' After hearing the learned counsel for the petitioner I am inclined to admit this petition to regular hearing.
2. As all the relevant parties to this petition are already represented before this Court today and the record of the learned trial Court is also available, therefore, the parties have agreed to address their arguments in the main petition today.
3. The facts giving rise to the present petition are that on 7-12-1994 respondent No,1 had filed a private complaint before the learned Magistrate section 30, Model Town, Lahore alleging commission of offences under sections 415, 418 and 420, P.P.0 by the present petitioners and respondent No,2. After recording preliminary evidence of respondent No,1 the learned trial court summoned the petitioner and respondent No,2 for 11-12-1994 to face a trial in that regard. On 30-9- 1996 a charge with two heads under sections 418 and 420, P.P.C. Was framed against the petitioner and respondent No,2 to which they pleaded not guilty and claimed a trial. On 2-11-1996 respondent No,1 got his statement recorded as P.W.1. And produced Abdul Qayy um as P.W.2 before the learned trial Court in support of his case. The petitioner filed an application under section 249-A, Cr.P.C.
Before the learned trial Court on 31-12-1996 praying for his acquittal at that stage of the case. The learned trial Court issued a notice to the opposite party in respect of that application. That application remained dormant for some time and in the meanwhile the prosecution closed its evidence and on 5-5-1997 statements of the petitioner and respondent No,2 were recorded under section 342, Cr.P.C. Wherein they controverted the allegations levelled against them by the prosecution and professed their innocence. Both of them also expressed their willingness to make statements on oath under section 340(2), Cr.P.C. And also their readiness to produce their evidence in defence. I have been informed today that the present stage of that trial is that the case is now fixed for recording of the defence evidence. On 17-6-1997 the learned Magistrate Section 30, Model Town, Lahore dismissed the petitioner's application under section 249-A, Cr.P.C.. A revision petition filed by the petitioner against that order was also subsequently dismissed by the learned Additional Sessions Judge, Lahore vide, his order dated 9-9-1997. Hence, the present petition before this Court.
4. It is noticeable that the present stage of the trial of the petitioner is that the prosecution evidence has completely been recorded and closed, the accused persons therein have already got their statements under section 342, Cr.P.C. Recorded and according to the learned counsel for the petitioner only certain documents are to be produced by the accused persons in their defence before final arguments are addressed in the main case.
5. It has been argued by the learned counsel for the petitioner that the petitioner's application under section 249-A, Cr.P.C. Had been dismissed by the learned trial Court and that dismissal was upheld by the learned revisional Court on the wrong premise that the said application had been filed at a late stage. In this context he has pointed out that the petitioner had in fact submitted his application under section 249-A, Cr.P.C. At the earliest opportunity available to him. According to him both the prosecution witnesses had made their statements before the learned trial Court on 2- 11-1996 and after the recording of those statements the petitioner felt that to his extent the statements of those witnesses were not incriminatory in any manner. Therefore, at that stage he had filed that said application under section 249-A, Cr.P.C. As no witness remained to be produced by the prosecution. He has vehemently argued that if the trial Court had failed to adjudicate on the said application expeditiously then the petitioner should not be allowed to suffer on that account as the blame in that respect could not be laid at his door. He has further argued that the provisions of section 249-A, Cr.P.C. Themselves show that an application in that respect can be filed. At any stage of the case and merely because such an application has been filed after the conclusion of the prosecution evidence is no ground for its dismissal. In this context he has referred to The State v. Asif Ali Zardari and another (1994 SCM R 798) Barak Ullah v. The State (1997 SCM R 274). He has, therefore, argued that this was a fit case wherein the learned trial Court or the learned revisional Court ought to have acquit the petitioner without much ado saving the petitioner from any further anguish, agony and expense of the further stages of this trial. He has also maintained that further proceedings in this case against the petitioner amount to an abuse of the process of law and an abuse of the process of Court. As against that the learned counsel for respondent No,1 (complainant in the present case) has submitted that the petitioner had not seriously pursued his application under section 249-A, Cr.P.C. At the initial stages of same and it was pressed only after the entire evidence of the prosecution had been concluded and the statements of accused persons under section 342, Cr.P.0 had also been recorded. According to him the only thing remaining in the trial was production of certain documents by the accused persons in their defence and then the final arguments had to be addressed. He has, therefore, maintained that the learned Courts below were quite justified in dismissing the petitioner's application under section 249-A, Cr.P.C. At that late stage of the case. In this context he has also referred to the case of Yaqub Ali v. The State (1981 PCr.LJ 542). As regards respondent No,2 he has not entered appearance today despite issuance of notice of this petition to him by this Court on 16-9-1997. Therefore, this petition has been heard in his absence. Even otherwise respondent No,2 had not applied for his acquittal under section 249-A, Cr.P.C.. And, therefore, his interest in the present petition appears to be minimal.
