' The brief facts out of which the present Criminal Appeal arises are that Mst. Shaheen Akhtar got registered a case F.I.R. No, 205 against the respondents Nos.1 to 5 which was registered under section 448/427, P.P.C. At Police Station Chountra, Tehsil and District, Rawalpindi.
2. The occurrence took place allegedly according to the F.I.R. Is that respondents after breaking the northern wall of their house entered into their house and stole away household in her absence and in absence of her mother. The Investigating Agency investigated the case and found the respondents guilty and submitted challan against them before the Magistrate 1st Class, Rawalpindi, on 25-1-1990. The learned Magistrate 1st Class framed charge against the respondents on 31-5-1990. The learned Magistrate without filing any application by the respondents before him under section 249-A, Cr.P.C. Acquitted them vide impugned order dated 10-7-1990 in the following terms:-- "Accused were charged on 31-5-1990 and till now, no P.W. Was produced in Court to support their case. So much so, the complainant did not appear, nor she sent any person to pursue her case. On the other hand, the learned counsel for the defence pointed out that there is a dispute between the parties over the ownership and a civil case is pending in the Civil Court and the parties are attending that Court. From this, it is quite clear that the prosecution has no interest in this criminal case and as the matter is the ownership, it must be decided by the civil Court.
' In view of the above, I acquit the accused under section 249-A and closed the proceedings of the case."
3. Learned Public Prosecutor contended that the Trial Court acquitted the respondents under section-249-A, Cr.P.C. Without recording the evidence of the prosecution which is not valid. He further stated that the Trial Court acquitted the respondents without providing any opportunity to the prosecution and invoked the provisions of section 249-A, Cr.P.C. Without any justification. He summed up his arguments that the Trial Court failed to exercise powers for the attendance of the witnesses through coercive measures and acquitted the respondents on false pretext. It was the duty of the Trial Court to procure the attendance of the witnesses. There was sufficient material available on the record to connect the respondents accused with the commission of offence.
' Learned counsel for the respondents supported the judgment of the learned Magistrate on all material points. He stated that it is not the duty of the Trial Court to procure the attendance of the witnesses of the prosecution. It is the duty and obligation of the prosecution to produce the witnesses before the Trial Court. The proceedings against the respondents may be dropped at any stage of the trial as is envisaged by section-249-A, Cr.P.C. The question of providing personal hearing or calling witness in the present case does not arise on the well-known principle that nobody should be allowed to take the benefit of his own misdeeds. In the present case, the complainant or her witnesses of their own have chosen not to appear before the Court, therefore, there was no alternate with the trial Court except to acquit the respondents. He summed up his arguments that a civil litigation between the complainant and the respondents is still pending adjudication as the respondents have filed civil revision petition regarding the same subject- matter before this Court.
4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself. It is admitted fact that the respondents did not file any application under section 249-A, Cr.P.C. Before the trial Court for their acquittal. The trial Court suo motu invoked the powers vested with the trial Court under section 249-A, Cr.P.C. It is also admitted fact that the impugned order was passed without providing personal hearing to the complainant. It is also admitted fact that no notice was issued to the Public Prosecutor which is evident from the impugned order. It is better and appropriate to re-produce the relevant provisions of Cr.P.C. To find out whether the notice is necessary to the complainant or Public Prosecutor before passing the impugned acquittal order which are as follows:-- "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 an offence."
' The judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced, or the substance of such judgment shall be explained:--
(a) in open Court either immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders; and
(b) in the language of the Court or in some other language which the accused or his pleader understands: ' Provided that the whole judgment shall be read out by the presiding Judge, if he is requested so to do either by the prosecution or the defence.
(2) The accused shall, if in custody, be brought up, or, if not in custody, be required by the Court to attend, to hear judgment delivered except where his personal attendence during the trial has been dispensed with and the sentence is one of fine only or he is acquitted, either of which cases it may be delivered in the presence of his pleader.
(3) No judgment delivered by any Criminal Court shall be deemed to be invalid by reason only of the absence of any party or his pleader on the day or from the place notified for the delivery thereof, or of any omission to serve, or defect in serving on the parties of their pleaders, or any of them, the notice of such day and place.
(4) Nothing in this section shall be construed to limit in any way the extent of the provisions of section.-537.
