1999 P Cr (PLP)

Section 245. Acquittal.‑‑‑ (1) If the Magistrate upon taking the evidence referred to in section 244 and such further evidence (if any) as he may, of his own motion, cause to be produced, and (if he thinks fit) examining the accused, finds the accused not guilty, he shall record an order of acquittal. (2) Sentence.‑‑‑ Where the Magistrate does not proceed in accordance with the provisions of section 349(1) he shall, if he finds the accused guilty, pass sentence upon him according to law. Section 247. Non‑appearance of complainant.‑‑‑ If the summons has been issued on complainant and upon the day appointed for the appearance of the accused, of any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acouit the accused, unless for some reasons he thinks proper to adjourn the hearing of the case to some other day: Provided that, where the complainant is public servant and his personal attendance, is not required, the Magistrate may dispense with his attendance, and proceed with the case: Provided further that nothing in this section shall apply where the offence of which the accused is charged is either cognizable or non compoundable. Section 248. Withdrawal of complaint.‑‑‑ If a complainant at any time before a final order is passed in any case under this Chapter, satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint the Magistrate may permit him to withdraw the same, and shall thereupon acquit the accused. Section 249. Power to stop proceedings when no complaint.‑‑‑ In any case instituted otherwise than upon complaint, a Magistrate of the First Class, or with the previous sanction of the (Sessions Judge) in the case of Judicial Magistrate and District Magistrate in the Executive Magistrate any other Magistrate may for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment either of acquittal or conviction, and may thereupon released the accused." 3. In the case in hand the order of the Magistrate First Class, Peshawar, dated 7‑8‑1995, appears to have been recorded under section 249‑A, Cr.P.C. The same was later assailed before the Sessions Judge, Peshawar by the petitioner. The Sessions Judge in his order, dated 11‑11‑19961 had observed:‑‑ "... Further I feel that no material ground has been raised in revision showing the illegality or any irregularity committed by the lower Court. The filing of revision petition against the order of the acquittal in this Court is the gross negligence on the part of the petitioner or his counsel and therefore, the same cannot be returned to them for its presentation before the proper forum at this stage. Dated 11‑11‑1996 (Sd.) Attaullah Khan Bangash, Sessions Judge. " 4. A plain reading of the order of the Sessions Judge would show that this order is not only arbitrary but is also perverse inasmuch as he has nowhere held as to whether the revision petition filed before him was incompetent and therefore, dismissed or that the same was accepted or that the same was returned to be presented before a proper forum. 5. I am at loss and so are the learned counsel for the parties as to what is the nature of the order of the Sessions Judge, i.e. whether he has accepted the revision petition or has dismissed the same. The learned counsel for the parties in the circumstances have agreed that the order of the Sessions Judge is not a proper order and that the same be set at naught and the case remanded to the Sessions Judge, Peshawar to write a speaking order in accordance with law by giving valid reasons for his findings after hearing the learned counsel for the parties. 6. This petition is accepted. Tote impugned order/judgment of the Sessions Judge, dated 11‑11‑1996 is set aside and the case is remanded to the Sessions Judge, Peshawar who shall himself hear the parties/their counsel and then record a speaking order. The parties shall appear before the Sessions Judge on 23‑1‑1999 without fail. N.H.Q./244/P Case remanded.