P L D 1980 Lahore 201 (PLP)

This petition in revision to challenge order of acquittal resultant on the grant of consent by learned Additional Sessions Judge, Faisalabad to the withdrawal by the Additional Public Prosecutor from prosecution of the accused-respondents (1 to 3) for the offences under section 302/148/149, P. P. C. has been brought in the circumstances set out below:

2. Case for rioting with deadly weapons and for the murder of Abdul Waheed deceased said to have been committed by seven persons in furtherance of common object of an unlawful assembly was registered at Police Station Toba Tek Singh, District Faisalabad on 27th of April, 1971, under First Information Report No. 74 on a complaint in writing made by Abdul Qayyum a real brother of the deceased. The three respondents herein were found guilty while the remaining four persons named as accused in the report were held innocent during investigation by the Police. Formal challan was filed on 3rd of May, 1972, in the Court of Magistrate 1st Class, Toba Tek Singh. Eighteen witnesses were cited in the calendar of whom five were eyewitnesses. Seven witnesses including two eye-witnesses, namely Muhammad Inayat and Muhammad Tufail (P. Ws. 2/3) were examined before learned Magistrate. Both the above witnesses did not support the prosecution. Meanwhile, Criminal Procedure Code was amended and the provisions for inquiry proceedings for commitment of the accused for trial before Court of Session were deleted. Consequently, the file was sent by learned. Magistrate to the Court of Session by means of order dated 21st of February, 1976 without having completed the inquiry. Trial started before Mr. Afzal Sohail, learned Additional Sessions Judge on 19th October, 1976. Muhammad Tufail and Inayat who as said above had not supported the prosecution in their statements during the proceedings before learned Magistrate, were examined by Additional Public Prosecutor. As was expected they both again did not support the charge against the respondents. Learned Additional Public Prosecutor hastened to make statement that Abdul Qayyum informant in the case who was also an eye-witness had passed away. Inayat and Muhammad Tufail do not support the prosecution. There was no further evidence to connect the respondents with the offences alleged against them and requested for permission to withdraw from the prosecution of the case under section 494, Cr. P. C. This statement implied that further proceedings in the case will not be only inexpedient but an exercise in futility. Learned Additional Sessions Judge agreed with the learned Additional Public Prosecutor that there was no evidence with the prosecution to establish the charge against the respondents. Consequently, Additional Public Prosecutor was permitted to withdraw from the prosecution of the offences against the respondents with the result ,that the respondents were acquitted. Precisely, learned Additional Sessions Judge made the following observations in the concluding para. of the impugned order: "I have gone through the record of the case and have come to the conclusion that there is no evidence with the State to prove charge against the present accused. The prayer of learned A. P. P. is quite genuine. He is allowed to withdraw from the prosecution of this case under section 494, Cr. P. C. The accused are thus acquitted by giving them the benefit of doubt." The observation that the accused are given the benefit of doubt is not merely expressed loosely but also a redundant surplus age.

3. This revisional application was filed on 25th of February, 1979, by Iftikhar Ahmad a real brother of the deceased. To explain this inordinately long delay in filing the petition, it was contended that Abdul Qayyum the first informant in the case was also done to death some time after the incident subject-matter of charge against respondents. The family of the deceased was not aware of fixation of the case as no notice was sent to Abdul Qayyum. They had received intimation of fixation of trial of the other case in respect of murder of Abdul Qayyum. Inquiries made about this case revealed that Additional Public Prosecutor was granted permission by learned Additional Sessions Judge to withdraw from the prosecution of the case and the respondents were acquitted. On merits it was contended that the permission for withdrawal from the prosecution was obtained by learned Additional Public Prosecutor through a wilful misstatement. Besides Abdul Qayyum informant since deceased, Muhammad Tufail and Inayat, Muhammad son of Allah Yar and Daulat were also cited as eye-witnesses. They both had not been examined during inquiry proceedings which were dropped in consequence of amendment in law. There was nothing whatever to suggest that these two witnesses also did not support the prosecution. It was, therefore, wrong to say that there was no further evidence in the hands of prosecution. to establish the charge against the respondents.

