Wajid Shabbir vs Zubeda and another
This revision petition is directed against the order of the Tehsil Court of Criminal Jurisdiction, dismissing the petitioner's application under section 249-A of the Code of Criminal Procedure 1898. The core legal question was whether an application for acquittal under section 249-A can be accepted prematurely before the examination of material prosecution witnesses, including the complainant and the investigating officer. The High Court held that for the safe administration of justice, recording the evidence of remaining important witnesses is essential for a just decision, and the trial court rightly dismissed the application when only two prosecution witnesses had been examined out of seven. The key principle laid down is that while an application under section 249-A, Cr.P.C. can be moved at any stage, acquittal at a premature stage is not warranted when crucial prosecution evidence remains to be recorded and the possibility of conviction cannot be ruled out.
- Whether an application under section 249-A of the Code of Criminal Procedure 1898 can be allowed before recording the statements of essential prosecution witnesses?
- Is it mandatory to record the evidence of the complainant, recovery witnesses, and Investigating Officer before dismissing an acquittal application under section 249-A?
- Can an accused be acquitted under section 249-A, Cr.P.C. when multiple material witnesses remain unexamined and the probability of conviction exists?
- Section 249-A, Code of Criminal Procedure 1898
- Section 457, Azad Penal Code
- Section 14, Offences Against Property (Enforcement of Hadd) Act 1985
ORDER
RAJA SAJJAD AHMAD KHAN, J.---This revision petition has been directed against the order of Tehsil Court of Criminal Jurisdiction, Court No.I Rawalakot dated 20.08.2018, whereby the application under section 249-A, Cr.P.C. filed by petitioner was dismissed.
2. Brief facts forming background of the instant revision petition are that accused respondent was facing trial before Tehsil Criminal Court, Court No.I, Rawala kot in offences under section 457, A.P.C. and 14 of the Offences Against Property (Enforcement of Hadd) Act, 1985. During trial statements of only two P.Ws. were recorded when the accused petitioner moved an application under section 249-A, Cr.P.C. before the Court. The trial Court after hearing arguments of the parties dismissed the same vide impugned order dated 20.08.2018, hence this revision petition.
3. Sardar Tabikh Anwar , the learned counsel for the accused-petitioner reiterated the arguments already made in the revision petition and submitted that trial Court failed to consider the fact that application under section 249-A, Cr.P.C. and it is admitted that petitioner was falsely implicated in the case with mala fide intention. He further submitted that during investigation the Police could not recover anything from the petitioner rather the investigating agency made withdrawal from all other allegations in the FIR and categorically mentioned charge sheet that complainant/respondent No.1 failed to produce any proof of evidence regarding the alleged stolen articles/items, on the basis of petitioner cannot be convicted for the offence from with prosecution made withdrawal. He further submitted that according to the facts of the case 14 E.H.A is not applicable in the instant case and if allegation is presumed true even then accused cannot be convicted under section 14 E.H.A as LED was recovered from inside the house of complainant. The learned counsel finally prayed for acceptance of revision petition and acquittal of petitioner from the charge.
4. On the other hand, Raja Ajaz Ahmad, Advocate and learned Additional Advocate General fully opposed the contention of learned counsel for the petitioner and defended the impugned order on all counts. They finally prayed for dismissal of the revision petition.
5. I have heard the learned counsel for the parties and gone through the record of the case.
6. At the very outset, it will be pertinent to mention here that an application unde r section 249-A, Cr.P.C. can be moved during trial at any stage and the proceedings under section 249-A, Cr.P.C. enables an accused during trial to obtain an order of acquittal, even before examining any witness, if from the material placed on the record the Court is satisfied that the charge is groundless or there is no probability of the accu sed being convicted, but for the safe administration of justice it will not be adverse if the evidence of remaining prosecution witnesses, including complainant, recovery witnesses and Investigating Of ficer is recorded.
7. In the instant case, a minute perusal of the file reveals that seven witnesses have been cited in the calendar of Challan and evidence of only two witnesses has been recorded and evidence of five witnesses including complainant is yet to be recorded when the accused petitioner moved an application under section 249-A, Cr.P.C.
The evidence of remaining important witnesses i.e. complainant, recovery witnesses and Investigating Officer is essential for just decision of the case, therefore, the trial Court rightly dismissed the application under section 249- A, Cr.P.C. The argument of learned counsel for petitioner that 14 E.H.A. is not applicable in the instant case, if presumed correct even than section 457, A.P.C. is also present and it can only be concluded after recording whole evidence that whether the accused committed the alleged of fences or not.
In the light of above position, finding no force in this revision petition, it is hereb y dismissed. However , the trial Court is directed to expedite the proceedings and conclude the controversy within a period of two months from the receipt of this order .