MUHAMMAD FAISAL vs THE STATE
This criminal miscellaneous application challenges an order passed by a Judicial Magistrate dismissing an application under Section 249-A of the Code of Criminal Procedure 1898, which sought the quashment of proceedings and acquittal of the accused in a case involving alleged aerial firing. The core legal question was whether the trial court erred in refusing to acquit the accused when the evidence suggested the weapon was licensed and the prosecution's case appeared weak. The High Court held that the trial court's decision was based on mere assumptions rather than an objective assessment of the available evidence, including the production of a weapon license by a third party. The Court found the police action indicative of mala fide intent, noting that the accused was singled out for a common practice. Consequently, the Court allowed the application, quashed the criminal proceedings, and acquitted the accused. The key principle established is that a trial court must actively evaluate the evidence and the probability of conviction before dismissing an application for acquittal, rather than relying on assumptions or ignoring exculpatory documentation.
- Can a trial court dismiss an application under Section 249-A of the Code of Criminal Procedure 1898 based on assumptions without evaluating the evidence?
- Does the singling out of an individual for aerial firing, a common practice, indicate mala fide intent by police authorities?
- Is it appropriate for a court to quash criminal proceedings where the probability of conviction is deemed very feeble?
- Section 249-A, Code of Criminal Procedure 1898
- Section 161, Code of Criminal Procedure 1898
ORDER
1. MUHAMMAD ATHAR SAEED, J.---This Criminal Miscellaneous Application has been filed against the order of XVI Judicial Magistrate South Karachi dated 6-8-2009 whereby the learned Civil Judge had dismissed the application under section 249-A, Cr.P.C. for quashment of the proceedings and the acquittal of the accused.
2. Brief facts of the case are that an F.I.R. was lodged by Sub-Inspector Sultan Ahmad posted at Police Station Kharadar, Saddar Town, Karachi, wherein he reported that during patrol in the area on private motorcycle in the vicinity of Makkar Para, near Sherazi Baba Mazar, Kharadar, Karachi, he apprehended the accused who disclosed his name as Muhammad Faisal and had a pistol .30 bore bearing No,3100416 in his right hand and was firing in air in respect of celebration of new year, which was creating fear in the area people and that the accused was caught and the pistol was recovered with empty magazine. The licence of the pistol was demanded but he could not produce the same and therethre he was taken into custody. Later on, statement of one Muhammad Rehan son of Ramzan was recorded under section 161, Cr.P.C. in which he stated that it was his licensed pistol, which was foisted on the accused because the accused/ applicant had exchanged hot words with the police authorities. He also produced his licence before the police authorities and this fact is mentioned in the report of A.S.-I. Nasir Khan in the Roznamcha of Police Station Kharadar dated 8-1-2009 at 2100 hours in which the A.S.-I. had stated that the licence was produced before him but there was some difference in number between the, receipt and the licence.
3. The perusal of the impugned order shows that the learned Judicial Magistrate was of the opinion that the licence of weapon was not produced and assumed that witness Muhammad Rehan was trying to save his friend the present applicant and was of the opinion that it could not be established that charge against the accused is groundless and there is no probability of arrest of the accused or his being convicted for any offence till the statement of material witnesses including complainant, mushir of arrest and recovery and investigating officer have been examined. With regret I cannot agree with the findings of the learned Civil Judge as they are based on assumption and show that he has not thought it feasible to examine the evidence on record or to go through the licence to find out if the discrepancy pointed out by the police officials exists or not.
4. Even otherwise, on a perusal of the F.I.R. it is seen that the only charge against the accused is that he was resorting to aerial firing, in celebration of the new year. It is a common fact that aerial firing is a common practice in every town on new year and Eid and to just pick up one person for this alleged aerial firing shows the mala fide intention of the police officials and on perusal of the documents I am of the considered opinion that the charge does not hold much water and the chances of conviction are very feeble. I would, therefore, allow this appeal and quash the proceedings being taken in respect of F.I.R. No,1 of 2009 registered at Police Station Kharadar, Karachi on 1-1-2009.
5. This Criminal Miscellaneous Application is disposed of in the above terms.