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2005 S C M R 1544
[Supreme Court of Pakistan]
Present: Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi and Saiyed Saeed Ashhad, JJ
THE STATE through Advocate-General, Sindh High Court of Karachi---Appellant
Versus
Raja ABDUL REHMAN---Respondent
Criminal Appeal No.227 of 1997, decided on 9th June, 2005.
(On appeal from the judgment, dated 26-4-1995 of the High Court of Sindh Karachi passed in Criminal
Acquittal Appeal No.26 of 1995).
(a) Prohibition (Enforcement of Hadd) Order (4 of 1979)------Arts. 3/4---Criminal Procedure Code (V of 1898), S.249-A---Constitution of Pakistan (1973),
Art.185(3)---Leave to appeal was granted to the State to consider whether the acquittal of one accused in
the case was proper on an application under S.249-A, Cr.P.C. at a stage when the entire prosecution
evidence had been completed and the case was fixed for the statement of the accused, especially when
the trial against other accused in the case was continuing.
(b) Constitution of Pakistan (1973)------Art. 185---Appellate jurisdiction of Supreme Court---Court competent to examine points other than
those on which leave was granted---Supreme Court in exercise of its power to do complete justice is
competent to examine points other than those on which leave was granted---Normally or in ordinary
course, Supreme Court 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 or questions not mentioned in the leave granting order.
Qadir Bakhsh and 10 others v. Kh. Nazim-ud-Din Khan and 4 others 2001 SCMR 1091; Qudratullah v.
Government of Balochistan and another 1990 SCMR 1246; State through Secretary, Ministry of Interior
v. Ashiq Ali Bhutto 1993 SCMR 523; Abbas v. The Honourable Chief Justice through the Registrar, High
Court of Sindh, Karachi and 2 others 1993 SCMR 715; Chaudhry Muhammad Saleem v. Fazal Ahmad
and 2 others 1997 SCMR 315; Haji Dilber v. Shah Muhammad and 3 others 1998 PCr.LJ 572; Messrs
M.Y. Electronics Industries (Pvt.) Ltd. through Manager and others v. Government of Pakistan and others
1998 SCMR 1404; Pakistan State Oil Company Limited v. Abdul Khalique Gandakwala 1999 SCMR 366
and Khushdil and 3 others v. State PLD 1981 SC 582 ref.
(c) Criminal Procedure Code (V of 1898)---

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----S. 249-A---Power to acquit accused at any stage---Application and scope---Application under

S.249-A, Cr.P.C. can be filed, taken up for hearing and decided at any time or stage of the
proceedings---Words "at any stage" denote that such application can be filed even before recording of
prosecution evidence, during recording of evidence or when such exercise is over---Although there is no
bar for an accused person to file application under S.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---Special or peculiar
facts and circumstances of a prosecution case may not warrant filing of an application at a stage when the
entire prosecution evidence had been recorded and the case fixed for recording of statement of the
accused under S.342, Cr.P.C.
(d) Criminal Procedure Code (V of 1898)------Ss. 249-A, 265-K & 561-A---Provisions not to be used for deciding the fate of a criminal case--Usually a criminal case should be allowed to be disposed of on merits after recording of prosecution
evidence, statement of accused under S.342, Cr.P.C. and under S.340(2), Cr.P.C. if so desired and hearing
the arguments of both the parties---Provisions of S.249-A, 5.265-K & S.561-A of the Code of Criminal
Procedure should riot normally be pressed into action for deciding the fate of a criminal case.
Bashir Ahmad v. Zafar ul Islam PLD 2004 SC 298 and Muhammad Sharif v. The State PLD 1999 SC
1063 ref.
(e) Criminal Procedure Code (V of 1898)------S. 561-A---Inherent powers of High Court---Quashing of proceedings-Principles-When the law
provides a detailed 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 the' case should be followed unless
some extraordinary circumstances are shown to exist to abandon the regular course and follow the
exceptional routes---Such exceptional routes can also be one envisaged by S.249-A, Cr.P.C.
(f) Prohibition (Enforcement of Hadd) Order (4 of 1979)------Arts. 3/4---Criminal Procedure Code (V of 1898), S.249-A---Constitution of Pakistan (1973),
Art.185(3)---Appeal against acquittal of accused under S.249-A, Cr.P.C.---Place from where the huge
quantity of narcotics, was recovered and seized belonged to the accused and he had been frequently seen
visiting the place of recovery---Co-accused were the employees of the accused---Such evidence required
an explanation from the accused---Magistrate, therefore, in the peculiar circumstances of the case should
not have decided the application of accused under S.249-A, Cr.P.C. at such stage when the case had
reached its last stage---Even otherwise the second application of the accused under S.249-A, Cr.P.C. had
been rejected on the grounds that correct assessment of the evidence could only be made at the
conclusion of the case and that the ingredients of S.249-A, Cr.P.C. were not fulfilled-This order having
not been appealed against in High Court had attained finality---Order of acquittal of accused on the third
application under S.249-A, Cr.P.C., thus, was illegal and void ab initio---Moreover, 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 damaging the prosecution case against
the co accused---Order of acquittal of accused under S.249,A, Cr.P.C. would not have the same sanctity
as order of acquittal on merits and the principles applicable to second category of acquittal would not
apply to first category of acquittal---High Court had not adverted to such very important and material

