ZAFAR AHMED RAJPUT, J.---This Criminal Acquittal Appeal, under section 417(2) of the Criminal Procedure Code, 1898, (hereinafter referred to as "Cr.P.C."), has been preferred by the appellant/complainant assailing the order dated 10-10-2011, whereby the respondents Nos. 1 and 2/accused were acquitted under section 249-A, Cr.P.C. By the learned IInd Judicial Magistrate Karachi (East) in Criminal Case No. 22/2011.
2. Brief facts of the case are that on 19-10-2010 Muhammad Raza Qadri, the appellant/complainant, lodged his FIR at P.S. Korangi, Karachi (East) bearing No.204/2010, under sections 392,104/34, P.P.C., stating therein that on the alleged day he left his house for bank along with his driver, namely, Yaseen to deposit an amount of Rs.9,00,000 but when they reached at S. Area, near Eid Gah Ground Korangi No.1 at about 9-45 a.m., three persons alighted from a Suzuki Chamber Loading, which was already standing there, and on the strength of pistols they snatched Rs.9,00,000 lying in a paper bag; a mobile cell and Rs. 3,500 from his pocket and then they ran away. After registration of the FIR, the complainant realized that few days before the alleged incident he had seen some of the dacoits in NIB Bank, K.I.A. Korangi Branch, Karachi who had entered in the said bank following him.
Hence, on 20-7-2010 he met with Danish Qureshi, Branch Manager NIB Bank (respondent No.2) and narrated the facts of alleged incident to him and on his request CCTV recording was shown to him.
He identified two persons in the recording, who had snatched money from him; then on next day he again went to bank along with eye witness, namely, Yaseen, who also identified two persons as the same after watching CCTV recording. The complainant demanded the copy of CCTV movie but he was refused by the bank manager. Then he again went to bank along with Investigating Officer A.S.I. Rafiq Wagon but the bank manager refused them from showing and giving copy of CCTV recording without Court's order. Thereafter, having been obtained the Court's order, A.S.I. Rafiq Wagon again went to bank on 26-8-2010 and requested to Asif Iqbal, Operation Manager, NIB Bank (respondent No.1) for copy of CCTV recording of 12th July, 2010, but he was informed in writing that the CCTV system can save recording of one month approximately and due to which the system has deleted recording of 12th July, 2010.
3. Thereafter, on 13-1-2011, respondents Nos. 1 and 2, namely, Asif Iqbal son of Muhammad Iqbal and Danish Qureshi son of Mushtaq Ahmed, the Operation Manager and Branch Manager, respectively of NIB Bank, K.I.A. Korangi Branch, Karachi were charge-sheeted by S.H.O. P.S. Korangi, Karachi in crime No. 204/ 2010, under sections 202, 204/34, P.P.C., accusing them of intentionally omitting to give information respecting the offence which they were legally bound to give, and destroying the video recording of CCTV footage by deleting it for which they might be lawfully compelled to produce as evidence before Court.
4. In compliance of section 241-A, Cr.P.C., the learned lInd Judicial Magistrate, Karachi (East) supplied the copies of relevant case papers to the respondents Nos.1 and 2 on 13-1-2011 as Exh.1 and formal charge for the offence under sections 202, 204, 34, P.P.C. Was framed against the respondents 1 and 2 on 7-2-2012 as Exh.2, to which they pleaded not guilty and claimed for trial.
5. Meanwhile, on 21-4-2011 the Investigating Officer of the case submitted his report for disposal of the case i.e. FIR No.204/2010, under sections 392, 104/34, P.P.C. In "A" Class, which was approved by the learned IInd Judicial Magistrate Karachi (East), vide order dated 23-4-2011.
6. On 10-10-2011, learned Judicial Magistrate, after hearing the learned counsel for the parties and ADPP for the State acquitted the respondents. Nos. 1 and 2 under section 249-A, Cr.P.C. Aggrieved by the same, the complainant has preferred this Criminal Acquittal Appeal.
