' By filing this revision petition lqbal Ahmad petitioner has challenged the validity of order passed by Additional Sessions Judge-I, Rahimyar Khan on 28-5-1984 acquitting the respondents from the charge of murder.
2. Briefly the facts are that respondents were facing trial under section 302, P.P.C. For having murdered Junaid Ahmad nephew of lqbal Ahmad petitioner. The learned trial Court recorded the evidence of six prosecution witnesses but the statements of the petitioner and few other witnesses remained to be recorded. It so happened that on 28-5-1984 the complainant/petitioner moved an application informing the learned trial Judge that he intended to move the High Court for transfer of the case from his Court. The learned trial Judge did not adjourn the case allowing time to the petitioner to move for transfer of the case and proceeded to record his (petitioner's) statement and then decided the case same day acquitting the respondents from the charge as according to him commission of offence had not proved against them. It is against this order that the instant revision petition has been filed.
3. It has been argued that subsection (8) of section 526, Cr.P.C. Enjoins the trial Court that as soon as a party intimates it that it intended to move an application for transfer, the Court shall "not adjourn the case but it shall not pronounce its final judgment" until the transfer application has been finally disposed of by the High Court. In these circumstances, the learned trial Court by having decided the case clearly violated the provisions of subsection (8) of section 526, Cr.P.C.
When called upon to explain the learned trial Court in its comments, dated 28-3-1985 admitted the mistake saying "I have no hesitation in my mind to realise that the relevant provision of law escaped my mind at that time." However, learned counsel for the respondents tried to argue that the revisional jurisdiction should be exercised sparingly and only in such cases where the order under attack is found either unfair or if it had occasioned miscarriage of justice. He submitted that the only evidence against the respondents is the "extra-judicial confession" said to have been made by the resondents before certain witnesses, two of whom namely, Dur Muhammad and Muhammad Anwar have already resiled. Therefore, he argued, that ultimately the case would meet the same fate, hence it would not serve any useful purpose if the case is remanded for fresh decision, holding that the judgment of the trial Court stood vitiated as being violative of subsection
(8) of section 526, Cr.P.C. Learned counsel for the State has supported the petitioner.
4. Having considered the facts and circumstances of the case, I find that the learned Additional Sessions Judge after having been informed of the intention of moving a transfer application in the High Court by the complainant in this case, was under a legal obligation not B to pronounce the final judgment in the case. But having pronounced judgment he clearly violated the statutory provisions of section 526(8), Cr.P.C. And, therefore, his illegal judgment cannot be sustained in law.
May be that ultimate result of the case comes to the same as has been adjudged by the learned Additional Sessions Judge but that is no consideration for saving an illegal order passed by the trial Court. In the circumstances, I have no option but to strike down the impugned C judgment of acquittal passed by the learned Additional Sessions Judge on 28-5-1984 and remand the case for disposal in accordance with law. This petition is disposed of accordingly.