Law: Criminal Procedure Code, 1898

Section: 417

Criminal Procedure Code (.V of 1898) S. 417-Appeal against acquittal-Trial Court committing glaring irregularities of procedure prescribed for trial and acquitting accused/respondent on grounds of Pick and choose' policy of prosecution-Reasoning of trial Court, held, not tenable though it may be a mitigating circumstance in awarding sentence to a per son if commission of offence stands proved against him-Trial Court having not taken evidence of prosecution, order of trial Court, held, vitiated and case remanded to trial Court for retrial according to law.-[Appeal against acquittal-Remand of case-Mitigating circumstance]. Date of institution : 2nd September, 1.979.,                                                                                                        JUDGMENT SARDAR MUHAMMAD SHARIF KHAN, J.-This is an appeal by the Government against an order of acquittal dated 4-7-1979 passed by the Revenue Asstt. Magistrate 1st Class, Muzaffarabad. The accused-respondent was brought before Court of Revenue Assistant Magistrate 1st Class, M'abad under section 26 of the civil Defence Act for violation of an order of the Govt. under which no person could construct any building, house, shop or other structure within 55 ft. on either side from the middle of Kobala-Muzaffarabad-Chinari Road. His statement was recorded under section 242, Cr. P. C. by the trial Court. After recording of the plea of the accused-respondent, the Magistrate proceeded to inspect the spot which inspection of the scene was duly made by him but on his return from the spot to the Court. without recording the evidence of the prosecution, be let the accused off, remarking .that near the spot inspected there were a number of shops built on .t the road side by other persons but they were not hauled up whereas the accused-respondent who had just started to lay foundation, was caught by the Police. This pick and choose' policy was…