7. Heard the learned counsel for the appellant, respondents and perused the material available on record.
8. Mr. Sathi M. Ishaq, learned counsel for the appellant, has contended that the impugned order being bad in law is liable to be set aside as the same has been passed without recording evidence.
Referring section 27 of the General Clauses Act, 1897, the learned counsel has further contended that despite the request made by the investigation officer in writing on 13-8-2010, the respondent No.2 did not allow him to take CCTV video recording of 12th July 2010; therefore, sufficient evidence is available with prosecution to establish guilt against the accused of intentionally omitting to give information respecting the offence and destroying the video recording of CCTV footage by deleting it malafidely to save the culprits. In support of his contentions, learned counsel has relied on the following case-law:
(i) Mst. Said Khanum v. Munsif Khan and 7 others (PLD 1992 Peshawar 71), wherein the accused was acquitted by the trail Court under section 249-A, Cr.P.C in a private complaint, without considering the report of Investigating Officer that had made out a prima facie case and apparently charge did not seem to be groundless, the learned single judge of Peshawar High Court set aside the order and remanded the case back to the trial Court to decide the matter after recording evidence holding that the trial Court had acted in haste in disposing of the matter without affording an opportunity to complainant to prove her allegations.
(ii) Syed Anwar Ali Shah v. Yar Muhammad and 3 others (1986 PCr.LJ 1278), wherein accused was acquitted under section 249-A, Cr.P.C. By the trial Court concluding from certain documents, produced before him by the accused's counsel that there existed enmity between the parties since long. The learned judge of this High Court set aside the order holding that enmity is used as motive is a double-edged weapon which cuts both ways and it can be used by either party in its favour and the same can be judged in the light of the whole material brought on record by both the parties.
9. Conversely, Mr. Kashif Hanif, learned counsel for respondents Nos.1 and 2 has contended that the impugned order is legal and valid and does not suffer from any illegality or irregularity; therefore, the same is liable to be maintained. He has also contended that the complainant has implicated the NIB Bank officials/ accused in alleged incident with mala fide intention for getting the loan amount waived off, obtained by the father of the complainant from NIB Bank.
10. Mr. Muntazir Mehdi, learned A.P.G. Has also supported the impugned order. The gist of his contention is that the impugned order is well reasoned and speaking one, which does not require interference of this Court.
11. The respondents Nos.1 and 2 have been charged for the offence under sections 202 and 204, P.P.C. In order to appreciate the contentions of the learned counsel for the parties, it would be advantageous if the provisions of sections 202 and 204, P.P.C. Are reproduced respectively;
202. Intentional omission to give information of offence by person bound to inform.---Whoever, knowing or having reason to believe that an offence has been committed, intentionally omits to give any information respecting that offence which, he is legally bound to give, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.
204. Destruction of document to prevent its production as evidence.---Whoever secrets or destroys any document which he may be lawfully compelled to produce as evidence in a Court of Justice, or in any proceeding lawfully held before a public servant, as such, or obliterates or renders illegible the whole or any part of such document with the intention of preventing the same from being produced or used as evidence before such Court, or public servant as aforesaid, or after he shall have been lawfully summoned or required to produce the same for that purpose, shall be punished with imprisonment of either description for a term which may extend to two years or with fine, or with both.
12. Section 202, P.P.C. Punishes the illegal omission to give information of those who are by some law bound to give information, when such omission is intentional. In order to sustain a conviction under section 202, P.P.C., it is essential to first establish that a crime has been committed and the accused was aware or at least has reasonable belief that an offence, which he is under a legal obligation to report, has been committed. Section 202, P.P.C. Has no application where the principal offence has not been established; therefore, the prosecution has to first establish that the main offence has been committed. Thereafter, prosecution has to produce further proof that the accused had knowledge or reason to believe that such an offence had been committed. Section 202, P.P.C. Contemplates that the omission to give information about the commission of the crime by a person should be done intentionally, if the omission to give information is bona fide and not wilful, then no offence under section 202, P.P.C. Is made out. Thus intention is an essential ingredient of an offence under section 202, P.P. C .
