P L D 1976 Peshawar 123 (PLP)

GHULAM SAFDAR SHAH, C. J.‑The question which one of us (Mian Burhan‑ud‑Din, J ) has referred for the decision of this Bench is :‑ "Whether a revision petition under section 439, Cr. P. C. against acquittal filed beyond a period of 60 days from the date of the impugned order could be entertained by the High Court after compliance with Rule 17, Part A(b), Chapter 1, Vol. V of High Court Rules and Orders, Lahore."

2. The difficulty which his Lordship seems to have, while making this reference felt would be readily appreciated from the following extract from his judgment: "In a recent judgment, it was held by me, that the period of limitation for filing a revision against the order of acquittal, by practice, is sixty days and I have referred in that judgment various authorities of the Indian High Courts, pre‑Partition, and recent authorities of our High Courts, there is divergence of opinion regarding the principle laid down in Crown v. Sultan All P L D 1950 Bal. 48 and Mohammad Ghaus v. Crown P L D 1951 Bal. 70 and I have followed these authorities accepting that the period of limitation by practice is sixty days and any petition filed after this period without any application for the condonation of delay would be dismissed on this ground alone. The learned counsel now appearing for the petitioner has brought three other authorities to my notice, namely, Des Raj v. Emperor, A I R 1934 Lah. 264 Shrimati Sawitri v. Gopaldas P L D 1963 Kar. 66 and Mohammad Yusaf v. Mohammad Akhtar and 3 otheres, 1971 P Cr. L J 794 wherein different view has been taken. The question precisely now for decision is whether any revision petition filed after the period of sixty days should be admitted without any exceptional circumstances or in each petition the merits of the case are to be examined alongwith the preliminary objection regarding limitation."

