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Criminal Revision No. 402 of 1970, decided on 25th November 1970.
S. 423 (1)(b)‑Remand of cases‑Appellate Court setting aside conviction and sentence and remanding case for retrial‑Accused cannot be considered to have been acquitted.
S. 423(1)(b) read with Conciliation Courts Ordinance (XLIV of 1961), S. 3(I)(a) Remand of cases‑Retrial‑‑‑Accused‑appellants having undergone agony of two years lengthy trial ordered to be retried for an offence cognizable by Conciliation Courts and not by Magistrate‑‑Order for retrial, held, improper and set aside‑Sessions Judge directed to hear appeal on merits and decide according to law‑Penal Code (XLV of 1860), Ss. 294 & 509.
K. T. Hussain for Petitioners.
Sh. Muhammad Usman for A.‑G. for the State.
Date of hearing : 25th November 1970.
Muhammad Javed and Abdul Aziz were tried by a Magistrate at Gujranwala under section 294, P. P. C. for causing annoyance to Mst. Shahida Iqbal a school teachers by uttering obscene words. Each one of them was convicted and sentenced to 15 days' R. I. and a fine of Rs. 200 on 31st December 1968. Both of them appealed and the learned Sessions Judge, Gujranwala, by his order dated 17th May 1969, remanded the case for fresh trial under section 509, P. P. C. This order was challenged by revision petition in this Court, Another application was submitted by the petitioners for quashing the proceedings pending before the City Magistrate after the remand. Both these petitions are disposed of by this order.
2. The occurrence took place on 20th February 1968, and the remand order was passed on 17th May 1969. Learned counsel for the petitioners vehemently contended that this was an order of acquittal and not an order of remand under section 423, Cr. P. C. because conviction and sentence of the petitioners have been set aside. The absence of word acquittal' from the judg ment would not deprive the petitioners of acquittal from the charges. The argument is ill founded for in case of a remand the conviction and sentence have to be set aside. Since the learned Sessions Judge after setting aside the conviction and sentence of the petitioners has remanded the case for retrial and word acquittal' does not find mention in the order the petitioner cannot be considered to have been acquitted. I am fortified in my view by a judgment reported as Chinna Similan v. Peria Similan (1933 M W N 224).
3. However, the question for consideration in this case is whether the remand order in this case should have been made It would not be proper to order retrial for an offence of this nature especially when the petitioners have undergone an agony of lengthy trial for a period of two years. The retrial is also likely to cause a legal hurdle after the remand. In view of section 3(1)(a) of the Conciliation Courts Ordinance, 1961 trial of offences under section 509, P. P. C., for which the learned Session Judge has remanded the case, has to be exclusively by the Conciliation Court.
4. Learned counsel for the petitioners did not argue the case on merits, and I would not like to deprive the petitioners of their right of hearing of appeal against their conviction and sentence by the Sessions Judge. For the foregoing reasons I set aside the order of remand and direct the Sessions Judge in the district to hear the appeal filed by the petitioners on merits and decide it according to law. In this view proceedings pending before the City Magistrate after the remand ipso facto come to an end. Both these petitions are disposed of accordingly.
Order accordingly.
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