S B L R 2007 SC 9
[Supreme Court of Pakistan]
(Appellate Jurisdiction)
Present: Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi & Saiyed Saeed Ashhad, JJ.
The State --- Appellant.
versus
Raja Abdul Rehman --- Respondent.
Cr. Appeal No. 227 of 1997, decided on 9th June, 2005.
A) Hon’ble Supreme Court in Exercise of its power to do complete justice would be competent to examine points other then those on which leave was granted---in ordinary course it would not permit raising of point/question not mentioned in the leave granting order but in exceptional cases for doing complete justice, it would permit or allow the appellant to agitate point/question not mentioned in the leave granting order. [P-15]A.
B) Criminal Procedure Code, 1898---Section 249-A---accused was acquitted by trial court---acquittal appeal dismissed by High Court---question raised whether trial court was competent to quashed proceedings where entire prosecution evidence had been recorded and case was fixed for recording of statement of the accused under Section 342---held that application under section 249-A can be filed even before prosecution evidence had been recorded, however, in normal circumstances court should adopt procedure as provided by law unless extra-ordinary circumstances exist to abandon the regular course.[P-18]B.
C) Section 249-A-Cr.P.C---third application, under section 249-A which was allowed by trial court---held---was not maintainable---acquittal order on such illegal application would also appear to be illegal, void ab-initio and devoid of force---acquittal order set aside.
[P-20]C.
Dr. Qazi Khalid Ali, Addl. A.G. Sindh for the Appellant.
Ch. Aitzaz Ahsan, Sr. ASC. & Raja Abdul Chafoor, AOR for the Respondents.
Date of hearing : 4th May, 2005.
JUDGMENT
SAIYED SAEED ASHHAD, J.- The Criminal acquittal Appeal has been filed to assail the order of the Sindh High Court in Crl. Acquittal Appeal No.26/1995 whereby the said. Court dismissed Crl. Acquittal Appeal filed by the Advocate General Sindh against the order of the Judicial Magistrate and upheld the order of the Second Judicial Magistrate Karachi East in case No.21/1994” the State versus Muhammad Khan and others” under Articles 3 / 4 of Prohibition (Enforcement of Hadd) Order, 1979.
2. The brief facts of the case necessary for disposal of this criminal appeal are as under:-
“On 11-3-1991 Inspector Ghulam Hussain Baloch received spy information that a huge quantity of narcotics was dumped in compound No. L.C. 45, Sector 29, Landhi Industrial Area, Karachi. He alongwith Assistant Excise & Taxation Officer Agha Wazir Abbas, Inspector Aijaz Qureshi, witnesses Muhammad Iqbal, Muhammad Sarwar Subzwari and some other officials of the Excise Department conducted a raid over the plot. Two persons namely Muhammad Khan son of Ali Baz and Muhammad Khan son of Raja were found packing charas in cardboard boxes, in a house of the western side of the plot. Having introduced himself to the culprits, Inspector Ghulam Hussain Balochi took personal search of the accused but nothing incriminating was found. Out of the total number of 160 boxes, 20 slabs of charas, each weighing 1 Kg, was recovered. The weight of the charas is said to be 3200 bags. The recovered charas was seized and portion thereof was taken for the purpose of chemical analysis. The accused were taken into custody and the property seized whereafter the FIR of the case was registered At a later stage, as it seems, it transpired that the respondent Raja Abdul Rehman was the owner of the said plot or the construction thereon and he too was joined accused but before he could be arrested, it is stated that he got bail before arrest. After necessary investigation the case was challaned under Articles 3 / 4 of the Order”.
3. Challan against the aforesaid accused was submitted by Inspector Ghulam Hussain Balochi on 15-4-1991 wherein the number of prosecution witness was given as six. Out of those witnesses, PWs. Sarwar Ali and Muhammad Iqbal were the witnesses in the recovery and seizure of the charas, PWs, constables Abdul Qayyum and Aurangzeb of the Excise Police were posted to keep surveillance over the plot and were also members of the raiding party; the evidence of PW Soomar was to the effect that he had frequently seen the respondent Raja Abdul Rehman visiting the place of incident and PW Muhammad Sharif was the Manager of accused/respondent Raja Abdul Rehman.
4. Initially, the case was proceeded in the Court of First Judicial Magistrate Karachi East before whom an application dated 3-8-1993 under section 249-A Cr. P.C. was moved on behalf of accused/respondent Raja Abdul Rehman which was dismissed/rejected on 2-10-1993 Accused Raja Abdul Rehman repeated application under section 249-A Cr. P.C on 19-2-1994 and vide order dated 30-4-1994 the First Judicial Magistrate Karachi East rejected the same. It will be useful to reproduce the relevant portion from the above order, as under:-
“Briefly, in the light of above discussed circumstances and facts, it can safely be presumed at this stage that eh ingredients of Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979 are attracted in the instant case, more over in order to verify the contention raised by the defence counsel, it is not only necessary to hear the I.O. of the case but also to hear the accused or his counsel in detail on the point of ownership of place from where the charas has been recovered, as discussed above and this is the fact which has not been submitted by the defence counsel in fact has been partly accepted, need to be verified and ascertained. Further more the correct assessment of the evidence according to the settled practice & especially in the circumstances of the instant case can only be made at the conclusion of the case.
In view of above it can safely be said that the ingredients of Section 249-A Cr. P.C. are not fulfilled at this stage in the circumstance of the instant case. Hence this application u/s 249-A Cr. P.C. stands rejected.”
5. Accused/respondent Raja Abdul Rehman not feeling satisfied with the order of rejection of his application under Section 249-A Cr. P.C. moved another application on 23-6-1994 which came up for hearing before the Second Judicial Magistrate Karachi East as the case was transferred to his Court from the Court of First Judicial Magistrate Karachi East. The Second Judicial Magistrate after hearing the arguments of Special Public Prosecutor on behalf of the State and Mr. M.A. Qazi and Mr. Salim A. Sheikh, Advocates on behalf of accused/respondent Raja Abdul Rehman allowed the application. Prosecution feeling aggrieved and dissatisfied with the above order filed Crl. Acq. Appeal in the Sindh High Court which was dismissed in limine vide order dated 26-4-1995 in the following terms:-
“While exercising jurisdiction under Section 417 of Cr. P.C all that has to be seen by this Court is, if the order passed is perverse, scandalous, shocking or illegal and that the acquittal of the respondent in the circumstances was not called for. We are not persuaded by the arguments of the learned AAG that the impugned order would fall within the category of being a perverse, shocking or…orders. Very strong grounds are needed to interfere with an order of acquittal and no such grounds are made out. We, therefore, find no merit in this appeal and dismiss it in limine”.
