JUDGMENT` Yakoob Ali son of Fayaz Ali, who stands charged with offences punishable under sections 468, 411 read with section 511, P. P. C. And section 5 (2) of Prevention of Corruption Act, 1947 and is undergoing trial before the Special Judge (Central) Karachi, in case No. 109/78 has filed this revision application under section 10 (1) of the Criminal Law Amendment Act, 1958 read with section 439, Cr. P. C. Against the order dated 29th July, 1980 passed by the Special Judge (Central) Karachi, rejecting his application under section 265-K, Cr. P. C. The applicant has also prayed for quashment of proceedings and his acquittal in the case invoking the jurisdiction of this Court under section 561-A, Cr. P. C.
2. The facts giving rise to this revision petition as stated in the application are that applicant who was employed as Manager, Accounts and Investment of the Pakistan Insurance Corporation, was tried along with two other accused by the Special Judge (Central) Karachi, in case No. 2/76. A charge was framed on 4March, 1976 under sections 120-B, 407 and 471, P. P. C. However, after commencement of the trial the learned Judge held that the applicant was a public servant and since no sanction for prosecution was forthcoming the case was adjourned for obtaining requisite sanction. The applicant being aggrieved and dissatisfied by the aforesaid order of the learned Special Judge, filed revision application in this Court and by judgment dated 12th September, 1977 it was held that the proceedings relating to framing of charge were without jurisdiction as sanction for prosecution was condition precedent to trial of the accused. The proceedings were therefore, quashed but it was observed in the afore said judgment that prosecution would be at liberty to institute fresh proceed--ings after obtaining a valid and proper sanction.th
3. The prosecution filed a fresh challan on 24July, 1978, this time along with sanction order in the Court of Senior Special Judge (Central) Karachi and a fresh charge was framed on 15October, 1978 under sections 420, 467, 471, 120-B and 511, P. P. C. Read with section 5 (2) of the Anti-Corruption Act, 1947 (II of 1947). The charge was amended on 21st December, 1978 and the applicant was charged under sections 468, 417 read with section 511, P. P. C. And section 5 (2) of the Prevention of Corruption Act The trial proceeded and after the prosecution evidence had been closed application under section 265-K, Cr. P. C. Was moved before the learned Special Judge, who dismissed the same by his impugned order dated 20th July. 1980 on the ground that in view of provisions of section 6 (3) of the Pakistan Criminal Law Amendment Act, 1958 Chapter XX of Criminal Procedure Code applies to trial of cases and therefore, the provisions of section 265-K, Cr.
P. C. Do not apply to the proceedings before the Court. It was further held by the learned Special Judge that the case had reached the stage of recording of statement of accused and the prosecution had been declared closed and therefore at this stage it would not be proper to discuss and consider the merits of the case on points involved, in the application. He further ordered that the statement of the accused be recorded and thereafter if the advocates for the accused feel that there is no evidence against the accused or there are legal flaws in the case they may close their sides and argue the matter on merits.
The impugned order has been assailed firstly on the ground that even though section 265-K of Criminal Procedure Code did not apply the application should have been considered to be one under section 249-A which occurs in Chapter XX of the Criminal Procedure Code and therefore was applicable. It is further contended that the application for acquittal could be made at any stage of the trial and if the application had been treated as one under section 249-A, Cr. P. C. It had to be dealt with and decided with at most speed. Reliance in this regard has been placed on decision reported in Din Muhammad v. Muhammad Sharif (PLD 1979 B J 12).
4. As already stated the impugned order is clear on the point that although the correct legal position with regard to applicability of section 265-K, Cr. P. C. Was stated therein, the decision was made also after considering the stage of the trial and it was observed by the learned Special Judge that the prosecution had been closed. Section 249-A, Cr. P. C. Reads as under:- "249-A. Power of Magistrate to acquit accused at any stage.-Nothing in this Chapter shall be deemed to prevent a Magistrate from acquitting an accused at any stage of the case, if, after hearing the prosecution and the accused and for reasons to be recorded, he considers that the charge is groundless or that there is no probabi--lity of the accused being convicted of any offence."