Mere reading of the aforesaid provisions of law, it is very much obvious that the hearing of the prosecutor and the accused as well is precondition to the order of acquittal under section 249-A, Cr.P.C. And the judgment has to be pronounced by the Court in the presence of the accused or in case where the personal attendance of the accused is dispensed with, then in the presence of his Advocate,
5. It is pertinent to mention here that the learned Magistrate has not only not heard the prosecutor, but also passed the order in the absence of the parties. The manner in which the learned Magistrate has dealt with a criminal case cannot be approved by this Court. In the present case, the learned Magistrate has violated the mandatory provisions of the Cr.P.C. He did not hear the prosecutor before passing the order under section 249-A, Cr.P.C. Meaning thereby, he did not give any opportunity to the prosecutor of being heard and in hasty and unusual manner acquitted the respondents under section 249-A, Cr.P.C. Which is not in accord with law laid down by the Honourable Supreme Court in Sarwar Khan's case PLD 1984 SC 428 and the relevant observation as follows:-- "By way of guidance to the Courts, it may be indicated that when the summons issue, as they issued a number of times in this case for the witnesses and the witnesses do not appear in response to it, the reason therefore, must be examined and noted in the order sheet and where necessary coercive steps should be taken for securing the attendance of witnesses. The Court should not feel so powerless in the matter of securing attendance and should not lay the entire responsibility on the prosecutor himself. Further, while recording an order under section 249-A, Cr.P.C., the Court should afford an opportunity to the prosecutor, in a complaint case to the complainant, before recording an order of acquittal and that can be done either by issuing, a show-cause notice or calling upon the prosecutor or the, complainant as the case may be to show cause why such an order be not recorded. Finally, needless to say, that an opinion with regard to the involvement of an accused has to be formed in terms of the requirements of section 249-A, Cr.P.C. And not outside it.
' I am also fortified by Mst. Nasim Akhtar's case 1986 PCr.LJ 1824 which laid down the principles that the trial Court has to provide hearing to the State Counsel before passing the impugned order under section 249-A, Cr.P.C. The reference can also be made by 'the following judgments:--
(i) 1987 PCr.LJ 1633 Muhammad Saleem's case.
(ii) 1990 PCr.LJ 113 Abdul Lateef's case.
The operative part of the impugned order does not reveal that the same was passed after applying its independent judicial mind, therefore, the same is not sustainable in the eyes of law as the principles laid down by Sardar Ahmed Khan's case, 1988 PCr.LJ 2002. As mentioned above, in the present case, respondents did not file any application under section 249-A, Cr.P.C. Befor the trial Court for their acquittal, therefore, the same is not sustainable in the eyes of law as the principles laid down by this Court in M. Saleem Anjum's case, 1990 MLD 206.
6. I am very clear in my mind that ordinarily the Court should not interfere at initial stage of criminal proceedings, but the Court under section 249-A, Cr.P.C. Is under an imperative obligation to interfere in order to bring harassm ent of citizen by an illegal prosecution. It will interfere whenever there is an exceptional and extraordinary reasons for doing so .One of the tests/ingredients to apply in order to determine whether any particular case falls under Exceptional Clause or not is to see whether from the admitted facts of the case, the Court can be satisfied that it is a fit case for its interference even at preliminary stage. The second test to be applied is to D judge whether in the admitted circumstances of the case, it would be a mockery of trial if the case is allowed to proceed and broadly speaking, the Court will interfere in interest of justice and to stop the abuse of process of law. In, the present case, the complainant had -alleged that the respondents after breaking the northern wall of their house entered into their house and stole away the household in her absence and in absence of her mother and without giving any opportunity to her to prove the allegations levelled by her in the F A.R., the charge said to be groundless. The Honourable Supreme Court of Pakistan has considered this proposition of law in Asif Ali Zardari's case 1994 SCMR 798 and observed as follows:-- "The only requirements to be fulfilled are first, that hearing is to be given to the prosecutor and the counsel of the accused and consequently, reasons are to be recorded in support of the conclusion that the charge is groundless or that there is no probability of the accused being convicted."
