PLJ 2024 Cr.C. (Note) 119
[Lahore High Court, Multan Bench]
Present: Sadiq Mahmud Khurram, J.
ABDUL QADIR and 5 others--Petitioners
versus
STATE and another--Respondents
Crl. Misc. No. 5872-M of 2022, decided on 14.11.2023.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 249-A, 265-K, 439-A & 561-A--Pakistan Penal Code, (XLV of 1860), Ss. 452, 380, 354, 148 & 149--Application u/S. 249-A of, Cr.P.C.--Acquittal at any stage--Proceeding quashed--Application accepted--Acquittal--An application moved u/S. 249-A, Cr.P.C. was filed and dismissed--Revision petition was also dismissed--Private complaint was filed relating to the FIR--Petitioners had trespassed into his house, outraged the modesty of women and committed theft of articles--After conducting an inquiry, the trial court summoned the petitioners to face trial of the case instituted upon the private complaint--One petitioner was residing in the house where the occurrence took place as she was then married to the son of the respondent No. 2--The named of the woman whose modesty was outraged have not been mentioned nor they are mentioned in the calendar of the prosecution witnesses--Petition is allowed, resulting in the acceptance of the application u/S. 249-A of, Cr.P.C. filed by the petitioners before the learned trial court--The proceedings of the petitioner’s trial are, thus. Quashed and they are acquitted of the charge. [Para 2, 7 & 8] A, B, C, D, E, K
1994 SCMR 798; 1993 SCMR 523; PLD 1999 SC 1063 ref.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 249-A--Section 249-A empowered the presiding officer of the trial court to acquit the accused at any stage of the trial. [Para 7] F
Criminal Procedure Code, 1898 (V of 1898)--
----S. 249-A--Only requirements to be fulfilled are, firstly, the hearing is to be given to the prosecutor and council for the accused and secondly, reasons are to be recorded is support of conclusion that charge is groundless or that there is no probability of accused being convicted. [Para 7] G
Criminal Procedure Code, 1898 (V of 1898)--
----S. 249-A--An application under Section 249-A of, Cr.P.C. can be filed at any stage of the proceedings and it is not necessary that such application should be filed after evidence of all the witnesses is recorded. [Para 7] H
1994 SCMR 798 ref.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 561-A--Section 561-A of, Cr.P.C. confers inherent powers upon this court to make such orders as may be necessary to give effect to any order under this code or to prevent abuse of powers of any court or otherwise to secure the ends of justice--These powers are very wide and can be exercised at any time. [Para 7] I
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 249-A & 265-K--The use of the expression “ar any stage” of the case in Section 249-A and S. 265-K of, Cr.P.C. did not leave the question of recording the evidence as a condition precedent.
[Para 7] J
Khawaja Qaiser Butt, Advocate for Petitioners.
Mr. Nisar Ahmed Rana, Advocate for Complainant/ Respondent No. 2.
Mr. Muhammad Sadiq Rehman, Additional Prosecutor General for State.
Date of hearing: 14.11.2023.
Order
The petitioners namely Abdul Qadir, Khalid Mehmood Zaffar Mehmood, Tallat Mehmood Junaid Khalid and Maryam Khalid have assailed the order dated 21.05.2022, whereby an application under Section 249-A, Cr.P.C., moved by them, was dismissed by the learned trial Court (learned Magistrate, Lodhran) during their trial in case instituted upon the private complaint titled Muhammad Akbar Khan vs. Abdul Qadir and six other” lodged in respect of offences under Sections 452, 380, 354, 148 and 149, P.P.C. (related to F.I.R No. 95 of 2020 registered at Police Station City Lodhran, District Lodhran). The petitioners have also assailed the order dated 02.07.2022 passed by the learned Additional Sessions Judge, Lodhran whereby the petition filed by the petitioners under Section 439-A Code of Criminal Procedure, 1898 was also dismissed.
2. Succinctly speaking, Muhammad Akbar Khan (Respondent No. 2) lodged the private complaint titled “Muhammad Akbar Khan vs. Abdul Qadir and six other” in respect of offences under Sections 452, 380, 354, 148 and 149, P.P.C. (related to F.I.R No. 95 of 2020 registered at Police Station City Lodhran, District Lodhran) narrating therein that the petitioners had on 16.08.2020 trespassed into his house, outraged the modesty of women and committed theft of articles belonging to Muhammad Akbar Khan (Respondent No. 2). After conducting an enquiry, the learned trial Court summoned the petitioners to face trial of the case instituted upon the private complaint titled “Muhammad Akbar Khan vs. Abdul Qadir and six other” lodged in respect of offences under Sections 452, 380, 354, 148 and 149, P.P.C. (related to F.I.R No. 95 of 2020 registered at Police Station City Lodhran, District Lodhran); it was still at the initial stage, when petitioners moved an application under Section 249-A, Cr.P.C. and then a revision petition, which were dismissed by the learned Courts below. Hence, the instant petition.