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aspects of the case and had decided the appeal in a very cursory and hasty manner and its order was
liable to be set aside on this ground alone---Impugned order was consequently set aside with the
direction to Magistrate to proceed with the case of accused and that of co-accused together from the
stage at which the case stood when the application of the accused under S.249-A, Cr.P.C. was decided.
Qadir Bakhsh and 10 others v. Kh. Nazim-ud-Din Khan and 4 others 2001 SCMR 1091; Qudratullah v.
Government of Balochistan and another 1990 SCMR 1246; State through Secretary, Ministry of Interior
v. Ashiq Ali Bhutto 1993 SCMR 523; Abbas v. The Honourable Chief Justice through the'Registrar, High
Court of Sindh, Karachi and 2 others 1993 SCMR 715; Chaudhry Muhammad Saleem v. Fazal Ahmad
and 2 others 1997 SCMR 315; Haji Dilber v. Shah Muhammad and 3 others 1998 PCr.LJ 572; Messrs
M.Y. Electronics Industries (Pvt.) Ltd. through Manager and others v. Government of Pakistan and others
1998 SCMR 1404; Pakistan State Oil Company Limited v. Abdul Khalique Gandakwala 1999 SCMR
366; Khushdil and 3 others State PLD 1981 SC 582; Bashir Ahmad v. Zafar-ul-Islam PLD 2004 SC 298;
The State v. Muhammad Nawaz 2002 SCMR 634; Muhammad Sharif v. The State PLD 1999 SC 1063;
Muhammad Khalid Mukhtar v. The State through Deputy Director, F.I.A. (C.B.A.), Lahore PLD 1997 SC
275; Sheroo Khan v. Kaloo Khan and 8 others 1992 PCr.LJ 110; Shabana Mustafa v. Dr. Muhammad
Khalid and others PLD 2001 Lah. 98; Jehan Shah and 2 others v. Haji Qalandar Khan and another 1990
PCr,LJ 638; Badaruddin v. Mehr Ahmad Raza, Additional Sessions Judge, Jhang and 6 others PLD 1993
SC 399; Zahoor ud Din v. Khushi Muhammad and 6 others 1998 SCMR 1840; Sultan Mahmood Chandio
and another v. The State 1995 PCr.LJ 874; The State v. Asif Ali Zardari and another 1994 SCMR 798;
Syed Shakir Hussain and others' v. The State and others 1986 SCMR 1645; Abdul Sattar and others v.
The State 1992 PCr.LJ 2054 and Sher Muhammad v. The State and 4 others 1994 SCMR 549 ref.
(g) Criminal Procedure Code (V of 1898)-----Ss. 249-A & 265-K---Appeal against acquittal---Appeal against acquittal of accused under S.249-A or
S.265-K, Cr.P.C. and against his acquittal after trial---Principles---In appeal or revisional proceedings,
the order of acquittal of accused under S.249-A or 265-K, Cr.P.C. would not have the same sanctity as
orders of acquittal on merits---Consequently, the principles which are to be observed and applied in
setting aside the 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, would not apply to
acquittals under S.249-A or 265-K, Cr.P.C.
Dr. Qazi Khalid Ali, Addl. A.-G. Sindh for Appellant.
Ch. Aitzaz Ahsan, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for
Respondent.
Date of hearing: 4th May, 2005.
JUDGMENT
SAIYED SAEED ASHHAD, J.---This criminal acquittal appeal has been filed to assail the order of the
Sindh High Court in Criminal Acquittal Appeal No. 26 of 1995 whereby the said Court dismissed
Criminal 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 of 1994.
"The State versus Muhammad Khan and others" under Articles 3/4 of Prohibition (Enforcement of Hadd)
Order, 1979.

