2012 M L D 1805
[Balochistan]
Before Mrs. Syeda Tahira Safdar, J
SALAHUDDIN and another ---Petitioners
Versus
THE STATE ---Respondent
Criminal Quashment No. 267 of 2012 , decided on 4th September, 2012.
Criminal Procedure Code (V of 1898) ---
----S. 249 -A---Quashment of proceedings ---No evidence against accused persons, except
their presence at site -No overt act assigned ---Inference of mala fide of prosecution ---Case to
the extent of co -accused allowed to be withdrawn ---Effect ---Trial Court declined application
of accused persons filed under S. 249 -A, Cr.P.C, seeking their acquittal, on grounds that case
was at a mature stage and because material witnesses were yet to be examined ---Validity ---
Trial Court failed to disclose the material witnesses, which in its opinion were still to be
examined ---Case to the extent of co -accused persons was allowed to be withdrawn by the
prosecution ---Recovery of weapon and role of mak ing ineffective firing had specifically been
alleged against co -accused persons but they were allowed to go free with permission granted
for withdrawal of the case to their extent --- F.I.R. did not speak of any recovery of weapons
from custody of accused persons nor were they alleged any overt act therein ---Inference of
mala fide on part of prosecution could easily be drawn ---Statement of eye -witness of the
incident neither described the presence of accused persons at the site nor described any act
on th eir part in commission of the offence alleged ---Statement of police official, who
appeared as prosecution witness, was restricted to recovery of empties at the site ---Record did
not clearly show whether statement of complainant had been recorded ---No evi dence
against accused persons except their presence at the site ---No specific act had been assigned
to them in commission of offence ---No possibility of conviction of accused persons even
after recording of entire evidence ---Petition was allowed, applicat ion of accused persons
under S. 249 -A, Cr.P.C was allowed and they were acquitted of the charge.
Tahir Ali Baloch for Petitioner.
Liaquat Ali for the State.
Date of hearing: 7th August, 2012.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---By way of fili ng instant petition the petitioners
Salahuddin, and Wali Khan sought Quashment of order dated 28th May 2012 of Judicial
Magistrate -IV, Quetta, with further prayer that their application filed under provisions of
section 249 -A Criminal Procedure Code (Cr.P. C) be allowed, and they be acquitted of the
charge. It was contended that they had been involved in the instant case with mala fides, and
ulterior motives, as there was no evidence to connect them with commission of the offence.
Neither any recovery was ef fected from them nor the offences alleged in the F.I.R. were
attracted in the given circumstances. It was further contended that the mala fides on the part
of the prosecution were apparent from the fact that the case to the extent of co -accused
persons nom inated in the F.I.R. were withdrawn but they (petitioners) were ignored. But the
trial court failed to consider this material aspect of the case and refused the application filed
under the provisions of section 249 -A, Cr.P.C, in contravention of law.
2. It was argument of the learned counsel for the petitioners that no recovery was
effected from the petitioners, rather the arms were recovered from the co -accused persons.
Further this fact was apparent from the contents of F.I.R. despite the same the case was
withdrawn by the prosecution only to the extent of co -accused persons; this act disclosed the
mala fides on part of the prosecution. It was further contended that the prosecution witness
No.1 (PW -1) while appearing before the trial court did not state anything against them
(petitioners). Therefore, in view of the facts so stated the petitioners become entitled for their
acquittal of the charge. The counsel representing the State contended that there was no
material against the petitioners, nor any reco very was effected. Further, there were no
witnesses of the occasion to the extent of the petitioners.
3. The perusal of the papers annexed with the petition reveals that F.I.R. No.195 of 2011
Police Station Sariab, Quetta was lodged against several perso ns including Sultan Khan,
Surat Khan, Zamanullah, Abdul Wali, and Salahuddin. The record further revealed that
though to the extent of accused Sultan Khan, Surat Khan, and Zamanullah the request
for withdrawal of the case was declined by the trial court, but allowed by the Sessions Judge.
Quetta, through order dated 23rd April 2012. But later in time the petitioners filed an
application under provisions of section 249 -A, Cr.P.C, thereby requested for their pre -mature
acquittal of the charge, but it was declined by the trial court on grounds that the case being at
mature stage, and material witnesses yet to be examined. Being aggrieved of this order instant
petition had been filed.
4. The provisions contained in section 249 -A, Cr.P.C. provided a dis cretion to the trial
court for pre -mature acquittal of the accused persons. But this discretion is to be exercised
keeping in view the facts, and circumstances of each case within the ambit of law. In present
case the request so made had been declined by t he trial court on ground that the trial was at
mature stage, and only material witnesses had to be examined. But the order failed to disclose
the material witness, which was left to be examined. The perusal of the annexed documents
revealed that the case t o the extent of the co -accused persons namely Sultan Khan, Surat
Khan, and Zamanullah was allowed to be withdrawn by the prosecution with permission of
the Sessions Judge, Quetta through order dated 23rd April 2012, while entertaining a petition
filed for revision of order dated 13th March 2012 of Judicial Magistrate, Quetta who declined
the request. The petitioners feeling aggrieved of the act moved an application for their
acquittal, but failed.
5. The contents of questioned F.I.R. No.195 of 2011. Polic e Station Sariab, Quetta, this
fact is very much apparent that recovery of pistol and Kalashnikov was specifically alleged
from the possession of co -accused Sultan Khan, and Surat Khan with further allegation of
making ineffective firing by them. But the F.I.R. did not speak about recovery of any arms
or ammunition from custody of the petitioners, nor any overt act on their (petitioners) part.
The statements of two prosecution witnesses P.W.1 and P.W.2 had already been recorded.
P.W.1 Muhammad Javed was an eye -witness of the occasion: he appeared as witness of
recovery of arms used in commission of the offence and their seizure. According to his
statement when he reached at the site when accused Sultan had pistol in his hand, and Surat
Khan was with Kalas hnikov which were taken into custody. But his statement failed to
describe the presence of the present petitioners, nor described any act on their part in
commission of the offence. As far as P.W.2 Shah Nawaz Constable was concerned, his
statement restrict ed only to the recovery of the empties at the site. From the papers attached it
is not clear that whether statement of the complainant was recorded, or otherwise. Because
none of the parties produced any such statement, nor referred to it.
6. Keeping in view the material on record there is no evidence against the petitioners
except their presence at the site. No specific act had been assigned to them in
commission of the offence. Above all the case against the persons who were describe d
with an act of firing, and recovery of fire arms from their possession were already allowed
to go free with permission granted for withdrawal of the case to their extent. The inference of
mala fides on part of the prosecution can easily be drawn, and the benefit occurring thereof
can not be refused.
7. In view of above discussion, and on basis of the material on record, it appeared that
even after recording of entire evidence there is no possibility of conviction of the petitioners
in case in hand. Therefore, in given state of facts the further proceedings would be nothing,
but an abuse of process of the court. But the trial court not only failed to consider the factual
aspect of the case, but also failed to exercise the jurisdiction vests with it. R ather, in
contravention thereof arrived to a conclusion, that too without assigning any reason, which is
not sustainable. Therefore, the petition is allowed. Impugned order dated 28th May, 2012 of
Judicial Magistrate -IV, Quetta, is hereby set asi de. Consequently thereupon the
application filed under section 249 -A, Cr.P.C. before the trial court is hereby accepted. The
petitioners Salahuddin son of Malik Fazal Muhammad and Wali Khan son of Haji
Faiz Muhammad are acquitted of the c harge in case pursuant to F.I.R. No. 195 of
2011, Police Station Sariab, District Quetta. The petitioners are on bail; their bail bonds
shall stand discharged.
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