6. The prosecution again feeling aggrieved and dissatisfied with the order of the High Court filed criminal petition for leave to appeal in this Court. Vide order dated 24-10-1997, leave was granted as under:-
“Leave is granted in the above case to consider whether the acquittal of the respondent, who was one of the accused in a case arising out of FIR No.21/1994 was proper on an application under section 249-A, Cr. P.C. at a stage when the entire prosecution evidence in the case had been completed and the case was fixed for the statement of the accused in the case, especially when there were other accused also in the case against whom the trial is continuing”.
7. We have heard the arguments of Dr. Qazi Khalid Ali, learned Addl. A.G. Sindh on behalf of the State and Ch. Aitzaz Ahsan, Sr. ASC on behalf of accused/respondent Raja Abdul Rehman. We have also perused the material on record as well as the case relied upon by the learned counsel for the parties.
8. Dr. Qazi Khalid Ali, Addl. A.G. submitted that the main question which required determination was whether this Court would take upon itself the task of appraisal, analysis and scrutiny of the prosecution evidence for determining whether the same was satisfactory, sufficient, and of the quality to warrant conviction of the
accused or that on the basis thereof, these was no possibility of accused/respondent Raja Abdul Rehman being convicted of the offence for which he was facing trial. He also submitted that this Court would not only take up itself the above exercise but would also endeavour to satisfy itself whether the Judicial Magistrate in appraising and analyzing the evidence had traveled beyond the scope of authority vesting in him while deciding an application under Section 249-A Cr. P.C.
9. With regard to the above contention, Ch. Aitzaz Ahsan, Sr. ASC submitting that this Court in deciding the appeal could not travel beyond the scope of the leave granting order and would have to confine itself to the question/point which had been specifically mentioned in the leave granting order. He then drew out attention to the leave granting order and submitted that the only question on which leave was granted and which could be considered in this appel was whether acquittal of the accused/respondent Raja Abdul Rehman on an application under Section 249-A Cr. P.C at the stage when the entire prosecution evidence had been recorded and the case was fixed for statement of the accused/respondent, especially when there were two other co-accused facing trail alongwith the accused/respondent Raja Abdul Rehman for whom no applications under Section 249-A Cr. P.C. were moved. He further submitted that the questions/points of law framed by the appellant for determination/decision thereon by this Court in the memo of appeal at Sr. Nos. 2, 4, 5 and 6 could neither be raised or agitated nor considered in view of the limitation imposed by the leave granting order relating to the question/point which could be agitated in this appeal. In support of his contention that this Court could not travel beyond the scope of the leave granting order in hearing the arguments at appellate stage placed reliance on the following case:-
(i) Qadir Bakhsh and 10 others v. Kh. Nizam-ud-Din Khan and 4 others (2001 SCMR 1091);
(ii) Qudratulah versus Government of Balochistan and another (1990 SCMR 1246);
(iii) State through Secretary, Ministry of Interior versus
Ashiq Ali Bhutto (1993 SCMR 523),
(iv) Abbas versus The Honourable Chief Justice through the Registrar, High Court of Sindh Karachi and others (1992 SCMR 715),
(v) Chaudhry Muhammad Saleem versus Fazal Ahmed and 2 others (1997 SCMR 315),
(vi) Haji Dilber versus Shah Muhammad and 3 others (1998 PCrL 572),
(vii) Messrs M.Y. Electronics Industries (Pvt.) Ltd. Through Manager and others (1998 SCMR 1404),
(viii) Pakistan State Oil Company Limited versus Abdul Khalique Gandakwala (1999 SCMR 366).
10. After going through the aforesaid cited case, the conclusion or the inference which is to be drawn is that the arguments at the appellate stage would in normal and in ordinary course governed by the leave granting order and any question or point not referred to in the leave granting order for consideration would not be permitted to be agitated and considered at the stage of basic arguments of the appeal. However, this Court in the case of Khushdil and 3 others versus The State (PLD 1981 SC 582) pronounced that this Court in exercise of its power to do complete justice would be competent to examine points other than those on which leave was granted in view of the pronouncement of this Court, it is to be noted that there is no rigid on the established rule relating to the power of this Court to allow raising of a question or point on which leave to appeal was not granted and normally or in ordinary course it would not permit raising of point/question not mentioned in the leave granting order but in exceptional cases for doing complete justice, it would permit or allow the appellant to agitate a point/question not mentioned in the leave granting order.
11. Dr. Khalid Ali, Addl. A.G. next contended that the Judicial Magistrate had erred in entertaining the application under Section 249-A Cr. P.C. on behalf of accused Raja Abdul Rehman and ordering the acquittal at a time when recording of entire prosecution evidence had been concluded and the matter was fixed for recording of statement of accused Raja Abdul Rehman and two other accused, namely, Muhammad Khan son of Raja and Muhammad Khan son of Ali Baz under Section 342 Cr. P.C. He conceded that under Section 249-A Cr. P.C, there was no bar of limitation as to the time or the stage of the proceedings for filling an application for acquittal of the accused but property required that when the exercise of recording of entire prosecution evidence had been completed, then the matter should have been decided on merits under Section 245 Cr. P.C., after recording the statements of the accused persons under Section 342 Cr.P.C. according to Dr. Qazi Khalid Ali, Addl. A. G, Undue haste and urgency shown by the concerned Magistrate in acquitting accused Raja Abdul Rehman under Section 249-A Cr. P.C.at a time when the matter was ripe for final disposal smelt of malafides and ulterior motive moreover when an earlier application under Section 249-A Cr. P.C. had been dismissed/rejected on 30-4-1994 by another Judicial Magistrate whereafter the case was transferred to the concerned Judicial Magistrate on the application of accused Raja Abdul Rehman. He further submitted that his such conduct and course of action reflected some ulterior and unholy alliance between learned counsel Raja Abdul Rehman. He further submitted that in grave and heinous offence especially offences relating to trafficking, smuggling, dealing or selling of narcotics substances, the Courts were required to act with extreme care and caution in deciding such case and should not proceed hastily acquitting the accused persons involved interim order under Section 212 & Section 265 K & Section 561-of the Cr. P.C. as the case might be, but should provide the prosecution every possible opportunity to prove its case and establish the guilt of the accused after a full fledged trial further stating that acquittal of the accused either under Section 249-A, Section 265-K or Section 561-A of the Cr.P.C. would amount to deriving the prosecution of such opportunity and stifling the prosecution. In support of his contention, he placed reliance on the cases of (i) Bashir Ahmed versus Zafar ul Islam (PLD 2004 SC 298), (ii) The state versus Muhammad Nawaz (2002 SCMR 634) and (iii) Muhammad Sharif versus The State (PLD 1999 SC 1063).
