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Writ Petition No.624 of 1987, decided on 21st June, 1987.

---S.249-A--Penal Code (XLV of 1860), Ss.379 & 411--Quashing of proceedings--Trial Court straightaway proceeding to acquit accused on the basis of mere entries in Khasra Girdawari and orders of Revenue Authorities in this behalf--Acquittal or conviction in a criminal case, held, had to be based on evidence produced before Court and not tote effected summarily on basis of entries in Khasra Girdawari which carry no presumption of truth and are otherwise rebuttable- Orders of Trial Court based on such entries were without lawful authority and of no legal effect.

Liaqat Ali Malik for Petitioner.

Muhammad Khalid Alvi for Respondents Nos.1 to 5.

Date of hearing: 21st June, 1987.

The petitioners got a case registered under section 379/411, PPC against respondents Nos.l to 5 and after investigation by the police the challan was submitted to the trial Court. During the pendency of the trial, on the revenue side the proceedings were initiated by respondents Nos.l to 5 for correction of Khasra Girdawari. The Additional Deputy Commissioner on 19-7-1986 passed an order for correction of Khasra Girdawari in their favour and on the basis of said corrected Khasra Girdawari, respondents Nos.l to 5 moved an application before the trial Magistrate under section 249-A, Cr.P.C. for an order of their acquittal without further evidence who vide his order dated 23-8-1986-acquitte' respondents Nos. l to 5. The petitioner preferred an appeal before the Commissioner against the said order of A.D.C.(G) dated 19-7-1986 which was accepted and the case was remanded to the Collector, Muzaffargarh who after remand again passed the order in favour of respondents Nos.l to 5 for correction of Khasra Girdawari in their favour vide his order dated 21-2-1987 against which the appeal is still pending before the Commissioner Dera Ghazi" Khan which has been filed by the petitioner.

2. The revision petition filed by the petitioner against the order of acquittal of respondents Nos.l to 5 passed by the trial Court came up for final hearing before the learned Sessions Judge, Muzaffargarh which has been dismissed vide order dated 22-3-1987.

3. In this writ petition the petitioner has challenged the orders of trial Court 23-8-1986 and that of learned Sessions Judge, Muzaffargarh dated 22-3-1987 respectively.

4. Learned counsel for the petitioner has contended that the trial Court was bound to record the evidence independently and he could decide the case only on the basis of the evidence and not on the basis of an order of revenue authorities correcting Khasra Girdawari. According to the learned counsel the entries in the Khasra Girdawari do not carry any presumption of truth and even if produced in evidence the same were rebuttable. The trial Court as well as the Sessions Judge have acted without lawful authority in passing the orders of acquittal of respondents Nos.l to 5 merely because Khasra Girdawari were amended in their favour.

5. Learned counsel for respondents Nos.l to 5 submitted that the petitioner has not approached this Court with clean hands inasmuch as in an application before the Commissioner in his appeal he has stated certain facts which are contrary to the F.I.R.

6. I am afraid this argument cannot be entertained because, there is any admission which is against the F.I.R., the same can be used against the petitioner during the trial. So far as the arguments of the learned counsel for the petitioner are concerned they have considerable force. The Courts below could not on the basis of mere entries in the Khasra Girdawari and the order of Revenue authorities in this respect proceed to acquit respondents Nos.l to 5. The acquittal or conviction in a criminal case has to be based on evidence produced before the Court and not summarily on the basis of entries in Khasra Girdawari which carry no presumption of truth and even if produced could have been rebutted and proved to be wrong. The Courts below while accepting the application of respondents Nos.l to 5 under section 249-A, Cr.P.C. and acquitting them through the impugned orders have clearly acted in violation of law and the impugned orders dated 23-8-1986 and 22-3-1987 respectively are, therefore, without lawful authority having not been based on the evidence led in the case before the trial Court. The writ petition succeeds, which is hereby accepted, the impugned orders dated 23-8-1986 and 22-3-1987 are hereby declared to have been passed without lawful authority and of no legal effect and the same are hereby quashed. The parties are, however, left to bear their own costs. The case is remanded to the trial Court for further proceedings and disposal of case in accordance with law .

S . G . D . / A-136/ L

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