1. MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---Criminal Acquittal Appeal No,78 of 1995 at the instance of appellant Muhammad Younus Lakhani and Criminal Acquittal Appeal No,183 of 1995, filed by A.G.
2. Sindh are directed against the order dated 19-4-1995 passed by the Judicial Magistrate VII South Karachi.
3. At the very outset Mr. A.Q. Halepota, learned counsel for the respondent/acquitted accused has raised the objection about maintainability of Criminal Acquittal appeal at the instance of State for the reason that the condition precedent for filing acquittal appeal under section 417(1), Cr.P.C. Is that it should be under the directions of the Provincial Government and in the present case, the order passed by Secretary, Law Department, Government of Sindh has been produced which states that the Provincial Government has decided to file criminal acquittal appeal but the order does not contain any direction to the learned Advocate-General Sindh for filing appeal.
4. In this case acquittal appeal has been filed at the instance of complainant Muhammad Yousuf Lakhani as well, and the hearing of the said appeal shall 'conclude the issue raised before me, therefore, the objection raised by Mr. Halepota is deferred to be considered in any other proper case. In view of the order to be made presently, it is not necessary to pass any order in Criminal Appeal No,183 of 1995 at the instance of State for the reasons that the order in Criminal Acquittal Appeal No,78 of 1995 shall dispose of the entire matter.
5. I have heard Mr. Raja Haque Nawaz, learned counsel for appellant in Criminal Acquittal cquittal Appeal No,78 of 1995, Mr. A.Q. Halepota learned counsel for respondent No,2/accused and Mr. Khalid Mehmood learned State counsel for the State.
6. Mr. Raja Haque Nawaz has submitted that the impugned order does not conform to the requirement of the judicial order and therefore without going into merits of the case the impugned order is liable to be set aside Avith direction of remand of the case to the trial Court for examining the remaining witnesses, recording statement of the accused and giving opportunity of producing the defence witnesses if any and thereafter passing a speaking judgment.
7. In order to appreciate the contention it would be proper to reproduce the order which reads as under:-- "ORDER Accused Muhammad Ahmed was sent up by Kharadar Police to stand his trial for offence under sections 406, 420, P.P.C.
8. The case of prosecution in nutshell is that the accused while employed with complainant Muhammad Younus Lakhani as a wholetime Commission Agent, committed criminal breach of trust, and misappropriated a huge amount of Rs,25,46,002 in course of sale and purchase of shares from the clients in Stock Exchange on behalf of the complainant's firm. Hence this case.
9. The copies of statement etc. (Exh.1} were supplied to the accused as required by section 241-A, Cr.P.C.
10. A formal charge (Exh.2) was framed against the accused, who claimed trial.
11. The prosecution in its support examined the witnesses namely:-- PW No,1 Muhammad Youths Lakhani (Exh.3).
12. PW No,2 Anwar Haji (Exh. 4)
13. PW No,3 Abdul Rashid (Exh. 5)
14. P.W.No,4 Idrees (Exh. 6)
15. P.W.No,5 Muhammad Javed (Exh. 7)
16. P.W. No,6 Rafiq (Exh. 8)
17. I have heard Mr. Shahadat Awan Advocate for the applicant/accused, and Mr. P.I. For the State as well as Mr. Ghulam Mustafa Memon private counsel assisting the State. Perused the record thoroughly.
18. It was "contended by the learned counsel for the applicant/accused that since the prosecution has examined its all six material witnesses out of the eight, and only two witnesses are remaining to be examined by it. Inviting attention of the Court towards the evidence of the six material witnesses on record, he submitted that the origin of dispute in between the parties arises over transaction of money, which is claimed by the both parties, and thereby the allegations disclose a case of civil nature, which is deliberately turned into a criminal offence in order to put pressure for recovering dues. Argue that F.I.R. Was lodged after a delay of four months, and such inordinate delay has not been explained by the prosecution. Submitted that all the witnesses are employees of the complainant, and no shareholder was examined by the I.O. With regard to misappropriation of the amount by the accused. Finally contended that it is a case of no evidence and the charge is groundless and that there is no possibility of the accused being convicted for the alleged offence and is entitled to acquittal under section 249-A, Cr.P.C. He referred the following decisions in support of his contention:--
1. 1991 PCr.LJ (Karachi) 963
2. 1976 PCr.LJ (Karachi) 195.
3. 1975 SCMR (DB) 165.
4. PLD 1993 SC 400.
19. The learned P.I. For the State, and Private Counsel for the complainant vehemently opposed the contentions of the counsel for the applicant/accused. The private counsel for the complainant submitted written objections on the application filed under section 249-A, Cr.P C. By the counsel for the applicant/accused, which were perused minutely.
20. After a thoughtful consideration given to the arguments advanced by the counsel, I am of the considered view that the charge against the accused is groundless and that there is no probability of the accused being convicted of any offence. I, therefore, acquit the accused under section 249- A, Cr.P.C. He is on bail, and his bail bond stands discharged."
21. Mr. Raja Haque Nawaz has drawn my attention to the fact that the Judicial Magistrate has recorded the facts in sketchy manner referring to the framing of the charge, recording of evidence of six witnesses and thereafter recorded the contentions of the learned advocates for the parties and has then acquitted the respondent No,2/accused with the following observations: "After a thoughtful consideration given to the arguments advanced by the counsel; I am of the considered view that the charge against the accused is groundless, and that there is no probability of the accused being convicted of any offence."
