' This Special Leave to Appeal by Muhammad Rafiq which has been converted into Criminal Appeal No, 1189 of 1979, arise from the order of the Magistrate Section 30, Lahore whereby he on 16-5-1979, under section 249-A acquitted Mst. Nasim Akhtar and 12 others, of the charges under section 494/495/496/109/471/34, P.P.C.
2. On 2-1-1979, Muhammad Rafiq petitioner filed complaint under aforesaid sections of P.P.C.
Against Mst. Nasim Akhtar and others, The accused therein were summoned under sections 494 and 494/109 and 497, P.P.C. Subsequently without waiting for the appearance of the accused persons, the learned Magistrate dismissed the complaint on 15-5-1979 on the ground that Mst.
Nasim Akhtar was not the wife of petitioner on 14-1-1977 when she contracted marriage with Muhammad lqbal co-accused.
3. The learned counsel for the petitioner submitted that the learned Magistrate was wrongly influenced by the fact that the earlier suit filed by the petitioner for declaration that Mst. Nasim Akhtar was his wife and she had not been divorced by him, was, dismissed, inasmuch as the appeal filed by the petitioner was very much pending decision before the Court of competent jurisdiction. Conversely the learned counsel for the respondents has supported the impugned order.
4. I have considered the arguments advanced by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the petitioner. Respondents Nos. 1 to 12 were summoned by the learned Magistrate after preliminary investigation; that some of the accused had entered appearance and most of them had yet to appear when the learned Magistrate acquitted all the accused; under section 249-A, Cr.P.C., that after the issuance of summons to accused under section 204, P.P.C. No evidence was recorded by the Magistrate and that the judgment and decree whereby the suit for declaration filed by the petitioner was dismissed was under appeal at the time of the passing of the impugned order.
5. For what has been said above, without making any expression of opinion lest it may prejudice the merits of the case, I feel inclined to set aside the judgment of the learned Magistrate acquitting the respondents and remand the case back for the re-trial of the respondents in accordance with law.
6. .