12. Ch. Aitzaz Ahsan, Sr. ASC., on the other hand submitted that he was mindful of the settled principle that in criminal cases, every possible opportunity should be afforded to the prosecution to prove its case and establish the guilt of the accused and Court should not accused under Section 249-A, Section 265-K or Section 561-A of the Cr. P.C. for quashment of proceedings so as to stifle or throttle the prosecution but such principle was not a universal application and there would be cases which would patently and obviously appear to be false or frivolous or where either on account of lack of evidence or quality of evidence, or doubts relating to the antecedents and credibility of the witnesses, there would appear to be no probability of conviction of the accused then it such case allowing the prosecution opportunity to produce the entire evidence; to record the statements of the accused persons; and hear the arguments of the counsel of the parties on the merits of the case would adversely and prejudicially affect the cause of the caused persons as they would have to undergo protected and lengthy trial knowing well that no useful, purpose would be served as in all probability, the case would end in their acquittal. He submitted that in such cases, refusal to entertain application under Section 249-A Cr. P.C. or to reject the same refusing to acquit the accused thereunder having regard to the stage of the proceedings would amount to unnecessarily burdening the accused with uncalled for hardships, mental agony and physical distress. In support of the his above contentions, he placed reliance on the following cases-
(i) State through Secretary, Ministry of Interior versus Ashiq Ali Bhutto (1993 SCMR 523);
(ii) Muhammad Khalid Mukhtar versus The State through Deputy Director, F.I.A (C.B.A), Lahore (PLD 1997 SC 275);
(iii) Muhammad Sharif versus The State (PLD 1999 SC 1023);
(iv) (line sic)
(v) Shabana Mustafa versus Dr. Muhammad Khalid an others (PLD 2001 Lahore 98);
(vi) Jehan Shah and 2 others versus Haji Qalandar Khan and another (1990 PCrLJ 638);
(vii) Badrauddin versus Mehr Raza, Additional Sessions Judge, Jhang and 6 others (PLD 1993 SC 399);
(viii) Zahoor ud Din versus Khushi Muhammad and 6 others (1998 SCMR 1840);
(ix) Sultan Mahmood Chandio and another versus The State (1995 PCrLJ 874);
(x) The State versus Asif Ali Zardari and another (1994 SCMR 798);
(xi) Syed Shakir Hussain and others versus The State and others (1986 SCMR 1645);
(xii) Syed Shakir Hussain and others versus The State and others (1986 SCMR 1645);
(xiii) Sher Muhammad versus The State and 4 others (1994 SCMR ---)
13. On consideration of arguments of Dr. Qazi Khalid Ali, Addl. A.G and Ch. Aitzaz Ahsan, Sr. ASC and the case law relied upon by both of them in support of their respective contentions, there can be no dispute that an application under Section 249-A Cr. P.C. can be filed, taken up for hearing and decided at any time or stage of the proceedings and the words “at any stage” denot that the application under Section 249-A Cr. P.C. can be filed even before prosecution evidence had been recorded or while the exercise of recording of evidence is going or when the exercise is over. It is, however, to be noted that though there is no bar for an accused person to file application under Section 249-A Cr. P.C. at any stage of the proceedings of the case yet the facts and circumstances of the Prosecution case will have to be kept in mind and considered in deciding the viability or feasibility of filing an application at any particular stage. Prosecution case may not warrant filing of an application at a stage when the entire prosecution evidence had been recorded and the case was fixed for recording of statement of the accused under Section 342 Cr. P.C. This Court in the cases of Bashir Ahmed versus Zafar ul Islam (PLD 2004 SC 298) and Muhammad Sharif versus The State and another (PLD 1999 SC 1063) (supra) did not approve decision of criminal cases on an application under Section 249-A Cr.P.C. or such allied or similar provisions of law, namely, Section 265-K Cr. P.C. and observed that usually a criminal case should be allowed to be disputed of on merits after recording of the prosecution evidence, statement of the accused under section 342 Cr.P.C. recording of statement of accused and Section 340(2) Cr. P.C. if so desired by the accused persons and hearing the arguments of the counsel of the parties and that the provisions of Section 249-A, Section 265-K and Section 561-A of the Cr. P.C. should not normally be pressed into action of decision or fate of a criminal case.
14. In the afore cited cases, the principle laid down by this Court while dealing with the powers of the Courts under Section 561-A Cr. P.C. in quashing criminal proceedings pending before the trial Court is that when the law provides a detialed inquiry into offences for which an accused has been sent up for trial then ordinarily and normally the procedure prescribed by law for deciding the fate of a criminal case should be followed unless some extraordinary circumstances are shown to exist to abandon the regular course and follow the exceptional routes. Such exceptionable routes can also be one envisaged by Section 249-A Cr. P.C. it will not be out of place to mention here that during the of evidence, prosecution has succeeded in producing evidence to the effect that the place from where the huge quantity of narcotics was recovered and seized belonged to company registered under Companies Ordinance, 1984 of which accused/respondent Raja Abdul Rehman was not one of the Directors and that accused/respondent Raja Abdul Rehman had frequently been seen or found visiting the place of recovery of narcotics. It is also in evidence that co-accused Muhammad Khan son of Raja and Muhammad Khan son of Khan of Ali baz are the employee of accused Raja Abdul Rehman. Such evidence required an explanation from accused/ respondent Raja Abdul Rehman without which it could not have been ignored of discussed from can, therefore, be no other conclusion than that in the peculiar facts and circumstances of this case, the concerned Judicial Magistrate should not have proceeded to decided application under Section 249-A Cr. P.C. at the stage of the case and instead should have proceeded with the trial which was at its last stage and the contention that the object or intention of the concerned Magistrate to decide the fate of accused Raja Abdul Rehman by acquitting him under Section 249-A Cr. P.C was to save him from the rigours of full trial would not hold good as the entire prosecution had been recorded and the case was likely to be concluded within a very short period.
