Section 249-A Acquittal: Conflicting Supreme Court Views

Independently written and published by Shahbaz Shah Legal Journal.

The short answer

Two reported lines of reasoning now point in opposite directions on an important question of Pakistani criminal procedure: does an acquittal entered at an intermediary stage under Section 249-A or Section 265-K of the Code of Criminal Procedure, 1898 carry the same double presumption of innocence as an acquittal after a full trial?

In Model Customs Collectorate, Islamabad v. Aamir Mumtaz Qureshi, reported as 2022 SCMR 1861, a three-member bench of the Supreme Court answered no. Justice Sardar Tariq Masood held in paragraph 9 that an acquittal under Section 249-A or 265-K does not have the same sanctity as an acquittal on merits after a full-fledged inquiry and trial. Consequently, the special appellate rule of double innocence does not apply in the same manner.

In Altaf Yousuf v. The State, Criminal Petition for Leave to Appeal No. 188-K of 2022, a later two-member bench restored an acquittal under Section 249-A and stated in paragraph 9 that the acquittal carried a double presumption of innocence. The judgment did not cite, distinguish, or refer to 2022 SCMR 1861 or the older Supreme Court authorities on which it was based.

This is a genuine doctrinal conflict, not merely a difference in wording. In this commentary's considered view, the rule stated by Justice Sardar Tariq Masood is the legally stronger and presently controlling rule. It was delivered by a larger bench, follows a long line of precedent, and better explains why a premature acquittal should not automatically receive the enhanced appellate deference reserved for a verdict reached after evidence has been tested at trial.

That conclusion does not mean Altaf Yousuf was necessarily wrong in result. Its unusual facts provided strong independent grounds for restoring the acquittal. The problem lies in its broad use of double presumption without addressing the binding larger-bench authority.

The two Supreme Court judgments at a glance

Model Customs Collectorate v. Aamir Mumtaz Qureshi

• Citation: 2022 SCMR 1861; also reported as 2022 SCP 228 and 2022 PTD 1683
• Case: Criminal Petition No. 209 of 2018 with Criminal Miscellaneous Application No. 392 of 2018
• Bench: Justice Sardar Tariq Masood, Justice Mazhar Alam Khan Miankhel, and Justice Amin-ud-Din Khan
• Judgment author: Justice Sardar Tariq Masood
• Short order: 18 May 2022
• Detailed reasons: 13 July 2022
• Provision: Section 265-K, read with the allied Section 249-A, Cr.P.C.
• Result: the acquittal orders of the Special Court and Islamabad High Court were set aside, and the case was remanded for evidence
• Rule: a Section 249-A or 265-K acquittal at an intermediary stage does not carry the same sanctity or double-presumption protection as an acquittal after a full trial

Altaf Yousuf v. The State

• Case: Criminal Petition for Leave to Appeal No. 188-K of 2022
• Bench: Justice Muhammad Ali Mazhar and Justice Aqeel Ahmed Abbasi
• Judgment author: Justice Muhammad Ali Mazhar
• Date of hearing and short order: 24 December 2025
• Provision: Section 249-A Cr.P.C.
• Result: the Sindh High Court judgment dated 17 October 2022 was set aside, and the Magistrate's acquittal order dated 21 June 2006 was restored
• Rule stated: the acquittal carried a double presumption of innocence and could not be reversed without cogent grounds showing serious error

What Sections 249-A and 265-K actually provide

Section 249-A empowers a Magistrate to acquit an accused at any stage, after hearing the prosecutor and the accused and recording reasons, if the Magistrate considers either that the charge is groundless or that there is no probability of conviction.

Section 265-K gives a trial court a similar power at any stage, after hearing both sides and recording reasons, where there is no probability of the accused being convicted of any offence. Unlike Section 249-A, its text does not separately use the expression groundless charge.

Both provisions are important safeguards. They prevent a criminal case from continuing where the admitted facts do not constitute an offence, the necessary incriminating material does not exist, or the available material cannot reasonably produce a conviction. But they are exceptions to the ordinary trial process. They are not intended to decide disputed facts casually, exclude evidence that could prove the charge, or convert a defence requiring proof into a ground for premature acquittal.

