' It is desirable to state briefly certain facts giving rise to this application filed under section 561-A, Cr.P.C.
2. Applicant Muhammad Haroon is the owner/landlord of House No,1189, Sector No,15-B, North Karachi, a portion of which is in occupation of Mst. Shahana Jawaid, the respondent No,2, as tenant.
The applicant had filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979, against the respondent No,2 seeking her ejectment on the ground of default in payment of rent. It is alleged that on 19-8-1989, the applicant committed trespass in the house in occupation of respondent No,2 and caused damage to the roof of her kitchen. The respondent No,2 made a report to S.H.O. New Karachi Police Station, but no action was taken and consequently on 3-6-1991 she filed a complaint in the Court of Assistant Commissioner and S.D.M. (Central) Karachi, who recorded her statement under section 200, Cr.P.C. And after holding preliminary enquiry passed the following order under section 204, Cr.P.C. On 13-6-1991:-- ' Perused the complaint and also gone through the statement of the complainant recorded under section 200, Cr.P.C. And of witness in P.E. Under section 202, Cr.P.C.
' Prima facie a case under section 448, P.P.C. Is made out against the accused Haroon son of Muhammad Ayub. Issue process B/W to the accused in the sum of Rs,10,000 (ten thousand) only."
3. The applicant appeared before the learned Magistrate and made an application under section 249-A, Cr.P.C. Seeking his acquittal on the ground that there was no probability of his being convicted of any offence. This application was allowed by learned S.P.M. Vide order, dated 6-11-1991, who acquitted the applicant mainly for the following reasons:-- "I have also perused the complaint and I find that, since the respondent has either refused or, failed to repair the roof of the said house, the complainant has filed this complaint in order to pressurise him for the same. It is also an admitted position that, the complainant is a tenant and, the accused is landlord of the disputed house for which rent case is pending trial before the competent Court of law. As such, this is not the proper course for getting a rented house repaired through the landlord.
Hence, I have reached a conclusion that, there is no likelihood of the accused being convicted if charged and proceeded further."
4. Being aggrieved and dissatisfied with this order dated 6-11-1991, the respondent No,2 filed a revision application which was heard by Miss Mahjabeen, IIIrd Additional Sessions Judge (Central)
Karachi, who remanded the case for disposal according to law. It is in these circumstances that the applicant has invoked the inherent jurisdiction of this Court with the prayer that the proceedings pending against him be quashed.
5. I have heard Mr. A.H. Rajput, learned counsel for applicant and Mr. Muhammad Zubair Qureshi, learned counsel for the State. I have also heard the respondent No,2 in person.
6. Section 249-A, Cr.P.C. Empowers the Magistrate to acquit the accused at any stage of the case in the following words:- "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."
7. The use of words "at any stage of the case" clearly indicates that this power can be exercised even before the charge is framed. In a suitable case the Magistrate may come to the conclusion that the charge is groundless or that there is no probability of the accused being convicted of any offence, before he has heard the complainant. Such a case might well be one in which the Magistrate in issuing process under section 204, Cr.P.C. Has mistakenly believed that an offence has been disclosed by the complaint and on the matter brought to his attention when the case comes before him has seen his error and decided that in fact even if the allegations in the complaint are true, no criminal offence has been disclosed. It cannot, therefore, be held that in no case can the accused be acquitted under section 249-A, Cr.P.C., without complainant being heard at all. Some guidance in this behalf may be taken from the case of Pandit Shiv Datta v. R.K. Sood, reported in AIR 1940 Lah. 40, wherein corresponding provisions as contained under subsection (2) of section 253, Cr.P.C. (since repealed) were examined. This view was approved by a Division Bench of this Court in the case of Muhammad Sharif v. Mazharul-Haque and 5 others reported in 1983 P Cr. L J 1440, wherein it was held that the Magistrate may record order of acquittal even before framing of a charge in a suitable case. This view was again followed by this Court in the case of Ch. Muhammad Ashraf v. The State, reported in 1990 P Cr. L J 347. Thus, the learned S.D.M. Had ample powers to acquit the applicant under section 249-A, Cr.P.C. Before the framing of charge and the learned Additional Sessions Judge has, therefore, gone wrong in holding that such orders could not be passed before framing of the charge.
8. Subject to these preliminary remarks, I now come to close quarters with the main grounds upon which the order of the learned S.D.M. Was recorded. The reason which prevailed upon the learned Magistrate for recording the order of acquittal was that there being a dispute between the landlord and a tenant, the respondent No,2 was mainly interested in getting the roof of the house repaired.
The perusal of the complaint and the statement of respondent No,2 recorded under section 200, Cr.P.C. Makes it clear that there was allegation of house trespass and on the basis of such evidence process was issued against the applicant. In the case of Ghulam Muhammad v. Muzammal Khan and 4 others reported in PLD 1967 SC 317, it was made clear that the High Court should be extremely reluctant to interfere in a case where a competent Court has after examining the evidence adduced before it, come to the view that a prima facie case is disclosed and has summoned the accused to appear, unless it can be said that the charge on its face, or the evidence, even if believed, does not disclose any offence. The evidence available before the trial Court disclosed a prima fade case under section 448, P.P.C. And consequently process was issued against the applicant in terms of section 204, Cr.P.C. There was, therefore, no occasion for the learned S.D.M. To acquit the appellant under section 240-A, Cr.P.C. Without examining the witnesses. The learned Additional Sessions Judge, has therefore, rightly set aside this order of acquittal.
9. No exception can be taken to the impugned order and the application filed under section 561-A, Cr.P.C. Is, therefore, dismissed.