A SAEED AKRAM KHAN, J. --- This appeal cut out of the judgment passed by the Shariat Court on 18.5.2013, whereby the criminal appeal filed by the complainant appenllat against the order of Tehsil Criminal Court, Sehnsa, dated 31.5.2011 was dismissed.
2. The summary of facts in the case is that the complainant, Muhammad Asif Siddique, lodged an F.I.R. In the offences under Sections 324. 147, 148, 149, 506, 337-A, 337-H (2), A.P.C., at Police Station Sehnsa on 17.9.2009 against the accused-respondents. After completion of investigation, a challan was presented before Tehsil Criminal Court, Sehnsa, District Kotli. The case was at initial stage for summoning of the prosecution witnesses. The Trial Court issued the notices which were not properly served upon the prosecution witnesses. During the course of proceedings, witness No. 14, who was not summoned by the Court, voluntarily appeared and recorded his statement. After recording of the statement of prosecution witness Na 14, the accused-respondents moved an application under Section 249-A, Cr.P.C., before the Trial Court. The Trial Court after hearing the parties allowed the application and acquitted the accused-respondents of the charges vide its judgment dated 31.5.2011. Feeling aggrieved, the complainant-appellant filed a criminal appeal before the Shariat Court, which was dismissed vide impugned judgment dated 18.5.2013 Hence, this appeal.
3. Ch. Muhammad Illyas, Advocate, the learned counsel for the complainant-appellant, argued that the judgments of both the Courts below are against law and the facts of the case. He argued that the Trial Court committed a gross illegality, while acquitting the accused of the charges. The learned Shariat Court without adhering to the law on the subject affirmed the order passed by the Trial Court. The learned counsel contended that the learned Shariat Court failed to take into account that the Trial Court, while proceeding under Section 249-A, Cr.P.C.. Has not acted under law. He submitted that the learned Shariat Court also failed to take into consideration that the notices for summoning the prosecution witnesses were not duly served upon the prosecution witnesses and in this regard, no coercive measures were adopted by the Trial Court to ensure the attendance of the witnesses. The learned counsel further submitted that in the challan of the case, 16 witnesses have been cited and without recording the evidence of the said witnesses, the Trial Court was not justified to acquit the accused-respondents of the charges under Section 249-A, Cr.P.C. The learned counsel argued that during the course of investigation, a 12-bore rifle alongwith crime empties was recovered on the pointation of the accused-respondents, therefore, in presence of the overwhelming evidence against the accused-respondents, the Trial Court was not justified to pass the order on the application filed under Section 249-A, Cr.P.C. The learned counsel contended that the learned Shariat Court has also fell in error, while upholding the order of the Trial Court. The learned counsel averred that both the Courts below have failed to adhere to the law and the principles of administration of criminal justice. The learned requested for acceptance of appeal.
4. Raja Ghazanfar Ali, the learned Advocate- General, supported the arguments advanced by the learned counsel for the complainant-appellant.
5. On the other hand, Mr. Muhammad Azeem Datt, Advocate, the learned counsel for the accused- respondents, while supporting the judgments of the Courts below, has argued that there are concurrent findings recorded by both the Courts below, which cannot be interfered with by this Court. He argued that the trial of the case remained pending in the Trial Court for a long time due to lack of interest on the part of the complainant and the same could not be concluded, therefore, the learned Trial Court was fully justified to pass the order under Section 249 Cr.P.C. Or acquittal of the accused-respondents as there was no evidence available against them on the basis of with the conviction could be recorded. He contended that under Section Cr.P.C. The Trial Court has inherent powers to acquit at; accused at any stage of the trial even without framing the charge.
6. We have heard the arguments of both the learned counsel for the parties at length and also perused the impugned orders passed by the Shariat Court as well as the Trial Court. The complainant-appellant filed an application at Police Station Sehnsa, against the accused- respondents and a case was registered against them under Sections 324, 147, 148, 149, 506, 337-A, 337-H(2), A.P.C. On 17.9.2009. After completion of the investigation, the challan was presented by the Police in the Tehsil Criminal Court, Sehnsa. The Trial Court issued notices to the prosecution witnesses to appear before the Court, which were not properly served upon the prosecution witnesses. Meanwhile, witness No. 14 appeared before the Court without any notice and get recorded his statement, Thereafter, the accused-respondents filed an application under Section 249-A, Cr.P.C. Before the Trial Court, which was allowed on the ground that the complainant- appellant has not shown any interest to pursue the case and acquitted the accused-respondents of the charges.
