The facts leading up to this appeal against acquittal are that General Manager, Kundian Nuclear Complex, Kundian, District Mianwali filed a complaint under section 3(3) read with s.-cnons 5(1) and 5(1)(b) of the Pakistan Essential Services (Maintenance) Act, 1952 against Irfan Ashiq, respondent No. 1. The complaint was dismissed on 10-8-1981 and the respondent was acquitted of the charge for want of evidence against him. The complainant filed application for Special Leave to Appeal under section 417(2), Cr.P.C. Which after having been allowed has been converted into present appeal.
Learned counsel for the appellant contended that learned Magistrate has acquitted the accused/respondent without legal justification, inasmuch as, he was present on 22-7-1981 when the case was adjourned to 10-8-1981 and that since the Magistrate was not present on 22-7-1981 and no valid order for the production of evidence on 10-8-1981 was passed, therefore, the Magistrate could not have closed the evidence of the prosecution and acquitted the accused on 10-8-1981. The learned counsel for the respondents has not been able to controvert the submissions made by the learned counsel for the appellant. He, however, contended that the application for Special Leave to Appeal was barred by one day.
3. I have considered the submissions made by the learned counsel for the parties with care. I find that after excluding time requisite for obtaining the copy of the order of the Magistrate, in accordance with the provisions of section 12 of the Limitation Act, the ~ application for Special Leave to Appeal was within time. I further find that on 22-7-1981, the learned Magistrate was on leave and as such, there was no legal order requiring the prosecution to produce its evidence on 10-8-1981. That being the position, I am of the view that the learned Magistrate could not have closed the evidence and acquitted accused for want of evidence on 10-8-1981.
4. For what has been stated- above, the appeal is accepted. The order of acquittal is set aside and the case is sent back to the trial Court for retrial in accordance with law.