' This is a Criminal Acquittal Appeal filed under section 417(2)(a) of the Criminal Procedure Code, 1898 (Cr.P.C.) by the complainant against the order dated 27-2-1998 passed by learned IInd Additional District and Sessions Judge, Hyderabad in Sessions Case No,11 of 1989 (The State v.
Muhammad Yaqub), whereby an application filed by the accused (now respondent No,1) under section 265-K, Cr.P.C. Was granted and he was acquitted of the charge.
2. On 14-9-1998, when this appeal was fixed for Katcha Peshi, learned A.A.-G., who was appearing on Court notice, raised the following objections:-- "Learned A.A.-G. Has raised objection that the appellant has filed this appeal under section 417, Cr.P.C. Against an order passed by the learned Additional Sessions Judge, Hyderabad under section 265-K, Cr.P.C. And that no criminal acquittal appeal is maintainable against such order.
Reliance is placed on the case of Muhammad Yasin v. Muhammad Hanif and others 1997 PCr.LJ 1626. Mr. Umer Din Qureshi requests for time to satisfy the Court on this point... ..."
3. I have heard Mr. Umer Din Qureshi, Advocate for appellant who argued that in view of subsection
(S) to section 439, Cr.P.C. This appeal is maintainable. He has placed reliance on the case Ghulam Muhammad v. Additional Sessions Judge and 3 others 1998 M LD 1605. When Mr. Mian Khan Malik, A.A.-G. Was confronted with this reported case, he still argued that it will be revision which shall lie against an order passed under section 265-K, Cr.P.C. By a Sessions Court acquitting the accused. I am of the considered view that this is not the correct proposition of law. Learned Additional Advocate-General, Sindh is not aware of the consistent view being followed by this Court. In the case of Ghulam Muhammad (ibid), reference was made to the two cases, namely, Nasir Khan and'another v. The State 1991 PCr.LJ 19 and Abdul Majeed and 4 others v. Messrs H. Ghulam Muhammad and Brothers Ltd. And another 1995 PCr.L1 1369 which were authored by the two learned Judges of this Court. In the Nasir Khan (supra), it was held by Qaiser Ahmed Hamidi, J. (as he then was) that against an order of acquittal recorded under section 247, Cr.P.C. The remedy available is under section 417(2), Cr.P.C. And that a revision under section 439, Cr.P.C. Before the Court of Session was incompetent. It was further held that the Court of revision will not interfere under section 439 or 439-A, Cr.P.C. In cases where an appeal was open to the party concerned.
Reference was made to the cases Jumo Wali Muhammad v. Emperor (AIR 1914 Sindh 139; Emperor v.
Jam Fakir AIR 1922 Sindh 22; State v. Alakh Narain Singh and others AIR 1954 Pat. 161; State v. Abrar Hussain Shah and another PLD 1962 Kar.753; Qamrul Islam v. The State and another 1981 PCr.LJ 586 and Khair Shah and 4 others v. Hyder Shah and another PLD 1982 Kar.
128.
4. The above view of Qaiser Ahmed Hamidi, J. (as he then was) was followed by my learned brother Ali Muhammad Baloch, J., in the case of Abdul Majeed (supra) where a criminal revision was filed against the order of Sessions Judge allowing the revision filed against an order of acquittal which was set aside by the Sessions Judge and the matter was remanded for retrial. It was held, inter alia, that where the remedy of appeal under section 417, Cr.P.C. Is not availed, the provisions of section 439, Cr.P.C. Would not be available to an aggrieved party who is not satisfied with the order of acquittal.
5. It will be seen that the words used in section 265-K, Cr.P.C. Indicate that an accused shall be entitled for an acquittal at any stage of the case, if after hearing the prosecutor and the accused and for the reasons to be recorded a Court of Session considers that there is no probability of the accused being convicted of any offence. More or less, the same intention is expressed in section 249-A, Cr.P.C. which is applicable before the Magistrates in trial of summons cases. Thus, if an accused person is acquitted either under section 249-A, Cr.P.C. Or 265-K, Cr.P.C. It is an order of acquittal and if any party is aggrieved, the remedy available is under section 417, Cr.P.C. Then it was argued by Mr. Mian Khan Malik, A.A.-G., that if the Court comes to conclusion that there was no sufficient material, it will not be fair to convict an accused person on incomplete evidence. It appears that the learned A.A.-G., perhaps is not aware of the provisions of section 423(1)(a), Cr.P.C.
Which defines powers of Appellate Court while hearing an appeal under section 411-A or 417(2), Cr.P.C. Following are the relevant portions of section 423, Cr. P.C. : "423. Powers of Appellate Court in disposing of appeal.--(1) The Appellate Court shall then send for the record of the case, if such record is not already in Court. After perusing such record, and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and, in case of an appeal under section 411-A, subsection (2) or section 417, the accused, if he appears, Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may--
(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or sent for trial to the Court of Session or the High Court, as the case may be, or find him guilty and pass sentence on him according to law; (b)
(c) in appeal from any other order, alter or reverse such order;
(d) make any amendment or any consequential or incidental order that may be just or proper."
6. The provisions of section 423, Cr.P.C. Clearly show that the Appellate Court has ample power while dealing with an order of acquittal. The Appellate Court can reverse an order of acquittal and direct that further inquiry be made or that the accused be retried or sent for trial to the Court of Session or the High Court, as the case may be, or find him guilty and pass sentence on him according to law. In the instant case, respondent No,1 was acquitted in the midst of recording of evidence. It is not denied that the prosecution evidence was concluded. In such circumstances, if this Court at a later stage of trial, comes to a conclusion that there was sufficient material connecting respondent No,1 with the alleged offence, it could always set aside the impugned order and may remand the case for retrial, but, such a stage has not come, as, for present, I am dealing with the legal preliminary objections raised by the learned A.A.-G., on the maintainability of this acquittal appeal. This exercise was undertaking simply for the reason that the learned A.A.-G., without going through the relevant provisions of law and the judicial precedents, raised a preliminary legal objection which had no legal basis. Such conduct is highly regrettable.
7. As a result of the above discussion, the objection raised by learned A.A.-G. Stands overruled. Now, the matter will be fixed for Katcha Peshi.
Objection overruled.