An order under Section 249-A or 265-K remains an order of acquittal and is challengeable through the appellate remedy provided by Section 417 Cr.P.C. The present controversy is narrower: how much enhanced deference must the appellate court give that order? It is not a dispute about whether the accused continues to enjoy the ordinary presumption of innocence. That basic presumption always remains.

Justice Sardar Tariq Masood's reasoning in 2022 SCMR 1861

Aamir Mumtaz Qureshi was apprehended at Islamabad airport while carrying approximately 400,000 Saudi Riyals. The recovery from his possession was not denied, and no permission from the State Bank of Pakistan to take the currency abroad had been granted. Despite this material, the Special Court acquitted him under Section 265-K before the prosecution evidence was recorded. The Islamabad High Court upheld that order.

The Supreme Court held that the trial court had acted in haste. Where even a remote probability of conviction exists, the court should record the evidence and decide the case on its merits. The Court relied on The State through Advocate-General, Sindh High Court of Karachi v. Raja Abdul Rehman, reported as 2005 SCMR 1544; Bashir Ahmad v. Zafar-ul-Islam, reported as PLD 2004 SC 298; The State through Collector Customs and Excise, Quetta v. Azam Malik, reported as PLD 2005 SC 686; Muhammad Sharif v. The State, reported as PLD 1999 SC 1063; and Ghulam Farooq Tarar v. Rizwan Ahmad, reported as 2008 SCMR 383.

Paragraph 9 then drew the decisive distinction. An acquittal after a full trial follows the recording and testing of evidence, examination of the accused, and a merits determination. A Section 249-A or 265-K order may terminate the case before that process occurs. Therefore, the same sanctity cannot automatically be attached to both categories. The principle of double innocence applicable after a full-fledged trial was held inapplicable to these intermediary acquittals.

The distinction is functional as well as formal. The second presumption normally reflects confidence in a trial court's completed assessment of evidence. Where evidence was never recorded or tested, the factual foundation for that additional layer of appellate restraint is absent.

What Altaf Yousuf decided

The prosecution alleged that forged travel documents had been used to facilitate unlawful emigration. Two charge sheets were filed: one before a Magistrate for offences under Sections 419, 420, 468, 471 and 109 of the Pakistan Penal Code, and another before the Special Judge under the Emigration Ordinance, 1979.

The Magistrate acquitted Altaf Yousuf under Section 249-A on 21 June 2006. The order found no concrete material showing that the travel agent knew the passenger held forged documents or intentionally assisted cheating. His identified role was the issuance of air tickets. A co-accused's police-custody statement had not been recorded under Section 164 Cr.P.C. and could not, by itself, supply admissible proof against him.

The Special Judge later acquitted Altaf Yousuf in the connected Emigration Ordinance case on 6 December 2017, and the State did not challenge that acquittal. Nevertheless, the Sindh High Court allowed the State's appeal against the 2006 Section 249-A order on 17 October 2022 and remanded the PPC case for trial.

The Supreme Court restored the Magistrate's acquittal. It correctly emphasized several fundamental rules: an indictment is not evidence; the prosecution bears the burden of proving each ingredient beyond reasonable doubt; an inadmissible police confession of a co-accused cannot replace lawful proof; and an appellate court must identify cogent reasons before reversing an acquittal.

The controversial part is paragraph 9. The Court described an acquittal generally as producing a double presumption of innocence and applied the strict appellate standard to the Section 249-A order. It did so without considering the contrary rule expressly stated by the earlier three-member bench.

Why the two rulings conflict

The conflict can be stated precisely.

• The 2022 three-member bench held that double presumption after a full trial does not apply to an intermediary acquittal under Section 249-A or 265-K.
• The later two-member bench treated a Section 249-A acquittal as carrying double presumption and used that principle to limit appellate interference.
• Both propositions concern the appellate status of the same statutory category of order.
• Altaf Yousuf did not distinguish 2022 SCMR 1861 on facts, declare its rule inapplicable, or seek reconsideration by a larger bench.

There is a possible factual distinction. In Altaf Yousuf, the trial court had identified a complete absence of material connecting the travel agent with knowledge or dishonest intention, and a connected prosecution had ended in an unchallenged acquittal. The case had also remained unresolved for nearly two decades. These features strongly supported restoration of the acquittal even without invoking double presumption.

But a factual distinction can explain the result only if the court articulates it. It cannot silently replace the opposite legal rule announced by a larger bench.

