Through this writ petition, the petitioner has impugned the order dated 03.12.2010 passed by the learned Sessions Judge, Lahore whereby the application under section 249-A Cr.P.C. Of respondent Nos. 1 to 4 which was dismissed by the learned Judicial Magistrate vide order dated 28.07.2010, was accepted and respondent Nos.1 to 4 were acquitted from the charges levelled against them in case FIR No.944 dated 19.12.2007 registered under sections 382, 455 and 143 PPC at Police Station Gulshan Ravi, Lahore.
2. Brief facts of the case are that the petitioner registered the aforementioned FIR stating that he rented a property No.1-F Ghalib Colony New Shalimar Town Near Usman Park Gulshan Ravi, Lahore owned by respondent No.3 Naseem Qamar for which a rent agreement was drafted on 09.10.2006.
The rent was agreed to Rs.13,000/- per month and Rs.3,00,000/- was deposited by the petitioner as advance security. The rent agreement was signed by the petitioner and other witnesses.
Respondent No.1 Muhammad Qasim real son of respondent No.3 Naseem Qamar stated that he would get the thumb impression of his mother on the rent agreement as she being a Pardah Naseen Lady could not sit before them. The petitioner being their neighbour had no objection to this. Resultantly the petitioner was given possession of the property where he installed his machinery, details of which have been mentioned in the FIR. Respondent No.1 Muhammad Qasim used to regularly collect the monthly rent on behalf of respondent No.3 Nasim Qamar. Excise and Taxation Department also inspected the premises where the factory of the petitioner "Homeo Lab" was functional. After a few months, the respondent Nos. 1 to 4 started pressurizing the petitioner to vacate the premises on which the petitioner refused as his factory was operational and it was not possible to move after a few months. So on 26.09.2007 in the absence of the petitioner, the respondent Nos. 1 to 4 forcibly broke the locks of the factory of the petitioner with the help of the Nazim of the locality and others. They dismantled the machinery of the petitioner and stole the said machinery with other valuables lying in the rented premises of the petitioner. When the petitioner was informed regarding the incident he reached his factory along with Ayub, Kashif and others the respondents were armed with weapons and threatened to kill them. Though there was an injunctive order of the Civil Court in his favour but the respondents still forcibly dispossessed the petitioner from his rented premises and stole his expensive machinery.
3. After registration of the FIR, police conducted investigation and submitted a report under section 173 Cr.P.C. Before the trial court. On 18.11.2009, charge was framed under sections 382 & 411 PPC and before evidence could be recorded, the respondent Nos. 1 to 4 filed an application under section 249-A Cr.P.C., before the Judicial Magistrate which was dismissed. After which the respondent Nos.
1 to 4 filed a criminal revision before the learned Sessions Judge which was accepted and all the respondents/accused were acquitted. Hence, this writ petition before this Court.
4. Arguments have been heard and the available record perused.
5. The Respondents No.1 to 4 filed an application under section 249-A Cr.P.C praying for their acquittal before the Judicial Magistrate on 22nd July 2010 which was dismissed vide Order dated 28-07-2010 the operative part of the Order of the Judicial Magistrate is reproduced as under: "After submission of report u/s 173 Cr.P.C and service of copies of statement u/s 161 Cr.P.C formal charge u/s 382, 411 PPC was framed on 18.11.2009 but till today no evidence could be recorded due to either absence of accused or filing of Misc. Petitions. I have carefully perused the record and heard the valuable arguments advanced by the parties. I am of the considered view that respective contentions of the parties require recording of evidence and only after that they can be properly appreciated. At present petitioners have failed to prove that either charge has become groundless or there exists no probability of their conviction. Resultantly instant application is hereby dismissed."
6. Aggrieved by the said Order the Respondents No.1 to 4 filed a revision petition under section 439- A Cr.P.C read with section 435 Cr.P.C before the Sessions Judge, Lahore on 09.08.2010 which was accepted vide Order dated 03-12-2010 operative part of the Order impugned is reproduced as under: "12. Nazim of the area and other respectable joined the investigation and they were of the view that only possession of property was obtained because it was lying under locks since long and that was done in good faith and in the interest of noble citizens. Police in the given circumstances rightly came to a view that criminal intention was not there at all and petitioners were found innocent.
13 Complainant has yet to establish his case in the Civil Court where the matter was brought prior to registration of case. It is worth mentioning that possession of shop was taken after moving an application to Mian Haris Saleem, Nazim U.C No.89 Gulshan-e-Ravi, Lahore and Adnan Saleem Butt, Labour Councilor who had prepared an inventory of the articles placed and those were kept in a room under a lock, therefore, it means that no question of commission of theft was there at all.
Police, therefore, also rightly concluded that it was not even a case of section 380 P.P.C.
