1986 P Cr (PLP)

Muhammad Zaman Qureshi for Respondent. Date of hearing: 15th February, 1986. These eight Criminal Appeals by the State arise from the judgment of learned Senior Special Judge, Anti‑Corruption, Punjab, Lahore whereby he on 16‑6‑1984, acquitted Liaquat Ali Nazir Ahmad, Qasim Ali, Dilshad Hussain, Ahmad Din, Jamched Hussain, Nazir Ahmad son of Ghulam, Murtaza and Muhammad Khalid Javed respondents therein of the charge under section 409 , P.P.C. 1 propose to dispose of them through single judgment.

2. The facts giving rise to these appeals against acquittal are that cases under section 409, P.P.C. were registered against Liaquat Ali and others, respondents, after investigation challans were submitted in the Court of learned Senior Special Judge, Anti‑Corruption, Punjab. Lahore who before framing the charge and without hearing the prosecutor and the accused and recording the evidence, acquitted the respondents under section 249‑A, Cr.P.C. In para. No.2 of the orders of acquittal, the learned Senior Special Judge has stated: "Neither there is any allegation nor there is any evidence that the tickets were actually sold. Unless the tickets are sold they do not become valuable property. The accused was not liable to pay the amount mentioned above. No question of misappropriation of any amount arises because the tickets were not sold."

3. The learned A.A.‑G. mainly submitted that the learned Senior Special Judge, could not have acquitted the accused/ respondents without hearing the prosecutor and the accused. The respondents as well as their learned counsel have not been able to controvert the submissions made by the learned A.A.‑G.

4. I have considered the submissions made by the leaned counsel for the parties with care. I feel persuaded to agree with the learned A.A.‑G. The relevant provisions of law may be reproduced advantageously: "Section 249‑A, Cr. P.C.‑‑"Nothing in this Chapter shall be deemed to prevent a Magistrate from acquitting an accused at any stage of the case if, after hearing the prosecutor and the accused and for reasons to be recorded, he considers that the charge is groundless or that there is no probability of the accused being convicted of any offence." Section

366. Cr. P. C. "(1)...................... (2) The accused shall, if in custody, be required by the Court to attend, to hear judgment delivered, except where his personal attendance during the trial has been dispensed with and the sentence is one of fine only or he is acquitted, either of which cases it may be delivered in the presence of his pleader." From the examination of the provisions of law reproduced above, it is very much obvious that the hearing of the prosecutor and the accused as well is a precondition to the order of acquittal under section 249‑A, Cr. P. C and the judgment has to be announced by the Court in the presence of the accused or in case where the personal attendance of the accused is dispensed with, then in the presence of his pleader. Strangely enough the learned Senior Special Judge had not only not heard the prosecutor and the accused but also passed the order in the absence of the parties and sent information of the acquittal to accused/ respondents through post. The manner in which the learned Senior Special Judge has dealt with a criminal case cannot be approved by this Court. In the case in hand the learned Senior Special Judge, has violated the mandatory provision of the relevant law. He did not care B to procure the appearance of the accused; that he did not hear the prosecutor as well as the accused before passing order under section 249‑A, Cr: P.C.; that he did not give any opportunity to the prosecutor of being heard and in a hasty and unusual manner not only acquitted the accused under section 249‑A, Cr. P.C. but also sent him information through post. No doubt en accused person is a favourite child of law but he is not so favourite that the Court should go to the extent of bestowing upon him the indulgence of giving information through post without being put to inconvenience of appearance in the Court.

5. For what has been said above, the appeals are accepted. The Orders of acquittal of the respondents are set aside and the cases are sent back to the learned Senior Special Judge, Anti‑Corruption, Punjab, Lahore for retrial in accordance with law. M.Y.H. Case remanded.