Other judgments supporting the traditional rule

The proposition in 2022 SCMR 1861 was not new.

Muhammad Sharif v. The State - PLD 1999 SC 1063

The Supreme Court explained that the same sanctity available to an acquittal based on full-fledged evidence cannot be accorded to an acquittal at an intermediary stage under Section 249-A or 265-K. This is one of the earliest repeatedly cited authorities for the distinction.

The State v. Raja Abdul Rehman - 2005 SCMR 1544

The Supreme Court again held that an order under Section 249-A or 265-K does not have the same appellate sanctity as a merits acquittal after a full trial. The judgment connected that distinction directly with the non-application of the usual double-innocence rule. It also warned that the regular trial procedure should ordinarily be followed unless extraordinary circumstances justify departure.

Ghulam Farooq Tarar v. Rizwan Ahmad - 2008 SCMR 383

The accused were acquitted under Section 249-A without the prosecution evidence being recorded. Because the complaint and preliminary evidence disclosed a probability of conviction, the Supreme Court set aside the premature acquittal and restored the trial. The decision reinforces the principle that the statutory power cannot be used where evidence must be tested.

The State v. Shoaib Ahmed Sheikh and others - Sindh High Court, 26 February 2018

In Criminal Acquittal Appeals Nos. 390 of 2016 and 60 of 2017, the Sindh High Court expressly held that a Section 249-A or 265-K acquittal does not have the same sanctity as an acquittal on merits and that the double-innocence principle applicable after a full trial does not apply. The court set aside the premature acquittals and directed the trial to proceed.

Askari Bank Limited v. Tara Chand - 2022 CLD 1042

The Sindh High Court applied the same distinction to a Section 265-K acquittal entered before documentary evidence was proved. It held that such an order did not carry the same sanctity as a full-trial acquittal and remanded the matter so the parties could lead evidence.

Niaz Ahmed v. Aijaz Ahmed - PLD 2024 SC 1152

This later Supreme Court judgment did not directly decide the double-presumption question because the application under Section 265-K had been refused. It is nevertheless important. The two-member bench cited Raja Abdul Rehman and reaffirmed that a full trial is the normal course, while premature termination requires extraordinary circumstances and a conscious evaluation of the available and expected evidence. It therefore supports the methodology underlying Justice Sardar Tariq Masood's view.

Which rule should presently govern?

The earlier three-member decision in 2022 SCMR 1861 should govern over the later two-member ruling in Altaf Yousuf on the point of conflict.

The Supreme Court has repeatedly held that an earlier judgment binds benches of smaller numerical strength and ordinarily binds a later bench of equal strength as well. If a bench considers the earlier rule incorrect, judicial discipline requires reference through the proper process for reconsideration by a larger bench. Samrana Nawaz v. MCB Bank Ltd., reported as PLD 2021 SC 581, states this rule clearly.

Article 189(2) of the Constitution, in its current form, makes a Supreme Court decision on a question or principle of law binding on all other courts in Pakistan except the Federal Constitutional Court. Within the Supreme Court, the settled rule of horizontal precedent and bench strength preserves consistency. A later decision of a smaller bench does not overrule an earlier decision of a larger bench merely because it is newer.

An institutional safeguard against conflicting precedent

Before pronouncing on a recurring question of law, the court's institutional research process should place all material earlier reported judgments before the bench, especially a judgment delivered by a bench of greater numerical strength. The ultimate responsibility for applying precedent remains judicial, while judicial researchers and law clerks should assist the bench with a bench-strength-aware precedent note identifying the exact legal proposition, its citation, its later treatment, and any apparent conflict.

If a smaller bench is still persuaded that the earlier larger-bench rule is incorrect, the proper course is not to depart from it silently. Judicial discipline requires the smaller bench to record its reasons and request the Chief Justice, through the established procedure, to constitute an appropriate larger bench to reconsider the question. Until that happens, the binding larger-bench rule must be followed. This institutional safeguard would reduce avoidable conflicting judgments, improve legal certainty, and help lawyers and subordinate courts identify the governing law.

Accordingly, the safer court position is:

• an accused always enjoys the ordinary presumption of innocence;
• a lawful Section 249-A or 265-K order remains an acquittal unless set aside in appeal;
• it does not automatically attract the special double-presumption rule reserved for an acquittal after full evidence and trial; and
• an appellate court may examine whether the statutory threshold for premature acquittal was actually met, without first requiring the prosecution to cross the exceptionally high barrier applicable to a full-trial acquittal.

