1. ' KHAWAJA NAVEED AHMED, J.--- This is an acquittal appeal filed by Mr. Sarfaraz Ahmed Khan Tanoli, Advocate on behalf of the appellant Major (Retd.) Hafeez Ahmed against the acquitted accused Abdul Mateen Qureshi.
2. ' Record shows that Abdul Mateen Qureshi after getting acquittal under section 249-A, Cr.P.C. From the Court of Judicial Magistrate, Karachi East in Criminal Case No,112 of 2002 has disappeared and all efforts made by this Court to procure his attendance, in Court have failed. On 29-5-2007 this Court was pleased to issue non-bailable warrants of Abdul Mateen Qureshi and had ordered that the matter be fixed after the non-bailable warrant is executed. Today after five months the office has reported that process-server had reached at the given address and had recorded the statement of Moazzam Ali son of Ghulam Rasool and the statement of landlord of the house Bashir Ahmed son of Faqir Muhammad Soomro. Both the witnesses have shown ignorance regarding whereabouts of Abdul Mateen Qureshi. Mr. Sarfraz Khan Tanoli and State Counsel Mr. Fazal-ur- Rehman Awan both have suggested that the acquitted accused is avoiding his appearance in this Court and matter may be heard in his absence and appropriate order may be passed on merits of the case.
3. ' I have perused the record. All measures have been taken to procure the attendance of acquitted accused Abdul Mateen Qureshi including issuance of N.B.W. It appears that he is deliberately hiding and is avoiding to attend the Court. The Court is left with no option but to proceed with the case in his absence.
4. ' The facts of the case are that Gulistan-e-Jauhar Police had registered an F.I.R. On 5-8-2002 on the written complaint of Major Retired Hafeez Ahmed in respect of an incident which had occurred in April, 2002. Major Hafeez Ahmed in his written application addressed to the S.D.P.O., Aziz Bhatti, Karachi on the subject of cheating has mentioned that one Mr. Abdul Mateen Qureshi residing at A-19, Block 10-A, Avenue Society, Main Rashid Minhas Road took Rupees four lacs from him for admission of his daughter in Sindh Medical College in the year 2002. He has further stated that ever since he had taken the money he had disappeared . Neither he could get the admission of the daughter of the complainant in Medical College nor he had returned the money.
5. A criminal case was registered against the accused and he was produced in Court, charge was framed against him, witnesses were summoned and prior to recording of the statement of complainant the accused had preferred an application under section 249-A, Cr.P.C. The learned Magistrate after hearing the parties had observed in his order as under:-- "from the perusal of the citation and going through the relevant case papers I am much satisfied that there is insufficient evidence against the accused person and that I am of strong view that there is no any probability of the accused being convicted in this case in the absence of tangible and substantial evidence. At the most the matter requires civil remedy."
6. ' With the above observation the Magistrate had acquitted the accused under section 249-A, Cr.P.C. And thereafter whereabouts of the acquitted accused are not known.
7. ' I have heard Mr. Sarfaraz Khan Tanoli, Advocate for the appellant and Mr. Fazal-ur-Rehman Awan, learned State Counsel. Both the Advocates have jointly argued that the learned Magistrate's order of acquittal at the face of it is premature. He has not provided opportunity to the complainant to examine himself in the Court. The learned Judicial Magistrate has hurriedly disposed of the application under section 249-A, Cr.P.C. And has acquitted the accused.
8. ' No doubt there are no impediments in the way of trial Court to acquit the accused at any stage of the case. The Court is empowered even to decline to frame the charge against the accused, if no charge is made out or evidence is insufficient. In criminal cases every case has to be ,decided on its own facts. The facts of present case are not identical to the cases in which the Courts have free hand to acquit the accused at any stage of the case. It is a contested matter. Complainant is pursuing his case. He is ready to give evidence in the Court and to put himself to the cross- examination by the accused or his Advocate.
9. ' In such circumstances my view is that the Court should not act in hurry. The Courts are for both the parties. If accused is seeking remedy from the Court and is asking for the relief at the same time the complainant is also asking and expecting from the Court relief for him. So while deciding the cases it is necessary for the Presiding Officer of the Court to provide equal opportunity to both the parties as it is necessary for just decision of the case. In the present case I can see that the complainant who is anxious to examine himself and depose in Court has not been provided the opportunity by the Court. Justice is not only to be done but seems to have been done.
10. ' In the light of above discussion I conclude that the impugned order is liable to be set aside. The impugned order is set aside. The case is remanded back to the trial Court for disposal according to law. The trial Court should make efforts to procure the attendance of the accused by coercive means.
11. ' The criminal acquittal appeal is allowed and stands disposed of.