4. Having not much to say on merits, learned counsel for the respondents maintained that in the first place revision petition was liable to be dismissed on the ground of laches. Secondly, order of acquittal in consequence of withdrawal of the Additional Public Prosecutor from the prosecution of the case with consent of the Court under section 494, Cr. P. C. could not be challenged in revision under section 435/439, Cr. P. C. With respect, both these contentions do not have a serious merit in them. No limitation for filing revisional application under section 439, Cr. P. C. was prescribed by law Ordinarily, petition filed long after the impugned order is not entertains but this is not an inflexible rule of universal application and could b departed from in exceptional circumstances governing a particular case The question whether or not delay in filing the petition be ignored has to b determined with reference to the consequences entailing the impugned order .Delay in filing the petition which is not strictly relevant in criminal revision as in the case of civil appeals should be ignored when the order of lower Court allows the accused to escape trial or had otherwise caused miscarriage of justice. Discretionary jurisdiction of revision to undo injustice should not be withheld on technical considerations. The question if criminal revisions should always be rejected off hand merely on ground of delay was considered by a Division Bench of this Court in Des Raj v. Emperor (1). It was held that so far as Lahore High Court is concerned, there is no rule of practice that criminal revisions filed after the expiry of sixty or ninety days must be rejected simply on the ground of delay and laches. The discretion of the Judge is unfettered. He may take into consideration the factor of delay for disposing of the application but that factor cannot be treated as the sole determining element and the case will have to be decided on its general merits. The statement of law made in an earlier Single Bench case Surta Singh v. Emperor (2), that the considerations which apply to a civil appeal filed beyond limitation were irrelevant in a criminal revision was endorsed. One of the learned Judges comprising the Division Bench in Des Raj's case who dealt with the question of effect of delay in comparatively more elaborate details observed that it has always been understood that the Legislature not having prescribed any definite period of limitation for institution of revision petitions, it is not permissible to the Court to fix a more or less inflexible time limit by judicial decision or administrative instructions. In the exercise of its revisional jurisdiction under section 439, Cr. P. C. High Court can act suo motu or on a petition presented by a person other than the party who is actually aggrieved by the order in question. This being so, it is not easy to see how an arbitrary time limit can be fixed by a mere rule of practice and enforced rigorously, as if it were a statutory provision. This would really be usurping the functions of the Legislature and might in some cases result in depriving the High Court of its undoubted power to remedy gross injustice or set right a patent and palpable illegality, simply because the Court was not moved by or on behalf of the aggrieved person within a certain period not fixed by the State, but artificially created by so-called "rule of practice". The contention that delay in filing the petition was in itself sufficient t throw out the petition off hand regardless of the consideration if the, impugned order had caused gross miscarriage of justice cannot be accepted.

5. The next contention that High Court could not set aside in revision order granting permission to the Public Prosecutor to withdraw from the prosecution which was sought to be supported by an old judgment of Madras High Court In re: Sadayon (3) also could not be sustained. In that case the question of competency of revisional application against order of grant of consent to the withdrawal from the prosecution under section 494, Criminal Procedure Code was not discussed at length. It was remarked in passing, as I say so with the profoundest regards, that no case was cited before the learned Judges in which the said High Court had on revision se aside such orders. The giving of consent by the trial Court to the withdrawal of prosecution is a judicial act and would attract applicability of correction by the High Court under section 439, Cr. P. C. The order may be set aside if the permission was improperly given. It was so held in Ranjha an another v. Emperor (1). Supreme Court also took the same view in Mir Hassan v. Tarig Saeed (2), with reference to a number of judgments cited therein that order of acquittal or discharge passed under section 494 consequent on the withdrawal of the Public Prosecutor from the prosecution of any person with the consent of the Court is a judicial order and is liable to revision by the High Court if the discretion vesting in the Court to give consent has been improperly or arbitrarily exercised. (1) (1934) 35 Cr. L J 1447 (2) A I R 1920 Lab. 241

