that on the same day at 8.30 a.m. he was standing outside his house when the aforementioned four accused came there and abused him. They further threatened him that he would be killed if he did not refrain from raising a construction over the vacant plot adjacent to his house. As stated in the F.I.R. Ghulam Hyder and Abdullah were the other eye‑witnesses beside the complainant himself. After making due investigation the police put up a charge‑sheet against the said accused on 16‑i‑1963. However, on application moved on behalf of the accused, the learned Additional City Magistrate acquitted them under section 249‑A, Cr.P.C. by the impugned order, even before framing formal charge against the accused. After hearing the arguments of the learned counsel for the parties, the Revision Application was allowed and the acquittal of, the respondents was set aside by short order dated 4‑2‑1966 for reasons to be recorded separately. Following are the reasons in support of the said short order. It was contended by the learned counsel for the applicants that the learned trial court could trot acquit the accused under section 249‑A, Cr.P.C. before' framing charge and recording evidence of the witnesses, the prosecution wished to produce in support of their case. His further grievance was that no opportunity was given to the applicant to rebut the material produced by the accused, which was believed by the learned Magistrate as proof of enmity between the parties. He also submitted that the Court could come to the conclusion as to the charge being groundless or not only after appreciating the evidence that was yet to be brought on record. According to him since the learned trial Court has prejudged the whole case of the prosecution, the resultant order of acquittal of the accused could not be legally supported. On the other hand the argument put‑forth on behalf of the accused was that there was no impediment in the way of the trial Court to acquit the accused at any stage of the case, even prior to framing of charge against them. He averred that for this purpose the trial Court was free to look into police papers and base the acquittal of the accused entirely on the material in possession of police. In order to appreciate the arguments addressed at the bar, it may be useful to reproduce hereunder section 249‑A, Cr.P.C.: "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. " Reading of the above section leaves no doubt in my mind that the Magistrate has unrestricted powers to acquit the accused at "any stage" of the case. The question that arises here is whether the words "any stage" can be construed to mean even the stage prior to framing A of formal charge against the accused and recording of any evidence in support of the case. No doubt the Magistrate becomes seized of the case as soon as he takes cognizance of the same. In police case the cognizance is taken when challan is produced by police and the same Is accepted by the Court. After taking cognizance of the case, the Magistrate can exercise his powers including the powers vested in him under section 249‑A, Cr.P.C. Thus, after he has taken cognizance of the case, he is obviously free to acquit the accused, at "any stage", which can even be the stage before framing of charge and recording of evidence. But this is not all. The section further provides that the order of acquittal can be made of the Magistrate for "reasons to be recorded" considers that "the charge against accused is groundless" or that "there is no probability of the accused being convicted of any offence". In view of these requirements, if the Magistrate wants to exercise powers under section 249‑A, Cr.P.C. before framing of charge, the only material available to him for his consideration would be the same which could otherwise be used as basis for framing of the charge against the accused. On consideration of such material if the Magistrate is satisfied that either no offence is made out from that material or it is patently so scanty that it is most unlikely that it would end in conviction of the accused, he can acquit the accused and base his order of acquittal on that material. But if the material produced before the Magistrate is not of that type or it involves appreciation or appraisal by the Court, its truth cannot be tested unless it is brought on record and is subjected to cross‑examination. In that case the question of acquitting the accused before framing of charge or recording of evidence would not arise. In the instant case the learned Magistrate first of all concluded from certain documents produced before him by the accused's counsel that there existed enmity between the parties since long. These documents as mentioned in the impugned order are: decision of the Chairman Union Council Thano, application of the villagers to the Chairman and Deputy Commissioner, recommendations of Chairman to Assistant Commissioner true copy of order of S.D.M. Malir in case State v. Jumo and others under section 107, Cr P.C. The conclusion of the learned Magistrate from the said documents is that the accused party (respondents in this case) as well as other villagers do not wish that the complainant Ali Anwar Shah (applicant in this case) should encroach upon plot adjacent to his house which is required by the villagers for matrimonial functions. Obviously the above documents did not form part of police papers produced before the Court for the f purpose of framing charge but they came from possession of the accused, directly. The learned Magistrate had no power to accept the documents in that manner and consider them as part of the material for purpose of acquitting the accused. Such documents could only be produced after the case had proceeded either through witnesses to be examined by the accused in their defence or at the time of their statements under section 342, Cr.P.C. so that the complainant had opportunity to furnish clarification about them or produce evidence in their rebuttal. Moreover excepting the last mentioned document which was certified copy of the order passed by the S.D.M. in some case, the other documents did not appear to have come from the custody of the persons concerned and as such their genuineness was also in doubt. In any case they should not have been allowed to influence the judgment of the learned Magistrate unless the other party namely the applicant was given opportunity to explain about them. As stated above, this was possible only after the case had proceeded before the learned Magistrate in accordance with prescribed procedure. Moreover it is well‑settled by now that enmity which is used as motive is a double‑edged weapon which cuts both ways. It can be used by either party in its favour. The existence of enmity between the parties used by the learned Magistrate in favour of the accused could possibly be the reason for the incident alleged by the complainant in his case. Therefore, to jump at the conclusion that not only the documents produced by the accused proved enmity between the parties but also the said enmity was the motive on the part of the complainant for false implication of the accused was entirely erroneous. All this could be judged in the light of the whole material brought on record by both the parties. It further appears from the impugned order that two witnesses Ghulam Hyder and Abdullah cited by the complainant in support of his case have been disbelieved by the learned Magistrate without examining them on oath and scrutinizing their evidence through vehicle of cross- examination. According to the learned Magistrate they did not inspire D confidence only because they lived at different places away from the place of occurrence. In other words their evidence was merely, the evidence of chance witnesses. The learned Magistrate was wrong in thinking that all chance witnesses are necessarily false or set up witnesses. The truth or otherwise of this category of witnesses also depends upon the antecedents and character of individual witnesses and the circumstances of each case in which they were associated with the 'occurrence. Therefore before the evidence of above witnesses was recorded and sifted in accordance with established principles of evaluation of evidence, it was wrong to assume that their evidence was not worthy of credit. While passing the impugned order, the learned Magistrate was also influenced by the factor that although hotel of one Nazar Ahmed was situated at a distance of 50 paces from the scene of offence, yet no one came from there at the time of occurrence. This observation of the learned Magistrate is obviously capable of being explained. If opportunity had been given to the complainant or the Investigating Officer, may be the learned Magistrate had the satisfactory reply in this connection. In any way he was totally unjustified to entertain such notion without giving opportunity to the witnesses concerned to satisfy him on this aspect of the case. For above reasons the Revision Application was allowed and the impugned order which could not be sustained was set aside. As a result the case was remanded back to the Court concerned with a direction to decide it afresh in accordance with the law. Before parting with the case, I would like to make a few observations with regard to exercise of jurisdiction conferred by section 249‑A, Cr.P.C. It is noticed that there has been growing tendency amongst the lower Courts to frequently invoking of the above section. As has been pointed out above the Magistrate has power to acquit the accused under the said section even prior to framing of charge and recording of evidence. 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 alongwith 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 conviction, 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 the 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, muchless made the basis of his acquittal under section 249‑A, Cr.P.C. M.Y. H. Petition allowed.