P L D 1973 Karachi 265 (PLP)

9. Section 439, Cr. P. C. which deals with revisional powers of the High Court reads as follows; "(1) In the case of any proceedings the record of which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the power, conferred on a Court of Appeal by sections 423, 426, 427 and 428, or on a Court by section 338, and may enhance the sentence and, when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in manner provided by section 429. (2) No order under this section shall be made to the prejudice of the accused unless he had bad an opportunity of being heard either personally or by pleader in his own defence. (3) Where the sentence dealt with under this section has been passed by a Magistrate acting otherwise than under section 34, the Court shall not inflict a greater punishment for the offence which, in the opinion of such Court, the accused has "commit ted, than might have been inflicted for such offence by Magis trate of the First Class. (4) Nothing in this section applies to an entry made under section 273, or shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction. (5) 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. (6) Notwithstanding anything contained in this section, any, convicted person to whom an opportunity has been given under subsection (2) for showing cause why his sentence should not be enhanced shall, in showing cause, be entitled also to show cause against his conviction."

10. It would thus be seen that the High Court has power to revise any proceedings‑ (i) the record of which has been called for by itself, or (ii) which has been reported for orders, or (iii) which otherwise comes to its knowledge. Once the matter comes to the knowledge of the High Court then whatever be the method adopted in bringing the matter to its notice, the High Court has unfettered powers to pass any order subject only to the restrictions mentioned in subsections (2), (3), (4) and (5).

11. In Chunbidya and others v. Emperor (AIR 1935 P C 35) this position was clarified further by their Lordships of the Privy Council in the following words :‑

"The powers relating to appeals under section

423. Criminal P. C. are given to the Appellate Court and the Appellate Court may include a Court subordinate to the High Court, and the Appellate Court as such has no power to enhance a sentence. On the other hand, the powers of revision are given to the High Court alone, and the powers of revision are given to the High Court, in the case of any proceeding, the record of which has been called for by itself or which has been reported for orders or‑ which otherwise comes to its knowledge. Hence when the High Court has before it on appeal a record of a criminal proceeding, the condition precedent is performed and the High Court can then, though the record has only come to Its know ledge in the Appellate proceedings, proceed to exercise its revision powers if it chooses to do so."

12. In a later authority of the Privy Council reported as Mohindar Singh and another v. The King ((1950) 51 Cr. L J 1483) it was held by their Lordships that even where the record of a case is received by the High Court in an appeal which is incompetent, the case never theless "comes to the knowledge of the High Court" within the meaning of section 439, Cr. P. C.

13. We may also refer in this connection to a Full Bench case of the Lahore High Court reported as In re : Sh. Abdul Kareem (P L D 1950 Lah. 439). The question involved in that case was whether a legal practitioner who accepts a brief with the knowledge that a revision petition against an order of acquittal could not be received by the Deputy Registrar unless rule 1‑A. Part A(b), Chapter 1, Volume V of the Lahore High Court Rules and Orders was complied with, would be guilty of professional misconduct if he does not inform the client of the correct position. Munir, C. J. who delivered the judgment in that case, however, had earlier entertained the revision petition thus filed without compliance with the relevant rule and dismissed the same on the ground that it was belated, While explaining this earlier order his Lordship observed as follows ;‑ "What I meant by this order was that by reason of the appeal by Government having become time‑barred, it had become impossible for the petitioner to comply with the rule, according to which no such petition could be accepted by the office unless it was accompanied by a copy of the District Magistrate's order, and that, therefore, the petition by this long delay had become incompetent and I myself saw no reason to, interfere ex debito justitiae." It would thus be seen that even in this case the power of the High Court to interfere suo motu in such case was clearly recognized.