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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
along with Assistant Excise and Taxation Officer Agha Wazir Abbas, Inspector Aijaz Qureshi,
witnesses Muhammad Iqbal, Muhammad Sarwar Sabzwari and some other officials of the Excise
Department conducted a raid over the said 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
on the western side of the plot. Having introduced himself to the culprits, Inspector Ghulam
Hussain Baloch 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 F.I.R. 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 an 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 Baloch on
15-4-1991 wherein the number of prosecution witnesses was given as six. Out of those witnesses, P.Ws.
Sarwar Ali and Muhammad Iqbal were the Mashirs of the recovery and seizure of the Charas, P.Ws.
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 P.W. Soomar was to the effect that he
had frequently seen the respondent Raja Abdul Rehman visiting the place of incident and P.W.
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/respondent 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 the ingredients of Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979
are attracted in the instant case, moreover in order to verify the contention raised by the defence
counsel, it is not only necessary to hear the Investigating Officer 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 rebutted 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 and
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

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fulfilled at this stage in the circumstances of the instant case. Hence this application under section
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 Criminal Acquittal 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 A.A.-G. 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 F.I.R. No.21 of 1994 was proper on an application under section
249-A, Cr.P.C. at a stage when the A 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 Additional Advocate-General, Sindh on
behalf of the State and Ch. Aitzaz Ahsan, Senior Advocate Supreme Court on behalf of accused/respondent
Raja Abdul Rehman. We have also perused the material on record as well as the ease-law relied upon by the
learned counsel for the parties.
8. Dr. Qazi Khalid Ali, Additional Advocate-General 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, there 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 travelled 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, Senior Advocate Supreme Court submitted 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 specially mentioned in the leave granting order.
He then drew our attention to the leave granting order and submitted that the only question on which leave
was granted and which could be considered in this appeal 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

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evidence had been recorded and the case was fixed for statement of the accused/respondent, especially when
there were two other co-accused facing trial along with 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 Serial Nos. 2, 3, 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 cases:--(i) Qadir Bakhsh and 10 others v. Kh. Nazim-ud-Din Khan and 4 others 2001 SCMR 1091; (ii)
Qudratullah v. Government of Balochistan and another 1990 SCMR 1246; (iii) State through
Secretary, Ministry of Interior v. Ashiq Ali Bhutto 1993 SCMR 523; (iv) Abbas v. The Honourable
Chief Justice through the Registrar, High Court of Sindh, Karachi and 2 others 1993 SCMR 715; (v)
Chaudhry Muhammad Saleem v. Fazal Ahmad and 2 others 1997 SCMR 315; (vi) Haji Dilber v. Shah
Muhammad and 3 others 1998 PCr.LJ 572; (vii) Messrs M.Y. Electronics Industries (Pvt.) Ltd.
through Manager and others v. Government of Pakistan and others 1998 SCMR 1404; (viii) Pakistan
State Oil Company Limited v. Abdul Khalique Gandakwala 1999 SCMR 366.
10. After going through the aforesaid cited cases, 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 final arguments of the appeal. However, this Court in
the case of Khushdil and 3 others v. 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. Qazi Khalid Ali, Additional Advocate-General 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 his acquittal at a time when recording of entire prosecution evidence had been concluded and the
matter was fixed for recording of statements 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 filing an application for acquittal of the accused 'but propriety 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, Additional Advocate-General, 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 mala fides and ulterior motive, moreso, 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 him and accused Raja Abdul Rahman. He further submitted that in
grave and heinous offences 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 cases

