' The petitioners through this petition under section 561-A, Cr.P.C. Seek quashment of the order, dated 21-74994 passed by the learned Additional Sessions Judge, Sheikhupura whereby he accepted the revision against the acquittal of petitioners who were acquitted by the learned trial Magistrate on 26-2-1994.
2. Briefly the facts of the case are that the respondent No,1 got registered a case F.I.R. No,31, dated 17-3-1987 under section 448, P.P.C. Read with section 14 of Ordinance VI, 1979 with Police Station Manawala against Muhammad Arif, Abdul Razzaq, Muhammad Asif, Noor Muhammad, Munir Ahmad and Jamal Din. Abdul Razzaq, Munir Ahmad and Muhammad Asif mentioned in the F.I.R.
Were found innocent during the investigation.
3. After recording the evidence of the parties the learned trial Magistrate acquitted the petitioners.
Respondent No,1 Muhammad Sharif filed revision petition against the acquittal order passed by the learned Magistrate; the learned Additional Sessions Judge; accepted the revision petition vide his order, dated 30-7-1994; whereby he set aside the order of learned trial Magistrate and remanded the case to him for afresh trial by framing the charge under section 14 of Ordinance, VI of 1979.
4. I have heard the arguments of learned counsel for the petitioners as well as for the State.
5. Admittedly, Abdul Razzaq, Munir Ahmad and Muhammad Asif were found innocent and were placed in Column No,2; neither the learned trial Court summoned the above-named persons in F.I.R. Nor the complainant respondent No,1 or the prosecution moved any application for the said purpose that they should be summoned by the learned Magistrate. It is also admitted fact that the Investigating Officer submitted the final report under section 173, Cr.P.C. Only under section 448, P.P.C.; the complainant even did not agitate against the aforementioned report till the revision before the learned Additional Sessions Judge.
6. The order of learned trial Magistrate is a speaking order and is based on well-reasoning; in order to constitute judgment there must be an investigation of the merits of the case on evidence and after hearing the arguments; the prosecution evidence was closed on 9-8-1992. Neither the prosecution nor the complainant raised or agitated the pleas adopted before the learned Additional Sessions Judge, during revision; it is well-settled principle of criminal jurisprudence, where the case is heard by the Sessions Judge in revision on merits of the case; it cannot be said that irregularity on the part of learned Magistrate has occasioned a failure of justice so as to demand a new trial. It was held by the Supreme Court in case Muhammad Usman and 2 others v.
The State 1992 SCM R 489 that in an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. The same view was observed by their Lordships in case Ghulam Sikandar and another v. Mamaraz Khan and another PLD 1985 SC 11. In case in hand, the District Magistrate, Sheikhupura refused to issue certificate under section 417, Cr.P.C. For filing State appeal/revision against the order of learned Magistrate on the application of respondent Nod/complainant of case being not fit for filing of revision.
7. The order of learned trial Magistrate is a speaking order and is based on well-founded reasoning; while the order of learned Additional Sessions Judge is based on surmises and conjectures; after expiry of seven years to remand the case for fresh trial by framing a new charge is nothing but to vex the petitioners twice for the same offence. The principle for setting aside an border of acquittal are now well-settled as laid down in case Yar Muhammad and 3 others v. The State 1992 SCM R 96 that:-- "Unless the judgment of trial Court was perverse, completely illegal and on perusal of evidence no other conclusion could be made except that the accused was guilty or there had been complete misreading of evidence leading to miscarriage of justice."
8. In view of the above discussion, putting the present case to the test laid down by the abovementioned judgment; it is clear that in view of the discrepancies in evidence pointed out by the trial Court could reasonably come to the conclusion that the petitioners are not guilty. The learned Additional Sessions Judge has not given any plausible reason to set aside the order of the learned Magistrate for retrial of the case after framing a new charge.
9. For what has been discussed above, the petition is accepted; the order, dated 2-17-1994 passed by the learned Additional Sessions Judge is hereby I C quashed and the order, dated 26-2-1994 passed by the learned trial Magistrate is restored.