It is also to be observed that earlier an application under Section 249-A Cr. P.C. filed on behalf of accused Raja Abdul Rehman was dismissed / rejected on 2-10-1993. Thereafter, another application under Section 249-A Cr. P.C. on his behalf was moved on 19-2-1994 which was dismissed on 30-4-1994. The operative portion of the order of dismissal / rejection of the second application has been re-produced in the earlier part of this judgment and from perusal thereof, the reasons which weighed with the concerned Magistrate to dismiss/reject the application were the correct assessment of the evidence according to the settled practice, especially in the circumstances of the instant case, could only be made at the conclusion of the case further observing that in view of the above, the ingredients of Section 249-A Cr. C.P.C. were not fulfilled. This order was not assailed before the High Court by way of appeal under Section 417(2) Cr. P.C.C. After expiry of the period provided for filing the appeal, the order dated 30-4-1994 attained finality. Filing of another application under Section 249-A Cr. P.C. was thus barred as there is no provision under the said Section for filing of repeated application once an application is decided on merits and an observation was made by the Court that the peculiar facts and circumstances of the case warranted decision on merits. In view of this factual position, filing of the third application under Section 249-A. Cr. P.C. on which the impugned order was passed was not maintainable. The concerned Magistrate had entertained the same illegally and the order of acquittal of accused Raja Abdul Rehman passed on such illegal application would also appear to be illegal, void abinitio and devoid of force.
15. The next contention raised by Dr. Qazi Kahlid Ali, Addl. A.G. was that no doubt the Court while deciding an application under section 249-A Cr. P.C. was fully competent to appraise, analyze and scrutinize for prosecution evidence with a view to find out whether the charge was groundless or that there was no satisfactory and reliable evidence to establish the guilt of the accused. He, however, submitted that in a case, where there were more accused than the one on whose behalf application under section 249-A Cr. P.C. has been moved, who were facing trial alongwith him on the basis of the same evidence and material then in such a situation, the approach of the Court to analyze and appraise the evidence would be different from the one where there was only one accused and it would not be permissible for the Court to make or express adverse remarks and observations relating to the antecedents, credibility and reliability of the prosecution witnesses; contradictions and discrepancies found in the prosecution case; the inherent/intrinsic weaknesses and shortcomings in the prosecution evidence, and the truth or veracity of the prosecution evidence which would render the prosecution evidence as highly doubtful and suspicious, thus destroying or shattering the same thereby adversely affecting and damaging the prosecution case against the co-accused. Dr. Qazi Khalid Ali, Addl. A.G. referred us to such adverse remarks, observations and inferences drawn by the Magistrate relating to the prosecution witnesses and their evidence which if considered in totality would have the effect of very adversely damaging the prosecution case against co-accused Muhammad Khan son of Raja Muhammad Khan son of Ali Baz. It was submitting by Ch. Aitzaz Ahsan, Sr. ASC., that the observations or remarks made by the Court in deciding an application under Section 249-A Cr. P.C. in respect of one of the co-accused would be of tentative, interim and provisional not having binding force while, considering/deciding the case finally on merits against co-accused Muhammad Khan son of Raja and Muhammad Khan son of Ali Baz and stated that by way of further safeguard of the prosecution case, an observation could be made in this judgment that the Judicial Magistrate, who would be proceeding with the case of co-accused namely, Muhammad Khan son of Raja and Muhammad Khan son of Ali Baz would refrain from considering, acting upon and being influenced by the observations, remarks and inference made by the Judicial Magistrate in his order dated 28-8-1994.
16. The arguments of Ch. Aitzaz Ahsan, Sr. ASC do not carry weight as any direction or instruction to the above effect to the concerned Magistrate also will be proceeding with the case against co-accused Muhammad Khan son of Raja and Muhammad Khan son of Ali Baz, would not be sufficient to ward off the impact and influence of the observations inferences and remarks made by the Judicial Magistrate in the order dated 28-8-1994 as long as that order remained in existence and for an independent and impartial scrutiny, appraisement and analysis of the evidence and decision of the prosecution case, it would be necessary that the said order be set aside or recalled.
17. In view of legal and factual position, it is not considered necessary to take up the arguments of Ch. Aitzaz Ahsan, ASC relating to the powers of this Court in interfering with concurrent findings of acquittal of the two Courts and that same could not be set aside unless they were found to be perverse, based on mis-reading or non-reading of evidence or on no evidence. It is also not necessary to take up the contention of Ch. Aitzaz Ahsan, Sr. ASC that the principles governing the decision of appeal against acquittal are absolutely different from an appeal filed against conviction and that unless some illegality or grave irregularity was shown to have been committed by the Courts below in acquitting the accused, the same could not be interfered with.
18 It will not be out of place to mention that in appeal or revisional proceedings, the order of acquittal of the accused under Section 249-A or Section 265-K of the Cr. P.C. would not have the same sanctity as orders of acquittal on merits. Consequently, the principles which are not to observed and applied in setting aside concurrent findings of acquittal or the principle relating to the presumption of double innocence when an accused is acquitted after a full fledged inquiry and trial to acquittals under Section 249-A Cr. P.C. would not be applicable. The High Court of Sindh while hearing the appeal against he impugned order did not advert to the above very important and material aspect of the case and decided the case in a very cursory and hasty manner. On this ground alone, the order of the Sindh High Court cannot be sustained.
19. For the foregoing facts, reasons and discussions, this appeal is found to merit consideration, Accordingly, the order of the High Court and acquittal order of the Judicial Magistrate are set aside and the case of accused-respondent Raja Abdul Rehman shall proceed alongwith the two co-accused Muhammad Khan son of Raja and Muhammad Khan son of Ali Baz from the stage at which the case stood when the application of accused-respondent Raja Abdul Rehman under Section 249-A Cr. P.C. was decided. Such exercise is to be completed within sixty days from the date of receipt/knowledge of this judgment by the concerned Judicial Magistrate.
