1993 PLP 523 (SCMR)

The Legislature in its wisdom did not leave the question of the recording of the evidence as a condition before taking action under either of the provisions. The use of the expression "at any stage" of the case is indicative enough of the intention that any such stage could be the very initial stage, after taking cognizance or it could be a middle stage after recording some proceedings and/or even, it could be later stage as well. (c) Constitution of Pakistan (1973)‑‑‑ ‑‑‑‑Art.185(3)‑‑‑Expansion of scope of leave granting order‑‑‑Petitioner at a very late stage of hearing of the appeal requesting to expand the scope of the order of granting leave‑‑‑Nearly two decades had passed since the commission of alleged offence‑‑No compelling circumstances were shown to exist so as to grant an open leave at such late stage‑‑‑Supreme Court refused to grant an open leave in circumstances. Saeed A. Shaikh, Advocate Supreme Court and S. M. Abbas, Advocate‑on‑Record for Appellant. N. C. Motiani, Advocate‑on‑Record for Respondent. Date of hearing: 18th November, 1992. MUHAMMAD AFZAL ZULLAH, CJ.‑‑‑This is an appeal through leave of the Court by the State against summary acquittal of the respondent in a corruption case. Leave to appeal was granted for the consideration of the question; as to whether, without recording any prosecution evidence the trial Court was justified in law to hold that charges against the respondent were groundless. The provision of law under which the Special Judge acquitted the accused is section 249‑A of the Cr.P.C. but as stated by the learned counsel it seems to be under some inadvertent mistake that section 249‑A, Cr.P.C. was mentioned, and that it should have been section 265‑K, Cr.P.C., if the status and character of the Court passing the order would have been kept in mind. The two provisions which are para‑materia read as follows:‑‑ 249‑A Power of Magistrate to acquit accused at any stage. Nothing to 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. 265‑K Power of Court to acquit accused at any stage, Nothing in this Chapter shall be deemed to prevent a Court from acquitting an accused at any stage of the case, if after hearing the prosecutor and the accused and for reasons to be recorded, it considers that there is no probability of the accused being convicted of any offence. It is obvious that the legislature in its wisdom did not leave the question of the recording of the evidence as a condition before taking action under either of the provisions. The use of the expression "at any stage" of the case is indicative enough of the intention that any such stage could be the very initial stage, after taking cognizance or it could be a middle stage after recording some proceedings and/or even, it could be later stage as well. After both the provisions were thoroughly examined in the light of the order of grant of leave to appeal learned counsel ultimately could not press the argument that the recording of the prosecution evidence was a condition precedent for acquitting an accused either under section 249‑A, Cr.P.C. or under section 265‑K, Cr.P.C. That being so, this appeal merits to be dismissed The request of the learned counsel that at this stage the scope of the leave to appeal to be expanded and it be treated as an open leave is unacceptable in view of the later stage, that it is being registered and also in view of the further fact that nearly two decades have passed since commission of the alleged offence, leave cannot be expanded. At this stage, after hearing the learned counsel on the merits of the case which he wanted to argue, we have not found any compelling circumstances so as to grant at this stage an open leave to appeal. No doubt in some cases, as stated by the learned counsel, this discretion was exercised during the course of hearing of the arguments but they are admittedly distinguishable. In the light of the foregoing discussion this appeal is dismissed. M.BA./S‑721/S Appeal dismissed.