1. ' The appellant Mst. Tasleem after making an abortive attempt to register her case with the local Police Station, approached the Special Judge, Anti-Corruption, NWFP, Peshawar with a complaint.
2. In her complaint she accused respondent No.1 Abdul Rashid Bacha, Sub-Inspector Police S.H.O.
3. Police Station Umarzai, Charsadda, for committing criminal breach of trust and misconduct as a public servant. She complained that the accused was entrusted with her belongings as her slain husband was also a police Officer and was living in the vicinity of the aforesaid police station and she had to rush for his burial. She alleged that on her subsequent demand for the goods mentioned in the complaint which were in the meantime taken over by the accused, he refused to return the same to her. Her complaint, therefore, disclosed offences under section 409. P.P.C. And 5(2) Prevention of Corruption Act, 1947.
4. ' The Special Judge, Anti-Corruption after taking cognizance of the complaint sent the same for inquiry to the Anti-Corruption Establishment, Peshawar. After receiving inquiry report alongwith the statements of the witnesses examined during the inquiry, the Special Judge summoned the accused to appear before him. On 5-9-1987 however, instead of framing the charge the Special Judge acquitted the accused and also dismissed the complaint. This appeal is directed against the aforesaid order of the Special Judge, Anti-corruption.
5. ' The learned counsel of the appellant apart from questioning the propriety of the discretion exercised by the Special Judge in acquitting the accused, raised the question of the competency of the trial Court to acquit the accused at the stage of examining the complaint and before framing of the charge. It is well-known that in our society when an influential person is involved in a crime the police bureaucracy is reluctant to register a case against him. Therefore, the provisions of the Criminal Procedure Code besides giving built in safeguards to the accused also provide special procedure to deal with the complaint. Chapter 16 of the Cr.P. C. Relates to such a procedure.
6. Apart from examining the complainant the Magistrate taking cognizance of a complaint may hold an inquiry into the complaint himself or "direct an inquiry or investigation to be made by a Police Officer, or by such other person as he thinks fit for the purpose of ascertaining the truth or falsehood of the complaint". The orders which such a Magistrate can pass after the aforesaid examination or inquiry are incorporated in section 203 and 204 of the Cr.P.C. The only action a Magistrate can take under section 203 Cr.P. C. Before the accused is summoned, is to dismiss the complaint, "after considering the statement on oath (if any) of the complainant and the result of (investigation) or inquiry (if any) under section 202, there is in his judgment no sufficient ground for proceeding". He has also to record his brief reasons for doing SD. In the case in hand the trial Court failed to comprehend the procedure laid down in the aforesaid provisions of law. From the perusal of the record it appears that after receiving the report of the inquiry initiated by him the Special Judge summoned the accused and thereafter by his impugned order he not only dismissed the complaint but acquitted the accused as well. There was no need for summoning the accused during the consideration of the complaint for the purpose of further proceeding or dismissing the same. Such an irregularity could have been condoned had the trial Court not acquitted the accused in the same breath as in dismissing the complaint. Considering the circumstances of the case such a decision smacks of indecent haste apart from its being against the provision of law.
7. ' Normally, acquittal of an accused takes place under section 245 of the Criminal Procedure Code which is during the trial of the case when the charge has already been framed and the evidence duly recorded. Of course there are provisions of section 247 of the said Code where non- appearance of complainant would occasion the acquittal and section 249-A under which a Magistrate is not prevented from acquitting an accused", at any stage of the case if after hearing the prosecutor and the accused and for the reasons to be recorded, he considers that the charge is groundless or that there is no probability of the accused being convicted of any offence". Before me the learned counsel for the respondent No.1 argued that in acquitting the accused the trial Court was acting under section 249-A Cr.P.C. This, I am afraid, is not the case.
8. ' Not only that the trial Court or for that matter the accused did not invoke the provisions of section 249-A of Criminal Procedure Code, the same are not attracted at the time of examination of the complaint and a decision to be made thereto under section 203 Cr.P.C. No doubt the provisions of section 249-A Cr.P. C. Permit the Magistrate to acquit an accused at any stage of the case but there are certain conditions proscribed thereto. Firstly, a proper notice for hearing in this regard is to be issued to the prosecutor and the accused. Secondly, the prerequisite of considering that the charge is groundless and or that there is no probability of the accused being convicted of any offence would reflect that the proceeding before a Magistrate shall have to travel beyond the examination and inquiry into the complaint. In the case in hand the trial Court had not yet applied its mind for the disposal of the complaint lodged before it when it decided to proceed with the acquittal of the accused. Such a procedure had obviously prejudiced the complainant as the consequences flowing from a mere dismissal of the complaint and acquittal of the accused are not only different but significant in their import. In the former case the scope for bringing the accused to book remaines open whereas in the latter case the accused is finally and irrevocably, subject to appeal if any, absolved of the charges levelled against him.
9. ' The learned counsel for the accused-respondent after addressing lengthy arguments conceded the position discussed above and agreed with the learned counsel for the complainant that under the law the accused could not have been acquitted at the stage of taking decision with regard to the complaint. The learned counsel appearing for the State, Mr. Muhammad Jamil Khan also agreed with the aforesaid proposition. In the circumstances this appeal is allowed and the case is sent back to the trial Court for proceeding afresh in accordance with law. However, at the request of the counsel for both the parties the case be sent back to some other Judge having jurisdiction in the matter and not to the Special Judge who has passed the impugned order. Order accordingly.