GHULAM AZAM QAMBRANI, J.---This appeal has been directed against the order dated 19.04.2019 passed by the learned Judicial Magistrate Section 30-West, Islamabad, whereby the accused/ respondent No.2 (hereinafter be called as respondent) was acquitted under section 249-A,Cr .P.C.
2. Briefly a case was registered against the respondent vide FIR No.632, dated 25.09.201 1 under sections 406, 34, P.P.C. with Police Station Shalimar , District Islamabad, on the written application of the appellant Ehtasham ul Haq with the assertion that he is Chief Executi ve/Director , Messrs ELC Acetone (Pvt.) Limited. They provided diesel/fuel to BTS (Base Transmission Station) of Messrs Telenor Pakistan and Telenor Pakistan issued 200 PSO fleet cards, each card being for 5000 liters diesel. Another Director of Messrs ELC Acetone (Pvt) Limited namely Khalil Ahmad introduced the accused Ahmad Kamal and Abdullah to the complainant and tried to convince him to give the PSO cards to Abdullah for supply of diesel to Telenor BTS and a total of 68 PSO cards were given by the complainant to said Abdullah, who obtained 1173141 liters diesel, but provided 877648 liters of diesel and thus misappropriated 295453 liters of diesel, hence the instant FIR.
3. After registration of FIR, investigation was carried out and thereafter report under section 173,Cr .P.C. was submitted before the learned trial Court. After fulfilling codal formalities, charge was framed against the accused/ respondent on 26.4.2014 to which he pleaded not guilty and claimed Trial. The learned Trial Court exercising suo motu powers under section 249-A,Cr .P.C. acquitted the accused/ respondent in the above mentioned case vide impugned order dated 19.4.2019. Hence the instant appeal.
4. Learned counsel for the appellant contended that impugned order of acquittal is manifestly and grossly against the law and facts of the case; that the impugned order was passed without any notice to the complainant and without providing opportunity of being heard in spite of the fact that the appellant was duly represented. Further contended that on 19.04.2019, learned counsel for the appellant advanced arguments on the application under section 94,Cr .P.C, but on the same day, suo motu order of acquittal of responden t No.2 was passed although the case was fixed for arguments on the said application. Next contended that the learned Trial Court erred in law in ordering acquittal of the respondent, without disposing of the application under section 94,Cr .P.C. filed by the complainant/appellant, therefore, the impugned order is nullity in the eye of law as the same is based upon surmises and conjectures.
5. On the other hand, learned counsel for the respondent contended that prosecution failed to produce any evidence against Ahmed Kamal, respondent since 26.4.2014, when the charge was framed against the accused/respondent, therefore, the learned Trial Court has rightly acquitted the accused/respondent. The learned State Counsel also supported the order of learned Trial Court.
6. Arguments heard, record perused.
7. It is settled principle that under the Criminal Procedure Code, a Magistrate is bestowed with powers to acquit an accused at any stage of the proceedings if the charge appears to be groundless or there, is no probability of his conviction. It is also cardinal principle that normal procedure of trial should not be allowed to be deflected and the power under section 249-A,Cr .P.C. is required to be exercised sparingly in exceptional cases. Guidance is sought from case law cited as "Muhammad Muslim and another v. Muhammad Iqbal and 2 others" [PLJ 2004 SC 2] wherein it has been held as under:- "Section 249-A,Cr . P.C. is an exception to normal rule that acquittal takes place after full trial. This provision reflects a compromise between collective good of society and rights of an individual offender . Idea is to spare offender rigors of full trial if Court at any stage finds that charge is groundless and prosecution is not likely to succeed."
8. The examination of the impugned order on the touchstone of principles on the subject leads to draw inference that the accused/ respondent was acquitted mainly on two grounds i.e. that the matter is civil in nature regarding which civil litigation was already going on and that no criminal liability could be attributed to the respondent as there was no allegation of entrustment against the respondent, constituting of fence under section 406, P .P.C.
9. It is matter of record that on the basis of same set of evidence/documents, the learned trial Court proceeded to indict the respondent on 26.04.2014 and then summoned the prosecution evidence. Subsequently , without taking any evidence or dilating upon any document, the respondent was acquitted. At this stage, it is necessary to mention here that the law does not prohibit availing of multiple remedies simultaneously and the civil and criminal motions can run side by side. Guidance in this respect is taken from the law laid down by the Hon'ble apex Court in case reported as Haji Sardar Khalid Saleem v. Muhammad Ashraf and others (2006 SCMR 1192), wherein it has been held as under:- "Criminal proceedings are not barred in presence of civil proceedings and civil and criminal proceedings can be proceeded simultaneously".
In another case reported as Seema Fareed and others v. The State and another (2008 SCMR 839) wherein it has been held as under:- "Criminal case must be allowed to proceed on its own merits and merely because civil proceedings relating to same transaction had been instituted, it had never been considered to be a legal bar to the maintainability of criminal proceedings which could proceed concurrently because conviction for a criminal offence is altogether a different matter from the civil liability ."
10. In addition, it is also noticed that the date, when the crucial order was passed was set for adjudication Upon application filed by the appellant/complainant under section 94, Cr.P.C. but instead of dilating upon the same and to advance any reason for rejection of said application, the impugned order has been passed. Non-adherence to the application, filed by the complainant/appellant, prior in time of taking suo motu action not only contravenes the principle of natural justice but also negates cardinal principle of fair trial envisaged in Article 10-A of the Constitution.
11. It is also noticed that the observation s rendered by the learned Magistrate is based upon the contents of FIR while the charge framed against the accused/ respondent was to the effect that he along with accused in furtherance of common intention committed criminal breach of trust in violation of contract agreement entered into between the respondent and the appellant/complainant, thus it appears that the charge, mainly hinges upon the documentary proof, which the appellant requested to bring on record but the learned trial court instead of entertaining the said application or deciding the same in either way on its own merits, straightaway proceeded to acquit the respondent/ accused, which in the peculiar circumstances of the case amounts to transgression of authority and does not warrant exceptional treatment for want of exceptional circumstances.
12. The acquittal in terms of section 249-A or for that matter 265-K,Cr .P.C. cannot be equated with acquittal earned after full length trial and recording of evidence and therefore, principle of double presumption of innocence is not attached to such, orders. This view is fortified by the judgment of the august Supreme Court of Pakistan reported as "The State through Advocate General, Sindh High Court of Karachi v. Raja Abdul Rehman" [2005 SCMR 1544 ], wherein it has been held as under:- "Order of acquittal of accused under section 249-A,Cr .P.C. would not have the same sanctity as order of acquittal on merits and the principles applicable to second category of acquittal would not apply to first 'category of acquittal.
High Court had not adverted to such very important and material aspects of the case and had decided the appeal in a very cursory and hasty manner and its order was liable to be set aside on this ground alone. Impugned order was consequently set aside with the direction to Magistrate to proceed with the case of accused and that of co- accused together from the stage at which the case stood when the application of the accused under section 249-A, Cr.P.C .was decided."
13. The sequel of above discussion is that the order of the learned Judicial Magistrate dated 19.4.2019 is not legally sustainable. Consequently , the instant appeal is allowed, impugned order dated 19.04.2019, is set aside and the matter is remanded to the learned trial court, which shall proceed with the case from the stage where it has been before passing of the impugned order .