2015 PLP 2614 (YLR)

MUHAMMAD ALAM, J.

This is a criminal appeal against judgment/order dated 12-9-2014 of the Judicial Magistrate Kharmang Camp at Skardu, whereby, the learned trial Court acquitted respondents Nos. 1 and 2 from the case, reported through FIR No.02 of 2009, of Police Station Olding.

2. Police, of Police Station Olding Skardu, chalked FIR No.02/2009 on written application of the appellant/complainant, Muhammad Naseem. In the said FIR, the FIR lodger complained that he had left the crops of his fields after cutting the same in the fields, when at about 6 a.m. on 15-7-2009, respondents/accused Ghulam Rasool and Ghulam Muhammad, sons of Ghulam Hussain residents of Che Che Thang, threw the crops so left on the fields and have taken possession of the fields forcibly. On resistance of the complainant/ FIR lodger, the said accused attacked and beaten the complainant. Complainant received injuries on his nose and head. Police conducted investigation after chalking FIR and submitted complete challan for trial of the accused. Learned trial court charged respondents/accused and trial commenced. Prosecution produced 5 witnesses as prosecution evidence. During trial proceedings, respondents moved an application under section 249-A, Cr.P.C., praying for acquittal of the respondents. Learned trial court accepted the said application and acquitted the respondents Nos.1 and

2. Feeling aggrieved from the same, petitioner filed this appeal.

3. I have heard learned counsel for parties and have gone through the available material. A very important aspect of the case is that prosecution has submitted challan seeking trial of the respondents for offences of sections 447, 427, 337-A(iii) and 34, P.P.C. It is not disputed that the trial proceedings are almost complete except recording the statements of 2 P.Ws., Muhammad Hassan, the SHO/IO of the case and Syed Ahmed Shah, SHO and I.O. of the case. Prosecution has cited 5 PWs as eye-witnesses of the occurrence, while out of the said 5 PWs, prosecution examined four (4) witnesses and abandoned one (1).

4. I have gone through the statements of the PWs. P.W.1 is the doctor while PW Naseem is the victim of the occurrence. In the impugned order, learned trial court has very strangely written that the prosecution abandoned one PW and such abandonment amounted to statement of the PW against the prosecution. Learned trial court did not refer any case-law in support of holding so. Another important aspect of the case is that accused Ghulam Rasool has not been arrested by police and his arrest card has not been prepared. The trial court has not initiated trial of the accused Ghulam Rasool under section 512, Cr.P.C.

5. In my opinion, learned trial court must have taken proceedings regarding the absence of one of the respondents and trial proceedings should have been completed after declaring him absconder. I have noted cutting and over-writing in the challan of the case and learned trial court is silent about said cutting and over-writing, so the opinion of the learned trial court about the absconder respondent/accused is not clear. From plain perusal of impugned order/ judgment, it is evident that the findings of the trial court are based on prosecution evidence, but the learned trial court has omitted to discuss the statement of the complainant which has admittedly been recorded. The learned trial court has passed impugned order accepting the petition under section 249-A, Cr.P.C. For ready reference, I reproduce the section 249-A, Cr.P.C. hereunder:-- 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." From plain perusal of above provision of law, it is evident that the trial court can pass an order under section 249A in two situations. The first one is that if the charge is groundless the trial court has discretionary powers to acquit the accused under section 249-A, Cr.P.C. In the case in hand, learned trial court is silent about the attraction of this ground of the law quoted above, to the case in hand. The second one is that if there is no probability of the accused being convicted of any offence. At this stage of the case, statement of the complainant read with medical report, at least prima facie shows the involvement of the respondents for the offence. In such a situation, learned trial court must have discussed the circumstances that rendered the prosecution evidence irrelevant or the same is inadmissible in evidence and that was why the trial court did not rely on the said prosecution evidence. This kind of appraisal of prosecution evidence is possible only after recording statements of the remaining PWs. In the case in hand, the above pointed out defects in the impugned order are sufficient to hold that the case under trial of the learned trial court demanded complete trial and not the short cut adopted by the trial court.

6. I, therefore, allow this appeal, set aside impugned order and remand the case back to the trial court with direction to complete the trial proceedings in the light of above remarks. Appeal allowed accordingly. Record of the trial Court be sent back. File be consigned to record. HBT/105/GB Case remanded.