2013 PLP 2103 (YLR)

AFTAB AHMED GORAR, J.

The appellant Muhammad Abid has assailed the order dated 17-11-2012 passed by learned Ist Judicial Magistrate Kotri passed in Crl. case No.337 of 2011, whereby he has acquitted the respondents Nos.1 to 3 from the charge under section 249-A, Cr.P.C. Learned counsel for the appellant mainly contended that the impugned order suffers from legal infirmity. He further contended that object of section 249-A, Cr.P.C. is that if the charge is groundless and there is no probability of the accused being convicted, the learned trial Court can acquit the accused whereas in the present case, the learned Magistrate has acquitted the accused on the ground that prosecution has failed to produce evidence. Learned counsel added that the learned trial Court could have taken coercive steps to procure attendance of the P.Ws rather to acquit the accused. He prayed for setting aside the impugned order and for remand of the case to the learned trial Court to decide the same afresh in accordance with law. In support of his contention he has relied upon the case of The State v. Muhammad Afzal and another (2000 MLD 220) and Muhammad Younus Lakhani v. The State and another (PLD 2006 Karachi 198). On the other hand, learned Assistant P.G for the State conceded the above legal position taken by the learned counsel and submits that accused can be acquitted only when the charge is groundless and there appear no probability of the accused being convicted. He further stated that in case the prosecution failed to procure attendance of the P.Ws., in such eventuality the proceedings could have been stopped but the accused could not have been acquitted. I have considered the arguments of learned counsel for the parties and also examined the record as well as relevant provision of law. The perusal of the impugned order shows that the learned Magistrate has based acquittal of the private respondents on the ground that the prosecution failed to procure attendance of P.Ws. though several opportunities were given to it. Section 249-A, Cr.P.C. empowers the Magistrate to acquit the accused at any stage of the case, if the charge is groundless and that there is no probability of the accused being convicted of any offence and for such acquittal, he shall record reasons. In the present case the learned Magistrate based his order of acquittal on the ground that prosecution has failed to procure attendance of the witnesses. The learned trial Court could have taken coercive measures for procuring the attendance of the witnesses but the learned Magistrate instead of issuing coercive process acquitted the accused persons. The learned Assistant P.G, therefore, did not support the impugned order. In view of the above circumstances and the case law relied upon by the learned counsel for the applicant, I am of the considered view that the impugned order is not sustainable in law, therefore, same is set-aside and the case is remanded back to the learned trial Court with directions to proceed with the case and decide the same in accordance with law. The parties are directed to appear before the learned trial Court on 6-2-2013 for further proceedings in accordance with law. The Criminal Acquittal appeal stands disposed of accordingly. HBT/M-24/K Case remanded.