Farah Rauf vs Zafar Akhlaque Abbas
This criminal appeal challenges the order passed by the Magistrate Section 30, Rawalpindi, whereby respondent No. 1 was acquitted under Section 249-A of the Code of Criminal Procedure 1898 in a case registered under the Pakistan Penal Code 1860 relating to a dishonoured cheque. The core legal question concerns the propriety of exercising powers under Section 249-A for acquittal when there is no probability of the accused being convicted based on the material brought on record. The Lahore High Court held that the trial court rightly exercised its jurisdiction to acquit the accused as the cheque was given as a guarantee in a disputed vehicle transaction and the appellant had been convicted in related criminal proceedings. The court dismissed the appeal, laying down that an acquittal under Section 249-A is justified when the evidentiary material offers no probability of a future conviction.
- When can a trial court exercise powers under Section 249-A of the Code of Criminal Procedure 1898 to acquit an accused?
- Whether the High Court will interfere in an order of acquittal under Section 417 of the Code of Criminal Procedure 1898 when there is no probability of conviction?
- Section 249-A, Code of Criminal Procedure 1898
- Section 417, Code of Criminal Procedure 1898
- Section 439-A, Code of Criminal Procedure 1898
JUDGMENT ALI BAQAR NAJAFI, J. - This appeal is directed against the order dated 02.11.2009 passed by the learned Magistrate Section 30, Rawalpindi, whereby he acquitted respondent No. 1 on an application under Section 249-A, Cr.P.C, in case F.I.R. No, 15, dated 11.01.2009 registered under Section 4894?, P.P.C, at Police Station Gantt Rawalpindi.
2. The prosecution case as narrated in the F.I.R, is that there was Business dealing between the complainant and respondent No. 1 and that she handed over Rs, 12,75,000/- to him who returned her Rs. 3,25;000/- and issued cheque in the sum of Rs. 9,50,000/-, which bn presentation was- dishonoured, whereupon the instant F.I.R, was registered against respondent No. 1.
3. After completion of investigation, police prepared discharge report and submitted before the learned Trial Court to Which the learned Court bad not acceded to vide order dated 25.05.2009, whereafter respondent No. 1 was summoned to face trial, who after appearance filed an application under Section 249-A, Cr.P.C, for his acquittal, Notice on the said application was issued to the State. The learned Trial Court after hearing the parties accepted the application and acquitted respondent No. 1 vide order dated 02.11.2009. Hence this appeal.
3. The learned counsel for the appellant contends that the learned Trial Court has acted in a hasty and cursory manner while discussing oral admissions and illegally relied upon certain facts which do not borne out from the record of this case; that without allowing an opportunity to the complainant- appellant to contradict evidence the impugned judgment has been passed in disregard of law laid down by the Superior-Courts; that the judgment of the Court below is based on surmises and conjectures; that disagreement of Trial Court with discharge report should have resulted in complete trial; that none of the grounds mentioned under Section 249-A, Cr.P.C for acquitting respondent No. 1 was available and as such the learned Trial Court has wrongly acquitted respondent No. 1, hence prays for acceptance of this appeal.
4. On the other hand, learned counsel for respondent No. 1, by defending the impugned judgment of acquittal submits that allegation against respondent No. 1 is false and frivolous and in fact no cash was given to him by the complainant, rather she sold out vehicle No. MW-465 to one Malik Fayyaz Rasheed through his Showroom' and she received Rs. 5,00,000/- in cash and received disputed cheque for the remaining consideration amount and that she was bound to handover the original documents of the vehicle but she failed, upon which F.I.R. No. 25 of 2009, dated 09.04.2009 under Section 406, P.P.C, stood registered at Police Station Margala, Islamabad resulting into conviction of the appellant; that the said vehicle also confiscated on 15.08.2009. Prays for dismissal of the appeal.
5. I have heard the learned counsel for the parties and perused the record.
6. Admittedly, the cheque was presented as a guarantee and no cash was paid of, that too, in respect of a vehicle of a defective title which was also confiscated by the custom authorities on 24.10.2009. F.I.R. No. 25 of 2009, dated 16.01.2009 under Sections 420,468,471, P.P.C., P.S. Margala, Islamabad Was got registered by respondent No. 1 in which the appellant was . Also convicted on 09.06.2012 by the learned Magistrate 1st Class, Islamabad. The judgment impugned was passed while exercising powers to acquit under Section 249-A, Cr.P.C., available with the Court at any stage of the trial. If there was no probability of conviction on the basis of the material brought on record, then the accused can be acquitted. There are two pre-requisite tc exercise such powers i. e.
1998 SCMR 1840) and State through Secretary, Ministry of Interior vs. Ashiq Ali Bhutto (1993 SCM R 523).
7. As far as jurisdiction of this Court under Section 417, Cr.P.C., against the order under Section 249- A, Cr.P.C, of acquittal is concerned, this Court does not deem it a fit case for conviction of respondent No. 1, therefore, does not convert it to a revisional jurisdiction under Section 439-A, Cr.P.C. Resultantly, this appeal fails and is dismissed.