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Criminal Appeal No. 40 of 1985, heard on 15th February, 1986.

‑‑‑S.249‑A‑‑Penal Code (XLV of 1860), Ss.419, 420, 468 & 471‑ Prevention of Corruption Act (II of 1947), S.5‑‑Appeal against acquittal‑‑Accused acquitted on technical ground‑‑Charge framed by Judge, incompetent to be appointed as such‑‑Entire proceedings taken by such Judge or based on charge framed by him found to be illegal, without jurisdiction and nullity in eye of law‑‑Charge not declared to be groundless or that there was no probability of accused to be convicted of any offence‑Held, accused could not be acquitted under S.249‑A, Cr.P.C. unless charge was found to be groundless or that there was no probability of accused being convicted of any offence.

Nemo for the State.

Muhammad Shahid Dar, Muhammad Hassan Sindhu and Badar ul Hassan Sabri for Respondents.

Date of hearing: 15th February, 1986.

This criminal appeal by State arises from the judgment of the learned Special Judge Anti‑Corruption, Lahore whereby he on 6‑6‑1984 acquitted under section 249‑A, Cr.P.C. Muhammad Mazhar and 4 others, respondents, of the charges under sections 468, 471, 419 and 420, P. P. C. and section 5 of the P. C. A., 1947.

2. The facts giving rise to this appeal briefly are that a case under sections 468/471/419 and 420, P.P.C. and section 5 of the P.C.A. 1947 was registered against the respondent 4and two others namely Ghulam Haider who has since died and Muhammad Siddiq who is a proclaimed offender. The challan was submitted, in the Court of Special Judge, Anti‑Corruption, Lahore. Ch. Muhammad Islam the then Special Judge Anti‑Corruption framed charge against the respondents. The case was at the stage of evidence when it was placed before Mr. Lutufur Rehman Sheikh, Special Judge, Anti‑Corruption, Lahore who acquitted the accused under section 249‑A, Cr.P.C. on the technical ground, hence, this appeal against acquittal.

3. Mr. Farooq Bedar, the learned A.A.‑G. has contended that the learned Special Judge could not have acquitted the respondents on technical grounds stated by him in the judgment. Conversely, the learned counsel for the respondents has supported the judgment of the trial Court.

4. I have considered the submissions made by the learned counsel for the parties with care. I feel persuaded to agree with the learned A.A.‑G. The operative part of the judgment may be reproduced advantageously:‑

"5. At the stage of evidence, it was found that the charge in the case in hand was framed by Ch. Muhammad Islam, Special Judge, Anti‑Corruption, Lahore, who was prematurely retired by the competent authority under the provisions of Martial Law Regulation No.114 (Removal from Service (Special Provisions) Regulation, 1972). Such a premature retirement is for a cause under para.3 of the said Regulation and it amounted to removal from service, effected at the instance of the Government, within the meanings of section 3(2)(b) and as such the said officer could not be appointed as a Special Judge despite his reinstatement and he was incompetent to hold the office as held in the Criminal Appeal No.886 of 1980 re: Mahmoodul Hassan v. The State decided by Mr. Justice Rustam S. Sidhwa on 31‑3‑1984. Hence, the framing of the charge in this case was without jurisdiction as Ch. Muhammad Islam, the then Special Judge, Anti‑Corruption, Lahore was not legally competent to become a Special Judge and the entire proceedings taken by him or base on the charge framed by him are without jurisdiction, illegal and nullity in the eye of law. This is not a case of mere irregularity and as such not curable and the trial stands vitiated within the meanings of section 530 of the Cr.P. C."

6. Now the question of the retrial arises. In the instant case, the F.I. R. was lodged on 22‑4‑1980 and the charge was framed on 29‑1‑1983. The accused suffered the agony of this case/trial for more than 3 years. Moreover, during this long period of about 1 years after the framing of the charge, the prosecution did not examine any witness. It is evident from the order and the decree sheet, dated 9‑3‑1983 that the present owner‑in‑possession of the disputed land were declared as such by the civil Court.

7. As a result of the above, Muhammad Mazhar, Barkat, Muhammad Afzal, Abdur Rahim and Ziaul Hassan accused are acquitted under section 249‑A, Cr.P.C. Their acquittal is purely on technical ground. They are on bail. The bail bonds are discharged. The case against Ghulam Haider accused has abated because of his death, while Muhammad Siddique absconding accused shall be tried according to law after his arrest.

From the examination of the judgment, it is very much clear that the learned trial Judge has not declared the charge to be groundless o that there was no probability of the accused/ respondents being convicted of any offence. He has acquitted the accused on technical ground. Section 249‑A, Cr.P.C. reads as under:‑

"Section 249. A‑‑Power of Magistrate to acquit accused at any stage. 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 learned trial Judge could acquit the accused on two grounds only that the charge was groundless or that there was no probability of the accused being convicted of any offence and that he could not have acquitted the accused under section 249‑A, Cr.P. C. on technical ground.

For what has been said above, the appeal is accepted. The order of the acquittal of the respondents is set aside and the case is sent back to the Special Judge Anti‑Corruption, Lahore for retrial in accordance with law.

S. A.

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