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Criminal Appeal No. 13 of 1979, decided on 29th October, 1979. ,

Criminal Procedure Code (.V of 1898)‑‑--

-‑‑‑S. 417‑Appeal against acquittal‑Trial Court committing glaring irregularities of procedure prescribed for trial and acquitting accused/respondent on grounds of Pick and choose' policy of prosecution‑Reasoning of trial Court, held, not tenable though it may be a mitigating circumstance in awarding sentence to a per son if commission of offence stands proved against him‑Trial Court having not taken evidence of prosecution, order of trial Court, held, vitiated and case remanded to trial Court for retrial according to law.‑[Appeal against acquittal‑Remand of case‑Mitigating circumstance].

Muhammad Akram Khan, A.‑G. for the State.

Sardar Muhammad Yasin Khan for Respondent.

Date of institution : 2nd September, 1.979.,

SARDAR MUHAMMAD SHARIF KHAN, J.‑

This is an appeal by the Government against an order of acquittal dated 4‑7‑1979 passed by the Revenue Asstt. Magistrate 1st Class, Muzaffarabad.

The accused‑respondent was brought before Court of Revenue Assistant Magistrate 1st Class, M'abad under section 26 of the civil Defence Act for violation of an order of the Govt. under which no person could construct any building, house, shop or other structure within 55 ft. on either side from the middle of Kobala‑Muzaffarabad‑Chinari Road. His statement was recorded under section 242, Cr. P. C. by the trial Court. After recording of the plea of the accused‑respondent, the Magistrate proceeded to inspect the spot which inspection of the scene was duly made by him but on his return from the spot to the Court. without recording the evidence of the prosecution, be let the accused off, remarking .that near the spot inspected there were a number of shops built on .t the road side by other persons but they were not hauled up whereas the accused‑respondent who had just started to lay foundation, was caught by the Police. This pick and choose' policy was disliked by the Magistrate; as a result of which the accused‑respondent was acquitted of the above‑mentioned charge. It was also noted by the Magistrate that the accused‑respondent confessed his guilt but the perusal of his statement reveals that no such admission or confession was made by him. A novel procedure being unwarranted by law was adopted by the trial Magistrate. The accused‑respondent did not at all make admission of his guilt and after the plea of the accused was recorded by the trial Magistrate, it was incumbent upon him to proceed under section 244, Cr. P. C. to take evidence of the prosecution and after the close of the. evidence in support of the prosecution, the accused‑respondent was to be examined under section 342, Cr. P. C.: and then his evidence was to be taken in his defence, if any.‑ In this manner, the trial of the case was to be com pleted and after the completion of the trial, the parties were to be heard and a judgment to be given thereof but all this was not done by the trial Magistrate in accordance with the prescribed procedure. That being so, the glaring illegalities were. committed by the trial Court in the disposal of the instant case. However, the trial Magistrate may be right in holding that some of the law‑breakers are protected by the law enforcing agency. This is a hard fact that law is allowed to be broken by those very persons who are appointed by the Government to check the breaking of law. But the Government . is found ignoring the acts of such officers in aid of breaking of law by the law‑breakers.

Again, I may say without any hesitation that the responsible officers of the Government shut their eyes and allow the unlawful construction on the road side to go on in violation of law simply because some of the officers of the Government for their gratification advance the cause to the people to break the law framed by the Government as was rightly ,pointed out by the trial Court. ‑This reasoning of the learned Magistrate m acquitting the accused‑respondent is not tenable though it may be a mitigating circumstance in .awarding sentence to a person if commission of an offence stands proved against him. As no evidence of the prosecution was taken by the trial Court, the impugned order cannot stand in law and which is to vitiate. That, being so, this appeal is accepted and the impugned order is set aside and the case is remanded to the trial Court for the retrial of the accused‑respondent from the very stage the illegality was committed by the trial Court. The trial Magistrate is thus directed to proceed with the case for its disposal as indicated above while dealing with the procedure in regard to trial of criminal cases.

Appeal accepted.

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