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and should not proceed hastily in acquitting the accused persons involved therein either under section 249-A,
section 265-K or section 561-A. 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 depriving the prosecution of such opportunity and stifling the prosecution. In support of his
contention, he placed reliance on cases of (i) Bashir Ahmad v. Zafar-ul-Islam PLD 2004 SC 298, (ii) The
State v. Muhammad Nawaz 2002 SCMR 634 and (iii) Muhammad Sharif v. The State PLD 1999 SC 1063.
12. Ch. Aitzaz Ahsan, Senior Advocate Supreme Court 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 proceed with undue haste and speed
in deciding or acquitting the 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 of 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 in such
cases 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 accused persons as they would have to undergo protracted
and lengthy trial knowing well that no useful purpose would be served as in all probability, the case would
ended 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 his above contentions, he placed reliance on the following cases:--(i) State through Secretary, Ministry of Interior v. Ashiq Ali Bhutto 1993 SCMR 523; (ii) Muhammad
Khalid Mukhtar v. The State through Deputy Director, F.I.A. (C.B.A.), Lahore PLD 1997 SC 275; (iii)
Muhammad Sharif v. The State PLD 1999 SC 1063; (iv) Sheroo Khan v. Kaloo Khan and 8 others
1992 PCr.LJ 110; (v) Shabana Mustafa v. Dr. Muhammad Khalid and others PLD 2001 Lah. 98; (vi)
Jehan Shah and 2 others v. Haji Qalandar Khan and another 1990 PCr.LJ 638; (vii) Badaruddin V.
Mehr Ahmad Raza, Additional Sessions Judge, Jhang and 6 others PLD 1993 SC 399; (viii) Zahoor
ud Din v. Khushi Muhammad and 6 others 1998 SCMR 1840; (ix) Sultan Mahmood Chandio and
another` v. The State 1995 PCr.LJ 874; The State v. Asif Ali Zardari and another 1994 SCMR 798;
Syed Shakir Hussain and others v. The State and others 1986 SCMR 1645; (xii) Abdul Sattar and
others v. The State 1992 PCr.LJ 2054 and (xiii) Sher Muhammad v. The State and 4 others 1994
SCMR 549.
13. On consideration of arguments of Dr. Qazi Khalid Ali, Additional Advocate-General and Ch. Aitzaz
Ahsan, Senior Advocate Supreme Court 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" denote
that the application under section 249-A, c 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 he 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. The special or peculiar facts and circumstances of c a 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

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recording of statement of the accused under section 342, Cr.P.C. This Court in the cases of Bashir Ahmad v.
Zafar ul Islam PLD 2004 SC 298 and Muhammad Sharif v. 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 disposed of on merits after recording of the prosecution evidence, statement of the accused D
under section 342, Cr.P.C., recording of statement of accused under 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 for decision
of fate of a criminal case.
14. In the aforecited 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 detailed 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 course 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 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 Ali Baz are the employees of accused Raja Abdul Rehman. Such
evidence required an explanation from accused/respondent Raja Abdul Rehman without which it could not
have been ignored or discarded from consideration. There 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 decide 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 Rahman 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 Rahman 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 reproduced 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 that 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 G the above, the ingredients of section 249-A, Cr.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. 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 applications 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 ab initio and devoid of force.

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15. The next contention raised by Dr. Qazi Khalid Ali, Additional Advocate-General 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 the 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. had been moved, who were facing trial along with 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, Additional Advocate-General 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 and Muhammad Khan son of Ali Baz. It was submitted by Ch.
Aitzaz Ahsan, Senior Advocate Supreme Court 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 inferences made by the Judicial Magistrate in his order, dated 28-8-1994.
16. The arguments of Ch. Aitzaz Ahsan, Senior Advocate Supreme Court do not carry weight as any
direction or instruction to the above effect to the concerned Magistrate, who 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, Senior Advocate Supreme Court 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 misreading or non-reading of evidence or on no evidence. It is also not necessary to take
up the contention of Ch. Aitzaz Ahsan, Senior Advocate Supreme Court 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 to be observed and applied in setting aside
concurrent findings of acquittal or the principle relating to the presumption of double innocence when an

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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 the 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 along with 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 concern Judicial
Magistrate.
N.H.Q./S-115/S

Appeal accepted.

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