6. It was next argued that the petition was incompetent and could not be heard on merits as it was filed without having first, moved the Provincial Government for filing appeal against acquittal. A bare reference to the case : Syed Parial Shah v. State and others (3), should suffice to reject this contention. Learned counsel also contended that ordinarily High Court should not order retrial if the Government is not interested to challenge the order of acquittal by an appeal under section 417, Criminal Procedure Code. Interference by the High Court sitting in revision for order for retrial of the case will be justified only if the order of the trial Court was contrary to fundamental rules of procedure. Reliance was placed on the judgments In re : Sheikh Abdul Kareem, Advocate (4), Abdul Rashid Khundkar v. Chandu Matbar and others (5), Feroze Khan v. Ghulam Nabi (6), Khan Jana v. Said Fayir and another (7) and lastly Mst. Bazurg Bibi v. Abdul Rashid and others (8). I fail to appreciate how these cases could avail of the respondents. In all those cases acquittal of the accused was ordered after a fulfledged trial while in this case learned Additional Sessions Judge had credulously accepted the statement of Public Prosecutor which was factually incorrect. Learned Additional Sessions Judge was wrong in saying that he had consulted the record. He should have come to a different view if he had cared to look up the calendar of witnesses which also included names of Muhammad son of Allah Yar and Daulat as witnesses of occurrence. Before according permission to the Public Prosecutor to withdraw from the prosecution, Court is obliged to satisfy itself that grounds to sustain the reason advanced by the Public Prosecutor for withdrawal from the prosecution existed on the record. It was held in the above-cited precedent cases that retrial can be ordered if the case is of a singularly exceptional character or a grave and irremediable injustice had been done or non-interference would involve endorsement of a patently unfair order or one which .leads to miscarriage of justice. The governing consideration must always be whether in relation to the proved facts and circumstances justice had been done in accordance with law. This is eminently a fit case for interference in exercise of revisional jurisdiction or a serious miscarriage of justice resulting from a thoughtless order of learned Additional Sessions Judge will be perpetuated. Lastly, it was urged that order directing retrial of the case after more than 8-1/2 years of the occurrence will not be in furtherance of interest of administration of justice. This contention also does not take the respondents any far. The principle that time is the essence for the competency of a criminal prosecution could not be accepted as of universal application. Delay does not raise any equity in favour of an accused as it does in civil trial. [M. S. Khwaja v.) State (1)]. (1) A I R 1948 Lab. 74 (2) P L D 1977 S C 451 (3) P L D 1973 Kar. 265 (4) P L D 1950 Lab. 439 (5) P L D 1964 S C 795 (6) P L D 1966 S C 424 (7) P L D 1966 Posh. 35 (8)1968 P Cr. L J 342

8. In the result, the petition is accepted and order of learned Additional Sessions Judge granting the Additional Public Prosecutor permission to withdraw from the prosecution as a result of which the respondents were acquitted of the charge is set aside. File be sent down for re-trial of the case before Mr. Ehsan-ul-Haq Balbi, Additional Sessions Judge, Faisalabad, successor-in-office of Mr. Afzal Sohail. The respondents shall be summoned from jail for fixation of date of evidence during last week of January, 1980, even at the risk of dislocation of the schedule of work already fixed before learned Additional Sessions Judge. Preferably, Muhammad and Daulat, the remaining two eye-witnesses in the case shall be examined on the first day of hearing. In case they also do not support the prosecution, the question if further proceedings should continue can be decided by learned Additional Sessions Judge under section 265/x, Cr. P. C. Final judgment shall be pronounced by third week of February, 1980.

9. Perusal of the file reveals that Abdul Majeed respondent (1), was admitted to bail by this Court on 29-1-1974 (Cr. Misc. No. 4735-B-1973). Bail bond of Saeed Ahmed attested by Mr. Akhtar Joseph, Magistrate Section 30 on 5-6-1972 also exists on record (page 33 of the file). This order of retrial does not .deprive the said two accused of the benefit of the orders releasing them on bail, and they shall continue on bail during this trial also. M. A. K Revision accepted. Case remanded. (1)PLD 1966SC287