(Appellate Jurisdiction)
Present: Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi & Saiyed Saeed Ashhad, JJ.
The State --- Appellant.
versus
Raja Abdul Rehman --- Respondent.
Cr. Appeal No. 227 of 1997, decided on 9th June, 2005.
A) Hon’ble Supreme Court in Exercise of its power to do complete justice would be competent to examine points other then those on which leave was granted---in ordinary course it would not permit raising of point/question not mentioned in the leave granting order but in exceptional cases for doing complete justice, it would permit or allow the appellant to agitate point/question not mentioned in the leave granting order. [P-15]A.
B) Criminal Procedure Code, 1898---Section 249-A---accused was acquitted by trial court---acquittal appeal dismissed by High Court---question raised whether trial court was competent to quashed proceedings where entire prosecution evidence had been recorded and case was fixed for recording of statement of the accused under Section 342---held that application under section 249-A can be filed even before prosecution evidence had been recorded, however, in normal circumstances court should adopt procedure as provided by law unless extra-ordinary circumstances exist to abandon the regular course.[P-18]B.
C) Section 249-A-Cr.P.C---third application, under section 249-A which was allowed by trial court---held---was not maintainable---acquittal order on such illegal application would also appear to be illegal, void ab-initio and devoid of force---acquittal order set aside.
[P-20]C.
Dr. Qazi Khalid Ali, Addl. A.G. Sindh for the Appellant.
Ch. Aitzaz Ahsan, Sr. ASC. & Raja Abdul Chafoor, AOR for the Respondents.
Date of hearing : 4th May, 2005.
JUDGMENT
SAIYED SAEED ASHHAD, J.- The Criminal acquittal Appeal has been filed to assail the order of the Sindh High Court in Crl. Acquittal Appeal No.26/1995 whereby the said. Court dismissed Crl. Acquittal Appeal filed by the Advocate General Sindh against the order of the Judicial Magistrate and upheld the order of the Second Judicial Magistrate Karachi East in case No.21/1994” the State versus Muhammad Khan and others” under Articles 3 / 4 of Prohibition (Enforcement of Hadd) Order, 1979.
2. The brief facts of the case necessary for disposal of this criminal appeal are as under:-
“On 11-3-1991 Inspector Ghulam Hussain Baloch received spy information that a huge quantity of narcotics was dumped in compound No. L.C. 45, Sector 29, Landhi Industrial Area, Karachi. He alongwith Assistant Excise & Taxation Officer Agha Wazir Abbas, Inspector Aijaz Qureshi, witnesses Muhammad Iqbal, Muhammad Sarwar Subzwari and some other officials of the Excise Department conducted a raid over the plot. Two persons namely Muhammad Khan son of Ali Baz and Muhammad Khan son of Raja were found packing charas in cardboard boxes, in a house of the western side of the plot. Having introduced himself to the culprits, Inspector Ghulam Hussain Balochi took personal search of the accused but nothing incriminating was found. Out of the total number of 160 boxes, 20 slabs of charas, each weighing 1 Kg, was recovered. The weight of the charas is said to be 3200 bags. The recovered charas was seized and portion thereof was taken for the purpose of chemical analysis. The accused were taken into custody and the property seized whereafter the FIR of the case was registered At a later stage, as it seems, it transpired that the respondent Raja Abdul Rehman was the owner of the said plot or the construction thereon and he too was joined accused but before he could be arrested, it is stated that he got bail before arrest. After necessary investigation the case was challaned under Articles 3 / 4 of the Order”.
3. Challan against the aforesaid accused was submitted by Inspector Ghulam Hussain Balochi on 15-4-1991 wherein the number of prosecution witness was given as six. Out of those witnesses, PWs. Sarwar Ali and Muhammad Iqbal were the witnesses in the recovery and seizure of the charas, PWs, constables Abdul Qayyum and Aurangzeb of the Excise Police were posted to keep surveillance over the plot and were also members of the raiding party; the evidence of PW Soomar was to the effect that he had frequently seen the respondent Raja Abdul Rehman visiting the place of incident and PW Muhammad Sharif was the Manager of accused/respondent Raja Abdul Rehman.
4. Initially, the case was proceeded in the Court of First Judicial Magistrate Karachi East before whom an application dated 3-8-1993 under section 249-A Cr. P.C. was moved on behalf of accused/respondent Raja Abdul Rehman which was dismissed/rejected on 2-10-1993 Accused Raja Abdul Rehman repeated application under section 249-A Cr. P.C on 19-2-1994 and vide order dated 30-4-1994 the First Judicial Magistrate Karachi East rejected the same. It will be useful to reproduce the relevant portion from the above order, as under:-
“Briefly, in the light of above discussed circumstances and facts, it can safely be presumed at this stage that eh ingredients of Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979 are attracted in the instant case, more over in order to verify the contention raised by the defence counsel, it is not only necessary to hear the I.O. of the case but also to hear the accused or his counsel in detail on the point of ownership of place from where the charas has been recovered, as discussed above and this is the fact which has not been submitted by the defence counsel in fact has been partly accepted, need to be verified and ascertained. Further more the correct assessment of the evidence according to the settled practice & especially in the circumstances of the instant case can only be made at the conclusion of the case.
In view of above it can safely be said that the ingredients of Section 249-A Cr. P.C. are not fulfilled at this stage in the circumstance of the instant case. Hence this application u/s 249-A Cr. P.C. stands rejected.”
5. Accused/respondent Raja Abdul Rehman not feeling satisfied with the order of rejection of his application under Section 249-A Cr. P.C. moved another application on 23-6-1994 which came up for hearing before the Second Judicial Magistrate Karachi East as the case was transferred to his Court from the Court of First Judicial Magistrate Karachi East. The Second Judicial Magistrate after hearing the arguments of Special Public Prosecutor on behalf of the State and Mr. M.A. Qazi and Mr. Salim A. Sheikh, Advocates on behalf of accused/respondent Raja Abdul Rehman allowed the application. Prosecution feeling aggrieved and dissatisfied with the above order filed Crl. Acq. Appeal in the Sindh High Court which was dismissed in limine vide order dated 26-4-1995 in the following terms:-
“While exercising jurisdiction under Section 417 of Cr. P.C all that has to be seen by this Court is, if the order passed is perverse, scandalous, shocking or illegal and that the acquittal of the respondent in the circumstances was not called for. We are not persuaded by the arguments of the learned AAG that the impugned order would fall within the category of being a perverse, shocking or…orders. Very strong grounds are needed to interfere with an order of acquittal and no such grounds are made out. We, therefore, find no merit in this appeal and dismiss it in limine”.