22. Mr. Raja Haque Nawaz has submitted that six witnesses were examined and two witnesses including the Investigating Officer were still to be examined by the prosecution. However, the learned trial Court has not discussed the statements of those six witnesses nor assigned any reason as to why the Investigating Officer was not being called for his testimony. He has contended that the order does not conform to the requirement of section 367, Cr.P.C. Therefore, it is liable to be set aside without considering the merits of the case.
23. Mr. Khalid Mehmood, learned State counsel has supported the contention of Mr. Raja Haque Nawaz.
24. Mr. A.Q. Halepota learned counsel for the respondent No,2 has contended that the order under section 249-A, Cr.P.C. Is not to be equated with the judgment passed after final conclusion of the case, whereby the trial Court convicts or acquits the accused person after discussing the entire evidence, framing the points for determination and recording the reasons on each point for determination, with reference to the evidence available on record and relevant law.
25. Mr. Halepota further maintained that learned trial Magistrate was honest enough to record the contentions of the learned counsel for the parties and thereafter has assigned reasons for acquittal to the effect that after giving thoughtful consideration to the arguments advanced by the counsel he was of the considered view that the charge against the accused was groundless.
26. According to Mr. Halepota the above discussion amounts to recording of reasons by the learned trial Court.
27. I have carefully considered the arguments advanced by the learned advocates.I have carefully considered the arguments advanced by the With all due deference to Mr. A.Q. Halepota I am not persuaded to agree with his contention. Even if the contention is accepted that the order under section 249-A, Cr.P.C. Is not to be equated with the judgment of acquittal, recorded after final conclusion of the trial, it cannot be denied that the impugned order has been passed by the Judicial Magistrate in discharge of his judicial function and even if there is no specific provision for recording the reasons, the order/judgment B passed by the judicial officer is required to contain the reasons as well as the appreciation of evidence on record. However, in this case it is specifically provided under section 249-A, Cr.P.C. That, nothing in Chapter XX of Cr.P.C. Shall be deemed to prevent a Magistrate from acquitting the 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. Thus the provision under which the impugned order has been passed specifically provides that the Magistrate C while passing order under section 249-A, Cr.P.C. Shall record reasons. If any authority is required in this behalf, it is available in the case Karachi Electric Supply Corporation v. Naseer Ahmed 1986, PCr.LJ 1684.
28. In addition to section 249-A, Cr.P.C. It is provided in section 24-A of the General Clauses Act, 1897 that where, by or under any enactment the power for making any order or giving any direction is conferred on any authority, office or person, such power shall be exercised reasonably, fairly, justly and for the advancement of the purposes of the enactment. It is further provided that an authority, office or person making any order or issuing any direction under the powers conferred by or under any enactment shall, as far as necessary or proper, give reasons for making the order on or as the case may be, for issuance of direction and shall provide a copy of the order or as the case may be directions to the person affected prejudicially.
29. In addition to the above two provisions and the general principles relating to a judicial order it is imperative that every order passed under the provisions of any statute in judicial or quasi judicial capacity or even in executive capacity, should contain reasons. There should be objectivity in the reasons and it should not be merely subjective in nature. Any order which is merely subjective cannot be termed as an order supported by reasons. The expression reason has not been defined in any law but in common parlance the expression reason denotes an action taken or order passed by the person, officer or authority which is reasonable, conforming the requirement of reasonability. The reasonability can be gauged by examining findings in order and if there is no discussion or any finding and the order has been passed by mere reproduction of the words used in the statute it would not be a proper order supported by reasons. Such an order would be a non- judicial, non-speaking and unreasoned one. In order to be reasonable there should be a finding demonstrating links between the material on which certain conclusions are based and the actual conclusions. Every case in which an appealor Revision lies, the authority passing order is required to record findings and discuss the material available on record so that the appellate Court may examine whether the order passed is in accordance with material available on record or there is any case of misreading or non-reading of evidence or any material fact available on record has been ignored causing miscarriage of justice.
30. For the foregoing reasons I am of the considered opinion that the impugned order does not contain, any reason and therefore it cannot be deemed to be a judicial order. It is specifically violative of the mandatory provisions ,contained in section 249-A, Cr.P.C. As well as section 367, Cr.P.C. Read with section 24-A of the General Clauses Act, 1897. The impugned order is not sustainable in law being slipshod, perverse and arbitrary. It requires no emphasis that arbitrariness is antithesis of reasonableness, therefore every arbitrary order has to be struck down being unreasoned and not sustainable in law. The, impugned order is therefore set aside. The case is remanded back to the trial Court with direction to examine the remaining prosecution witnesses and if the trial Court is not able to record evidence of remaining witnesses it shall record reasons therefor. After recording evidence of remaining prosecution witnesses the trial Court shall record statement of accused under section 342, Cr.P.C. And shall provide opportunity to the accused to examine himself under section 340(2), Cr.P.C. As defence witness and produce the defence witnesses, if so desired. Thereafter the trial Court shall hear the learned advocates for the parties and decide the case afresh by a speaking order, meaning thereby that the entire evidence on record as well as the relevant law is to be considered with reference to points for determination and reasons for rejection or acceptance of evidence shall also be recorded. Cr. Acquittal Appeal No,78 of 1995 is allowed as above.
31. After the above order I am of the view that no order is required on Criminal Acquittal Appeal No,183 of 1995., as it would be an academic exercise only. The appeal at the instance of State stands disposed of accordingly.