1988 P Cr (PLP)

State through Advocate-General, N.-W.F.P. has challenged the order, dated 4-4-1987 of Magistrate First Class, D.I. Khan vide which he acquitted Amanullah accused-respondent of the charge under section 13, Arms Ordinance under section 249-A, Cr.P.C.

2. Prosecution case in brief is that on 16-8-1983, at 22-15 hours while Allah Bakhsh, I.H.C. alongwith police party was on Gusht of Garah Muhabbat he noticed the accused-respondent in a suspicious manner which obliged the I.H.C. to search his person and accordingly from his personal search three live cartridges of. .303 bore were recovered from the front pocket of his shirt for which he had no valid licence and accordingly he was arrested and the report was sent to the Police Station Karachi, by way of Murasila, the contents whereof were incorporated in the F.I.R. No. 110 and a case under section 13 Arms Ordinance was accordingly registered. After observing the formalities the local police submitted complete challan against the accused-respondent in the Court of the Illaqa Magistrate on 7-10-1986. On 29-12-1986, accused Amanullah appeared in the Court and the case was adjourned to 6-1-1987 for framing the formal charge. On 6-1-1987, accordingly accused Amanullah was charge-sheeted and the prosecution evidence was summoned for 31-1-1987, on which date due to the absence of the Presiding Officer under the note of Reader the case was adjourned to 28-2-1987. On 28-2-1987 the learned Magistrate summoned the prosecution witnesses for 4-4-1987. Since, however, on 4-4-1987, the prosecution evidence was not available the learned trial Magistrate acquitted the accused-respondent under section 249-A, Cr.P.C. which order of the learned Magistrate has obliged the State to file the instant criminal appeal.

3. Arguments of the learned Assistant Advocate-General on behalf of the State appellant and the learned counsel for the accused respondent have been heard and record of the case examined.

4. As observed earlier the prosecution witnesses were summoned for 31-1-1987, but on that date the Presiding Officer was not available and the case was adjourned to 28-2-1987 under the note of the Reader. On 28-2-1987 the Presiding Officer directed the summoning of the P.Ws. for 4-4-1987. From the impugned order, dated 4-4-1987 it is clear that the summons issued to the P.Ws. had not been returned. It was not on account of the absence of the P.Ws. that the learned trial Magistrate passed the order of acquittal but without recording evidence be observed that: "This case was lodged on 16-8-1985 and complete challan signed by the S.H.O. dated 17-8-1985 has been put in this Court on 7-10-1986, after a gap of 14 months. Copies etc. were delivered to the accused on 29-12-1986, and formal charge has been framed against the accused on 6-1-1987. P. Ws. were summoned for today but neither the summons have been returned duly served nor the P.Ws. attended the Court. There are only three cartridges having been shown recovered from the accused allegedly. In my opinion it will be just wastage of time to continue the case. The accused present .in the Court is therefore, acquitted under section 249-A, Cr.P.C. and the three cartridges are confiscated in favour of the State." Now from the perusal of the order of the trial Magistrate it is clear that the provisions of section 249-A , Cr.P.C. were not complied with. Section 249-A, Cr.P.C. no doubt empowers the Magistrate to acquit the accused at any stage of the case but at the same time it is also obligatory that such acquittal may be directed after hearing the Prosecutor and the accused. From the order of the Magistrate it is quite clear that no notice was served upon the P.S.I. before passing the order under section 249-A, Cr.P.C. In Muhammad Saleem v. Muhammad Ismail and the State reported as 1987 P Cr. L J 1633 it has been observed that:- "It is very clear that the P.S.I. was not given any notice or heard before passing the order under section 249-A , Cr. P . C . The Magistrate has also not discussed the evidence of the witness in the impugned order. Complainant and other witnesses were not examined. In these circumstances I am of the view that learned Additional Sessions Judge has rightly set aside t e order of the Magistrate." In this case as well, as I have observed earlier, neither the Prosecutor was given any notice that the learned trial Magistrate had formed his view to acquit the accused under section 249-A, Cr.P.C. nor was any chance afforded to hear the prosecutor. Likewise no statement of the accused was recorded. In such a situation the order of the trial Magistrate is in clear violation of the provisions of the section of law under which he exercised the powers of acquitting the accused respondent. This view is fully approved by the Supreme Court and reference in this context may be made to P L D 1984 SC 428 wherein it was held that:- "While recording an order under section 249-A, Cr.P.C. Court should afford an opportunity to prosecutor, in a complaint case to complainant, before recording an order of acquittal and that can be done either by issuing a show-cause notice or calling upon prosecutor or complainant as the case may be, to show cause why such an order be not recorded. Finally needless to say that an opinion with regard to involvement of an accused has to be formed in terms 4f requirements of section 249-A, Cr.P.C. and not outside it." In the aforesaid authority of the Supreme Court observations with regard to the securing of attendance of the witnesses have been elaborately made and it has been remarked that:- "When summons issue, as they were issued a number of times in this case for witnesses, and witnesses do not appear in response, to it, reasons therefor must be examined and noted in order sheet and where necessary coercive steps should be taken for securing attendance of witnesses. The Court should not feel powerless in matter of securing attendance and should not lay entire responsibility on prosecutor himself." In the instant case, however, what to speak of any coercive steps or the efforts made for securing the attendance of the witnesses, the learned trial Magistrate did not even wait for the summons issued to return to the Court to ascertain the reasons for the none-attendance of the witnesses.

5. In view of the aforesaid circumstances I am of the firm view that firstly case had not yet become ripe for adjudication in terms of section 249-A, Cr.P.C. because the prosecution had not been found completely responsible for failure in procuring or securing the attendance of the witnesses and secondly even if it is presumed for the sake of arguments that the prosecution was exhibiting delaying tactics, without giving an opportunity of showing cause to the prosecutor the order of acquittal under section 249-A, Cr.P.C. was abuse of powers and cannot be maintained. Accordingly, I would accept this State appeal and by setting aside the impugned order of acquittal I remand the case to the trial Magistrate for disposal in accordance with law within two months of the receipt of the file without fail. The file of the case should be sent immediately to the Court below. Accused-respondent who is present in Court in the meanwhile should furnish bail bonds in the sum of Rs.5,000 with one surety in the like amount to the satisfaction of the Additional Registrar of this Court. The accused-respondent is also directed to appear before E.A.C./M.I.C. Shiranies at D . I . Khan on 25-4-1988. S.A./635/P Case remanded.