' AJMAL MIAN, J.-- This is a criminal acquittal appeal against the order dated 27-10-1983 recording acquittal against the four private respondents.
2. The brief facts leading to the filing of the above appeal are that on 15-9--1982 the appellant filed a private complaint under section 420/34, P.P.C. Inter alia alleging therein, that he had purchased bus No, SGA-3284 from respondent No,2 Khawaja Muhammad Naeem for a sum of Rs, 1,35,000 out of which he paid Rs, 70,000 and received the possession of the bus and the balance of the above amount was to be paid in monthly instalments. It was further alleged that the appellant had paid all the instalments but in the month of July, 1982 respondent No,2 came down to Karachi alongwith respondents 3, 4 and 5 and demanded further amount of Rs, 10,000 which he declined. It was also alleged that on 15-7-1982 respondent No,2 came alongwith respondents Nos. 3 to 5 and requested for the possession of the bus for one day for visiting Thatta and Shah Aqieeq which request he acceded to and he handed over the bus to the respondent No,2. It was further alleged that instead of returning the bus to the appellant on 16th July, 1982 the private respondents took the bus to their native place. It was also alleged that the appellant made efforts to recover the bus through the intervention of Jirga but upon failure he filed the above private complaint on 15-9-1982. The learned A .C.M., examined the appellant under section 200, Cr.P.C. And held preliminary enqiury under section 202, Cr.P.C. By examining two witnesses namely Malik Muhammad Nazir and Jamil Ahmad. After that he issued process in the form of bailable warrants against the private respondents. Respondents No,2 and 3 were served with the process and they had put in appearance in Court on 1-10-1982 but the process on the remaining two accused was not served with the result that no further progress was made. It seems that the respondents Nos. 2 and 3 filed application under section 249-A, Cr.P.C. On 26-12-1982 which was disposed of by the learned A.C.M.
Vide order in appeal dated 27-10-1983 recording acquittal against all the four private respondents though two of the respondents were not served and had not put in appearance and had not joined the other respondents in the above application. The appellant being aggrieved by the above order has filed the present appeal.
3. In support of the above appeal Mr. Abdul Razaque Puri learned counsel for the appellant has urged as follows:-
(i) That after having held preliminary enquiry and after having found a prima facie case, the learned Magistrate could not have passed the order under section 249-A, Cr.P.C. Without having further evidence on record.
(ii) That, in any case, two of the respondents namely, respondents Nos. 4 and 5 were not even served and had not applied under section 294-A, Cr.P.C., the learned Magistrate could not have passed the order acquitting all the private respondents. On the other hand Mr. Aijaz Hussain Rizvi learned counsel for the private respondents has contended as follows:-
(1) That under section 249-A, Cr.P.C. The learned trial Court could have passed the order at any stage of the proceedings and therefore the order does not suffer from any infirmity.
(ii) That factually there was ample material before the learned trial Court in the form of an affidavit of the previous owner of the bus namely Haji Khalil-ur-Rehman filed on 28-4-1983 averring therein that he had never sold the bus to the appellant and had never authorised the transfer of the bus.
4. Adverting to the first contention of the learned counsel for the parties, it may be observed that section 249-A, Cr.P.C. Provides that a Magistrate at any stage of the case if after hearing the prosecutor and the accused and for the reasons to be recorded considers the charge as groundless or that he feels that there is no probability of accused being convicted of any offence may record acquittal notwithstanding anything contained in Chapter 20 of the Criminal Procedure Code. It is true that a trial Court has the power to pass an order under section 249-A, Cr.P.C. At any stage including at the initial stage if it finds that the process which he had issued should not have been issued. In the present case the complaint dislcosed prima facie a criminal case and the learned Magistrate after holding preliminary enquiry issued process. No further evidence was recorded for the reason that two of the accused were not served with the process. There was no default on the part of appellant in producing the witnesses or there was factually no allegation against the appellant that he was delaying the trial. In the background of the above facts, in our view the learned trial Court was not justified in passing an order under section 249-A, Cr.P.C.
5. As regards the second contention it is true that one Haji Khalil-ur-Rehman son of Abdul Aziz filed his affidavit before the learned trial Court on 28-4-1983, the application under section 249-A, Cr.P.C.
Was filed, as pointed out hereinabove, on 26-12-1982 i,e, even before the filing of this affidavit. The deponent off the affidavit was not made available for cross-examination and therefore the affidavit could not have been taken as a piece of evidence warranting the passing of an order under section 249-A, Cr.P.C. Mr. Rizvi submits that since the deponent was present in the Court as the affidavit was sworn before the learned Magistrate it was sufficient. In our view swearing an affidavit before the learned trial Court is not sufficient for the purpose of constituting an affidavit as a piece of evidence in a criminal case without making an offer to the other side for cross- examination. The appeal is allowed, the order is set aside, the case is remanded back to the learned trial Court with the direction to proceed with the case from the stage at which the order under section 249-A, Cr.P.C. Was passed. However private respondents will be at liberty to repeat application under section 249-A, Cr.P.C. After recording some evidence if they feel that a case under section 249-A, Cr.P.C. Is made out.