2008 PLP 263 (YLR)

M. BILAL KHAN, J.

The petitioners, namely, Tariq Naseer, Hamad Naseer and their father Naseer Din, who were accused in case F.I.R. No.121, dated 5-5-1998, registered with Police Station Kassoke, District Hafizabad for an offence under section 324/34 P.P.C. at the instance of Shafqat Ishaq son of Muhammad Ishaq complainant (respondent No. 2 herein), by filing the instant petition under sec tion 561-A, Cr.P.C. have called in question the judgment dated 18-11-2003 passed by the learned Sessions Judge, Hafizabad, whereby he had set aside the order of their acquittal under section 249-A, Cr.P.C. and had remitted the case to the learned trial Court "with the direction to procure attendance of all the three accused first, then to order the prosecution to produce the evidence and after that to decide the case on merits in accordance with the law after recording the evidence".

2. Precisely .the facts giving rise to this petition were that the complainant (respondent No.2) had got the aforesaid case registered against the petitioners for allegedly launching murderous assault on Shafqat Hayat, brother of the complainant, and during the course of investigation Hamad Naseer and Naseer Din (petitioners Nos.2 and 3) had been found to be innocent and had been 'placed in column No.2 of the report under section 173 Cr.P.C., however, challan was put up before the learned trial Court against Tariq Naseer (petitioner No.1) only; on receipt of the challan, the learned trial Court had framed charge against .petitioner No.1, to which he had pleaded not guilty and had claimed to be tried; the prosecution was asked to adduce evidence in support of its case, but it failed to do so despite several opportunities having been provided to it; ultimately, the learned trial Court had proceeded to acquit petitioner No.1 while accepting the application under section 249-A Cr.P.C. moved by petitioner No.1, vide order dated 7-1-2003; being aggrieved of the said acquittal; respondent No.2 had preferred a revision petition before the learned Sessions Judge, Hafizabad, who had passed the order dated 18-11-2003, which has been challenged through the instant petition.

3. I have heard the learned counsel for the parties at considerable length and have also gone through the record. It is not denied that the petitioners had been acquitted by the learned' trial Court under section 249-A Cr.P.C. after hearing the State, which is one of the mandatory requirements under the said provision of law. It is well-settled that revision petition against an order of acquittal passed by the learned Judicial Magistrate is not maintainable in a case instituted by the Police under section 173 Cr.P.C. however, right of appeal is available to the complainant under section 417(2-A) Cr.P.C. Reference may profitably be made to the case of Mst. Mamoona Akhtar v. Magistrate Section 30, Wazirabad, District Gujranwala and 2 others (2005 MLD 896). There is no need to further dwell on other aspects of the case. On this short score alone, this petition merits to succeed.

4. Resultantly, this petition is allowed and the impugned judgment dated 18-11-2003 passed by the' learned Sessions Judge, Hafizabad is hereby set aside. N.H.Q./T-31/L Petition allowed.