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Criminal Appeal No. 54 of 1985, heard on 27th May, 1985.

‑‑Ss. 249‑A & 417‑‑Penal Code (XLV of 1860), S.409‑‑Acquittal‑ Hearing of prosecutor and accused, held, a pre‑condition for acquittal under S. 249‑A, Criminal Procedure Code‑‑Special Judge Anti -Corruption acquitting accused without hearing prosecutor‑‑Order of Special Judge set aside and case sent back to him for proceeding according to law.

Najamuz Zaman for the State.

Ch. Muhammad Iqbal for Respondent.

Date of hearing: 27th May, 1985.

This criminal appeal arises from the judgment of learned Senior Special Judge, Anti‑Corruption, Lahore whereby he on 16‑6‑1985, acquitted under section 249‑A, Cr.P.C. Mushtaq Ahmad respondent of the charge under section 409, P.P.C.

2. The facts giving rise to this appeal against acquittal are that a case under section 409, P.P.C. was registered against Mushtaq Ahmad respondent. After investigation the challan was submitted in the Court of learned Senior Special Judge Anti‑Corruption, Punjab, Lahore. Before the framing of the charge and recording of the evidence, the learned Senior Special Judge, Anti‑Corruption for reasons given in the impugned judgment acquitted the respondent. Para. No. 2 of the judgment containing the reasons may be reproduced:‑‑

"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. It was brought to my notice by Fazil Ilahi, Auditor of the Corporation that the accused had deposited the unconsumed tickets. Nothing is outstanding against him."

3. The learned A.A.‑G. submitted that the impugned order of acquittal under section 249‑A, Cr.P.C. was passed without hearing the prosecutor or affording him any opportunity, of being heard and as such the order was quite illegal.

4. The learned counsel for the respondent has not been able to controvert the submissions made by the learned A. A.‑G. section 249‑A , Cr.P.C. 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."

It is thus very much obvious that the hearing of the prosecutor and the accused was a pre‑condition to the acquittal under section 249‑A, Cr.P.C. and as such the learned Senior Special Judge was not legally competent to pass order of acquittal under section 249‑A, Cr.P.C. without hearing the prosecutor of having afforded him opportunity of being heard.

5. For what has been stated above, the order, dated 16‑6‑1984 is hereby set aside and the case is sent back to the trial Court for proceedings according to law. This judgment is without prejudice to the order which the learned Senior Special Judge may pass under section 249‑A, Cr.P.C. after hearing the prosecutor and the accused.

M. Y. H.

Appeal allow0d.

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