CHAUDHARY MUHAMMAD TAJ, J.---This appeal has been filed against the order passed by the Shariat Court on 8-2-2003 whereby a revision petition filed by --the appellant against the order passed by the Tehsil Court of Criminal Jurisdiction, Mirpur was dismissed.
2. The facts forming the background of this appeal are that a case registered on the complainant of one Ghulam Mustafa was challaned before the Tehsil Court of Criminal Jurisdiction Mirpur under the offences of sections 324, 337-A(1), 448 and 506, A.P.C. Against the appellant and two other accused persons. The accused persons were examined under section 342, Cr.P.C. Thereafter the case was fixed for prosecution evidence when an application under section 249-A, Cr.P.C. Was moved. The trial Court dismissed the application. A criminal revision petition filed against the aforesaid order with the Shariat Court was also dismissed. Hence this appeal.
3. Mr. Liaquat Ali Khan, the learned counsel for the appellant, contended that both the Courts below have failed to appreciate the facts in the light of law. It was argued that no prima facie case is established against the appellant. The statements of the prosecution witnesses recorded under section 161, Cr.P.C. Are contradictory to each other. It was further argued that the complainant has not attributed any role to the appellant therefore none of the offences are attracted. The learned counsel referred to the statements made by the complainant and other prosecution witnesses under section 161, Cr.P.C.
4. Sardar Abdul Razzik Khan, the learned Additional Advocate-General, while controverting the arguments addressed on behalf of the appellant, maintained that the complainant and the prosecution witnesses in their statements made allegation against the accused-appellant and other accused persons therefore after investigation the case was challaned before the competent Court of jurisdiction where a charge has also been framed. Both the Courts below, the Tehsil Court of Criminal Jurisdiction and the Shariat Court held that no case for exercise of the powers under section 249-A, Cr.P.C. Was made out.
5. We have heard the learned counsel for the parties and also gone through .The record. The case under sections 324, 337-A(1), 448 and 506, A.P.C. Stand challaned before the Tehsil Court of Criminal Jurisdiction Mirpur where the Court recorded the statement of the accused under section 342, Cr.P.C. And fixed the case for prosecution evidence. An application under section 249-A, Cr.P.C.
Was moved on behalf of the accused-appellant which was dismissed by the trial Court and a further revision before the Shariat Court also met the same fate.
6. Under section 249-A, Cr.P.C. An accused has a speedy remedy in the original jurisdiction to seek his immediate emancipation from a groundless charge. It is to be noted that section 249-A is not designed for the quashment of the proceedings where the challenge is made on the basis that the charge is groundless on merits. This section is enabling provision giving power to the Magistrate/Tehsil Court of Criminal Jurisdiction after hearing the prosecution and the accused to give a finding that the charge is groundless or that there is no probability of the accused being convicted of any offence. Where Court is reasonably convinced that a criminal charge could not be sustained, going on trial is not necessary but charge could not be said to be groundless within meaning of section 249-A if reasonable opportunity is not provided to prove the allegations. It may also be mentioned that recording of the prosecution evidence is not a condition precedent for acquitting an accused under section 249-A, Cr.P.C. A Magistrate may deal with an application any time irrespective of fact whether the charge has been framed or not. Nothing in the section will prevent the Magistrate where a charge has not been framed or where a charge has been framed but no material evidence recorded, from acquitting the accused, if he considers that there is no prima facie case against the accused or there is one which even if it is put to trial will certainly fail.
If material produced before the Court involved appreciation or appraisal by Court and its truth could not be tested unless it was brought on record and was subjected to cross---examination, in that case question of acquitting accused before framing of charge or recording, of evidence would not arise.
7. In the present case the complainant in addition to the First Information Report also got his statement recorded under section 161, Cr.P.C. The other prosecution witnesses also appeared before the Investigating Officer and got their statements recorded under section 161, Cr.P.C. A perusal of the aforesaid statements shows that allegations attracting offences charged against the appellant and other accused persons were attributed to them. Therefore it would be premature to hold that it is a case of no evidence.
8. Keeping in view the proposes evidence it cannot be held at this stage when prosecution evidence is yet to be recorded that the charge is groundless or there is no probability of the accused being convicted of any offence charged against him. The proposition finds support from a case reported as Siraj Din v. Zaka-ur-Rehman's and others 1988 PCr. LJ 1071 where the same was resolved in the following words:-- The case reported as Syed Anwar Ali Shah v. Yar Muhammad and 3 others 1986 PCr.LJ 1278 can also be referred in support of the proposition wherein it was held as under:-- "Reading of the above section leaves no doubt in my mind that the Magistrate has unrestricted powers to acquit the accused at 'any stage' of the case. The question that arises here is whether the words 'any state' can be construed to mean even the stage prior to framing of formal charge against the accused and recording of any evidence in support of the case. No doubt the Magistrate becomes seized of the case as soon as he takes cognizance of the same. In police case the cognizance is taken, when challan is produced by police and the same is accepted by the Court. After taking cognizance of the case, the Magistrate can exercise his powers including the powers vested in him under section 249-A, Cr.P.C. Thus, after he has taken cognizance of the case, he is obviously free to acquit the accused, at 'any stage' which can even be the stage before framing of charge and recording of evidence. But this is not all. The section further provides that the order of acquittal can be made if the Magistrate for 'reasons to be recorded' considers that 'the charge against accused is groundless' or that 'there is no probability of the accused being convicted of any offence'. In view of these requirements, if the Magistrate wants to exercise powers under section 249-A, Cr.P.C. Before framing of charge, the only material available to him for his consideration would be the same which could otherwise be used as basis for framing of the charge against the accused. On consideration of such material if the Magistrate is satisfied that either no offence is made out from that material or it is patently so scanty that it is most unlikely that it would end in conviction of the accused, he can acquit the accused and base his order of acquittal on that material. But if the material produced before the Magistrate is not of that type or it involves appreciation or appraisal by the Court, its truth cannot be tested unless it is brought on record and is subjected to cross-examination. In that case the question of acquitting the accused before framing of charge or recording of evidence would not arise. "
9. In view of the above, we have reached at the conclusion that at this stage it cannot be held that it is a case of no evidence and there is no probability of conviction of the accused-appellant. The application was rejected by the trial Court and thereafter by the Shariat Court in revision petition.
We do not find any illegality in the order passed by the Shariat Court. The appeal, therefore, is devoid of any force which is dismissed.