7. It is settled principle of law that under Section 249-A, Cr.P.C., the Court has ample power to acquit any accused at any stage of the proceedings. It does not impose any clog or bar on recording the evidence or framing of the charge, however, these powers are subject to some conditions and without fulfilling the conditions, an order of acquittal cannot be passed, while exercising powers under Section 249-A, Cr.P.C. The words "at any stage" denote the wisdom of the legislation to enact Section 249-A, Cr.P.C. To save the innocent people from agony of trial and if at any stage of the trial, the Court comes to the conclusion that the charge is groundless and there is no possibility of conviction of the accused, then the evil should be nipped in the bud even prior to framing of the charge and proceedings against the accused ordered to be dropped. It can either be at initial stage that after taking cognizance or middle stage after recording some proceedings or even at a later stage. The application under Section 249-A, Cr.P.C. Can be moved at any stage and no impediment exists in the way of Trial Court to acquit the accused, however, these powers are guided by law and the Trial Court while passing the order under the said provision has to adhered to the same.
7. After going through both the orders of the Courts below, it seems that the Courts are influenced by the words "at any stage". There is no cavil with the proposition that the Trial Court has power to acquit the accused at any stage of the proceeding, however, before passing such order, it has to form the opinion on the basis of the material available, i.e., (i) F.I.R., (ii) statements of witnesses recorded under Section 161, Cr.P.C. (iii) medico-legal reports and; (iv) recoveries etc. Where there was no probability of conviction of the accused and the Court satisfied on the basis of the material referred to above that a charge is groundless then it can pass the acquittal order of an accused after recording the reasons with speaking order under Section 249-A, Cr.P.C.
8. We have also examined the interlocutory orders passed by the Trial Court. It appears that summons were issued to procure the attendance of the prosecution witnesses but the same were not served upon them. It is also spelt out that no serious efforts have been made by the Trial Court to secure the attendance of the witnesses as the Courts are not powerless in the matter of securing attendance. In this regard, reliance can be placed on The State v. Sarwar Khan & others [PLD 1984 SC 428], where it has been held as under:--- "By way of guidance to the Courts it may be indicated that when the summons issue, as they issued a number of times in this case for the witnesses and the witnesses do not appear in response to it, the reasons therefore must be examined and noted in the order sheet and where necessary coercive steps should be taken for securing the attendance of witnesses. The Court should not feel so powerless in the matter of securing attendance and should not lay the entire responsibility on the prosecutor himself. Further, while recording an order under Section 249-A, Cr.P.C, the Court should afford an opportunity to the prosecutor, in a complaint case to the complainant before recording an order of acquittal and that can be done either by issuing a show-cause notice or calling upon the prosecutor or the complainant as the case may be, to show cause why such an order be not recorded. Finally, needless to say that an opinion with regard to the involvement of an accused has to be formed in terms of the requirements of section 249-A, Cr.P.C. And not outside it"
The acquittal order without looking into the material brought on record by the persecution and without adopting the proper procedure for acquitting the trial is illegal and is liable to be set aside as laid down in a case titled The State v. Muhammad Afzal & another [2000 M LD 220] in which it has been observed as under:--- "7 In view of the aforesaid circumstances, it was not possible for Trial Court to have concluded that the charge was groundless or that there is no probability of the respondents being convicted of any offence in the circumstances of this case, because, the impugned order has been summarily passed upon a denial of an opportunity to the prosecution to produce the prosecution witnesses whose attendance had to be produced by the learned Magistrate by adopting all the legal methods. Thus, the nonappearance of the prosecution witnesses cannot be said to be due to the laxity of the complainant, rather, the learned Magistrate proceeded in the matter in perfunctory manner. This fault/loose control/nonserious working of the learned Magistrate should not damage the case of the prosecution for the purpose of the acquittal of the accused under Section 249-A, Cr.P.C. It is settled maxim of Jurisprudence that no doubt an accused is a favourite child of law, but keeping in view the shape of scale and justice, the complainant is also not denied of justice of the Court."
