AJMAL MIAN, J.--- This is a Criminal Acquittal Appeal against the order dated 5th December 1981, passed by the learned Magistrate Ist Class (Court No. VII) West, Karachi in private complaint Case No. 751 of 1980. The relevant facts leading to the filing of the above appeal are that the present appellant filed a private complaint under--section 147/34/341/506, P. P. C. Alleging therein, that he was the tenant of Respondent No. 1 in respect of 1st Floor of the property bearing No. 1019/9, situated in Dastgir Society, F. B. Area,. Karachi at a monthly rent of Rs. 550. It was further alleged that Respondent No. 1 demanded enhancement of rend after the expiry of about 21 months, to which the appellant did not yield. It was also alleged that upon refusal of respondent No. 1, to accept rent, the appellant started depositing the same in the Court. It was further alleged that after that respondent No. 1 with the help of other respondents started harassing the appellant had resorted to illegal tactics in order to compel the appellant to vacate the said rented premises. It was averred that in view of the above illegal acts on the part of respondent, the appel--lant filed an application dated 17th March 1980 to the S. H. O. Joharabad Police Station, which was registered on 21st March, 1980, which was followed by other applications. After that the appellant filed a suit for permanent injunction in the Civil Court, which was decreed in his favour in terms of the undertaking given by respondent No. 1. It was further alleged that despite of the above undertaking and the orders of the Civil Court, all the respondents on 26th June, 1980 at 5-00 p.m. In furtherance of their common intention, wilfully and voluntarily obstructed and restrained the appellant in order to prevent him from proceeding to his house on the first floor of the said premises, of which he was a bona fide tenant. It was further alleged that the above act on the part of the respondents constituted a criminal offence punishable under section 341, P. P. C. It was alleged rest on 7th September, 1980 respondent No. 1 called the appellant through and respondent No. 2 on telephone on the pretext that he wanted to reconcile patch up the disputes/differences with the appellant in presence of other persons of the locality but when the appellant reached at the house of respondent No. 1 alongwith one Shahid Hussain and Muhammad Asim, respondent Nos. 1 and 2 caught hold of the appellant and abused him while other co-accused gave him fist blows, but he was saved by the aforesaid two persons, who accompanied him for reconciliation. It seems that after the filing of the above private complaint, the learned Magistrate examined the appellant on 5th October, 1980 and also examined two witnesses namely, Shahid Hussain and Noorul Hassan, one of whom had allegedly accompanied the appellant on 7th September, 1980. The appellant in his statement in support of the complaint stated more or less the facts mentioned in the complaint, but however, he attempted to improve upon his version by stating that he was also given kicks, blows, in addition to fist blows. It may be advantageous to re-produce hereinbelow the relevant portion, which reads as follows :- ---They called me through Muhammad Ibrahim, on the pretext of com--promise, therefore, on 7th September, 1980 I went to the aforesaid house, accompanying with me, my two men, namely Shahid Hussain and Muhammad Asim, for my safety. Where Mazharul Haq, Muhammad Ibrahim, Mst. Kaneez, Mst. Shaheen and Mst. Shamim started abusing me. Mazharul Haq and Muhammad Ibrahim caught hold of me and the remaining three ladies gave me kicks and fists blows while Shahid Hussain and Muhammad Asim separated me.--- Aforesaid Shahid Hussain stated what had happened on 7th September, 1980, whereas the other witness Noorul Hassan deposed about the incident of 28th June, 1980. After that it seems that the learned Magistrate issued process on 4th November, 1980 in the form of bailable warrants in the sum of Rs. 5,000 against all the five accused. It may be pointed out that respondent No. 1 and respondents Nos. 3 to 5 are members of one family i.e. Respondent No. 1 being the husband of respondent No. 3 and father of respondents Nos.4 and 5 and respondent No. 2 is a neighbour of res--pondent No. 1. It seems that the matter had come up for hearing several times for framing of charges. However, it seems that on 23rd January, 1980 the respondents filed an application under section 249-A, Cr. P. C. Praying for acquittal, which application was allowed by the order under appeal. The appellant being aggrieved by the above order has filed the present acquittal appeal.
2. In support of the above appeal Mr. Sarfraz Ahmad Khan Tanoli, learned counsel for the appellant has urged that the learned Magistrate after having recorded the statement of three witnesses and after having found a prima facie case against the respondents and after having issued process, was not competent in law to record an acquittal order under section 249-A without having any further evidence on record to show that the complainant was groundless. On the other hand, it has been contended by Mr. S. M. Amir Naqvi, learned counsel for respondents Nos. I to 5 that when full facts were brought to the notice of the learned Magistrate, he was competent in law to recall the process and record acquittal order: Mr. Niaz Ahmad Khan, learned counsel for the State who appeared yesterday stated that he did not support the above appeal.
3. In order to fortify his submission, Mr. Sarfraz Ahmed Khan has referred to the case of Tariq Muhammad v. The State and another (PLD 1962 Lah. 939), in which a learned Single Judge of the erstwhile High Court of West Pakistan, Lahore Bench, while construing section 253 (2) of the Cr. P. C.
