2012-14 PLP 153 (GBLR)

RANA MUHAMMAD ARSHAD KHAN, C.J.

This petition with leave to appeal has been preferred against the judgment dated 26-10-2013 passed by the learned Single Judge of the Chief Court Gilgit-Baltistan whereby, the judgment/order of the learned trial court, while acquitting the accused persons under section 249-A, Cr.P.C. of the charges against them, was upheld.

2. The facts in brief giving rise to file the instant petition are that a case FIR No.03/2007 was registered with the Police Station Skardu at the instance of Haji Ghulam Qadir son of Haji Ahmed under sections 427, 447, 506, 147 and 148, P.P.C., against as many as six accused persons stating therein that the accused persons without any legal justification entered into the land owned by the complainant and also caused loss to the house by hurling stones at his house in a particular direction. He asserted further that accused had also caused serious harassment to the inmates of the house in the absence of the complainant and in this manner, the accused persons committed the offence of criminal intimidation while extending the threats of dire consequences.

3. On the registration of the case, the investigation was carried out and on the conclusion of the investigation, the Challan was submitted before the Court of competent jurisdiction on 6-2-2007. The names of the accused persons were placed in Column No. 4 of the report prepared under section 173, Cr.P.C. The learned trial Court, after receiving the Challan, proceeded to issue the process and framed the charge under sections 147, 427, 447 and 506 on 8-8-2008. The learned trial Court proceeded further and summoned the prosecution witnesses.

4. On the non-production of evidence by the prosecution, despite the fact that the complainant earned as many as sixteen adjournments, within a period of more than three years, on one or the other pretext. The learned trial Court, ultimately proceeded under section 249-A, Cr.P.C. and acquitted all the accused persons. It is pertinent to point out that the case was registered against six persons but the complainant had compromised the offense with two accused persons and the same was accepted and they were acquitted. The remaining four accused remained in attendance before the learned trial Court on each and every date of hearing. The learned trial Court vide order dated 18-12-2010 acquitted the remaining accused persons while proceeding under section 249-A, Cr.P.C. The complainant feeling aggrieved, called in question the order dated 18-12-2010 through an appeal in the Chief Court Gilgit-Baltistan, which came up for hearing before the learned single Judge and the appeal was dismissed vide judgment dated 20-10-2013. Hence this petition for leave to appeal.

5. We have heard the learned counsel for the petitioner at full length and examined the record with his able assistance.

6. The perusal of the record reveals that the complainant of the case was admittedly not present at the place of occurrence. He categorically mentioned in the application for the registration of case that he was told the details of the occurrence when he reached the place of alleged venue of crime. The plain reading of the FIR indicates that no name of any eye-witness was mentioned in the FIR at all and the implication of accused persons in the criminal case is on the basis of hearsay evidence. He had also not given the names of the person who gave the details of the occurrence. In view of the circumstances of the case, it is quite clear that there was no direct evidence against the accused persons. The complainant did not mention the name of the persons who witnessed the occurrence either in the FIR or in his statement under section 161, Cr.P.C. purportedly recorded as a supplementary statement on the same day.

7. The perusal of the order dated 18-12-2010 passed by the learned trial court makes it clear that the learned trial court issued the process after framing of the charge to which the accused persons did not plead guilty and claimed trial. The persecution obtained as many as sixteen adjournments on one or the other pretext but did not produce any witness at all. The learned trial court, ultimately, resorted to adopt coercive measures to ensure the attendance of the witnesses by issuing bailable warrants of the prosecution witnesses. But none of the prosecution witnesses, in pursuance of the bailable warrants, turned up to appear before the court including the complainant nor the bailable warrants were returned. Astonishingly, during the course of the argument, the learned counsel for the complainant very candidly admitted that the bailable warrants of complainant were also issued but he did not appear to record his statement before the Court. On one date of hearing, the complainant was present in the Court but did not record his statement rather sought an adjournment. On the next date of hearing, he did not come to the Court and sought an adjournment through his counsel. The accused remained in attendance and the complainant kept on prolonging the agony of the accused persons. However, the Prosecution remained failed to produce the evidence, in order to substantiate its case against the accused persons.

8. Now the question arises as to whether the order of acquittal could be passed without recording of the evidence. It becomes quite evident from the plain reading of section 249-A, Cr.P.C. that the Magistrate is empowered to acquit the accused person at any stage of the case if, after hearing the prosecutor and the accused, he considers that the charge is groundless or there was no probability of the accused being convicted of any offense. However, the learned trial court is under legal obligation to see, before making acquittal orders of the accused person, that as to whether, the prosecution failed to produce the witnesses for an inordinate delay and it should have been established on the record that the summons were duly issued. The issuance of summons is not enough, it should have been ascertained that the same have also been served upon the witnesses and the witnesses including the complainant are intentionally not coming ahead to appear in response to the process issued by the Court. Thereafter, all the coercive measures are also to be adopted to ensure their presence. If, it has been done in accordance with law and even then the witnesses do not appear before the court for their evidence and the prosecution does not take any interest in the case, the court may proceed under section 249-A, Cr.P.C. and acquit the accused person for non-production of evidence.

9. In the instant case, as it has been said in the preceding paragraph, either the court moves of its own or proceeds on an application filed under section 249-A, Cr.P.C. for the acquittal of the accused on the ground where the First Information Report does not disclose any clear picture, as to what evidence would be brought on record against the accused person during the trial and the Court considers that even if such evidence is brought on record, there is no probability of the accused being convicted of any offense, may make an order of acquittal of the accused. The continuance of the trial becomes an abuse of process of court and is tantamount to prolong the agony of the accused person.

10. In the instant case, the plain reading of the FIR makes abundantly clear that the implication of the accused persons is on the basis of hearsay evidence, the complainant claimed that he had learnt about the occurrence when he reached his home in the evening but he did not name any person from whom he had heard it. Keeping in view all the attending circumstances of the case, it has become crystal clear that there is no direct evidence against the accused person and the hearsay evidence is inadmissible and no reliance can be placed on such evidence for conviction. Therefore, the acquittal of the accused persons under section 249-A, Cr.P.C. is not suffering from any illegality or irregularity causing any miscarriage of justice and does not warrant interference.

11. Thus, for the foregoing reasons, the judgment of the Chief Court in question being unexceptional, does not admit any interference by this Court, therefore, this petition is dismissed. HBT/31/GB Petition dismissed.