' SYED MAHMOOD ALAM RIZVI, J.---This criminal acquittal appeal is directed against the judgment dated 28-2-2006, passed by the learned VIlth Additional Sessions Judge, Hyderabad, in Sessions Case No,222 of 2003, arising out of F.I.R. No,7 of 2002, under sections 420, 468, 471, 474 and 34, P.P.C., registered at Police Station Pinyari, whereby the respondents Nos.1 to 4 were acquitted under section 265-K, Cr.P.C.
2. Briefly, the facts of the prosecution case as narrated in the F.I.R. Are that the complainant Fayyaz Ahmed lodged the F.I.R. On 23-1-2002 and stated therein that his daughter Mst. Aafreen was the sponsor of a housing scheme situated in Phuleli Hyderabad. Later on she gifted the said property to her daughter. In the year 1991 out of Survey No,2380 a Plot No,75-76 was allotted to Kishanlal, the respondent No,1 and Plot No,76-96 to respondent No,2 and Plot No,98 to respondent No,3 and it was settled that the respondents would pay gradually from time to time, but the payment could not be made. Thereafter, the respondents/accused after preparation of fabricated and forged documents in their favour started construction on Plot No,96-97, and also raised boundary wall around the remaining plots. The complainant said to have restrained them and even involved the Nek Mards but all in vain. The complainant has further alleged that the respondents have appointed one Abdul Khaliq Shaikh as their attorney for the said plots. Complaints were also being made to high ups but no result and finally the application was made to District Police Officer, Hyderabad, and per his order this F.I.R. Was registered.
3. After registration of the case police investigated the same and submitted the challan before the learned Magistrate, who framed the charge upon the respondents, but later on as the section 474, P.P.C. Was also applied in the F.I.R. And in the challan, which was exclusively triable by the Court of Session, therefore, the same was sent to learned Sessions Judge, Hyderabad, and thereafter, the same was transferred to learned trial Court, who framed the charge upon the respondents, but they pleaded not guilty and claimed to be tried.
4. It is the case of the respondents that the charge was framed on 31-7-2003, but since then no prosecution witness appeared before the trial Court, therefore, on 22-3-2005, the learned counsel for the respondents/accused moved an application under section 265-K, Cr.P.C. And even after filing the above acquittal application the trial Court made best efforts to procure the attendance of the complainant and his witnesses, but none could be appeared before the trial court and after hearing of the learned counsel for the respondents allowed the application under section 265-K, Cr.P.C. And acquitted the respondents/ accused on the ground that the police had lodged the F.I.R.
Under sections 420, 406, 471, 474 and 34, P.P.C. Against the respondents, whereas the offence under sections 471 and 474, P.P.C. Are non-cognizable and the case was investigated by the police without permission of learned Magistrate under section 155(2), Cr.P C. And held that all the investigation conducted by the Investigating Officer were illegal and without jurisdiction.
5. The learned counsel for the appellant has contended that the impugned judgment is against the law and based on misinterpretation of law, hence liable to be set aside. He has further contended that sections 471 and 474, P.P.C. Are non-cognizable, but when the other sections applied in the F.I.R., are cognizable, thereafter the police had full authority to take the cognizance of the case, but even then this is not mere for taking cognizance by the police without permission of the learned Magistrate, but firstly the Magistrate initially has taken the cognizance of the case by accepting the challan and thereafter, framed the charge and came to know that one of the sections is triable by the Court of Session, therefore, the case was sent to the Sessions Court and the Sessions Court had taken the cognizance and even framed the charge, hence this objection, even otherwise, not available to respondents and the learned trial court without going through the law acquitted the respondents in slipshod manner. In support of his contention learned counsel for the appellant has relied upon (1) Muhammad Yasin v. S.S.P. 2004 SCM R 868; (2) Sastay Khan Masood v. State 2004 SCM R 1766, (3) State v. Abdul Rehman 2005 SCM R 1544, (4) Sarfraz v. State 2007 SCM R 830, (5)
State v. Abdali Shah 2009 SCM R 291 and (6) Sanaullah v. S.H.O. PLD 2003 Lah.
228.
6. Learned counsel for the respondents has contended that today he is filing Vakalatnama on behalf of the respondents and has not gone through the file, but on the other hand he tried to argue on the factual aspects of the case, though the learned trial court has not passed the impugned judgment on merits of the case but on the basis of the interpretation of section 155(2), Cr.P.C.
7.The learned Assistant A.G. Has supported the counsel for the appellant and has contended that the case may be emanded to the learned trial Court.
8. Heard the learned counsel for the appellant, the respondents and the Assistant A.-G. And perused the record. Admittedly, the impugned judgment based on a technical ground but the same has been misinterpreted by the learned trial Judge. She could not differentiate sections 155(2) and 155(3), Cr.P.C. And even ignored that she had already taken the cognizance of the case and framed the charge, therefore, whatever defect if any, was sustained. There are constant findings of the superior Courts that the case should not be decided in slipshod manner without recording the evidence of the parties on the basis of mere irregularity committed by the police during investigation, even otherwise those curable under section 537, Cr.P.C.
9. In view of the above judgments cited by the learned counsel for the appellant and per the statutory law the impugned judgment is not sustainable in law, based on misinterpretation of law.
The appeal is allowed and the case is remanded to the trial court with direction to proceed the case expeditiously and there should be no adjournment except in extraordinary circumstances.
The case should be proceeded even in absence of any respondent. The learned counsel for the appellant undertakes that he would produce his witnesses on each date of hearing. The trial Court is further directed to conclude the case within a period of six months.
' The respondents are directed to join trial and the trial Court is directed to accept their sureties in the same amount as deposited earlier.