' This petition, calling in question, order of learned Additional Sessions Judge, Lahore, dated 17-12- 1988, setting aside order of acquittal recorded by the trial Court under section 249-A of the Cr.P.C.
And remanding the case for decision afresh, has emanated out of the following facts:
2. F.I.R. No, 20 of 17-1-1971 was lodged against the petitioner at Police Station Old Anarkali, Lahore under sections 408 and 420 of the P.P.C., at the instance of Pir SA. Rashid, Advocate, the then Honorary Secretary of respondent No,1, alleging misappropriation of the Society's funds to the tune of rupees twenty lacs during July, 1966 to October, 1970. At the conclusion of the investigation, challan of the case was submitted before the trial Court on 17-12-1973, wherein the prosecution produced 14 witnesses in all and closed its evidence in July, 1984, where after the petitioner recorded his statement under section 342, Cr.P.C. On 13-8-1984, produced 4 witnesses in defence in the year 1985, who were followed with expert witnesses viz. Chartered Accountants, with a view to scrutinizing the record of the society, but they could not be examined till December, 1986, on account of the record having not been made available by the society; resultantly the petitioner exhausted his patience and moved an application under section 249-A of the Cr.P.C. On 13-12-1986, which was allowed by the trial Court on 21-3-1987, who, by discussing the entire prosecution evidence, came to the conclusion that the prosecution has failed to establish the charge against the petitioner and that there is no probability of his conviction, and has suffered mental agony of the trial since 1971. It was also found as a matter of fact that the controversy pertains to the business and internal affairs of the society which is subject-matter of the co-operative department; consequently, the petitioner was acquitted, whereupon the respondent sought filing of an appeal by the State which request was turned down, and eventually private revision was preferred which was accepted by the learned Additional Sessions Judge, Lahore vide the impugned order on the ground that since 14 witnesses have been recorded by the prosecution and the case was fixed for the petitioner's evidence in defence after recording of his statement under section 342, Cr.P.C. Therefore, it was not appropriate to acquit the petitioner under section 249-A of the Cr.P.C. Vires whereof have been assailed in these proceedings.
3. Learned counsel for the petitioner contended that neither any jurisdictional error nor miss appreciation of evidence has been discovered by the learned provisional Court in the order of acquittal, which is based upon merits of the case, that the petitioner has suffered prolonged agony of 15 years trial, and that the observation of the learned Additional Sessions Judge, that 'suddenly' after recording of petitioner's statement under section 342, Cr.P.C acquittal under section 249-A, Cr.P.C. Has been recorded, is factually incorrect.
4. On the other hand, learned counsel for the respondent raised the solitary contention that against remand order, constitutional petition should not be allowed.
5. Having considered the arguments of the parties, I am of the opinion that the impugned order suffers from inherent incurable infirmity, in having allowed the revision in a slipshod manner without spelling out any jurisdictional defect or material illegality or misreading of the evidence. It is significant to note that not only the entire prosecution evidence was available on the record, but also the partially recorded defence version comprising 4 witnesses in addition to the petitioner's statement under section 342, Cr.P.C. (though the defence expert witnesses could not be examined for well over two years for withholding of the record by the respondent) was on the file which the provisional Court could have adverted to.
6. I am of the view that order of acquittal recorded by the trial Court on the basis of the evidence could be set aside in provisional jurisdiction on exceptional strong grounds, and not in a cursory or casual manner.
' Reliance in this regard is placed on The State v. Iqbal and 3 others 1986 P Cr. L J 251, holding that 'it is well-settled that once an accused person is acquitted then strong and exceptional grounds are required to interfere with the judgment of the trial Court'. The State v. Abba Ali Abba Umer and another PLD 1988 Kar. 409 ... An appeal against acquittal can be allowed if the impugned order is perverse, foolish and absurd. And further that on the basis of evidence on record no other order except the order of conviction can be passed..."
7. Another aspect of the matter which escaped the attention of the learned Additional Sessions Judge is that the petitioner was acquitted after having been subjected to prolonged agony of 15 long years of the trial, which by itself was a sufficient ground for non-interference in revision.
8. Furthermore,, the casual manner in which the revision petition was allowed is manifested by the fact that though the prosecution closed its evidence in July, 1984, petitioner's statement under section 342, Cr.P.C. Was recorded on 13-8-1984, where after 4 defence witnesses were also examined, while the remaining defence witnesses could not be examined for a period of two years, D and, only thereafter the petitioner was impelled to move application under section 249-A of the Cr.P.C. On 13-12-1986, viz. After two and quarter of a year of recording of his statement under section 342, of the Cr.P.C., which is far beyond the concept of the expression 'suddenly' as noted by the learned Additional Sessions Judge.
9. Adverting to the contention of the learned counsel for the respondent, it suffices to mention that such like technicalities cannot prevail in cases of patent illegalities.
' In view of the foregoing this petition is allowed and the impugned order is set aside, being devoid of any legal sanction. There shall be no order as to costs.