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Criminal Petition No.206 of 1985, decided on 12th November, 1985.
(On appeal from the judgment, dated 24‑3‑1985 of the Lahore High Court, Lahore in Criminal Miscellaneous No.144/Q of 1983).
‑‑‑Art. 185(3)‑‑Criminal Procedure Code (V of 1898), Ss. 249‑A, 417, 423(1)(a) s 561‑A‑‑Leave to appeal granted to consider question whether resort was possible to 5.561‑A., Cr.P.C. for setting aside an order of acquittal under S. 249‑A, Cr.P.C. when a specific provision for challenging order of acquittal was made under S.417 read With S.423(o) (a), Cr.P.C.
‑‑‑Art. 185(3)‑‑Criminal Procedure Code (V of 1898), S.561‑A‑‑Jurisdiction of High Court‑‑Leave to appeal granted to consider contention that jurisdiction of High Court under S. 561‑A, Cr.P.C , could be availed of only where there was no other express remedy provided by Cr.P.C. and not otherwise.
Aitzaz Ahsan, Advocate Supreme Court with Mahmood A. Qureshi, Advocate‑on‑Record for the Petitioner.
M. Ali Zaidi, Advocate Supreme Court with S. Abdul Asam Jafri, Advocate‑on‑Record for Respondent No.1.
Malik Muhammad Yousuf Khan, Advocate Supreme Court with Tanvir Ahmad Khan Asstt. A.‑G. for the State.
Date of hearing: 12th November, 1985.
‑‑A case was registered against the petitioners and some others under sections 419, 420 and 467, P.P.C and section 82 of Registration Act. During the course of the trial he moved a petition under section 249‑A, Cr.P.C. In the Court of Illaqa Magistrate seeking acquittal: This was accepted and the petitioner was acquitted by the Illaqa Magistrate: vide order, dated 4‑3‑1981.
2. Feeling dissatisfied. Respondent No. l filed a petition under section 561‑A, Cr.P.C. in the Lahore High Court for quashment of this order. This was accepted on 24‑3‑1985 by a learned Single Judge of the said Court and the case remanded back for trial "in accordance with law". The legality of the order passed by the Lahore High Cpurt, dated '24‑3‑1985 is assailed by this petition for leave to appeal.
3. The main question requiring consideration is whether resort is, possible to section 561‑A of the Criminal Procedure Code for setting aside an order of acquittal passed by a Magistrate exercising the jurisdiction under section 249‑A, Cr.P.C.
4. The contention of Mr. Aitzaz Ahsan, learned counsel for the petitioner which is also supported by Mr. Tanvir Ahmad, Additional Advocate‑General (who was summoned to assist this Court) is that where a specific provision has been made in the Criminal Procedure) Code for challenging an order of acquittal viz. Section 417, Cr.P.C. the order of acquittal can be set aside only by recourse to the said provision read with and the provisions of section 423(1)(a). The jurisdiction of the High Court under section 561‑A of the Criminal Procedure Code can be availed of only where there is no other express remedy provided by the Code of Criminal Procedure and not otherwise. Since another express remedy .is provided by the Code for setting aside an order of acquittal, resort to the inherent powers of the Court under section 561‑A is not possible.
5. This‑ contention requires further consideration. Leave to appeal is granted.
6. The appeal shall be made ready on the present record with liberty to the parties to add further documents, for hearing on a very early date. Meanwhile, the interim order, dated 6‑5‑1985 to continue.
M. I. Leave granted.
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