13. Section 204, P.P.C. Deals with secreting and destruction of documents of either by completely destroying it, or by blotting out, erasing or defacing certain portions of the documents or the entire documents with the intention that it be prevented from being produced or being used as evidence in any Court or before any public servant. Such destruction may have been carried out either prior to it being summoned to be produced in Court or after the person was lawfully required to produce the documents in Court. However, to constitute an offence under section 204, P.P.C., the act must be done with the intention of preventing the document from being produced or used as evidence.
The offence under section 204, P.P.C. Is an aggravated form of the offence punishable under section 175, P.P.C. Which deals with omission to produce or deliver up any document to any public servant. The points requiring proof under section 204, P.P.C. are:
(i) The accused secreted or destroyed, or obliterated or tendered illegible the whole or any part of a document.
(ii) The document was such as he (accused) may be lawfully compelled to produce as evidence in a Court of justice, or in any proceeding lawfully held before a public servant;
(iii) In doing so, his intention was to prevent the document from being produced or used as evidence, or he did so after he had been lawfully summoned or required to produce the document to be used as evidence.
14. So far the case in hand is concerned, it appears that in this case B initially the FIR was registered against three unknown accused persons for the offence under sections 392, 109/34, P.P.C., which has been disposed of in "A" Class. The learned Judicial Magistrate after scanning the material has found that the letter issued on 4-3-2011 by the CEO United Telecom, to Head of Legal Head, NIB Bank reveals that the said company had designed the Close Circuit Television Video (CCTV) system for minimum 30 days video recording and automatic erasing system after 30 days for the NIB Bank Branches as per bank policy, and the bank officials have no access to interfere in the system. In this respect the Investigating Officer S.I.P. Rafiq Wagon got the requisite permission from the Court on 25-8-2010 and visited the bank branch on 26-8-2010 for the copy of the CCTV video recording pertaining to 12-7-2010, which was already erased after lapse of 30 days due to automatic system of recording and erasing.
15. The material on record approves the assessment of learned trial Court. Section 202, P.P.C. Has no application at all in this case so far the facts and circumstances of the case are concerned. As regard section 204, P.P.C., the prosecution has admittedly no evidence to show that the respondents Nos. 1 and 2 were in any way responsible for destruction or erasing of alleged CCTV video recording of 12th July, 2010; therefore, charge against the respondents Nos.1 and 2 is groundless and there is no probability of their conviction in any offence.
16. I do not find any merit in arguments of learned counsel for the appellant. Learned trial Court has recorded the reasons for its order of acquittal which are based on material on record and the conclusion drawn by the learned trial Court is appropriate. So far the contention of learned counsel for the appellant with regard to the notice given by the investigating officer on 13-8-2010 to respondent No.2 for taking the CCTV video recording of 12th July, 2010 is concerned, that notice was too given after lapse of 30 days, when the CCTV video recording had already erased automatically in system. As regard to the contention of learned counsel that the order should have been passed after recording evidence, it is now well settled that the Magistrate has unrestricted powers to acquit the accused at "any stage" of the case, which can even be the stage before framing of the charge and recording of evidence, if Magistrate for "reasons to be recorded" considers that "the charge against the accused is groundless" or that "there is no probability of the accused being convicted of any offence." Reliance can be placed in this regard in the case of Fayyaz Khan and another v. Wasim Khadim and 3 others (2013 PCr.LJ 1037).
17. The case-law cited by the learned counsel for the appellant is distinguishable on facts and law.
Though the prosecution has submitted charge-sheet against the respondents Nos. 1 and 2 for commission of offence under sections 202, 204/34, P.P.C. But admittedly prosecution has no evidence to substantiate the charge against the respondents Nos. 1 and 2. Further, the respondents Nos. 1 and 2 have neither claimed any enmity nor even they have been acquitted by the trial Court on this ground.
18. The upshot of the above discussion is that there appears no illegality or infirmity in the impugned order of the learned trial Court, which is based on proper reasons. There are no exceptional grounds for interference in the impugned order. Accordingly, instant acquittal appeal being devoid of merit stands dismissed.