MUHAMMAD AFZAL SOOMRO, J. - By this appeal, the appellant, Syed Aijaz Ali, through his counsel, has called in question the legality of the order dated 22.6.2000 passed by the learned IIIrd Additional Sessions Judge, Karachi Central, under Section 265-K, Cr.P.C.
2. The brief history of the prosecution case is that on 8.2.2000 at 9.30 p.m. Complainant Syed Aijaz Ali appeared at Rizvia Society Police Station and lodged an FIR alleging, inter alia, that he used to live on the address, mentioned in the FIR, along with his parents. He was Taxi Driver by profession.
One Maria used to live in the Mohallah to whom the complainant had friendship. The parents of Maria when came to know about her affair with the complainant they shifted her to Waheedabad.
On 8.2.2000 at 5.40 p.m. As the complainant had gone to a Medical Store in order to buy medicines and after buying the same when he was coming back, Nannay's son namely Rashid followed him and touched him with his motorcycle. Thereafter, he threw acid on his face which he was carrying in his hands in a plastic bag.. The FIR further goes to show that thereafter he escaped. The face, eyes and hands of the complainant were burnt and he fell down. Somebody informed the family of the complainant and thereafter his father came at the place of wardat and took him to Abbasi Shaheed Hospital for first aid.
3. The investigation followed and in due course the case was sent up to stand trial in the Court of learned IIIrd Additional Sessions Judge, Karachi Central.
4. During the pendency of the case, an application under Section 498, Cr.P.C, for pre-arrest bail was moved on behalf of accused Shahid AN in the Court of learned Sessions Judge Karachi Central who by an order dated 18.5.2000 dismissed the same on the grounds that the accused was absconder and secondly that the applicant/accused, Shahid AN, was unable to make out a case for bail in the light of Supreme Court decisions regarding mala fides. After dismissal of the said application before the learned Sessions Judge, Karachi Central, accused, Shahid AN approached this Court and was granted interim pre-arrest bail vide order dated 26.6.^000 which, later on, was recalled and the application for pre-arrest bail was dismissed by this Court on 3.7.2000. During the pendency of such- bail application before this Court, accused, Shahid AN, filed another application under Section 498, Cr.P.C, in the Trial Court i.e. In the Court of learned IIIrd Additional Sessions Judge, Karachi Central, for bail in anticipation of his arrest and the learned Trial Judge, by an order dated 22.6.2000, instead of disposing of an application under Section 498, Cr.P.C., acquitted the accused under Section 265-K, Cr.P.C.
5. As against the order of acquittal passed under Section 265-K, Cr.P.C., appellant/complainant, Syed Aijaz AN, has filed this Cr. Acquittal Appeal, bearing No. 118/2001, questioning the legality of the said order.
6. I have heard the learned counsel for the respective parties, lt has been contended by the learned counsel for the appellant/complainant that the learned Trial Judge had fallen in error in acquitting the respondent No. 1/accused under Section 265-K, Cr.P.C, in as much as he instead of deciding an application made under Section 498, Cr.P.C., acquitted the accused under Section 265-K, Cr.P.C, lt has, further, been contended by the learned counsel for the appellant that the fact regarding the pendency of bail application in this Court was suppressed by the Trial Court. According to him, learned Trial Judge has not dilated upon the merits of the case but has passed an order in undue haste. Learned counsel for the appellant has referred to the cases of Rasab and another v. The State (1983 SCM R 1018) and The State v. Sabro, etc., (NLR 1 993 Cr. 367).
