' SYED IFTIKHAR HUSSAIN SHAH, J.---Amir Afzal, the appellant has preferred this criminal appeal under section 417(2), Cr.P.C. Against order dated 25-11-2010 passed by the learned Magistrate Section 30, Kalar Sayedan whereby respondents Nos.1 to 5 were acquitted under section 249-A, Cr.P.C. In case F.I.R. No,294/2007 dated 16-10-2007 registered under section , 337-A(ii)/337- A(i)/354/ 147/148, P.P.C. At Police Station Kalar Syedan, Rawalpindi. ,
2. After the submission of challan against respondents Nos.1 to 5 under- section 337-A(ii)/337- A(i)/354/147/148, P.P.C., the learned trial Court framed the charge. Respondents Nos.1 to 5 did not plead guilty. The prosecution was directed to produce evidence and the statement of one witness was recorded but the evidence of the remaining witnesses, who remained present on so many occasions, could not be recorded by the learned trial Court and on 25-11-2010 although two witnesses of the complainant were present, who allegedly refused to appear in the witness box without the consent of their learned counsel. Therefore, the learned Magistrate while holding that there is no probability of the accused being convicted of the offence, acquitted respondents Nos.1 to 5 while exercising power under section 249-A, Cr.P.C. Hence; this appeal.
3. Learned counsel for the appellant has contended that the evidence of the appellant remained present on almost all the dates of hearing and even on the date when the learned Magistrate exercised power under section 249-A, Cr.P.C., two witnesses were present, who were ready to make their deposition but the learned trial Court exercised the power under section 249-A, Cr.P.C, erroneously and acquitted accused-respondents Nos.1 to 5 arbitrarily, therefore, the impugned order is' liable to be set aside.
4. On the other hand, learned counsel for respondents Nos.1 to 5 has contended that although the prosecution evidence remained present but the witnesses were not going to depose, therefore, learned trial Court, after granting so many opportunities, exercised nower vested in him under section 249-A, Cr.P.C. Properly.
5. Learned DPG has contended that the learned trial Court passed the impugned order without hearing the prosecution, which was incumbent upon him, hence, the impugned order is not sustainable in the eye of law.
6. I have heard the learned counsel for the appellant, learned counsel for respondents Nos.1 to 5, learned DPG for the State and have perused the record.
7. Under section 249-A, . Cr.P.C. a Magistrate is competent to acquit an accused at any stage of the trial, if after hearing the prosecutor and the accused and for the reasons to be recorded, he considers that the charge is groundless or there is no probability of the accused being convicted of any offence.
8. In this case admittedly, the P.Ws. Remained present before the learned trial Court but their deposition could not be recorded on one pretext or the other. Even. On 25-11-2010 when the impugned order was passed, two witnesses of the complainant were present but their deposition could not be recorded due to the absence of the complainant as they allegedly refused to get their statements recorded in the absence of the complainant and the injured P.W. The learned counsel for the complainant sought an adjournment that their deposition be recorded in the presence of the complainant, who was not available on the said date. Learned Magistrate, instead of granting another opportunity to the complainant to produce evidence, held that there is no probability of the conviction and acquitted respondents Nos.1 to 5 under section 249-A, Cr.P.C. For non- prosecution.
9. Under section 249-A, Cr.P.C., a hearing is required to be given to the learned prosecutor and the counsel for the accused and the reasons are to also to be recorded in support of the conclusion that the C charge is groundless or there is no probability of the accused being convicted. It is settled principle of criminal jurisprudence that the trial Court did not conclude rather it was not possible for him to have concluded that the charge was groundless or there is no probability of accused being convicted for an offence without assigning reason to said conclusion.
10. The following are the admitted facts of the case that the F.I.R. Was lodged against respondents Nos.1 to 5 and challan was submitted under sections 337-A(ii)/337-A(i)/354/147/148, P.P.C., copies of statements recorded under section 161, Cr.P.C. Were delivered to the accused, charge was framed and the case was fixed for prosecution evidence. The prosecution evidence remained present on so many occasions but could not be recorded on one pretext or the other. Even on the date the impugned order was passed i,e, 25-11-2010, the evidence was present. The only objection of the learned counsel for the complainant was that the evidence should be recorded in the presence of the complainant, who was not present on the said date and the learned trial Court being annoyed over the said request, acquitted respondents Nos.1 to 5 even without given notice to the learned prosecutor and hearing him as well as the complainant.
11. The hearing of prosecutor and the accused as well is precondition to the order of acquittal under section 249-A, Cr.P.C. Learned trial Court has violated this mandatory provisions of Cr.P.C. He did not hear the learned prosecutor before passing the impugned order under section 249-A, Cr.P.C., which clearly indicates that no opportunity was given to the learned prosecutor of being heard and in an unusual and hasty manner, acquitted respondents Nos.1 to 5 under section 249-A, Cr.P.C.
Which is not in accordance with law.
' In view of above discussion, the appeal in hand is allowed, impugned order dated 25-11-2010 is set aside and the case is remanded to the learned trial Court with the direction to take up the proceedings afresh from the stage at which the impugned order was passed. The parties are directed to appear before the learned trial Court on 8-11-2013 and the learned trial Court is directed to dispose of this case expeditiously.