1988 P Cr (PLP)

A . Y . Qarni for the State. Badar Alam (absent) for Respondent No.

2. Date of hearing: 25th August, 1987. Applicant Haji Ali Mohammad Solangi by way of this application under section 561‑A, Cr.P.C. has challenged the order, dated 12‑4‑1987 of IVth Additional Sessions Nudge, Karachi West. Briefly the facts are that respondent No.2 Naimatullah Khan lodged report under section 448, Cr.P.C. at Gulberg Police Station on 4‑5‑1987. The case was pending in the Court of Magistrate First Class Court No.7. West Karachi where application under section 249‑A, Cr.P.C. was moved. The same was allowed by an order dated 26th September, 1982 and applicant was acquitted. Being aggrieved with the order respondent No.2 Naimatullah filed revision application. The same was allowed by Additional Sessions Judge, Karachi West and case has been remanded for deciding the same in accordance with the law. Mrs. Salima Nasiruddin learned counsel submitted that the case was filed in 1978 and for about four years not a single witness appeared for evidence, therefore, Magistrate allowed an application filed under section 249‑A, Cr.P.C. and acquitted the applicant. It is also argued that against the acquittal no appeal was filed by the State. Mr. A.I. Qarni learned counsel appearing for the State has submitted that the order of the learned Sessions Judge is proper one therefore, he does not support this quashment application. This is a case of 1978. Additional City Magistrate acquitted accused on the ground that prosecution was allowed sufficient time to produce witness but in spite of repeated process and efforts not a single witness came for evidence. Learned Additional Sessions Judge in his order came to the conclusion that trial Court has wrongly acquitted the accused without cogent reasons. He has further rightly observed that in case witnesses are not in attending trial Court should have got the proceedings stopped but not acquitted. This is a state case. Government has not filed any acquitted appeal. This revision has been decided by the learned Additional Sessions Judge after lapse of five years of passing of the order by the Magistrate. Section 249‑A, Cr.P.C. reads as under:‑ "249‑A, '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." No doubt Magistrate can acquit accused at any stage but hasp to state the reasons that charge is groundless and there is no probability of accused being convicted. In the present case the Magistrate has allowed the application under section 249‑A, Cr.P.C. only on the ground that witnesses are not attending the Court. The Magistrate should have passed an order under section 249‑A, Cr.P.C. according to which he could have stopped the proceeding without pronouncing any judgment either of acquittal or conviction and thereupon should have released the accused. The order of the learned Additional Judge on this legal point is proper one. But looking tot the circumstances of this case that prosecution failed to produce the witnesses for four years and revision pending in the Court of, Additional Sessions Judge for five years and that state has not filed an acquittal appeal, therefore, in my view continuance of proceedings in clear abuse process of law. When even today no one has appeared for complainant Naimaiullah. It appears that complainant is not interested. In the interest of justice I allow quashment application. Consequently the proceeding against the applicant /accused are quashed. S.A./A‑201/K Proceedings quashed.