' MUFTAKHIRUDDIN, J.-This appeal is directed against the order of acquittal passed by the Senior Special Judge, Baluchistan at Mastung dated 22-4-1980 whereby the respondents Muhammad Rafique son of Sheikh Maula Bakhsh and Abdul Ghani son of Haji Hasham have been acquitted. The relevant facts of the case are that on a report made by the Secretary Food, Goverdment of Baluchistan Quetta a case under section 409/420/467/468/109, P. P. C. Read with section 5 (2) of Act II of 1947 was registered by the Anti-Corruption Establishment Baluchistan, Quetta. It was mentioned in the communication that one Kundamal Samandas was awarded handling and transporting contract of wheat for the years 1973-74, 1974-75 and 1975-76 from the godowns of Ministry of Food and Agriculture (Food Division) at Keamari, Karachi and convey the same to P. R.
Centres Hub, Uthal and Bela in Lasbela District. The allegations against the said Kundamal Samandas were that though he had obtained the delivery of the wheat from the Minfah godown but instead of supplying the wheat to these P. R. Centres he got the wheat grinded at Karachi and supplied atta to the. Centres. It was also alleged that the contractor had standarized bags by putting lesser quantity of wheat-atta and had also changed the new bags by old ones and thus by illegal means caused the loss to the Government. The Secretary Food in his communication had suspected the involvement of some officials of the Food Department whose names were also mentioned in the letter in the commission of the offences. The Anti-Corruption Establishment who was entrusted with the investigation arrested the officials of the Food Department besides the Contractor, Muhammad Rafique and Abdul Ghani partners of Lyallpur Flour Mills, Karachi and Indus Flour Mills, Karachi were also challaned, because during the investigation it was found that the wheat was grinded at Karachi in these mills. The Martial Law Authorities at one stage recalled the file from the Court but later referred the matter back to the civil authorities for trial under the ordinary law. The sanction for the prosecution was accorded for all the officials found involved in the commission of the offences but later a request for the withdrawal of case against Gulzar Khan Marri and Nazeer Ahmad was made in Court and those officials were accordingly discharged.
During the pendency of the trial, applications on behalf of the present respondents were made and after giving proper notice to the State and hearing the parties the orders for their acquittal has been passed. The State has now come up to this Court in this appeal and the order of acquittal has been challenged by the learned Assistant Advocate-General who appeared for the State on the following three grounds :-
(I) that the provisions of law quoted by the learned Special Judge in his order of acquittal I. e.
Section 265-K, Cr. P. C. Has not been so far applied to Mastung where the trial was held;
(ii) that no charge was framed, and
(iii) no witness was examined.
' The order of acquittal was, therefore, premature. It was also contended that Public Prosecutor was not heard in the case of Muhammad Rafique respondent.
2. Before considering the grounds urged by the learned Assistant Advocate-General it is desirable that the principles which have been consistently followed in the appeal against acquittal may be stated. It is an established principle of law that in an appeal from acquittal the accused starts with the double presumption in his favour. Firstly, there is the rule that it is for the prosecution to make out their case and until they do so beyond all reasonable doubt, the accused must be presumed to be innocent and secondly that the accused having succeeded in securing an acquittal from Court, the superior Court will not interfere until the State shows conclusively that the inference of guilt is irresistible and the indications of error in the judgment are clear and the evidence more congent and convincing is available. A Another principle to be borne in mind is that in appeal against acquittal, the accused is entitled to ask the Court to consider all the possible grounds which may be raised against the conviction and the High Court should not accept an appeal against acquittal unless it is established beyond all reasonable doubts by the evidence proposed to be led in the case that the accused can be held guilty of the offence with which he was being charged and in considering this aspect due weight ought to be given to the findings of the lower Court and its opinion concerning the effect of the evidence.
3. The learned Assistant Advocate-General while contending that the provisions of section 265-K have not been applied to Mastung has conceded that section 249-A, Cr. P. C. Is there which empowers the trial Court to acquit the accused at the initial stage of the trial. This section reads as follows :- "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."
This section 249-A was inserted by the Law Reforms Ordinance, 1972 and by this section statutory recognization to the inherent powers in a trial Court has been recognized,-a power which was exercised only by the High Court under section 561-A, Cr. P. C. So far. From the bare reading of section 249-A it is clear that the Magistrate has powers to acquit the accused under section 249-A at any stage if after giving notice to the other party and hearing them, he considers charge to be groundless irrespective of whether charge has or has not been framed. The section recognizes the powers possessed by the criminal Courts to do right and rid an accused from every groundless charge.
4. The learned trial Court has come to a finding that on the facts alleged and the evidence collected by the police during investigation there can be no prima facie case against the respondent and the trial which if allowed to proceed will ultimately fail. It has been noticed by the learned Special Judge in this connection that no evidence has been procured by the prosecution which may establish that these two respondents were found changing the gunny bags or it was done at their instance. The fact that the wheat was taken to these mills for grinding purpose by the contractor, even if objectionable it can furnish the ground against the contractor Kundamal and not these partners of the flour mills.
' The learned Assistant Advocate-General has only said that the contractor was not authorised to convert the wheat into atta under the terms of the contract. We have ourselves gone through the record and were astonished to find from the official correspondence addressed on behalf of the Food Department to the District authorities at Lasbella that the arrangements for supply of atta instead of wheat were made by the local Alininistration in consultation with the Director Food, Baluchistan as there is no Modern Flour Mill in Lasbella District and this was permitted because the local Chakkis have no arrangement for cleaning and screening of wheat's and the atta grinded by these chakkis was so inferior that the public had refused to buy it. This practice is vogue in Lasbella District for the last about 25 years. The wheat is grinded at present through contractor namely Kundamal of Lasbella and all these arrangements were made only for the convenience of the general public. The letters dated 25th September, 1973 and dated 9th December. 1973 from the District Food Controller, Lasbella to the Deputy Commissioner, Lasbella are to that effect available.
The allegations contained in the challan thus stand falsified by the established practice of the Department. The ingredients of the offence are not spelt out and innocence of the respondents can be easily determined. This is the state of facts on which the conviction cannot be sustained. We are clear in our minds that ordinarily the Court should not interfere at initial stage of criminal proceedings but the Court under section 249-A, Cr. P. C. Like the High Court acting under section 561-A is under an inoperative obligation to interfere in order to prevent harassment of citizens by an illegal prosecution. It will interfere whenever there is an ex captioned and extraordinary reason for doing so. One of the tests to apply in order to determine whether any particular case is of that exceptional nature or not is to see whether from admitted feature of the case the Court can be satis fled that it is a fit case for its interference even at an initial stage and another test to be applied is to see whether in the admitted circumstances of the case it would be a mock trial if the case is allowed to proceed and broadly speaking the Court will interfere in the interest of justice and to stop abuse of the process of the law. The obligation to prevent specious and spiteful criminal prosecution has been demonstrated. The evidence collected by the prosecution could not be sufficient to sustain the conviction and no evidence would be available to connect the respondents with the commission of the offence as there is no getting away from the fact that the wheat was allowed to be grinded at Karachi on the express permission of the officials of the Food Department, the arrangement had been in vogue even much before the contract was awarded to Kundamal and this was for the convenience of the public. We, therefore, find no force in this appeal which is hereby dismissed.
' At the close of the arguments in this appeal we had passed a short order dismissing the appeal on 27-4-1983 and the above are the reasons for that order.
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