Dilbar Khan vs Safeer Ali Alias Safeer Ahmed and others
This criminal acquittal appeal arises from an order passed by the Vth Civil Judge and Judicial Magistrate, Larkana, acquitting the accused persons under section 249-A of the Code of Criminal Procedure 1898 in a case registered under sections 494, 506(ii), 114, 148, and 149 of the Pakistan Penal Code 1860. The core legal question before the Sindh High Court was whether the trial court was justified in acquitting the accused at an intermediate stage when the charge appeared groundless and there was no probability of conviction. The High Court held that the trial court committed no factual error or legal infirmity, noting that no material or evidence connected the accused to the alleged offences, especially since the complainant had passed away, the allegations lacked substantiation, and prosecuting a woman on mere allegations without substantial material would cause unwarranted agony. The key principle laid down is that where charges are groundless and there is no probability of conviction, a magistrate is fully empowered under section 249-A of the Code of Criminal Procedure 1898 to acquit the accused to prevent the abuse of the court process and avoid a futile trial.
- Whether a Magistrate can acquit an accused under Section 249-A of the Code of Criminal Procedure 1898 at any stage if the charge is groundless?
- Does the absence of material evidence connecting the accused to the crime justify acquittal under Section 249-A of the Code of Criminal Procedure 1898?
- Is it proper to continue a criminal trial where there is no probability of the accused being convicted?
- Section 494, Pakistan Penal Code 1860
- Section 506(ii), Pakistan Penal Code 1860
- Section 114, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 249-A, Code of Criminal Procedure 1898
ORDER
1. AQEEL AHM ED ABBASI, C.J. After hearing learned counsel for the appellant at some length and from perusal of impugned order passed by Vth CJ and Judicial Magistrate, Larkana, vide order dated 06.10.2023 in Cr. Case No.21 of 2022, it appears that the allegation as contained in the FIR No.21 of 2022 registered under sections 494, 506(ii), 114, 148, 149, P.P.C. at Police Station Allah Abad, by the complainant Muhammad Paryal Chohan, who is real father of accused has got registered the case.
2. The allegation contained in the FIR was either false or material has been brought was not sufficient to substantiate such allegation, therefore, the learned trial Court proceeded to decide an application filed under section 249-A, Cr.P.C for the acquittal of the accused persons, whereas, three accused have been shown absconders. It will be advantageous to reproduce paras-6 and 7 of the impugned order, which reads as under: "6. Heard learned for the accused and learned ADPP on behalf of the State and have perused the record with utmost care with their valuable assistance. It is matter of fact that the present accused are only facing the charges under sections 506(ii), 109, P.P.C. Read with Section 114, P.P.C. as such charge was amended in the light of order dated 04.7.2023, passed by Honourable 5th Additional Sessions Judge, Larkana. From the perusal of the record nothing is present which suggests that the alleged involvement of the present accused is confined to the extent of aid or abetment to the absconding accused in solemnization of the marriage which is Nikah over Nikah which attract to the section 109, P.P.C. The abetment or aid has to be shown from the face of the FIR or along with strong and material proofs but in instant case no any specific role attributed to accused in commission of crime which attract to section 109 Read with Section 114, P.P.C. As far as section 506(ii), P.P.C. is concerned no any recovery of the alleged weapon or any other evidence available on record which may go against the accused if the proper evidence will be recorded and it would be only wastage of time and nothing else.
7. Keeping in view of submission of learned ADFPP that prosecution may be provided with the opportunity to bring further evidence on record so that matter could be decided on merits. I found it appropriate to analyze his submissions in light of the provision of Section 249-A Cr.P.C and items No.10 (E) of Part 3(D) the National Judicial Policy, 2009, which read respectively as under: {249-A Power of Magistrate to acquit accused at any stage.-Nothing in this Chapter shall be deemed to prevent a Magistrate from acquitting an accused at any stage of the case if after hearing the prosecutor and the accused and for reasons to be recorded, he considers that the charge is groundless or that there is no probability of the accused being convicted of any offence.}"
3. National Judicial Policy 2009.
4. D. EXPEDITIOUS DISPOSAL OF CASES SHORT TERM MEASURES."
5. From the perusal of above, prima facie, there is no factual error or legal infirmity in the impugned order, whereas, learned counsel for the appellant while confronted to assist as to whether he can point out any material or evidence which may prima facie connect the accused persons with the alleged crime or could point out any error in the appraisal of the material available on record, which prima facie contains mere allegation, however, does not make out a case of abduction or marriage over marriage by lady nominated, hence, does not attract the provisions of Section 494, P.P.C. However, he could not submit any reasonable explanation to this effect. The complainant who is real father of the accused Mst. Roazina has since expired, therefore, there is hardly any possibility of connecting the accused persons, particularly his own daughter on the allegation levelled in the FIR, which appears to be result of some personal animosity. I am also conscious of the fact that allegation of such serious nature affecting the chastity of a woman, without any material or substance need to be examined with extra care and caution, and on the basis of mere allegations, a woman should not be prosecuted and left at the mercy of some unscrupulous elements and to face the agony of prolonged trial. It is further observed that neither her previous husband or any material witness has come forward with such allegations constituting an offence under section 494, P.P.C., therefore, there is hardly any possibility of conviction of accused in the instant case otherwise. Accordingly, I do not find any merit in the instant criminal acquittal appeal which is dismissed in limine along with listed application.