1. ' Briefly stated the facts of the case are that Aftab respondent No,2 got a criminal case registered vide F.I.R. No,390 of 1999 dated 3-12-1999 under sections 423/46, P.P.C. With Police Station City Renala Khurd against Muhammad Anwar present petitioner with the allegation that the petitioner embezzled an amount of Rs,3,72,000 collected from the complainant and 20 other persons as committee. After completion of the investigation challan of the case was submitted before the trial Court in which charge was framed, evidence was being recorded when meanwhile petitioner moved an application under section 249-A, Cr.P.C. For his acquittal claiming that the case against him is of civil nature, F.I.R. Has been lodged with intention to black mail the petitioner/accused and there is nothing on record to connect him with the offence, therefore, he prayed for his acquittal.
2. The application was contested but learned trial Judge/Judicial Magistrate proceeded to allow the petition and acquitted the accused vide order dated 7-11-2000. The order was challenged by Aftab Ahmed, complainant by way of filing a criminal revision before Sessions Court which was heard by learned Additional Sessions Judge, Okara who accepted vide the impugned order dated 16-4-2001 whereby he remanded the case to proceed further in accordance with law under section 406, P.P.C.
3. Order dated 16-4-2001 has been assailed through this Constitutional petition read with section 56I- A, Cr.P.C.
4. ' Learned counsel for the petitioner contends that since the order passed under section 249-A, Cr.P.C. Was order of acquittal and was appealable tinder section 417(2)(a), Cr.P.C., therefore, the revision petition was not competent and the impugned order be declared illegal and without jurisdiction. Reliance has been placed on 1998 M LD 1605, Ghulam Muhammad v. Additional Session Judge and 3> others and PLD 1999 Kar. 130, Nazir Ahmad v. The State.
5. ' Conversely the petition has been opposed by the learned counsel for the respondent No,2 who has argued that writ petition itself against the revisional order is not competent. He has placed reliance on PLD 1993 SC 399 Badar ud Din v. Mehr Ahmad Raza, ASJ and others.
6. ' Learned counsel for the State has supported the impugned order.
7. ' I have heard the contentions raised at the Bar and perused the record.
8. ' It is correct that against judgment of acquittal appeal is competent as envisaged in section 417(2)
9. (a), Cr.P.C. Where it is provided that "a person aggrieved of any order of acquittal passed by any Court other than High Court may file within 30 days an appeal against said order" Furthermore, in section 439(v), Cr.P.C. It has been provided that where under this code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. Therefore, it leaves no doubt that complainant (respondent No,2) could file an appeal against order of acquittal but instead of appeal the respondent has chosen to prefer revision A before the Sessions Judge which was not maintainable. Therefore, the order of learned Additional Sessions Judge dated 16-4-2001 is not sustainable under the law being coram non judice.
10. ' At the same time I find that original order dated 7-11-2000 passed by the Judicial Magistrate was not legal just and proper. No doubt the trial Court has been given ample power under section 249- A, Cr.P.C. To acquit the accused at any stage which means the order of acquittal can be passed by the Court even without recording evidence provided the Court is satisfied that peculiar facts of the said case jpstify the order as laid down by Honourable Supreme Court in PLD 1993 SC 399.
11. 'After completion of the investigation, challan was submitted in the Court, the charge was framed on 12-9-2000, the complainant/ respondent No,2 produced his witnesses on many dates, but the evidence was not recorded due to adjournments sought on one pretext or the other by the accused petitioner, who subsequently moved application under section 249-A, Cr.P.C. For his acquittal. The reasons weighed with learned trial Court was that delay about 1-1/2 years in lodging the F.I.R. And the matter was of civil nature because of dispute of recovery of money between the parties.
12. 'All these questions were to be determined after recording of evidence. The charge was' already framed without any objection/challenge by the accused. The allegations in the. F.I.R. Could attract civil as well as criminal liability but the trial Court proceeded in hasty manner to acquit the accused without application of judicial mind to the circumstances of the case. The trial cannot be allowed to be terminated at its inception. Therefore, his order cannot be allowed to remain in field.
13. This Court under inherent power under section 561-A, Cr.P.C. Can strike down the said order.
14. Reliance can be placed on 1992 M LD 1989 (Hussain v. Mst. Asiat and another) and 1985 PCr.LJ 535 (Mushtaq. Hussain Shamsi v. State and others). Resultantly, I allow this petition and set aside the impugned order dated 16-4-2001 passed by learned Additional Sessions Judge, Okara being illegal and coram non judice and at the same time the order passed by Judicial Magistrate dated 7-11- 2000 which is also illegal and cannot' be maintained is also set aside and the case stands remanded to the original Court with direction to proceed with the trial in accordance with law.