(which was a corresponding provision to section 249-A, Cr. P. C. In question) held that "when a complaint discloses prima facie an offence, a Magistrate cannot hold the charge to be groundless unless he knows what sort of evidence is going to be adduced to prove it and he cannot for example examine one or two witnesses or for that matter no witness at all". It was further held that in a case of criminal breach of trust where only a few prosecution witnesses have been examined it is too premature to decline to examine any more witness for the prosecution and to discharge the accused person. On the other hand Mr. Amir Ahmed Naqvi has referred to the case of Din Muhammad v. Muhammad Sharif and another (PLD 1979 L J 12), in which a learned Single Judge of the Lahore High Court held that notwithstanding anything contained in Chapter XX, Cr. P. C. The trial Court has been empowered under section 249-A at any stage after giving notice to the other party and hearing them, he considers the charge to be groundless and considering that there is no probability of petitioner being convicted of any offence, whether any charge has been framed or not, may record acquittal order.
4. It may be pertinent to quote hereinbelow section 249-A, which reads as follows ;- "Section 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 prosecutor and the accused and for reasons to be recorded, he considers that the charge is groundless or that there is no probability of the accused being convicted of any offence."
It may be noticed that under the above section, it has been provided that a Magistrate at any stage of the case after hearing the prosecutor and the accused and for reasons to be recorded if he considers that the charge is groundless or that there is no probability of the accused being convicted of any offence may acquit the accused. It may be pointed out that the above section was incorporated by President Order 34 of 1979. It does not provide that acquittal order can only be passed after framing of charges or after recording further/full evidence. We may observe that normally a Magistrate after having recorded the statements of some witnesses in preliminary inquiry and after having found a prima faci case will not be justified in recalling the process, and the High Court will A depreciate such a practice. But in our view in a fit case a Magistrate may record acquittal order even without recording further evidence or even before framing of any charge.
5. In the instant case we are satisfied that as a matter of fact, the learned Magistrate was not justified in issuing the process initially. The alleged offence under section 341 was allegedly committed on 26th June, 1980 when the appellant was allegedly prevented from entering into his rented premises, whereas the complaint was lodged in October, . 1980, with-- out any plausible explanation. Furthermore, the manner of the commission of the other offences seems to be highly improbable. According to the appellant, he was accompanied with two young persons Shahid 1111.Sain and Noorul Hassan on 7th September, 1980 when he was given fist and kick blows by respondent No. I's wife and two unmarried daughters (i.e. Respondents Nos. 3 to 5) and that he was caught hold by respondents Nos. 1 and 2. It is absurd to allege that respondents Nos. 1 and 2 could face three young people or that Respondent No. 1 would have instigated his wife and two unmarried daughters to inflict fist and kick blows to the appellant. It is evident that the appellant in order to pressurize his land--lord roped in his entire family in a criminal case. The learned Magistrate should have acted with caution in a criminal case in which the entire family including womenfolk of the landlord were involved.
6. In our view the learned Magistrate has acted properly in aid of c justice by recording the above acquittal order under section 342-A.Cr. P. C.
We may also mention that in Criminal Miscellaneous Case No. 812 of 1982, namely, Muhammad Rafiq v. Sardar Khan and 2 others, more or less similar argument was urged by the learned counsel for the applicant, but the same was repelled by a Division Bench of this Court, in the dismissing order dated Ist November, 1982, the relevant paras read as follows ;-: ---2.--It is an admitted position that applicant had suppressed the material facts from the trial Magistrate at the time of preliminary enquiry that he had already filed a suit and that the respondent had also filed a civil suit. However, it has been urged by Mr. Amir Azam, learned counsel for the applicant that once a process was issued by the Magistrate, the only remedy available to the respondent was to approach this Court for quashment of the proceedings under section 561-A, Cr. P. C. And not to move an application under section 249-A, Cr. P. C. Reliance has been placed on the case of Loung Khan and 2 others v. Muhammad Juman and 2. Others, reported in 1982 P Cr. L J 1039, in which a learned Single Judge of this Court while considering the question as to whether the applicant should have moved an application under section 249-A, Cr. P. C. Before the trial Magistrate before invoking section 561-A, Cr. P C. Observed that there was no bar for the applicant to approach the High Court for quashment of proceedings under section 561-A, Cr. P. C. Instead of first filing an application under section 249 A, Cr. P. C. It has also been observed by the learned Single Judge that the only remedy available is under section 561-A, Cr. P. C. And not under section 249-A, Cr. P. C. The latter observation cannot be said to be "ratio decidendi of the case. The point in issue in the above-cited case, which needed adjudication was, whether the applicant could invoke section 561-A, Cr. P. C. Without first moving an application under section 249-A before the trial Court. Even otherwise, we are not inclined to agree with the view canvassed before us by the learned counsel for the applicant, namely, that the only remedy available to the respondent was to move this Court under section 561-A, Cr. P. C. And not to file an application under section 249-A, Cr.
P. C. A perusal of section 249-A; Cr. P C. Indicates that at any stage of the proceedings, a Magistrate can record an acquittal if he considers that the charge is groundless or there is no probability of the accused being convicted for any offence. In the instant case the applicant obtained the process from the Magistrate by suppressing material facts and, therefore, when the aforesaid material facts were brought to the notice of the learned Magistrate, he was justified in granting the respondents application under section 249-A, Cr. P. C. We, therefore, do not consider it just and proper to grant leave to appeal to the applicant. The dispute between the parties seems to the pre-eminently of a civil nature, accordingly, the above application is dismissed in limine.---
7. For the aforesaid reasons the appeal is dismissed.