6. After hearing the learned counsel for the parties and going through the record of this case I have noticed that the petitioner's application under section 249-A, Cr.P.C.. Had been dismissed by the learned trial Court and such dismissal was upheld by the learned revisional Court mainly on the ground that it was too late in the day for decision of that application on merits as the prosecution evidence had already been completely recorded, Statements of the accused persons under section 342, Cr.P.C. Had also been recorded and the only step remaining to be taken after recording the defence evidence was to hear the final arguments in the main case. So, the main issue before me is whether the learned Courts below were justified in declining to decide the petitioner's application under section 249-A, Cr.P.C. On its merits at such a stage of the case. In this context I am not unmindful of the spirit underlying the introduction of section 249-A in the code of Criminal Procedure. The essence of that spirit is to save an accused person the botheration of going through a full trial if otherwise he can convince the Court at an early stage of the case that either the legal provisions invoked against him are not attracted to the facts alleged against him or even if the prosecution evidence is allowed to be fully recorded and the same is admitted as correct there is no likelihood of its acceptance by the vial Court so as to convict the accused person. In a criminal trial there are different stages, i.e, framing of a charge, recording of statements of prosecution witnesses, recording of statements of accused persons under section 342, Cr.P.C., recording of defence evidence including the statements of accused persons on oath and hearing of final arguments to be followed by writing of a judgment. If an offence invoked against an accused person is not even attracted to the facts alleged against him then it can be said that the charge or the allegation against that accused person is groundless or without any basis but in a case where although the legal provisions invoked against an accused person do in fact flow from the allegations alleged against an accused person then the matter of his culpability rests on the evidence to be produced by the prosecution. There may be cases where there is no sufficient evidence available with the prosecution to connect an accused person with the offence alleged. In such a case there may not be any likelihood or probability of the accused persons getting convicted at the end of the trial. Section 249-A, Cr.P.C. covers both such situations i.e, where the charge against an accused person is groundless or where there is no probability of the accused person being convicted at the conclusion of his trial. It is also noticed that the use of the words "charge" and "probability" show an intention of the legislature that a relief was sought to be made available to an accused person placed in such a situation to seek his pre-mature acquittal without undergoing the.Ordeal of a full-dressed trial. But in a case where the trial of an accused person is already at its last stages or is already knocking at its final stage invocation of section 249-A, Cr.P.0 for seeking a pre-mature acquittal appears to be incentive-incompatible. At such a stage of the trial the spirit of section 249-A, Cr.P.0 i.e, to save an accused from the rigors of a full trial, is not aurae', d. Therefore, it is not only inappropriate for an accused person to file an application under section 249-A, Cr.P.0 at such an advanced stage of the trial but alos quite justified for a trial Court not to entertain or decide the same on the merits of the casein the present case, as observed above, the trial of the petitioner had already reached its final stage when the learned trial Court had decided the petitioner's application under section 249-A, Cr.P.C. It is unfortunate that the learned trial Court did not decide that application of the petitioner soon after its filing but it is also true that the petitioner also did not show any interest in an early disposal of that application. It is noticeable that when that application was finally decided by the learned trial Court the stage of the trial was such that the learned trial Court was quite justified in not deciding the said application on the merits of the case.
7. As regards the merits of the case urged by the learned counsel for the petitioner before me I would refrain from commenting on the same at this stage lest the same may prejudice the case of either party before the learned trial Court. All those points will, however, be available to the petitioner while arguing the main case on its merits before the learned trial Court at the concluding stage of the trial.
8. For what has been observed above, the impugned orders passed by the learned Magistrate section 30, Model Town, Lahore on 17-6-1997 and the learned Additional Sessions Judge, Lahore on 9-9-1997 are found to be unexceptionable in the circumstances of this case. This petition is, therefore, dismissed.