3. To begin with, it may be mentioned that the case of Des Raj v. Emperor and Mohammad Yusaf v. Mohammad Akhtar and others are entirely distinguishable, having no bearing on the decision of the above question. A perusal of these judgments would show that Des Raj, in the first mentioned case, was convicted by a Magistrate of the First Class under section 18 of the Indian Press (Emergency Power) Act, 1931 and sentenced to pay a fine of Rs. 200 or in default R. I. for six months. Against his sentence, he went in appeal to the Court of Session, but his appeal was dismissed. He, therefore, filed in High Court, al‑bait after the expiry of sixty days, a revision application. But to the maintainability of it, an objection was taken. Faced with this situation, their Lordships of the Division Bench sought the assistance of Advocate‑General, who conceded that no revision application had ever been thrown out on the ground of delay as also that unlike the practice of other High Courts, which required the filing of a revision application within 60 days of the impugned order the Lahore High Court had no such practice. In the case of Mohammad Yusaf v. Mohammad Akhtar and others, the only question which had fallen for consideration was whether a revision application would, although unaccompanied by a copy of the order of District Magistrate, refusing to persuade the Provincial Government to file an acquittal appeal, be competent in view of rule 1‑A, Part A(b), Chapter I, Vol. V of High Court Rules and Orders, Lahore, which is as follows:‑ With reference to section 439(5), Criminal Procedure Code, the Deputy Registrar will not receive any petition for revision of an order of acquittal unless it is acconpanied by a copy of an order of the Magistrate of the district, refusing to move the Provincial Government to appeal under section 417, Cr. P. Code." The learned Single Judge, relying on a Full Bench judgment of his own Court in the case of Sh. Abdul Karim (P L D 1950 Lah. 439) answered the said question in negative and held that on that ground alone a revision application can be rejected. It would thus be clear that Des Raj's case was not that of acquittal. As regards the case of Mohammad Yousaf the question of delay was not there; the only question which had, in fact, fallen for consideration therein was whether a revision application would be competent even if it is not accompanied by a copy of the order of District Magistrate. Shrimati Switri v. Gopaldas and another, to which reference has been made in the referring order, is the direct authority on the point. In that case, Gopaldas was tried under section 302/34, P. P. C., but he was acquitted. Being aggrieved of the order of trial Court, the widow of deceased seems to have first moved the District Magistrate under section 417, Cr. P. Code. But when he rejected her application, she filed in High Court a revision application after the delay of eight months and nine days. The judgment would show that when the revision application came up for hearing, an objection was taken to its maintainability on the ground of delay. But the objection was repelled as follows: "Since the period of limitation for the filing of an acquittal appeal is six months, it seems to us unlikely that such a certificate could be obtained earlier than six months after the order of acquittal. An applicant, thus, filing a revision application against an order of acquittal must wait for six months before he could do so and if, as this case, a further delay of two months more occurs, it does not appear to us to be so gross as to require a rejection of such a criminal revision application." Respectfully, I wholly agree with this enunciation of legal position. In cases of acquittal, Article 157 of the Limitation Act and rule 1‑A, Part A(b), Chapter I, Vol. V of the High Court Rules and Orders, Lahore, would be applicable and so cannot be ignored. Both these provisions, and the consequent effect, which they would have in a case of revision application in the High Court, were taken into consideration in Shrimati Swaitri's case. And their Lordships had no difficulty to hold that the revision application before them, which was filed after eight months nine days, was entirely competent. Syed Parial Shah v. The State (P L D 1973 Kar. 265) is another case of which notice may be taken. In‑there, the question referred to the Division Bench for its decision was: "Whether the revision application is competent in spite of non- compliance with the provision of rule 1‑A, Part A(b), Chapter I, Vol. I of the Lahore High Court Rules and Orders." In that case, the revision application was not accompanied by a copy of the order of District Magistrate, refusing to move the Provincial Government to file an appeal. But even so, it was, in breach of the above rule of the High Court, received by the Deputy Registrar of the Court, was then put up in motion before the Bench and was admitted to hearing with notice to other side. However, when the application came up for hearing, an objection was taken to its maintainabiliry. But the objection was repelled. The view taken by their Lordships was that the Rules of High Court, which the petitioner had contravened in that case, were to be respected and, therefore; the Deputy Registrar of Court normally should not receive a revision application unless accompanied by a copy of the order of District Magistrate. Having said this, however, their Lordships laid it down that in a case of exceptional nature, the breach of the rules, which were meant to regulate the procedure of the Court, could not come in the way of High Court, to decide a revision application, in view of the unfettered jurisdiction which it has under section 439, Cr. P. Code. This case does not seem to be on all fours with the case in hand. But even so the ratio decidendi of it be relevant. If the breach of Rules of High Court in that case was, in view of section 439, Cr. P. C., held to be no ground to throw away a revision application, surely in cases of exceptional nature, the practice of High Court, even if it is said to exist, would be insufficient to reject a revision application unless of course it is found that the petitioner, was guilty of culpable negligence. Now coming to the question itself, his Lordship seems to have assumed as if the customary period of sixty days was applicable to cases of acquittal as well as those in which a finding of discharge or conviction had been recorded by the trial Court. But this is not the position. In all the cases cited before us, the impugned orders were those of conviction or discharge. Whereas the cases in hand is that of acquittal. The practice of sixty days, which in the case of a revision application against the order of conviction or discharge, has been owned by various High Courts seems to be based on sound principles. However, these cases have no relevancy to the facts of this case, which is a cane of acquittal and to which the ratio decidendi of Shrimati Swaitri's case would be applicable. The acquittal judgment in this case was recorded by learned trial Judge on 18‑6‑75; on 19‑6‑75 an application was made for obtaining a copy of the said judgment; on 5‑7‑75, the said copy was delivered to petitioner and thereafter he made an application to district Magistrate asking him to urge the 'Provincial Government to file against the acquittal judgment appeal in High Court. On 25‑10‑75, the District Magistrate rejected his application; on 27‑10‑75, he obtained a copy of his order and on 10‑11‑75, he filed revision application in High Court. It would thus be seen that the revision application in High Court was filed within less than five months of the acquittal judgment and 15 days of the order of District Magistrate. And consequently it was well within time in view of the principles laid down in Shrimati Swatri's case. Upon the facts of this case therefore, there was no occasion to refer the above question for the decision of this Bench. But since it has been referred, and the jurisdiction of this Bench being confined within the four corners of the said question, there is no option for me but to answer the question in affirmative. In this view, I would direct that the case would go to the learned Single Judge for considera tion on merit. MIAN BURRANUDDIN KHAN, J.‑I agree. S. Q. Reference answered,