1. MUHAMMAD ATHAR SAEED, J.---This Criminal Miscellaneous Application has been filed against the order of XVI Judicial Magistrate South Karachi dated 6-8-2009 whereby the learned Civil Judge had dismissed the application under section 249-A, Cr.P.C. for quashment of the proceedings and the acquittal of the accused.
2. Brief facts of the case are that an F.I.R. was lodged by Sub-Inspector Sultan Ahmad posted at Police Station Kharadar, Saddar Town, Karachi, wherein he reported that during patrol in the area on private motorcycle in the vicinity of Makkar Para, near Sherazi Baba Mazar, Kharadar, Karachi, he apprehended the accused who disclosed his name as Muhammad Faisal and had a pistol .30 bore bearing No,3100416 in his right hand and was firing in air in respect of celebration of new year, which was creating fear in the area people and that the accused was caught and the pistol was recovered with empty magazine. The licence of the pistol was demanded but he could not produce the same and therethre he was taken into custody. Later on, statement of one Muhammad Rehan son of Ramzan was recorded under section 161, Cr.P.C. in which he stated that it was his licensed pistol, which was foisted on the accused because the accused/ applicant had exchanged hot words with the police authorities. He also produced his licence before the police authorities and this fact is mentioned in the report of A.S.-I. Nasir Khan in the Roznamcha of Police Station Kharadar dated 8-1-2009 at 2100 hours in which the A.S.-I. had stated that the licence was produced before him but there was some difference in number between the, receipt and the licence.
3. The perusal of the impugned order shows that the learned Judicial Magistrate was of the opinion that the licence of weapon was not produced and assumed that witness Muhammad Rehan was trying to save his friend the present applicant and was of the opinion that it could not be established that charge against the accused is groundless and there is no probability of arrest of the accused or his being convicted for any offence till the statement of material witnesses including complainant, mushir of arrest and recovery and investigating officer have been examined. With regret I cannot agree with the findings of the learned Civil Judge as they are based on assumption and show that he has not thought it feasible to examine the evidence on record or to go through the licence to find out if the discrepancy pointed out by the police officials exists or not.
4. Even otherwise, on a perusal of the F.I.R. it is seen that the only charge against the accused is that he was resorting to aerial firing, in celebration of the new year. It is a common fact that aerial firing is a common practice in every town on new year and Eid and to just pick up one person for this alleged aerial firing shows the mala fide intention of the police officials and on perusal of the documents I am of the considered opinion that the charge does not hold much water and the chances of conviction are very feeble. I would, therefore, allow this appeal and quash the proceedings being taken in respect of F.I.R. No,1 of 2009 registered at Police Station Kharadar, Karachi on 1-1-2009.
5. This Criminal Miscellaneous Application is disposed of in the above terms.