It is settled proposition of Criminal Jurisprudence that the trial Court did not conclude, rather it was not possible for him to have concluded that the charge was groundless or that there is no probability of the accused being convicted of any offence. I am fortified by Muhammad Shafi's Case PLD 1996 Lah.471. In the present case, admitted facts in chronological orders coupled with the material order passed by the trial Court to resolve the controversy between the parties are as follows:-- ' 31-12-1989 F.I.R. Was lodged against the respondents. 25-1-1990. Challan was submitted under section 448/429, P.P.C.
' 17-4-1990. Statements under section 161, Cr.P.C. Were handed over to the respondents and the case was adjourned for framing of charge for 24-4-1990.
' 24-4-1990. Summoned Ummar Khan respondent for 15-5-1990 through his Commanding Officer under section 549, Cr.P.C. As he was stated to be an Army Personnel and case was adjourned for 10-5-1990.
' 10-5-1990. There was no response from the Military Authorities. Fresh summon issued for personal attendance of Ummar Khan Respondent through his Commanding Officer for 21-5-1990.
' 21-5-90. No summon was issued to Ummar Khan respondent. The Presiding Officer was on leave and the case was adjourned for 30-5-1990.
' 30-5-90. The case was adjourned due to public holiday and adjourned for 31-5-1990.
' 31-5-1990. Charge was framed against the respondents and the case was adjourned for the evidence of the prosecution for 12-6-1990.
' 12-6-1990. Respondents present. Witnesses were not present. Summons were not received back and the case was adjourned for the evidence of the prosecution for 25-6-1990.
' Mst. Shaheen Akhtar and Shahana P. Ws. Were present before the Court, but their evidence was not recorded and instead bailable warrant of arrest was issued against Ummar Khan Respondent (Army Personnel).
' 10-7-1990. The respondents were acquitted under section 249-A, Cr.P.C. Without application filed by the respondents under the aforesaid provisions of law.
7. It is pertinent to mention here that Ummar Khan respondent did not enter appearance before the trial Court and his case was not separated by the trial Court under section 512, Cr.P.C. And framed the charge against the other respondents on 31-5-1990. The order, dated 25-6-1990, reveals that the witnesses of the prosecution were present, but the trial Court without any justification acquitted the respondents in violation of the mandatory provisions of the Cr.P.C. And without adopting the proper procedure prescribed in Cr.P.C. Therefore, the impugned order is without lawful authority on the well-know principle, when a thing is to be done in a particular manner, it must be done in that way and not otherwise. It is also admitted fact that the trial Court did not adopt the coercive measure for the attendance of the prosecution witnesses in violation of the mandatory provisions of the Cr.P.C. It is also settled proposition of law that nobody should be penalized by the act of the Court as the principle laid down by the Division Bench of this Court PLD 1975 Lahore 7. In view of the aforesaid circumstances, it was not possible for trial Court to have concluded that the charge was groundless or that there is no probability of the respondents being convicted of any offence in the circumstances of this case, because, the impugned order had been summarily passed upon a denial of an opportunity to the prosecution to produce the prosecution witnesses whose attendance had to be produced by the learned Magistrate by adopting all the legal methods. Thus, the non-appearance of the prosecution witnesses cannot be said to be due to the laxity of the complainant, rather, the learned Magistrate proceeded in the matter in perfunctory manner. This fault/loose control/non-serious working of the learned Magistrate should not damage the case of the prosecution for the purpose of the acquittal of the accused under section 249-A, Cr.P.C. It is settled maxim of Jurisprudence that no doubt an accused is a favorite child of law, but keeping in view the shape of scale and justice, the complainant is also not denied of justice of the Court.
8. In view of what has been discussed above, the order of the learned Magistrate, dated 10-7-1990, regarding the acquittal of the respondents having been passed in mechanical fasion, without independent application of mind to the facts of the case is hereby declared to be nullity in the eyes of law and is set aside as the same is passed in violation of the law laid down by the Honourable Supreme Court in following judgments:-- ' PLD 1970 SC 173 and PLD 1964 SC 829.
The impugned order is also in violation of mandatory provisions of section 24-A of General Clauses Act as the learned trial Court failed to pass reasoned judgment, therefore, the same is set aside being not sustainable in law. The case is remanded to the trial Court with the direction that he should take up the proceedings afresh from the stage at which the order, dated 10-7-1990, was passed under section 249-A, Cr.P.C. The parties are directed to appear before the learned Magistrate 1st Class, Rawalpindi, on 13-8-1999, for further proceedings in accordance with law.