It is apparent that the provision is enabling one, giving power to the Magistrate after hearing the prosecution and the accused to give a finding that the charge is groundless or that there is no probability of the accused being convicted of any offence and acquitting him. The order of the learned Special Judge that statement of the accused should be recorded and thereafter if the Advocates for the accused consider that there was no evidence against him or there are any legal flaws in the case they may close their sides and argue the matter on merits would appear to have been dictated after consideration of the provisions of section 249-A which have been reproduced above, under which too he had to hear the accused before passing any order.
5. The stage of the trial at which the application for acquittal of the accused was made is very significant since the prosecution side had been closed there could be no question of any delay on the part of the prosecu--tion, and at that stage only the statement of the accused had to be record--ed. If as has been contended before this Court there was no evidence on the record against the applicant to connect him with the offence with which he had been charged there was no question of any evidence in defence being given and in any case after the stage reached, if there had been any delay to the decision it would trot have been on the part of the prosecution. Inth th case the learned Special Judge had granted the application of Yakoob Ali under section 265-K, Cr.
P. C. Or more appropriately under section 249-A, Cr. P. C. He could only have decided it by either accepting or rejecting it. In case he had rejected the application he would have had to again hear the arguments afresh on the merits of the case if he found that the case had been made out against the accused. The provisions of section 249-A as already observed are enabling and the discretion invoked is to be exercised in a judicial manner. The power given under section 249-A can be exercised no doubt at any stage of the case as provided therein but in interpreting the aforesaid section the Court has not to be oblivious of the history of law and legislation and it is of the utmost importance that the object of the legislature be kept in mind and the Court has to see whether the terms of the section are such as fairly to carry out that object. The provision of section 6 (3) of the Pakistan Criminal Law Amendment Act, 1958 (XL of 1958) provides for special procedure in the trial of cases under the Act and provisions of Chapter XX of the Code of Criminal Procedure have been made applicable. The Act, therefore, prescribes summon case procedure for the trial of such cases. The omission of Chapter XXI and amendments in Chapter XXII-A which pertains to trial before High Court and Courts of Sessions therefore were considered by the learned Special Judge as not applying to the proceedings before him. Similar, provisions were however made in Chapter XX of the Cr. P. C. By adding section 249-A by the Code of Criminal Procedure (Amendment)
Ordinance XXVI of 1977. The object of the legislature apparently is that there should be no delay in disposing of charges against an accused person if the Court considers that the same are groundless or there is no probability of the accused being convicted. In the instant case however the applica--tion for acquittal was made at a time when even otherwise the prosecution case having been closed the statement of the accused had to be recorded and therefore it would have been conducive to quicker decision if instead of making the application, the matter had been finally argued before the learned Special Judge, enabling him to give a decision. It is also not easily understood why at that final stage jurisdiction of this Court tinder section 561-A was invoked as although the scope of sections 249-A and 561-A, Cr: P. C. Is that the same recognize the inherent powers possessed by criminal Courts to do right and rid an accused from every groundless charge and provisions of section 249-A do not affect the power of this Court to quash proceedings in exercise of power under section 561-A; such power, however, is to be exercised only in extraordinary and exceptional cases where there has been abuse of process of Court or where sending the accused to trial Court only would perpetuate the abuse or injustice rather than eliminate it. The learned Advocate for the applicant argued the case on merits but in matters such as the instant case the decision should depend on evidence already on record recorded by the trial Court. Since there appears to be no injustice or abuse or process of Court the applicant, should first have resorted to the remedy in the Court of lower jurisdiction enabling that Court after hearing proper arguments to decide the case. It is apparent that the application seeking acquittal was made at a stage when it could only have delayed the matter of decision without any choice of expediting the same, inasmuch as the prosecution had closed its case and the final stage had been reached when instead of binding the learned Judge to pass orders on the application first, efforts should have been made to argue the case and get a decision.
5. There are no special or exceptional circumstances for invoking the extraordinary power of this Court under section 561-A, Cr. P. C. The petition is accordingly dismissed, and the ad interim order of stay of proceeding stands vacated. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.