7. On the other hand, it has been contended by the leamed counsel for respondent No. 1, Shahid Ali, that this appeal is hopelessly time-barred in as much as the order of acquittal under Section 265- K, Cr.P.C, was passed on 22.6.2000 whereas the appeal was filed on 6.6.2001 which is nearly after one year and no satisfactory explanation is forthcoming, lt has, further, been contended by him that the appellant came to know about the decision of this case regarding acquittal under Section, 265-K, Cr.P.C., on 13.1.2001 but yet instead of filing appeal he kept mum for about six months, lt has, also, been contended that as against the order under Section 265-K, Cr.P.C., a Revision under Sections 435, and 439, Cr.P.C, could have been preferred or in the alternate an application under Section 561-A, Cr.P.C, could have been resorted but instead of adopting such legal course, he has gone on the beaten tracks and preferred to make an appeal under Section 417-A, Cr.P.C., which has no legal sanctity, lt has also been contended by the learned counsel for respondent No. 1 /accused that the explanation given in the application, filed under Section 5 of the Limitation Act, is not satisfactory. He has relied upon the cases of Rehmatullah v. Muhammad Ikram and others (1999 M LD 1622), Haji Muhammad Ashraf v. The State (1999 M LD 330), Government of the Punjab v.
Muhammad Sale (PLD 1995 SC 396) and Shamman and others v. The State (1985 SCMR 216) in support of his contentions.
8. Learned counsel appearing on behalf of State/respondent No. 2 does not support this appeal and contends that the case may be remanded back to the Trial Court who shall proceed with the matter afresh according to law.
I have given my anxious consideration to the arguments advanced by the learned counsel for the respective parties and perused the record. The perusal of the order dated 22.6.2000, shows that on the application made under Section 498, Cr.P.C., the learned Trial Judge i.e. Learned IIIrd Additional Sessions Judge, Karachi Central, was not supposed to pass an order under Section 265-K, Cr.P.C, as the same was not within his domain or competence, lt was the bounden duty of the learned Trial Judge to confine himself to the prayer made in the application filed under Section 498, Cr.P.C., which was for the purpose of bail before arrest, lt appears that the learned Trial Judge has traveled beyond his scope and jurisdiction and passed an impugned order in violation of the principle as laid down under Section 498, Cr.P.C. Besides, this appeal is hopelessly time-barred, being filed nearly after one year and no satisfactory explanation is forth coming, ln the case of Noor Hussain v.
Muhammad Sale (1985 SCM R 893) the Hon'ble Supreme Court declined to condone the delay of even one day in a case where an order of acquittal was passed.
9. As observed earlier, this appeal under Section 417-A, Cr.P.C, is also not maintainable in as much as the same should have been filed after the pronouncement of the judgment which is not the case here. The order passed by the learned Trial Judge, was in violation of principle laid down in Section 498, Cr.P.C., was an interlocutory order and against such order a Revision application under Sections 435 and 439, Cr.P.C., could have been filed. Reference is made to the case of Muhammad Yaseen v. Muhammad Hanif (1997 P.Cr.L.J. 1626).
Ln the case of The State v. Sabro, etc. (NLR 1993 Cr. 367) it has been held that: "As regards merits it may be seen that absolutely no proceedings were drawn by the Trial Court subsequent to framing of charge. Besides, without making any progress subsequent to framing charge, suo motu action in purported exercise of powers under Section 265-K was unwarranted and apparently arbitrary. Since allegations made in the complaint and challan prima facie suggest, an attempt for smuggling Pakistani Currency therefore, to ascertain correct factual position it was obligatory for Trial Court to record prosecution evidence. The action taken by learned Special Judge, Customs in throttling the evidence on basing of its conclusions on assumption is not borne from record, apart from being unlawful has result in serious prejudice to prosecution. From the above discussion I am inclined to observe that acquittal through impugned judgment is repugnant to established procedure regarding trial of cases, and spirit of law.
10. Ln view of the principle laid in the above case, this appeal against the order of acquittal dated 26.6.2000 is converted into revision application which is allowed and the order passed by the learned IIIrd Additional Sessions Judge, Karachi Central is set aside who is directed to proceed with the to law. With this observation, Cr. Acq. Appeal No. 118/2001 stands disposed of.
Copy of this order may be sent to Member Inspection Team of this Court who is directed to look into the matter administratively and if necessary make Reference to the Hon'ble Chief Justice for appropriate action, lt is further directed that action, if any, taken be intimated.
To come-up on a date in the second week of January, 2002.