1994 P Cr (PLP)

Akhtar Masood for the State. Date of hearing: 13th February. 1994. Muhammad Arshad alias Angraiz has moved this Court under section 561-A, Cr.P.C. against the judgment, dated 14-3-1993 passed by the learned Sessions Judge, Sahiwal by which Criminal Revision No. l l/S.J. of 1992 filed by Sh. Muhammad Tariq respondent No.2 against the judgment, dated 16-7-1991 passed by Magistrate First Class, Arifwala, by which he allowed the application under section 249-A, Cr.P.C. and acquitted the petitioner in case F.I.R. No.38 of 1989, dated 17-1-1989 registered under section 379, P.P.C. was accepted.

2. The brief facts giving rise to this petition are that petitioner and three others were challaned vide the above-noted F.I.R. in which respondent No.2 had alleged that the construction material was stolen away by the petitioner and others. Initially no name of any person as the accused was mentioned in the F.I.R. but later on some suspicion was laid against the petitioner and others. The challan was submitted in the Court for trial on 14-11-1989 and on 9-12-1989 the charge was framed. The case was fixed for evidence for 9-1-1990 and was adjourned for twenty-two times after the submission of the challan but the prosecution failed to produce a single witness. Even on 17-6-1990 the P,Ws. namely Muhammad Tariq complainant and Islam could not appear in the trial Court in spite of service so coercive measures in the form of proceedings under section 174, P.P.C. were taken against them, The petitioner and others made application under section 249-A, Cr.P.C. for their acquittal which was allowed and the accused were acquitted on the ground that the P.Ws. were not interested in the prosecution of the case as they had not appeared before the trial Court for a period of three years when it was fixed for twenty-two times.

3. The complainant filed a revision petition which was accepted by the learned Sessions Judge Sahiwal and the case against the petitioner and others was remanded to the Judicial Magistrate, Sahiwal for retrial from the stage of charge in accordance with law. However, the trial Magistrate was directed to dispose of this case within three months from the receipt of this case.

4. It was contended at the very outset that respondent No.2 filed a revision petition against the acquittal of the petitioner without filing a certificate issued by the District Magistrate that the State did not want to file an appeal against the acquittal and that being a mandatory provisions of law renders the proceedings before the Sessions Judge as illegal and without lawful authority. It was also argued that the learned Sessions Judge has completely lost sight of the fact that whatever respondent No.2 was pursuing or was litigating amounted to the abuse of process of law. It was argued that the case against the petitioner hanged for three years for which the accused faced the agony of protracted trial for three years and when it was adjourned for 22 times to record the evidence of the prosecution and not a single witness was produced. It was also argued that the learned Magistrate acquitted the accused under section 249-A, Cr.P.C. so it was not a bad order in view of the circumstances of the case and, therefore, the Sessions Judge was not justified to remand the same for retrial of the accused. It was added that the learned Sessions Judge was not justified to remand the case on the ground that no coercive means were used to summon the P.Ws.

5. I have given my anxious thoughts to the arguments advanced by both sides and have also gone through the file. I find that the learned Sessions Judge was persuaded to accept the revision petition filed by respondent No.2 mainly on the ground that the complainant and his father Islam P.W. were personally served for 17-6-1990 but the trial Magistrate did not follow it up when they failed to appear in this Court and he did not adopt coercive measures to procure their attendance in the Court so he had failed to discharge his judicial function. I have gone through all the interim orders passed by the learned Magistrate and find that the learned Sessions Judge could not appreciate the proceedings as well as the record because on 17-6-1990 when Tariq respondent and Islam his father P.Ws. did not appear the learned Magistrate initiated the proceedings against them under section 174, P.P.C. I also find that respondent No.2, the complainant in the case filed the vision petition with a delay of one year and three months even without mentioning any reason for the same. That the limitation for filing an appeal against acquittal is six months and no certificate appears to have been annexed with the revision petition if the District Magistrate has refused to file the appeal.

6. In view of the fact that the case against the petitioner and others remained pending for three years and was adjourned for 22 times to record the evidence but no witness was produced by the prosecution or the complainant and coercive measures were also taken to procure the attendance as mentioned above so no exception could have been taken to the order passed by the learned A Magistrate. Even otherwise in view of the fact that no certificate was annexed with the revision petition issued by the District Magistrate not to challenge the acquittal of the petitioner the revision petition itself was not competent and was liable to be dismissed on that score alone.

7. Resultantly the judgment) dated 14-3-1993 passed by the learned Sessions Judge, Sahiwal is hereby quashed and that of the learned trial F Magistrate, dated 16-7-1991 is upheld. N.H.Q./M-1769/L Judgment quashed.