9. Nothing has been recorded by the Trial Court that as to why the service could not be effected upon the prosecution witnesses and why the other coercive measures have not been adopted to procure the attendance of the witnesses. Thus, non-appearance of the prosecution witnesses cannot be said due to laxity of the complainant, rather the Trial Court has proceeded in the matter in perfunctory manner, which shows the non-serious conduct of the Presiding Officer to dispose of the case on merits. The case was registered on the complaint of one Muhammad Asif Siddique, who was got injured with pellet injury. When the service was not effected upon the prosecution witnesses, they cannot be claimed that they are not appearing intentionally, when no other coercive method has been adopted. In such-like situation, Section 249-A, Cr.P.C. Is not attracted.
Non-serious working of the Presiding Officer should not damage the case of the prosecution witnesses. Under Section 249-A, Cr.P.C., without taking into account the material factor referred to above, it cannot be ascertained that the charge is groundless and there is no probability of the accused being convicted of any offence and the trial of the case would be futile exercise. The acquittal order under Section 249-A, Cr.P.C. Can only be passed after recording the reasons and discussing the factual material which is the part of the record. In a case titled The State v.
Mahmood & another 1983 Cr.L.J. 363] it has been observed as under:--- '9. What is contemplated by Section 249-A, Cr.P.C. Is that if the charge is groundless or that there is no probability of the accused being convicted for any offence, the Magistrate may acquit the accused after recording the reasons.... "
In another case reported as Siraj Din v. Zaka-urRehman and others [1988 P.Cr.L.J. 1071], it has been held as under:--- "4 .................................... In my view the two impugned judgments cannot be upheld, firstly because the learned Trial Magistrate acquitted the accused on merits without recording any evidence.
Secondly, he took into consideration the medical evidence without recording the statement of medical officer. The medico-legal certificate required formal proof and could not have been considered without the statement of the medical officer. Thirdly, the learned Magistrate took into consideration delay of 20 hours in lodging the without examining Siraj Din complainant as witness during the trial and finally that the case against the three accused was not a case of no evidence.
The prosecution case was supported not only by the injured but also by the eye-witnesses and the medical evidence. Moreover, the finding of the learned Magistrate that the report under Section 173, Cr.P.C. Makes the case against the accused doubtful is based on misreading of the said document.
The three accused were chailaned under Sections 324/34, P.P.C. They were not found innocent during investigation. Their names were mentioned in column No. 4 of the challan. Mere fact that Section 452 was deleted by the police after investigation would not mean that the case against them was in any manner doubtful. The learned Magistrate acquitted the accused without .Recording evidence, in excess of its jurisdiction. He had no authority to acquit the accused without recording evidence and without following due process of law. In view of these circumstances the revisional order was also not legal."
10. The powers under Section 249-A, Cr.P.C. Can only be exercised by the Trial Court in aid of justice and such powers had to be exercised with due care and caution and in case there was possibility of receipt of evidence sufficient to warrant conviction, then the power was not to be exercised merely on artificial presumption. The surprising aspect of the case is that the learned Shariat Court has also not taken the pain to examine the ground on which the acquittal order has been passed and committed the same illegality, which has done by the Trial Court without examining the record and law on the subject. The Trial Court while recording the statement of PW.14, who was not even summoned by the Trial Court, tried to justify, its illegal order. Such-like practice cannot be approved. The act of the Trial Court is in excess of its jurisdiction, which conferred on it by Section 249-A, Cr.P.C.
11. In view of the above discussion, the order dated 31.5.2011 passed by the Trial Court and the impugned judgment dated 18.5.2013 passed by the 5hariat Court are declared to have been passed without lawful authority, in excess of jurisdiction and void, the same are set aside. The case is remanded to the Trial Court with the direction to proceed with the matter in accordance with law. However, there is no bar to move fresh application under Section 249-A, Cr.P.C. Before the Trial Court. The Trial Court shall deicide the same while keeping in view the guidelines laid down by this Court in the case in hand and decide the same strictly in accordance with law.
Before parting with the case, as we have observed that the Trial Court has acted in careless manner and the order of the acquittal has been passed without examining the material and adopting the coercive method to procure the attendance of the witnesses. The Pres., Officer/Trial Court has to explain his conduct, therefore, it is directed that the explanation shall be submitted within a period of fortnight from the date of receipt of notice through Registrar of this Court.