IPSI DIXIT OF POLICE

 Ipsi dixit ..من مانی حرکات.of Police 

is not binding upon the Court. I.O. only to collect evidence and not to give findings upon innocence or guilt of accused.

2010 SCMR 1791...1992 SCMR 2055

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 ملزم۔۔۔بریت

249-A.CrPc. 

  It is Power of Magistrate to acquit accused at any stage of trial if :-

 * After hearing the prosecutor and the accused and 

*For reasons to be recorded, 

* The charge is considered groundless or 

*There is no probability of the accused being convicted of any offence.

* It is an exception to the general rule of acquittal after full trial. 

*This is a emblem of good will between collective good of society and rights of an individual offender. 

* Scheme of Law is to save the offender from agony of full trial. 

       PLJ 2004 S.C. 2.

*It does not curtail  the power of High Court under S. 561-A or in derogation of it. PLD 1981 S.C. 607. 

* Trial Court is free to peruse the police papers, other material and legal aspect of the case. NLR 1999 Cr.L.J. 137. 

* Where Court is reasonably convinced that a criminal charge cannot be sustained, going on trial is not necessary, but charge cannot be said to be groundless within the meaning of S. 249-A, Cr.P.C. if reasonable opportunity is not provided to prove the allegation. Recording of prosecution evidence is 

not a condition precedent for acquitting accused. Magistrate can deal with application at any time irrespective of the fact whether charge is framed or not. 2003 YLR 2749.

* Magistrate under this section is bound to issue notice to the State and that discretion can only be exercised after hearing both parties and after submission of challan in the Court. 2005 PCr.LJ 252.

Audi Alteram partem

* Requirements are that the hearing is to be given to the prosecution and counsel of accused and that reasons are to be recorded in support of the conclusion that charge is groundless or that there is no probability of the accused being convicted. 2003 YLR 1390. 

* Hearing of prosecutor and the accused. 2000 MLD 220. 

* Court has to satisfy itself that the case under consideration is a fit case for its interference even at preliminary stage. 2000 MLD 220. 

* Charge groundless or that there is no probability of the accused being convicted. PLD 1996 Kar 253. 

*No restriction on the power of trial Court to pass order without framing charge. PLJ 1999 Cr.C. Lah. 265. 

*Court not powerless to secure attendance of witness, PLD 1984 S.C. 428; 

* The court has to provide opportunity hearing to the State, 1986 PCr.LJ 1824; 1987 PCr.LJ 1633; 1990 PCr.LJ 113; and the counsel of accused. 1994 SCMR 798. 

* Operative part of the judgment not revealing application of independent judicial mind, judgment not sustainable in the eye of law. 1988 PCr.LJ 2002. 

* It is necessary that an application is made by the accused. 1990 MLD 206. 

* Magistrate to examine 

(i) FIR     (ii) Statement of P.Ws. u/S. 161        (iii) Report of police officer u/S. 173;

 (iv) Charge framed before arriving at the decision whether there is no probability of the accused being convicted. Acquittal without looking such a material on record illegal, set aside. 2000 MLD 220; PLD 1970 S.C. 173; PLD 1964 S.C. 829. 

* It is necessary that prosecution should be given opportunity to prove the allegation levelled in the FIR. 2000 PCr.LJ 752. 

* Witnesses not cross examined, their examination in chief would be deemed to be admitted. PLJ 2003 Lah. 557.

Remedy. 

An order passed u/S. 249-A amounts to an order of acquittal, as such the remedy to assail the same lies in filing appeal against acquittal u/S. 417, Cr.P.C. 1998 MLD 1605; NLR 1999 Cr. Lah. 185. 

* Prosecution not given opportunity to prove allegations--Cannot be said that there was no probability of conviction. 2000 PCr.LJ 752