TANVEER HUSSAIN SHAH vs CHAN WAIZ alias KALA SHAH and others

' IJAZ-UL-HASSAN, J.---Instant Criminal Appeal No,2 of 1997 has been filed by Tanveer Hussain Shah appellant under section 417(2-A), Cr.P.C., impuging the order of acquittal, dated 2-12-1996 passed by Judicial Magistrate, Abbottabad whereby Chan Waiz and Taimoor Shah accused-respondents, charged under section 324/34, P.P.C. In case F.I.R. No,97, dated 17-8-1995 registered at Police Station Nara, District Abbottabad were acquitted under section 249-A, Cr . P.C:

2. Complainant Tanveer Hussain Shah runs a Karyana Shop' in Deh Faqir Muhammad. On the night of occurrence, i,e,, 16-8-1995, the complainant was on his way to his house after closing his shop and when he reached near a place Mosoma `ghora' distant 17/18 kilometres from the police station, two persons having muffled their faces waylaid him. One of them grabbed him and the other fired which hit the complainant on both the arms. The house-hold articles and the lantern carried by the complainant fell on the ground. As the invaders were not identified by the complainant, no one was charged in the report.

3. After completing the usual formalities, the complainant was referred to Rural Health Center Havelian for medical treatment. After about 15 days of the incident the complainant charged the accused-respondents for the commission of the crime. The accused-respondents were arrested and put to trial. The statements of complainant and P.Ws. Kaneez Hussain Shah and Mulazim Hussain Shah were recorded on 8-10-1996. At this stage, it was brought to the notice of the Court that the compromise has been effected between the parties and the complainant is no more interested to proceed with the matter. Thereafter, an application was moved under section 249-A, Cr.P.C., on behalf of the accused-respondents for their acquittal. After giving notice of application to the prosecution and hearing arguments addressed from both sides, the accused-respondents were acquitted as noted above.

4. Mr. Nasim Zaman, Advocate appearing on behalf of the appellant attempted to argue that there was sufficient material on the file to connect the accused-respondent with the guilt and that the accused-respondents were acquitted without any justifiable reasons. Additionally it was urged that no notice of application under section 249-A, Cr.P.C. Was given to the prosecution and the appellant was condemned unheard. Lastly. It was submitted that the next date of hearing was fixed as 2-12-1996 for filing of compromise but. Instead the Court resorted to the provisions of section 249-A, Cr.P.C. And acquitted the accused-respondents which has resulted in grave miscarriage of justice.

5. The crime in question alleged to have taken place on the night of 16-8-1995 at about 8 p.m. And the matter was reported to the police same night at about 10-00 hours. Two unknown persons having muffled their faces are nominated in the F.I.R. For the crime. One of them is stated to have grabbed the complainant whereas the other is alleged to have fired at the complainant with his pistol. After 15 days of the occurrence the accused-respondents, who happened to be co-villagers of the complainant, are charged for the offence. It has come through the mouth of the complainant and his witnesses namely Kaneez Hussain Shah (father) and Mulazim Hussain Shah (uncle) recorded on 8-10-1996 that the accused-respondents were taken to the village mosque where they placed their hands on the Holy Qur'an to prove their innocence. It appears to us that subsequently some dispute arose between the parties over payment of compensation amount which motivated the complainant to go on with the proceedings. The learned counsel for the appellant has vehemently contended that no compromise was effected and the application under section 249-A, Cr.P.C. Was accepted without notice to the prosecution. The submission of the learned counsel is not tenable. It has been specifically mentioned in the impugned order that notice of application was given to the prosecution and arguments from both sides were heard. The mere fact that the factum of the application having been filed, has not been mentioned in the order-sheet dated 25-11-1996, by itself, constitutes no valid ground to doubt the credentials of the trial Court and displace the impugned order as invalid. This omission is immaterial and does not cause prejudice to the interest of the appellant.

6. It needs no reiteration that an application under section 249-A, Cr.P.C. Can be filed at any stage of the proceedings provided the requisite conditions are met and there is no illegality if the prosecution has not examined all the witnesses. The only requirements to be fulfilled are first, that hearing is to be given to the prosecutor and counsel for the accused and secondly, reasons are recorded in support of the conclusion that the charge is groundless and there is no probability of the accused being convicted State v. Asif Ali Zardari 1994 SCMR 798, 'Aarub Khan v. Haris M.B.

Ahmad and others PLD 1996 Karachi 253 and Abdul Sattar and others v. The State 1992 PCr.LJ 2054 (Karachi).

7. In the result and for the foregoing reasons we find that the order of acquittal is balanced and well-reasoned and hardly calls for interference of this Court. Finding no force in this appeal, we dismiss the same in limine and maintain the impugned order.