3. Learned counsel for the petitioners has submitted that there was no evidence available which could result in conviction of any of the petitioners; that the impugned order passed by the learned trial Court is patently illegal, as it did not appreciate the proposition involved, in its true spirit and dismissed the petitioners’ application under Section 249-A, Cr.P.C. illogically and thoughtlessly; that the learned revisional Court also committed same sort of mistake and dismissed the petitioners’ revision without any rationale; that the impugned orders have resulted in grave miscarriage of justice and great inconvenience to the petitioners, therefore, these may be set aside.
4. Learned counsel appearing on behalf of Respondent No. 2 did not look much enthusiastic about the respondent’s case however submitted that the learned trial Court and the revisional Court had committed no illegality.
5. The learned Additional Prosecutor General did not feel inclined in supporting contention of the respondent’s counsel and submitted that the learned trial Court and the learned revisional Court dealt with the proposition cursorily and passed the impugned orders implausibly, which may not be sustained.
6. I have heard the learned counsel for the petitioners, the learned counsel for the complainant, the learned Additional Prosecutor General and the relevant record has been perused.
7. A perusal of the record reveals that Muhammad Akbar Khan (Respondent No. 2) lodged the private complaint titled “Muhammad Akbar Khan vs. Abdul Qadir and six other” in respect of offences under Sections 452, 380, 354, 148 and 149, P.P.C. (related to F.I.R No. 95 of 2020 registered at Police Station City Lodhran, District Lodhran) narrating therein that the petitioners had on 16.08.2020 trespassed into his house, outraged the modesty of wonten and committed theft of articles belonging to Muhammad Akbar Khan (Respondent No. 2) After conducting an enquiry, the Learned trial Court summoned the petitioners to face trial of the case instituted upon the private complaint titled “Muhammad Akbar Khan vs. Abdul Qadir and six other” lodged in respect of offences under Sections 452, 380, 354, 148 and 149, P.P.C. (related to F.I.R No. 95 of 2020 registered at Police Station City Lodhran, District Lodhran); it was still at the initial stage, when petitioners moved an application under Section 249-A, Cr.P.C. and then a revision petition, which were dismissed by the learned Courts below. It is a fact that the petitioner namely Maryam Khalid was residing in the house where the occurrence took place as she was then married to the son of the Respondent No. 2 but still the learned trial Court summoned her to face the charge under Section 452, P.P.C. With regard, to the summoning of the petitioners with regard to the charge under Section 380, P.P.C., it is observed that there was no evidence worthy of reliance in this regard which raises a possibility even that the petitioners would be convicted for the commission of the said offence. With regard to the charge under Section 354, P.P.C., it is observed that the names of the women whose modesty was outraged have not been mentioned nor they are mentioned in the calendar of the prosecution witnesses and there is no evidence worthy of dependance in this regard which raises a likelihood even that the petitioners would be found guilty for the commission of the said offence. So far as trial of the petitioners is concerned, it is, though, at a nascent stage yet, it may be no reason to restrain from exercising judicial authority under Section, 249-A Cr.P.C., which empowered the presiding officer of the trial Court to acquit the accused at any stage of the trial and the only requirements to be fulfilled are, firstly, that hearing is to be given to the prosecutor and counsel for the 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. It is absolutely clear that an application under Section 249-A, Cr.P.C. can be filed at any stage of the proceedings and it is not necessary that such application should be filed after evidence of all the witnesses is recorded. Guidance in this regard may be had on the case of The State v. Asif Ali Zardari and another (1994 SCMR 798), Section 561-A, Cr.P.C. confers inherent powers upon this Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice. These powers are very wide and can be exercised at any time. Where it appears that the process of a Court was being abused, this Court may exercise its inherent jurisdiction under Section 561-A, Cr.P.C. The use of the expression “at any stage of the case in Sections 249-A and 265-K, Cr.P.C. did not leave the question of recording the evidence as a condition-precedent before taking action under either of the provisions, which is indicative enough of the intention that any such stage could be the very initial stage, after taking cognizance or it could be a middle stage after recording some proceedings and/or, even it could be later stage as well, as held by the Hon’ble Supreme Court of Pakistan in the cases of State through Secretary, Ministry of Interior v. Ashiq Ali Bhutto (1993 SCMR 523) and Muhammad Sharif v. The State (PLD 1999 SC 1063).
8. For the discussion supra, this petition is allowed and the order dated 21.05.2022 passed by the learned Magistrate Lodhran and the order dated 02.07.2022 passed by the learned Additional Sessions Judge, Lodhran are hereby set-aside, resulting in the acceptance of the application under Section 249-A, Cr.P.C. filed by the petitioners before the learned trial Court. The proceedings of the petitioners’ trial are, thus, quashed and they are acquitted of the charge.
(K.Q.B.) Petiition allowed
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