2001 M L D 334

[Karachi]

Before Abdul Ghani Shaikh, J

KHALIL AHMED ‑‑‑Petitioner

versus

MUHAMMAD SAEED and another‑‑‑Respondents

Criminal Acquittal Appeal No.89 of 1999, decided on 26th September, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.249‑A & 417‑‑‑Penal Code (XL of 1860), Ss.448 & 506‑‑‑Offences

Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.14‑‑
-Appeal against acquittal‑‑‑Accused who remained absconded was acquitted
by Judicial Magistrate on his application under S.249‑A Cr.P.C. on the
ground that challan had been submitted after delay of more than seventeen
days of the registration of F.I.R.‑‑‑Accused was acquitted without
framing charges‑‑‑Validity‑‑‑Application by accused under S.249‑A, Cr.P.C.
prior to framing charges was not maintainable‑‑‑Acquittal order passed by
Judicial Magistrate on premature application of accused, was set aside by
High Court accepting appeal against acquittal.

Shahadat Awan for Appellant.

Panhwar for Respondents.

Habibur Rasheed for the State.

ORDER
This matter is at Katcha Peshi stage and the learned counsel appearing
for the parties have agreed for the final disposal of appeal.

This acquittal appeal is filed against the order passed by IIIrd Judicial
Magistrate, Karachi Central in Case No. 147 of 1998 (State v. Abdul Aziz
and another) arising out of F.I.R. 172 of 1996 of Police Station
Nazimabad for offence under section 448/506‑B, P.P.C. read with section
14, E.H.O.

The learned counsel for the appellant submits that the incident of this
case alleged to have taken place on 10‑4‑1996 and F.I.R. was registered
on 16‑5‑1996 and challan was submitted on 5‑8‑1997, wherein the accused
were shown as absconders. The proceedings under sections 87 and 88,
Cr.P.C. were also taken against absconders/private respondents. The
respondents appeared in Court and filed application under section 249‑A,
Cr.P.C. which was allowed on 20‑4‑1999, resultantly the accused were
acquitted.

The learned counsel for the appellant has argued that the
accused/respondents were acquitted by the Judicial Magistrate (1) that
the challan was submitted after delay of more than 17 days of the
registration of F.I.R. and the charge framed against the respondents was
groundless. The learned counsel for the appellant submits that the
respondents were shown as absconder and therefore, the submission of
challan after 17 days of registration of F.I. R. was not fatal to the
prosecution and (2) as far as charge being groundless is concerned it is
not correct as the charge was not framed at all. According to him the
application under section 249‑A, Cr.P.C. was premature.

Mr. Habibur Rasheed appearing for the State does not support the impugned
order as the same was not properly passed. The charge was not framed and
application filed by the private respondents was not maintainable.

Mr. Panhwar, Advocate appearing for the private respondents is not able
to controvert the submissions made by the learned counsel for the
appellant. He only states that the possession of the disputed property
has been taken over and civil suit in respect of the disputed property
between the appellant and respondent, is pending decision and under such
circumstances order passed by the trial Court is legal and proper.

I have considered the arguments by the learned counsel for the parties.
Admittedly section 249‑A, Cr.P.C. comes in picture when the charge is
framed. Section 249‑A, Cr.P.C. reads as under:‑‑
"249‑A. Power of Magistrate to acquit accused at any stage.‑‑-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 e of the accused being
convicted of any offence."

In view of the position and the circumstances, this Criminal Acquittal

Appeal is allowed and the acquittal order passed by the trial Court is
set aside. The trial Court will proceed with the matter in accordance
with law. The respondent however, may repeat the application under
section 249‑A, Cr.P.C., before the trial Court when the charge is framed
or after framing of charge and recording some evidence as may be deemed
fit in the circumstances of the case.

H.B.T./K‑
18/K
Appeal allowed.