MUHAMMAD AKHTAR SHABBIR, J.---The instant criminal appeal arises out of the order dated 29-2- 2000 passed by the Magistrate Section-30, Gujjar Khan, acquitting respondents Nos. 1 and 2, in case F.I.R. No.406 dated 12-10-1997, under sections 427/440/337-H(ii)/324/379, P.P.C., registered with Police Station, Gujjar Khan District Rawalpindi.
2. The occurrence taken place allegedly according to the F.I.R. Is that respondents Nos. 1 and 2 on the night of 11-10-1997 at about 11-15 p.m. In furtherance of their common intention made an unlawful assembly, indiscriminate firing and dismantled three shops of the complainant. The Investigating Agency had investigated the case, found the accused-respondents guilty and challaned them to the Court.
3. They were charge-sheeted on 1-6-1998 by the trial Court under sections 324/379/440/427/337- H(ii)/34, P.P.C.
4. In order to prove its case, the prosecution had examined four P.Ws. Namely, Raja Abdul Latif P.W.1, Raja Muhammad Basharat P.W.2, Muhammad Akhlaq P. W .3 and Ghulam Dastgir P. W .4. The complainant/P.W.1 had reiterated the story as narrated in the F.I.R. And other P.Ws.2 to 4 had also deposed in line with the complainant.
5. The Investigating Officer/Ilyas did not appear and the trial Court had closed the prosecution side and acquitted the accused-- respondents vide impugned order.
6. Learned counsel for the appellant contended that the trial Court/learned Magistrate was under transfer and on his last working day, before relinquishing the charge passed the impugned order in a hasty manner; that the accused-respondents had neither cross-examined the P.Ws. Nor they have filed an application under section 249-A, Cr.P.C.; that the trial Court had not made any effort or adopted any coercive measures for the production of Investigating Officer/P.W.
7. On the other hand, learned counsel for the respondents has vehemently opposed the arguments of the learned counsel for the appellant, contending that there is nothing on the record to establish the source of light in which the accused persons were identified/ recognized by the complainant party; that no specific role had been attributed to the accused-respondents by the complainant and the P. Ws.; that the respondents have suffered agony of trial for three and a half years and at this stage the remand of case would not be in the interest of justice.
8. I have heard the learned counsel for the parties and perused the record.
9. It is an admitted position that the accused-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 in it under section 249-A, Cr.P.C. Where acquittal of an accused person without any application under section 249-A, Cr.P.C. Has been passed by the trial Court, the order of acquittal would not be sustainable in the eyes of law as laid down in cases of The State v. Muhammad Afzal (2000 MLD 220); M. Saleem Anjum v. Majid Nizami (1990 MLD 206) and S.C. Subjally v. A. Hamid Khan and another (1999 MLD 1645). It is also admitted fact that the impugned order has been passed without issuing notice and providing an opportunity of hearing to the complainant of the F. I. R.
From the perusal of the impugned order, it reveals that no notice was issued to the prosecutor nor he was granted proper time to argue the case and only he was marked as present. It means that the learned Magistrate had not even heard the prosecutor rather passed the impugned order in absence of the complainant.
10. The manner in which the learned Magistrate had dealt with the criminal case is neither can be appreciated nor approved. He had passed the order of acquittal of the accused-respondents when he was at the verge of relinquishing the charge due to his transfer and it was his last day to work there. The Magistrate in a hasty and unusual manner had acquitted the respondents under section 249-A, Cr.P.C. Which is a clear violation of law as laid down in case of The State v. Sarwar Khan (PLD 1984 SC 428). The Investigating Officer did not appear in the Court to support the prosecution case and it was incumbent upon the Court to make efforts to procure his attendance in Court by adopting coercive measures. Where the summons are issued to a witness and in response thereto, he does not appear, the reasons must be examined and noted in the order- sheet and in this situation necessary, coercive measures should be adopted by the Court for securing the attendance of the witnesses. It is the foremost duty of the Court witnesses. It is the foremost duty of the Court to ensure the presence of the witnesses and the Court should not lay the entire responsibility on the prosecutor. I find that the trial Magistrate had miserably failed t: perform his legal duty.
11. Furthermore, there was evidence of four P. Ws. Who have supported the prosecution version and they were not cross---examined by the accused-respondents and it is settled proposition of law that if the witnesses are not cross-examined, their examination-in---chief shall be deemed to be admitted. The trial Court had not assigned sufficient reason. While passing the impugned order which shows that the same had been passed by the Court without applying its judicious mind to the facts and circumstances of the case.
12. The Court is empowered to acquit the accused at any stage of the proceeding after hearing the prosecutor/complainant and accused and for reasons to be recorded if the Court considers the charge to be groundless, or there being no probability of accused's conviction for any offence.
Reliance in this context can be made to the case of Abdullah Jan Khan v. Saifur Rehman's Khan (1997 PCr.LJ 973)
13. In case of The State v. Asif Ali Zardari (1994 SCMR 798), the Hon'ble Supreme Court had observed that while "passing the order of acquittal the only requirements to be fulfilled are firstly that hearing is to be given to the prosecutor and counsel of accused and secondly reasons are to be recorded in support of conclusion that charge is groundless or that there is no probability of accused being convicted.".. ..This view is further strengthened by the dictum laid down in cases of Zahoor-ud-Din v.
Khushi Muhammad (1998 SCMR 1840) and Aarub Khan v. Haris M. B. Ahmad and others (PLD 1996 Karachi 253).
14. In the impugned order, the learned Magistrate had nowhere observed that the charge against the accused-respondents is groundless or that there was no probability of their conviction in the case.
15. In view of the above discussion, I am of the considered view that the impugned I order is not sustainable in law. Resultantly, this appeal is accepted and the case is remanded to the trial Court to try the same afresh from the stage/date, it was decided.