6. The prosecution again feeling aggrieved and dissatisfied with the order of the High Court filed criminal petition for leave to appeal in this Court. Vide order dated 24-10-1997, leave was granted as under:-
“Leave is granted in the above case to consider whether the acquittal of the respondent, who was one of the accused in a case arising out of FIR No.21/1994 was proper on an application under section 249-A, Cr. P.C. at a stage when the entire prosecution evidence in the case had been completed and the case was fixed for the statement of the accused in the case, especially when there were other accused also in the case against whom the trial is continuing”.
7. We have heard the arguments of Dr. Qazi Khalid Ali, learned Addl. A.G. Sindh on behalf of the State and Ch. Aitzaz Ahsan, Sr. ASC on behalf of accused/respondent Raja Abdul Rehman. We have also perused the material on record as well as the case relied upon by the learned counsel for the parties.
8. Dr. Qazi Khalid Ali, Addl. A.G. submitted that the main question which required determination was whether this Court would take upon itself the task of appraisal, analysis and scrutiny of the prosecution evidence for determining whether the same was satisfactory, sufficient, and of the quality to warrant conviction of the
accused or that on the basis thereof, these was no possibility of accused/respondent Raja Abdul Rehman being convicted of the offence for which he was facing trial. He also submitted that this Court would not only take up itself the above exercise but would also endeavour to satisfy itself whether the Judicial Magistrate in appraising and analyzing the evidence had traveled beyond the scope of authority vesting in him while deciding an application under Section 249-A Cr. P.C.
9. With regard to the above contention, Ch. Aitzaz Ahsan, Sr. ASC submitting that this Court in deciding the appeal could not travel beyond the scope of the leave granting order and would have to confine itself to the question/point which had been specifically mentioned in the leave granting order. He then drew out attention to the leave granting order and submitted that the only question on which leave was granted and which could be considered in this appel was whether acquittal of the accused/respondent Raja Abdul Rehman on an application under Section 249-A Cr. P.C at the stage when the entire prosecution evidence had been recorded and the case was fixed for statement of the accused/respondent, especially when there were two other co-accused facing trail alongwith the accused/respondent Raja Abdul Rehman for whom no applications under Section 249-A Cr. P.C. were moved. He further submitted that the questions/points of law framed by the appellant for determination/decision thereon by this Court in the memo of appeal at Sr. Nos. 2, 4, 5 and 6 could neither be raised or agitated nor considered in view of the limitation imposed by the leave granting order relating to the question/point which could be agitated in this appeal. In support of his contention that this Court could not travel beyond the scope of the leave granting order in hearing the arguments at appellate stage placed reliance on the following case:-
(i) Qadir Bakhsh and 10 others v. Kh. Nizam-ud-Din Khan and 4 others (2001 SCMR 1091);
(ii) Qudratulah versus Government of Balochistan and another (1990 SCMR 1246);
(iii) State through Secretary, Ministry of Interior versus
Ashiq Ali Bhutto (1993 SCMR 523),
(iv) Abbas versus The Honourable Chief Justice through the Registrar, High Court of Sindh Karachi and others (1992 SCMR 715),
(v) Chaudhry Muhammad Saleem versus Fazal Ahmed and 2 others (1997 SCMR 315),
(vi) Haji Dilber versus Shah Muhammad and 3 others (1998 PCrL 572),
(vii) Messrs M.Y. Electronics Industries (Pvt.) Ltd. Through Manager and others (1998 SCMR 1404),
(viii) Pakistan State Oil Company Limited versus Abdul Khalique Gandakwala (1999 SCMR 366).
10. After going through the aforesaid cited case, the conclusion or the inference which is to be drawn is that the arguments at the appellate stage would in normal and in ordinary course governed by the leave granting order and any question or point not referred to in the leave granting order for consideration would not be permitted to be agitated and considered at the stage of basic arguments of the appeal. However, this Court in the case of Khushdil and 3 others versus The State (PLD 1981 SC 582) pronounced that this Court in exercise of its power to do complete justice would be competent to examine points other than those on which leave was granted in view of the pronouncement of this Court, it is to be noted that there is no rigid on the established rule relating to the power of this Court to allow raising of a question or point on which leave to appeal was not granted and normally or in ordinary course it would not permit raising of point/question not mentioned in the leave granting order but in exceptional cases for doing complete justice, it would permit or allow the appellant to agitate a point/question not mentioned in the leave granting order.
11. Dr. Khalid Ali, Addl. A.G. next contended that the Judicial Magistrate had erred in entertaining the application under Section 249-A Cr. P.C. on behalf of accused Raja Abdul Rehman and ordering the acquittal at a time when recording of entire prosecution evidence had been concluded and the matter was fixed for recording of statement of accused Raja Abdul Rehman and two other accused, namely, Muhammad Khan son of Raja and Muhammad Khan son of Ali Baz under Section 342 Cr. P.C. He conceded that under Section 249-A Cr. P.C, there was no bar of limitation as to the time or the stage of the proceedings for filling an application for acquittal of the accused but property required that when the exercise of recording of entire prosecution evidence had been completed, then the matter should have been decided on merits under Section 245 Cr. P.C., after recording the statements of the accused persons under Section 342 Cr.P.C. according to Dr. Qazi Khalid Ali, Addl. A. G, Undue haste and urgency shown by the concerned Magistrate in acquitting accused Raja Abdul Rehman under Section 249-A Cr. P.C.at a time when the matter was ripe for final disposal smelt of malafides and ulterior motive moreover when an earlier application under Section 249-A Cr. P.C. had been dismissed/rejected on 30-4-1994 by another Judicial Magistrate whereafter the case was transferred to the concerned Judicial Magistrate on the application of accused Raja Abdul Rehman. He further submitted that his such conduct and course of action reflected some ulterior and unholy alliance between learned counsel Raja Abdul Rehman. He further submitted that in grave and heinous offence especially offences relating to trafficking, smuggling, dealing or selling of narcotics substances, the Courts were required to act with extreme care and caution in deciding such case and should not proceed hastily acquitting the accused persons involved interim order under Section 212 & Section 265 K & Section 561-of the Cr. P.C. as the case might be, but should provide the prosecution every possible opportunity to prove its case and establish the guilt of the accused after a full fledged trial further stating that acquittal of the accused either under Section 249-A, Section 265-K or Section 561-A of the Cr.P.C. would amount to deriving the prosecution of such opportunity and stifling the prosecution. In support of his contention, he placed reliance on the cases of (i) Bashir Ahmed versus Zafar ul Islam (PLD 2004 SC 298), (ii) The state versus Muhammad Nawaz (2002 SCMR 634) and (iii) Muhammad Sharif versus The State (PLD 1999 SC 1063).
