' MRS. SYEDA TAHIRA SAFDAR, J.---By way of filing instant petition the petitioners Salahuddin, and Wali Khan sought Quashment of order dated 28th May 2012 of Judicial Magistrate-IV, Quetta, with further prayer that their application filed under provisions of section 249-A Criminal Procedure Code (Cr.P.C) be allowed, and they be acquitted of the charge. It was contended that they had been involved in the instant case with mala fides, and ulterior motives, as there was no evidence to connect them with commission of the offence. Neither any recovery was effected from them nor the offences alleged in the F.I.R. Were attracted in the given circumstances. It was further contended that the mala fides on the part of the prosecution were apparent from the fact that the case to the extent of co-accused persons nominated in the F.I.R. Were withdrawn but they (petitioners) were ignored. But the trial court failed to consider this material aspect of the case and refused the application filed under the provisions of section 249-A, Cr.P.C, in contravention of law.
2. It was argument of the learned counsel for the petitioners that no recovery was effected from the petitioners, rather the arms were recovered from the co-accused persons. Further this fact was apparent from the contents of F.I.R. Despite the same the case was withdrawn by the prosecution only to the extent of co-accused persons; this act disclosed the mala fides on part of the prosecution. It was further contended that the prosecution witness No,1 (PW-1) while appearing before the trial court did not state anything against them (petitioners). Therefore, in view of the facts so stated the petitioners become entitled for their acquittal of the charge. The counsel representing the State contended that there was no material against the petitioners, nor any recovery was effected. Further, there were no witnesses of the occasion to the extent of the petitioners.
3. The perusal of the papers annexed with the petition reveals that F.I.R. No,195 of 2011 Police Station Sariab, Quetta was lodged against several persons including Sultan Khan, Surat Khan, Zamanullah, Abdul Wall, and Salahuddin. The record further revealed that though to the extent of accused Sultan Khan, Surat Khan, and Zamanullah the request for withdrawal of the case was declined by the trial court, but allowed by the Sessions Judge. Quetta, through order dated 23rd April 2012. But later in time the petitioners filed an application under provisions of section 249-A, Cr.P.C, thereby requested for their premature acquittal of the charge, but it was declined by the trial court on grounds that the case being at mature stage, and material witnesses yet to be examined. Being aggrieved of this order instant petition had been filed.
4. The provisions contained in section 249-A, Cr.P.C. Provided a discretion to the trial court for pre- mature acquittal of the accused persons. But this discretion is to be exercised keeping in view the facts, and circumstances of each case within the ambit of law. In present case the request so made had been declined by the trial court on ground that the trial was at mature stage, and only material witnesses had to be examined. But the order failed to disclose the material witness, which was left to be examined. The perusal of the annexed documents revealed that the case to the extent of the co-accused persons namely Sultan Khan, Surat Khan, and Zamanullah was allowed to be withdrawn by the prosecution with permission of the Sessions Judge, Quetta through order dated 23rd April 2012, while entertaining a petition filed for revision of order dated 13th March 2012 of Judicial Magistrate, Quetta who declined the request. The petitioners feeling aggrieved of the act moved an application for their acquittal, but failed.
5. The contents of questioned F.I.R. No,195 of 2011.Police Station Sariab, Quetta, this fact is very much apparent that recovery of pistol and Kalashnikov was specifically alleged from the possession of B co-accused Sultan Khan, and Surat Khan with further allegation of making ineffective firing by them. But the did not speak about recovery of any arms or ammunition from custody of the petitioners, nor any overt act on their (petitioners) part; The statements of two prosecution witnesses P.W.1 and P.W.2 had already been recorded. P.W.1 Muhammad Javed was an eye-witness of the occasion: he appeared as witness of recovery of arms used in commission of the offence and their seizure. According to his statement when he reached at the site when accused Sultan had pistol in his hand, and Surat Khan was with Kalashnikov which were taken into custody. But his statement failed to describe the presence of the present petitioners, nor described any act on their part in commission of the offence. As far as P.W.2 Shah Nawaz Constable was concerned, his statement restricted only to the recovery of the empties at the site. From the papers attached it is not clear that whether statement of the complainant was recorded, or otherwise. Because none of the parties produced any such statement, nor referred to it.
6. Keeping in view the material on record there is no evidence against the petitioners except their presence at the site. No specific act had been assigned to them in commission of the offence.
Above all the case against, the persons who were described with an act of firing, and recovery of fire arms from their. Possession were already allowed to go free with permission granted for withdrawal of the case to their extent. The inference of mala fides on part of the prosecution can easily be drawn, and the benefit occurring thereof can not be refused.
7. In view of above discussion, and on basis of the material on record, it appeared that even after recording of entire evidence there is no possibility of conviction of the petitioners in case in hand.
Therefore, in given state of facts the further proceedings would be nothing, but an abuse of process of the court. But the trial court not only failed to consider the factual aspect of the case, but also failed to exercise the jurisdiction vests with it. Rather, in contravention thereof arrived to a conclusion, that too without assigning' any reason, which is not sustainable. Therefore, the petition is allowed. Impugned order dated 28th May, 2012 of Judicial Magistrate-IV, Quetta, is hereby set aside. Consequently thereupon the application filed under section 249-A, Cr.P.C. Before the trial court is hereby accepted. The petitioners Salahuddin son of Malik Fazal Muhammad and Wali Khan son of Haji Faiz Muhammad are acquitted of the charge in case pursuant to F.I.R. No, 195 of 2011, Police Station Sariab, District Quetta. The petitioners are on bail; their bail bonds shall stand discharged.