14. Provision of section 249-A Cr. PC has been brought on statute book not to be kept there but to be invoked. Its purpose is to protect innocent persons from the agony of trials, to save valuable time of the Courts and to avoid abuse of process of law. Once Court finds that involvement of an accused is based on wrong assertions then this fact along is sufficient to hold that charge is groundless and even if the charge is framed, then the available evidence is not of such quality on the basis of which there may be possibility of conviction of accused. Petitioners are being dragged either before Investigating Officers or in the Court since September, 2007 and there sin is only that Mst. Nasim Qamar, one of the petitioners, is landlord/owner of property in question.
15. In view of above, I hold that there is no possibility or probability of being convicted petitioners in this case even if entire evident is recorded. Therefore, criminal revision No.31 of 05.11.2010 is allowed.
Impugned order dated 28.07.2010 is set aside. Application under section 249-A Cr.PC is accepted.
Petitioners are acquitted from the case under section 249-A Cr. PC. They are on bail and they are discharged from their bail bonds.
16. As petitioners have been acquitted from the case so remaining two criminal revisions have become infructuous. File of criminal revisions after due compilation shall be consigned to record room whereas record shall be sent back immediately along with copy of this order."
7. In Paragraph No.12 of the order impugned it is evident that the Learned Sessions Judge has not denied rather accepted the version of the Petitioner that the locks of the rented premises of the petitioner were broken and the possession of the property was handed over by the Nazim of the locality to the respondents No.1 to 4 though there was no legal court order. It has been held by the Honourable Supreme Court in "The State through Advocate-General, Sindh High Court of Karachi versus Raja Abdul Rehman" (2005 SCMR 1544) that:- "that in appeal or revisional proceedings, the order of acquittal of the accused under section 249-A or section 265-K of the Cr.P.C. Would not have the same sanctity as orders of acquittal on merits.
Consequently, the principles which are to be observed and applied in setting aside concurrent findings of acquittal or the principle relating to the presumption of double innocence when an accused is acquitted after a fullfledged inquiry and trial to acquittals under section 249-A, Cr.P.C would not be applicable."
8. The Magistrate under section 249-A Cr.P.C has powers to acquit an accused at any stage of the trial when after hearing the prosecutor and the accused the Magistrate comes to the conclusion that the charge is false and baseless or being a case of no evidence there is no probability of the accused being convicted of any offence. But when the Court is convinced that an occurrence has taken place and the complainant is ready to prove his case then in such cases the complainant should be allowed to lead his evidence. It has been held by the Supreme Court of Pakistan in numerous cases that the normal rule is that an accused be acquitted only when proved innocent after facing trial and section 249-A Cr.P.C is an exception to the rule only when the Court at any stage comes to the conclusion that the charge against the accused is groundless and there is no chance for the accused to be convicted and the trial is a futile exercise. Reliance is placed upon "Muhammad Muslim and another vs Muhammad Iqbal and 2 others" (PLJ 2004 Supreme Court 2).
In the case in hand the Magistrate was not convinced that the case was groundless and the learned Sessions Judge in the impugned order also held that the occurrence had taken place then in such circumstances the learned Sessions Judge erred in law by accepting the revision petition of the respondents and acquitting all the accused. The principle of double presumption of innocence to an accused acquitted after facing trail will not apply to an accused acquitted under section 249-A Cr.P.C and under section 265-K Cr.P.C.
9. It has been held by the Supreme Court of Pakistan in Akhlaq Hussain Kayani vs Zafar Iqbal Kiyani and others? (2010 SCM R 1835) that civil liability is independent of criminal liability and no rule exists that while a civil suit is pending criminal proceedings must be stayed rather is a matter of discretion. The guiding principle is whether the accused would be prejudiced if the criminal proceedings are not stayed but if it is evident that criminal liability is dependent on the outcome of civil litigation then criminal proceedings must be stayed.
10. The Honourable Supreme Court of Pakistan has held in Chaudhary Munir vs Mst. Surriya and others? (PLD 2007 Supreme Court 189) that the inherent jurisdiction as conferred upon High Court pursuant to the provisions as enumerated in 561-A Cr.P.C is neither alternative nor additional in its character and is to be rarely invoked only in the interest of justice so as to seek redress of grievance for which no other procedure is available.
11. The Petitioner instead of filing an appeal against acquittal under section 417 Cr.P.C filed a writ petition challenging the revision order of the Sessions Judge. As the Order impugned is illegal and unjust resulting in gross miscarriage of justice this Court using its powers under section 561-A Cr.P.C accepts this Petition after converting it into an appeal.
12. As reiterated above the impugned order dated 03.12.2010 passed by the learned Sessions Judge, Lahore is hereby set aside and the order dated 28.07.2010 passed by the Judicial Magistrate Section 30 Lahore is upheld.