12. Ch. Aitzaz Ahsan, Sr. ASC., on the other hand submitted that he was mindful of the settled principle that in criminal cases, every possible opportunity should be afforded to the prosecution to prove its case and establish the guilt of the accused and Court should not accused under Section 249-A, Section 265-K or Section 561-A of the Cr. P.C. for quashment of proceedings so as to stifle or throttle the prosecution but such principle was not a universal application and there would be cases which would patently and obviously appear to be false or frivolous or where either on account of lack of evidence or quality of evidence, or doubts relating to the antecedents and credibility of the witnesses, there would appear to be no probability of conviction of the accused then it such case allowing the prosecution opportunity to produce the entire evidence; to record the statements of the accused persons; and hear the arguments of the counsel of the parties on the merits of the case would adversely and prejudicially affect the cause of the caused persons as they would have to undergo protected and lengthy trial knowing well that no useful, purpose would be served as in all probability, the case would end in their acquittal. He submitted that in such cases, refusal to entertain application under Section 249-A Cr. P.C. or to reject the same refusing to acquit the accused thereunder having regard to the stage of the proceedings would amount to unnecessarily burdening the accused with uncalled for hardships, mental agony and physical distress. In support of the his above contentions, he placed reliance on the following cases-
(i) State through Secretary, Ministry of Interior versus Ashiq Ali Bhutto (1993 SCMR 523);
(ii) Muhammad Khalid Mukhtar versus The State through Deputy Director, F.I.A (C.B.A), Lahore (PLD 1997 SC 275);
(iii) Muhammad Sharif versus The State (PLD 1999 SC 1023);
(iv) (line sic)
(v) Shabana Mustafa versus Dr. Muhammad Khalid an others (PLD 2001 Lahore 98);
(vi) Jehan Shah and 2 others versus Haji Qalandar Khan and another (1990 PCrLJ 638);
(vii) Badrauddin versus Mehr Raza, Additional Sessions Judge, Jhang and 6 others (PLD 1993 SC 399);
(viii) Zahoor ud Din versus Khushi Muhammad and 6 others (1998 SCMR 1840);
(ix) Sultan Mahmood Chandio and another versus The State (1995 PCrLJ 874);
(x) The State versus Asif Ali Zardari and another (1994 SCMR 798);
(xi) Syed Shakir Hussain and others versus The State and others (1986 SCMR 1645);
(xii) Syed Shakir Hussain and others versus The State and others (1986 SCMR 1645);
(xiii) Sher Muhammad versus The State and 4 others (1994 SCMR ---)
13. On consideration of arguments of Dr. Qazi Khalid Ali, Addl. A.G and Ch. Aitzaz Ahsan, Sr. ASC and the case law relied upon by both of them in support of their respective contentions, there can be no dispute that an application under Section 249-A Cr. P.C. can be filed, taken up for hearing and decided at any time or stage of the proceedings and the words “at any stage” denot that the application under Section 249-A Cr. P.C. can be filed even before prosecution evidence had been recorded or while the exercise of recording of evidence is going or when the exercise is over. It is, however, to be noted that though there is no bar for an accused person to file application under Section 249-A Cr. P.C. at any stage of the proceedings of the case yet the facts and circumstances of the Prosecution case will have to be kept in mind and considered in deciding the viability or feasibility of filing an application at any particular stage. Prosecution case may not warrant filing of an application at a stage when the entire prosecution evidence had been recorded and the case was fixed for recording of statement of the accused under Section 342 Cr. P.C. This Court in the cases of Bashir Ahmed versus Zafar ul Islam (PLD 2004 SC 298) and Muhammad Sharif versus The State and another (PLD 1999 SC 1063) (supra) did not approve decision of criminal cases on an application under Section 249-A Cr.P.C. or such allied or similar provisions of law, namely, Section 265-K Cr. P.C. and observed that usually a criminal case should be allowed to be disputed of on merits after recording of the prosecution evidence, statement of the accused under section 342 Cr.P.C. recording of statement of accused and Section 340(2) Cr. P.C. if so desired by the accused persons and hearing the arguments of the counsel of the parties and that the provisions of Section 249-A, Section 265-K and Section 561-A of the Cr. P.C. should not normally be pressed into action of decision or fate of a criminal case.
14. In the afore cited cases, the principle laid down by this Court while dealing with the powers of the Courts under Section 561-A Cr. P.C. in quashing criminal proceedings pending before the trial Court is that when the law provides a detialed inquiry into offences for which an accused has been sent up for trial then ordinarily and normally the procedure prescribed by law for deciding the fate of a criminal case should be followed unless some extraordinary circumstances are shown to exist to abandon the regular course and follow the exceptional routes. Such exceptionable routes can also be one envisaged by Section 249-A Cr. P.C. it will not be out of place to mention here that during the of evidence, prosecution has succeeded in producing evidence to the effect that the place from where the huge quantity of narcotics was recovered and seized belonged to company registered under Companies Ordinance, 1984 of which accused/respondent Raja Abdul Rehman was not one of the Directors and that accused/respondent Raja Abdul Rehman had frequently been seen or found visiting the place of recovery of narcotics. It is also in evidence that co-accused Muhammad Khan son of Raja and Muhammad Khan son of Khan of Ali baz are the employee of accused Raja Abdul Rehman. Such evidence required an explanation from accused/ respondent Raja Abdul Rehman without which it could not have been ignored of discussed from can, therefore, be no other conclusion than that in the peculiar facts and circumstances of this case, the concerned Judicial Magistrate should not have proceeded to decided application under Section 249-A Cr. P.C. at the stage of the case and instead should have proceeded with the trial which was at its last stage and the contention that the object or intention of the concerned Magistrate to decide the fate of accused Raja Abdul Rehman by acquitting him under Section 249-A Cr. P.C was to save him from the rigours of full trial would not hold good as the entire prosecution had been recorded and the case was likely to be concluded within a very short period.