Why Justice Sardar Tariq Masood's approach is preferable

The reasoning in 2022 SCMR 1861 is preferable for five connected reasons.

First, it preserves the rationale of double presumption. Enhanced deference is justified when a trial court has heard and assessed the prosecution evidence. If the evidence was never recorded, there is no completed evidentiary assessment to reinforce.

Second, it prevents a premature procedural error from becoming self-protecting. If an order wrongly stops a trial before material evidence, automatically adding double presumption would make correction harder precisely because the trial court failed to perform the full inquiry.

Third, it protects fairness to both sides. Article 10-A safeguards the accused against baseless prosecution, but it also requires a lawful opportunity for the prosecution or complainant to present material evidence where a genuine triable case exists.

Fourth, it keeps Section 249-A tied to its text. The question is not whether conviction is already proved. It is whether the charge is groundless or there is no probability of conviction. A defence that depends on disputed evidence, credibility, cross-examination, or proof of an alibi ordinarily cannot establish that threshold before trial.

Fifth, it preserves a meaningful remedy for the accused. Justice Sardar Tariq Masood's approach does not abolish Section 249-A or 265-K. A truly groundless charge, admitted facts constituting no offence, absence of an essential ingredient, or material incapable of supporting conviction can still justify immediate acquittal. The order must simply stand on its statutory reasons rather than an automatic double presumption.

One caution remains. The expression remote probability should not be used so broadly that it reduces Sections 249-A and 265-K to dead letters. Speculation is not probability. The prosecution must point to identifiable material that could lawfully prove the offence, not merely request a trial in the hope that evidence may appear later.

A principled way to read Altaf Yousuf

Altaf Yousuf can be confined to its exceptional facts without treating it as overruling the traditional doctrine.

The Magistrate had identified no tangible evidence of the travel agent's knowledge or dishonest assistance. The alleged police statement of the co-accused was not recorded under Section 164 Cr.P.C. The petitioner's act of issuing tickets was, by itself, neutral conduct. He had also been acquitted in the connected Emigration Ordinance prosecution, that acquittal remained unchallenged, and the proposed remand came many years after the original order.

These circumstances could support restoration because the statutory conditions of Section 249-A were satisfied and the High Court failed to identify material capable of producing conviction. On that narrower basis, the result can coexist with 2022 SCMR 1861. What should not be treated as controlling is the broad suggestion that every Section 249-A acquittal automatically carries double presumption.

Practical guidance for lawyers and courts

For defence counsel, the stronger approach is not to rely on double presumption alone. Identify the exact missing ingredient, show why the available and proposed evidence cannot cure it, and demonstrate that the charge is groundless or conviction has no probability even if the prosecution material is taken at its highest.

For prosecutors or complainants, cite the stage at which the acquittal was entered, identify the specific admissible evidence that remained to be produced, and explain how it could establish an essential ingredient. A general demand for a full trial is insufficient if the record contains no legally relevant material.

For appellate courts, the first question should be whether the impugned order followed a full evidentiary trial or prematurely terminated proceedings. The court should then apply the corresponding standard of review, examine the statutory reasons, and avoid importing the full-trial double-presumption rule into a category that binding precedent treats differently.

Conclusion

Pakistani precedent supports a clear distinction between ordinary innocence and double innocence. The ordinary presumption protects every accused throughout the process. The enhanced double presumption arises from a merits acquittal after the evidence has been fully tested; it should not automatically attach to an intermediary order under Section 249-A or 265-K.

The later judgment in Altaf Yousuf reached a result that may be justified by the absence of incriminating material, the connected unchallenged acquittal, and the extraordinary delay. Yet its broad double-presumption language conflicts with 2022 SCMR 1861 and the older authorities without discussing them.

Until a properly constituted larger bench resolves the issue, Justice Sardar Tariq Masood's rule should be followed: an acquittal under Section 249-A or 265-K does not carry the same sanctity or automatic double-presumption protection as an acquittal recorded after a full-fledged trial.

This commentary is independent legal analysis for research and general information. The complete judgments, current statutory text, procedural stage, and facts of the individual case should be verified before reliance in court.