14. In Crown v. Ismail (P L D 1956 B J 24), a Division Bench of our High. Court consisting of Shabir Ahmed and C. M. Sharif, JJ. acting suo molu ordered retrial of four out of seven accused, who had all been acquitted by the Sessions Judge as the Government appeal under section 417, Cr. P. C. had been filed beyond the prescribed period of limitation Their Lordships relied on the following observations of Tek Chand, J. in Pars Ram v. Emperor (A I R 1931 Lah. 145):‑ In applying section 439, however, it is necessary to bear in, mind that the powers of this Court under that section, wide though they are, are purely discretionary and must be exercised not as a matter of course, but only to further the ends of justice. It is not every irregularity or error committed by a subordinate Court which the revisional Court will take upon itself to set right. Indeed it frequently stays its hands, if it thinks that substantial justice has been done in the case. But where the Court is satisfied that a serious miscarriage of justice has taken place, it undoubtedly possesses unfettered power to pass such orders as it in its discretion, thinks fit to do, even though the aggrieved person could have taken the matter to as appellate Court and has failed to do so. It is obvious that in a matter like this it is not possible to lay down a hard and fast rule and the decision in each case must depend on its own peculiar circumstances. It is, however, clear that there is no warrant for the proposition that the omission of a convict to appeal is by itself sufficient in law, or as a matter of well‑established practice to debar this Court from examining the record suo motu or on a reference by a Sessions Judge, or at the instance of a "Third party, and from passing such orders as it thinks. appropriate" ; and went on to hold that under section 439(1), the High Court was fully competent to go through the record of the case on its own motion and pass any orders which seemed just and proper under the circumstances of that case because there were no words of qualification to subsection (1) itself as might be under stood to limit the jurisdiction of the High Court.

15. The views expressed in the case of Pars Ram v. Emperor were also cited with approval by Waheeduddin Ahmed, J. (as he then was) in the case of Sarwar v. The State (P L D 1959 Lah. 50), wherein the learned Judge while dealing with an appeal from jail which was filed after a period of 237 days and was not even accompanied by an application under section 5 of the Limitation Act for condonation of delay, treated the same as a revision petition and set aside the petitioner's conviction and sentence. While dealing with the powers of the High Court under section 439, Cr. P. C. his Lord ship observed as follows :‑ "The powers of the High Court under sections 435 and 439, Criminal Procedure Code are very wide and if any matter comes to their notice in which illegality has been committed, the High Court has ample power to interfere under this provision of law to prevent injustice in spite of the fact that an appeal lies and has not been bled within limitation."

16. There is also another aspect of the case to be looked into, namely whether the Revision Petition has been already admitted by the Court to regular hearing. In Shah Zilur Rahman v. The State (P L D 1959 Dacca 192), the question referred to the Full Bench was whether a Revision Petition filed direct In the High Court, without moving the Sessions Court in the first instance for making a reference under section 438, Cr. P. C. was maintainable. After a consideration of the relevant authorities including a Full Bench case of the Allahabad High Court reported as Shallabala Devi v. Emperor (A I R 1933 All. 678), their Lordships held that normally from a decision of a Magistrate the Sessions Judge must be moved in revision and a revision application direct to the High Court is not ordinarily entertainable. As, however, the petitions were already admitted and were pending in the High Court their Lordships ordered that notwithstanding the fact that these had been filed direct without first approaching the Sessions Court, the same had to be disposed of by the High Court on merits.

17. In the case before us although the revision petition was filed without complying with the relevant rule, it was nevertheless not only entertained by the office and put up before the Court for orders, but was actually admitted by the Court to a regular heating by its order dated 13‑3‑1967. We have, accordingly, no a hesitation in answering the first question in the affirmative and we hold that the revision petition is competent in spite of non compliance with rule 1‑A, Part A(b), Chapter 1, Volume V of the Lahore High Court Rules and Orders. Moreover, as the petition has been already admitted and thereby the case has come to the knowledge of the Court it has to be disposed of on merits.

18. We would, however, like to make it clear that in entertaining such revision petitions against orders of acquittal, the Deputy Registrar and the office of the Court is bound to Rules and Orders of the High Court and that it would be only in exceptional cases that the Court would exercise its power sun motu if the relevant rule has not been complied with by the petitioner. It is hardly necessary to emphasize that if exceptions are continually added to the rule, the rule itself would be nullified thereby leading to uncertainty.

19. In view of our answer to the first question being in the affirmative, the parties before us agree, that it is not necessary for us to consider the second question.

20. The reference is answered accordingly. K. B. A. Reference answered.