It is also to be observed that earlier an application under Section 249-A Cr. P.C. filed on behalf of accused Raja Abdul Rehman was dismissed / rejected on 2-10-1993. Thereafter, another application under Section 249-A Cr. P.C. on his behalf was moved on 19-2-1994 which was dismissed on 30-4-1994. The operative portion of the order of dismissal / rejection of the second application has been re-produced in the earlier part of this judgment and from perusal thereof, the reasons which weighed with the concerned Magistrate to dismiss/reject the application were the correct assessment of the evidence according to the settled practice, especially in the circumstances of the instant case, could only be made at the conclusion of the case further observing that in view of the above, the ingredients of Section 249-A Cr. C.P.C. were not fulfilled. This order was not assailed before the High Court by way of appeal under Section 417(2) Cr. P.C.C. After expiry of the period provided for filing the appeal, the order dated 30-4-1994 attained finality. Filing of another application under Section 249-A Cr. P.C. was thus barred as there is no provision under the said Section for filing of repeated application once an application is decided on merits and an observation was made by the Court that the peculiar facts and circumstances of the case warranted decision on merits. In view of this factual position, filing of the third application under Section 249-A. Cr. P.C. on which the impugned order was passed was not maintainable. The concerned Magistrate had entertained the same illegally and the order of acquittal of accused Raja Abdul Rehman passed on such illegal application would also appear to be illegal, void abinitio and devoid of force.
15. The next contention raised by Dr. Qazi Kahlid Ali, Addl. A.G. was that no doubt the Court while deciding an application under section 249-A Cr. P.C. was fully competent to appraise, analyze and scrutinize for prosecution evidence with a view to find out whether the charge was groundless or that there was no satisfactory and reliable evidence to establish the guilt of the accused. He, however, submitted that in a case, where there were more accused than the one on whose behalf application under section 249-A Cr. P.C. has been moved, who were facing trial alongwith him on the basis of the same evidence and material then in such a situation, the approach of the Court to analyze and appraise the evidence would be different from the one where there was only one accused and it would not be permissible for the Court to make or express adverse remarks and observations relating to the antecedents, credibility and reliability of the prosecution witnesses; contradictions and discrepancies found in the prosecution case; the inherent/intrinsic weaknesses and shortcomings in the prosecution evidence, and the truth or veracity of the prosecution evidence which would render the prosecution evidence as highly doubtful and suspicious, thus destroying or shattering the same thereby adversely affecting and damaging the prosecution case against the co-accused. Dr. Qazi Khalid Ali, Addl. A.G. referred us to such adverse remarks, observations and inferences drawn by the Magistrate relating to the prosecution witnesses and their evidence which if considered in totality would have the effect of very adversely damaging the prosecution case against co-accused Muhammad Khan son of Raja Muhammad Khan son of Ali Baz. It was submitting by Ch. Aitzaz Ahsan, Sr. ASC., that the observations or remarks made by the Court in deciding an application under Section 249-A Cr. P.C. in respect of one of the co-accused would be of tentative, interim and provisional not having binding force while, considering/deciding the case finally on merits against co-accused Muhammad Khan son of Raja and Muhammad Khan son of Ali Baz and stated that by way of further safeguard of the prosecution case, an observation could be made in this judgment that the Judicial Magistrate, who would be proceeding with the case of co-accused namely, Muhammad Khan son of Raja and Muhammad Khan son of Ali Baz would refrain from considering, acting upon and being influenced by the observations, remarks and inference made by the Judicial Magistrate in his order dated 28-8-1994.
16. The arguments of Ch. Aitzaz Ahsan, Sr. ASC do not carry weight as any direction or instruction to the above effect to the concerned Magistrate also will be proceeding with the case against co-accused Muhammad Khan son of Raja and Muhammad Khan son of Ali Baz, would not be sufficient to ward off the impact and influence of the observations inferences and remarks made by the Judicial Magistrate in the order dated 28-8-1994 as long as that order remained in existence and for an independent and impartial scrutiny, appraisement and analysis of the evidence and decision of the prosecution case, it would be necessary that the said order be set aside or recalled.
17. In view of legal and factual position, it is not considered necessary to take up the arguments of Ch. Aitzaz Ahsan, ASC relating to the powers of this Court in interfering with concurrent findings of acquittal of the two Courts and that same could not be set aside unless they were found to be perverse, based on mis-reading or non-reading of evidence or on no evidence. It is also not necessary to take up the contention of Ch. Aitzaz Ahsan, Sr. ASC that the principles governing the decision of appeal against acquittal are absolutely different from an appeal filed against conviction and that unless some illegality or grave irregularity was shown to have been committed by the Courts below in acquitting the accused, the same could not be interfered with.
18 It will not be out of place to mention that in appeal or revisional proceedings, the order of acquittal of the accused under Section 249-A or Section 265-K of the Cr. P.C. would not have the same sanctity as orders of acquittal on merits. Consequently, the principles which are not to observed and applied in setting aside concurrent findings of acquittal or the principle relating to the presumption of double innocence when an accused is acquitted after a full fledged inquiry and trial to acquittals under Section 249-A Cr. P.C. would not be applicable. The High Court of Sindh while hearing the appeal against he impugned order did not advert to the above very important and material aspect of the case and decided the case in a very cursory and hasty manner. On this ground alone, the order of the Sindh High Court cannot be sustained.
19. For the foregoing facts, reasons and discussions, this appeal is found to merit consideration, Accordingly, the order of the High Court and acquittal order of the Judicial Magistrate are set aside and the case of accused-respondent Raja Abdul Rehman shall proceed alongwith the two co-accused Muhammad Khan son of Raja and Muhammad Khan son of Ali Baz from the stage at which the case stood when the application of accused-respondent Raja Abdul Rehman under Section 249-A Cr. P.C. was decided. Such exercise is to be completed within sixty days from the date of receipt/knowledge of this judgment by the concerned Judicial Magistrate.
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