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Criminal Appeal No. 717 of 1984, decided on 17th April, 1985.

‑‑ S.3‑‑Special Judge Anti‑Corruption, appointment of‑‑Special Judge not qualified to be appointed as such‑‑Entire proceedings before such Judge, held, vitiated.

‑‑‑S.249‑A Quashment of proceedings‑‑Entire proceedings before Special Judge stood vitiated on account of legal defect in his appointment as such Judge‑‑Successor Special Judge Anti‑Corruption, not giving any definate findings as to charge being groundless or of probability of accused being convicted of any offence rather acquitting accused under S. 249‑A, Cr.P.C. relying on statements of witnesses recorded during proceedings already stood vitiated‑‑Impugned judgment of acquittal, held, illegal and perverse‑‑Retrial ordered, in circumstances.

Muhammad Akhtar, A.A.‑G., Punjab for the State.

Ghulam Hassan Qureshi for Respondents.

Date of hearing: 17th April, 1985.

This criminal appeal arises from the judgment of the learned Special Judge, Anti‑Corruption, Lahore whereby he, on 7‑6‑1984 acquitted Muhammad Ashraf son of Allah Bukhsh respondent No.1 and Qazi Muhammad Ashraf son of Muhammad Ismail respondent No.2 of the charge under section 468/471/420, P.P.C. read with section 5 of the Prevention of Corruption Act, 1947.

2. The facts giving rise to this appeal against acquittal briefly are that a case under section 468/471/420, P.P.C. read with section 5 of the Prevention of Corruption Act, 1947 was registered against Muhammad Ashraf and Qazi Muhammad Ashraf respondents. After investigation, the challan was submitted before the Special Judge, Anti‑Corruption, Lahore. When the case came up before Ch. Muhammad Islam, Special Judge, Anti‑Corruption, Lahore, he framed charges against the respondents and conducted some proceedings including recording of the evidence of some of the witnesses. The‑case ultimately came up before Sh. Lutuf‑ur‑Rehman, Special Judge at the stage of evidence. Sh. Lutuf‑ur‑Rehman, the learned Special Judge Anti‑Corruption vide impugned judgment, dated 7‑6‑1984 acquitted the respondents under section 249‑A, Cr.P.C. on the grounds that Ch. Muhammad Islam, Special Judge, Anti‑Corruption who had framed the charge being not qualified to be appointed as Special Judge, the charge framed by him and proceedings subsequent thereto were illegal and nullity in the eye of law; that the respondent accused had suffered agony of trial for more than 5‑3/4 years; that the mutation relatable to disputed land were reviewed and cancelled vide orders Exh.P.W.8/1 to Exh.P.W.8/9 as stated by Ch. Muhammad Hussain P.W.8 and that Ashraf co‑accused had witnessed the sale deeds while vendor was identified by Asghar Ali, Advocate P.W.11, hence this appeal.

3. Feeling aggrieved of the judgment of acquittal the State has filed present appeal.

4. The learned counsel A.A.‑G. contended that the judgment of the learned Special Judge, Anti‑Corruption to the extent of acquittal under section 249‑A, Cr.P.C., is quite illegal. On the other hand, the learned counsel for the respondent has supported the judgment of the trial Court.

5. I have considered the arguments advanced by the learned counsel for the parties with care. I feel persuaded to agree with the learned Special Judge, Anti‑Corruption to this extent that Ch. Muhammad Islam being not qualified to be appointed as Special Judge, Anti‑Corruption the entire proceedings including framing of charge, conducted by him, stood vitiated. As for the acquittal of the respondents/ accused under section 249‑A, Cr.P.C. I find that the learned Special Judge, Anti Corruption could not have acquitted the respondents under see ion, 249‑A, Cr.P.C., unless he considered that the charge was groundless or that there was no possibility of the accused being convicted of any offence. Since he has not given definite findings that charge was groundless or that there was no probability of the accused being convicted of any offence, therefore, he could not have acquitted the: appellant of the charges. His observations:‑

"Moreover, the mutation regarding the disputed land were, reviewed and cancelled as stated by Ch. Muhammad Hussain A.C.P.W.8. The orders are Exh.P.8/1 to Exh.P.8/9."

are based on the evidence of Ch. Muhammad Hussain, A.C. P.W.8 which he in view of his on finding in para. No.3 that the entire proceedings stood vitiated, could not have taken into consideration. Strangely enough, on the one hand, the learned Special Judge has stated that the entire proceedings in the case were illegal and nullity in the eye of law‑but on the other hand, he relied upon the statements of witnesses and documents exhibited during that illegal proceedings. Mere suffering of agony of trial for more than 5 years is no ground for acquittal under section 249‑A, Cr.P.C. For all these reasons, I am of the view that the impugned judgment of acquittal is illegal as well as perverse, which is hereby set aside.

For what has been found above, the appeal is accepted. The case is sent back to the trial Court for retrial of the accused respondent according to law.

S.G.D. Retrial ordered.

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