1997 P Cr (PLP)

(b) Penal Code (XLV of 1860)

S. 419/468/471

Criminal Procedure Code (V of 1898), Ss.417, 439-A & 249-A

Appeal against acquittal of accused under S.249-A, Cr.P.C. not competent

Trial Court had acquitted the accused under S.249-A, Cr.P.C. without recording prosecution evidence which the prosecution had failed to produce

No appeal against such order of acquittal was competent under 5.417, Cr.P.C. which could only be assailed in revision under S.439-A, Cr.P.C.

Appeal against acquittal was consequently dismissed in limine being not maintainable. B.K. Tabish for Appellant. Muhammad Yasin, appellant, has appealed under section 417, Cr.P.C. being complainant against the order, dated 21-11-1996 passed by the Judicial Magistrate Section 30, Jaranwala, under section 249-A, Cr.P.C. acquitting the respondents in a case registered against them vide F.I.R. No.283 of 1991, dated 17-9-1991, under sections 419, 468 and 471, P.P.C. at Police Station Khurianwala, Tehsil Jaranwala, District Faisalabad.

2. The brief facts relating to this appeal are that vide abovementioned F.I.R., a case was registered against the respondents and after the completion of the investigation, challan was submitted in the Court of Illaqa Magistrate who framed the charge against the accused persons on 10-9-1993 under the abovementioned facts. During the pendency of the case on 6-3-1994 Bagh Ali accused died natural death. The matter remained pending in the Court of trial Magistrate and the prosecution failed to produce the evidence from 10-11-1993 till 24-6-1996. When the defence moved an application under section 249-A, Cr.P.C. for the acquittal of the respondents the learned trial Court accepted this petition vide impugned order.

3. Learned counsel for the appellant was directed to satisfy this Court whether this appeal is competent under section 417, Cr.P.C. when order was passed under section 249-A, Cr.P.C. without recording the evidence; whether there is any distinction between acquittal under section 245, Cr.P.C. or under section 249-A, Cr.P.C. and also with respect to the limitation as the appeal has been filed after the period prescribed under section 417, Cr.P.C. i.e. one month. With regard to the delay in filing appeal, learned counsel gave the explanation at the Bar that previously he filed a revision petition before the learned Sessions Judge, which was dismissed and without disclosing this fact he has filed this appeal.

4. I have heard the learned counsel at length. There is a remarkable deference between the two orders, passed under section 245, Cr.P.C. and under section 249-A, Cr.P.C. although, under both these sections, the Court can pass the order of acquittal and if the order of acquittal is passed under section

245. Cr.P.C. of course, appeal would be competent under section 417, Cr.P.C. as the appellate Court can upset the order of acquittal under section 423, Cr.P.C. and pass the order of conviction accordingly. If the acquittal is under section 249-A. Cr.P.C., then, this order cannot be challenged in appeal as the appellate Court would not be in a position to convert the findings of acquittal into conviction. Normally these orders are passed without recording the full evidence of the prosecution due to the uncalled for delay in the progress of the trial. The wisdom why the Legislature has amended the section 249-A, Cr.P.C. is that there were complaints that the numerous cases are pending in the trial Court without any meaningful progress in the trial. In order to ameliorate the agony of the under-trial prisoners who were languishing in the jails without any fault. Due to the lethargic attitude or the prosecution in the lower Court, to lessen their, burden the Legislature introduced the aforementioned amendment by way of section 249-A, Cr.P.C. "that Court would be competent to pass the order of acquittal even at any stage without recording the evidence of the prosecution if situation so demands.

5. In the present case, it appears that the prosecution failed to produce the evidence from 10-11-1993 till 24-6-1996, then the trial Court while exercising its powers under section 249-A, Cr.P.C. acquitted the respondents, as this order I has been passed without recording the prosecution evidence, hence, no appeal is competent under section 417, Cr.P.C. and this order can only be assailed in revision under section 439-A, Cr.P.C., which according to the information given at the Bar, the appellant filed and was dismissed and without discussing this fact in the appeal, the appellant had filed this belated appeal. There is no application for the condonation of delay in filing the appeal even as mentioned above the appellant is debarred from filing the belated criminal appeal.

6. In view of his conduct and suppression of the material facts mentioned above this appeal is not maintainable on merits as well as being time-barred, hence, dismissed in limine. N.H.Q./M-360/L Appeal dismissed.