1. ' This is a criminal acquittal appeal under section 417(2-A) of Cr.P.C. Filed by the appellant against the acquittal order, dated 24-11-1996 passed by learned Additional District Magistrate (C.I.A.), Karachi in a Case No,289 of 1994 State v. Imtiaz and Shamsuddin and others registered under sections 66, 66-B, 66-C, 67, 70-A and 74 of Copyright Act, 1992 as per F.I.R. No,120 of 1994, dated 2- 8-1994 of Police Station Brigade (C.I.A.), Karachi District East whereby an application filed by the respondents under section 249-A of Cr.P.C. Was allowed and the respondents/accused were acquitted.
2. ' The prosecution case is that on 2-8-1994 Sub-Inspector Ashiq Hussain of C.I.A. Saddar, Karachi allegedly seized unauthorised and illegal copies of video cassettes from the shops of respondents/accused in the Rainbow Centre, Saddar, Karachi, as such F.I.R. No,120 of 1994 was registered and charge-sheet was submitted on 28-9-1994 and charge was framed on 20-4-1995 to which respondents/accused pleaded not guilty. The respondents/accused filed an application under section 249-A of Cr.P.C. On 8-11-1994 which was heard and disposed of as per impugned order, dated 24-11-1996.
3. ' The learned counsel for the appellant has argued that the impugned order is illegal, improper and unjust which has resulted in miscarriage of justice, considering that the material collected by the police which was before the trial Court disclosed prima facie case against the respondents/accused consequently, it could not have been said that charge framed was groundless or that there was no probability of respondents/accused being convicted of the offences. The contention of the learned counsel for the respondents is that the only material against the respondents/accused was evidence of recovery Mashirs which being interested hence there could not be said to be a probability of respondents/accused being convicted consequently the impugned order is legal, proper and just.
4. ' The trial Court in the concluding para. Of the impugned order has observed: "The question before this Court is that if the prosecution story is fully supported by these recovery witnesses, can the accused persons be convicted on the basis of the statements of these recovery witnesses. In my opinion the accused cannot he convicted in such case, More than two years have passed. The accused persons have already suffered a lot, It was the duty of the prosecution to have local and impartial witnesses in this case in which the prosecution failed. Hence, the accused persons are hereby acquitted under section 249-A, Cr.P.C., as there seems no probability of convictions in this case at any later stage. However, this order is purely on legal ground and if the complainant has any grievance against the accused persons, fresh case may be lodged against them but keeping in view the provisions of law."
5. ' Perusal of impugned order would show that recovery Mashirs in respect of the seizer of alleged unauthorised and illegal copies of Video Cassettes are said to be interested persons, therefore, their evidence if any to be recorded would not result into the conviction or that in the said circumstances there would be no probability of respondents/accused being convicted of the offences. Admittedly, F.I.R. Was registered on 2-8-1994, charge-sheet was submitted on 28-9-1994, charge was framed on 20-4-1995 and application under section 249-A, Cr.P.C. Was filed on 8-11- 1994 even before the framing of charge, while the impugned order was passed on 24-11-1996. The trial Court did not record the evidence of even two recovery Mashirs. It is true that powers under section 249-A of Cr.P.C. Could be exercised at any stage of the case but the plea on which the respondents/accused have been acquitted in the instant case that testimony of the recovery Mashirs without being examined would not be sufficient for the conviction of the respondents/accused would have no merit and substance. The charge could not be said to be groundless within the meaning of section 249-A of Cr.P.C. If the complainant/prosecution is not given opportunity to prove the allegations levelled in the F.I.R. And it could not also be said that there is no probability of conviction of the respondents/accused because the recovery Mashirs are allegedly interested persons without they being examined by the trial Court and without there being any evidence to that effect. Reference may be made to Karachi Electric Supply Corporation v. Naseer Ahmad 1986 PCr:LJ 1684 and Shaukat Ali v. Rana Muhammad Ishfaq and others 1992 ALD 243(1). There has been no material/evidence before the trials Court to justify the passing of impugn order of acquittal by the trial Court, consequently. It has resulted in miscarriage of justice so also being not legal, is set aside and appeal is allowed with the directions to the trial Court that respondents/accused be retried and matter be disposed of in accordance with law. The counsel for the appellant states that within the period of three months he would produce the material witnesses before the trial Court and the respondents after examination of material witnesses, would be at liberty to move again an application under section 249-A, Cr.P.C. If they so desire.
6. ' These are the reasons in respect of short order allowing the appeal on 29-9-1997.