HAKEEM FAZAL ELLAHI Versus MUHAMMAD DIN

MIAN FASIH-UL-MULK, J.-- -The appellant has through instant appeal challenged the acquittal of the respondents passed by the Executive Magistrate, Upper Dir vide order dated 14-6-2011.

2. Brief but relevant facts of the case are that the appellant filed criminal complaint under section 427, P.P.C. against the respondents before the Sub-Divisional Magistrate, Dir Upper on 21-12-2010. It was alleged that the respondents had cut the trees in the property of complaint on 30-11-2010, the value of which is approximately Rs.100,000. The occurrence was stated to be witnessed by Hanifullah and Ikramullah. The complaint was referred to the incharge police station for legal action and the concerned police officer recorded statement of eye-witnesses, prepared site plan and submitted the case before the learned Sub-Divisional Magistrate, Dir Upper recommending for trial of accused-respondents. On 4-1-2011 the case was put in court and summonses were issued to the parties however, on 14-6-2011 the impugned order of acquittal under section 249-A, Cr.P.C. was passed. Being aggrieved, the complainant filed the instant appeal.

3. Learned counsel for the appellant vehemently argued that the impugned judgment and order dated 14-6-2011 is patently illegal as the same has been passed on one side for non-appearance of the complainant and on the other, the accused/respondents were acquitted under section 249-A, Cr.P.C.; that the learned lower court has totally ignored the cardinal principle of criminal jurisprudence that the case should be decided on the basis of evidence produced by the parties and no one should be deprived on technical grounds from his valuable right. Learned counsel further contended that the Nizam-e-Adl Regulation 2009 does provide time frame for deciding criminal cases but it never empowers the courts to dismiss the suit or complaint for non-prosecution. It was lastly concluded that the learned Sub-Divisional Magistrate, in utter violation of procedure has passed the impugned order which is liable to be set aside.

4. The perusal of record would show that on 12-5-2011, as the learned Presiding Officer was busy in a meeting with Home Secretary, the case was adjourned to 28-5-2011 on note Reader. Again on 28-5-2011 though the evidence of the prosecution/complainant was present but the case was adjourned to 14-6-2011 on note Reader. On 14-6-2011 the following impugned order was passed:--

5. From bare reading of the impugned order it is clear that the learned Sub-Divisional Magistrate did not follow the legal procedure. No charge was framed against the accused and the trial Court acted in haste in acquitting the accused under 249-A, Cr.P.C. at a very initial stage without affording any opportunity to complainant to prove its allegations against the accused. I find myself in agreement with the submission of the learned counsel for appellant that Nizam-e-Adl Regulation 2009 does provide time frame for deciding civil as well as criminal case but it never empowers the court to shut its eyes on merits and dismiss the suit or complaint for non-prosecution. Needless to mention that the provision (ibid) of the Regulation is directory and not mandatory in nature.

6. In the case of Mst. Said Khanum v. Munsif Khan (PLD 1992 Peshawar 71) this Court has discussed the applicability of section 249-A, Cr.P.C. and has held that essential requirements of section 249-A, Cr.P.C. are that the Court after hearing the prosecutor and accused, if considers that the charge is groundless there is no probability of the accused being convicted of any offence, may acquit the accused. Similarly in the case of Mst. Tasleem v. Abdul Rasheed Bacha reported in (PLD 1989 Peshawar 28) it has been held that the trial court after receiving report of inquiry initiated by complainant dismissed the complaint and acquitted the accused as well. Summoning of accused during consideration of complaint for the purpose of further proceeding or dismissing the same is not necessary such an irregularity could have been condoned, had the trial court not acquitted the accused in the same breath as in dismissing the complaint. Such a decision, held, smacked of indecent haste apart from its being against provision of law. It was further held that the trial court had not yet applied its mind for the disposal of complaint lodged before it when it decided to proceed with the acquittal of the accused, such a procedure, held, had obviously prejudiced the complainant. Yet in another case titled Imam Bukhsh v. Sadiq Hussain SHO and 2 others reported in (2006 YLR 26) his lordship while elaborating the principles regarding dismissal of private complaint for non- prosecution, held that once the trial Court summons the accused after having formed an opinion that sufficient grounds were available for proceeding against them, private complaint cannot be dismissed for non-prosecution as it becomes a State case.

7. Keeping in view the dictum laid down by the superior courts and in the wake of what has been discussed above, this appeal is allowed, the impugned order dated 14-6-2011 passed by learned Sub-Divisional Magistrate Dir Upper is set aside and the case is remanded back to the trial court for deciding the private complaint strictly in accordance with law and after recording evidence.

MWA/188/P Appeal allowed.