KARAM ALI SHAH vs MAZHAR HUSSAIN And Other
This petition for leave to appeal arises out of an order passed by the Lahore High Court under section 561-A of the Code of Criminal Procedure 1898, whereby the High Court set aside an order of acquittal passed by an Illaqa Magistrate under section 249-A of the Code of Criminal Procedure 1898 and remanded the case for trial. The core legal question for consideration is whether resort can be made to section 561-A of the Code of Criminal Procedure 1898 for setting aside an order of acquittal passed under section 249-A when a specific remedy against acquittal is provided under section 417 of the Code. Granting leave to appeal, the Supreme Court noted the contention that the inherent powers under section 561-A cannot be invoked where an express remedy is available under the Code, and directed the appeal to be readied for an early hearing while continuing the interim order.
- Whether resort is possible to section 561-A of the Code of Criminal Procedure 1898 for setting aside an order of acquittal passed by a Magistrate under section 249-A of the Code?
- Can the inherent jurisdiction of the High Court under section 561-A of the Code of Criminal Procedure 1898 be availed of when another express remedy is provided by the Code?
- Section 419, Pakistan Penal Code 1860
- Section 420, Pakistan Penal Code 1860
- Section 467, Pakistan Penal Code 1860
- Section 82, Registration Act 1908
- Section 249-A, Code of Criminal Procedure 1898
- Section 561-A, Code of Criminal Procedure 1898
- Section 417, Code of Criminal Procedure 1898
- Section 423(1)(a), Code of Criminal Procedure 1898
ORDER
NASIM HASAN SHAH, J.--A case was registered against the petitioners and some others under sections 419, 420 and 467, P.P.C and section 82 of Registration Act. During the course of the trial he moved a petition under section 249-A, Cr.P.C. In the Court of Illaqa Magistrate seeking acquittal: This was accepted and the petitioner was acquitted by the Illaqa Magistrate: vide order, dated 4- 3-1981.
2. Feeling dissatisfied. Respondent No. l filed a petition under section 561-A, Cr.P.C. In the Lahore High Court for quashment of this order. This was accepted on 24-3-1985 by a learned Single Judge of the said Court and the case remanded back for trial "in accordance with law". The legality of the order passed by the Lahore High Court, dated '24-3-1985 is assailed by this petition for leave to appeal.
3. The main question requiring consideration is whether resort is, possible to section 561-A of the Criminal Procedure Code for setting aside an order of acquittal passed by a Magistrate exercising the jurisdiction under section 249-A, Cr.P.C.
4. The contention of Mr. Aitzaz Ahsan, learned counsel for the petitioner which is also supported by Mr. Tanvir Ahmad, Additional Advocate-General (who was summoned to assist this Court) is that where a specific provision has been made in the Criminal Procedure) Code for challenging an order of acquittal viz. Section 417, Cr.P.C. The order of acquittal can be set aside only by recourse to the said provision read with and the provisions of section 423(1)(a). The jurisdiction of the High Court under section 561-A of the Criminal Procedure Code can be availed of only where there is no other express remedy provided by the Code of Criminal Procedure and not otherwise. Since another express remedy .Is provided by the Code for setting aside an order of acquittal, resort to the inherent powers of the Court under section 561-A is not possible.
5. This- contention requires further consideration. Leave to appeal is granted.
6. The appeal shall be made ready on the present record with liberty to the parties to add further documents, for hearing on a very early date. Meanwhile, the interim order, dated 6-5-1985 to continue.