P D 1998 Quetta 32 (PLP)

In the instant petition under section 561-A, Cr.P.C. the quashment of judgment dated 25-6-1997 passed by the Additional Sessions Judge-1, Quetta has been sought for whereby the learned Court in exercise of revisional jurisdiction under section 439-A, Cr.P.C. converted the acquittal order passed in favour of the petitioner into that of conviction.

2. The petitioner was acquitted of the charge under section 427/447/448, P.P.C. in Crime No. 162 of 1995 registered on the report of the respondent No. 2 vide order dated 21-10-1996 passed by the learned Judicial Magistrate-II, Quetta.

3. The respondent No.2 filed revision petition on 20-11-1996 against the order of acquittal in the Court of Sessions Judge, Quetta which was sent to the file of the learned Additional Sessions Judge-I, Quetta (registered as Criminal Revision No. 14 of 1996). The learned transferee Court vide order dated 25-6-1997 impugned before this Court converted the acquittal of the petitioner into that of his conviction in the exercise of its revisional jurisdiction under section 439-A, Cr.P.C. accordingly the petitioner was sentenced to 15 days' R.I. under section 447, P.P.C. and the penalty of Rs.50,000 was also imposed against the petitioner by way of damages under section 427, P.P.C. payable to the respondent No.2 and in default of such payment the petitioner was ordered to be kept in custody till realization of the penalty amount. 3-A. The learned counsel for the petitioner contended that the acquittal order was appealable under section 417(2-A), Cr.P.C. and instead of resorting to the available remedy; revision petition was filed. According to the learned counsel the acquittal earned by the petitioner could not have been converted into that of conviction in the exercise of Revisional jurisdiction under section 439-A, Cr.P.C., hence the impugned order needs to be quashed. The learned counsel for the State conceded to the legal proposition that in the exercise of revisional jurisdiction the learned Court was not competent to have passed the impugned order.

4. In the instant matter, acquittal order was passed by the Competent Court in favour of the petitioner which could have been assailed only by filing appeal under section 417(2-A), Cr.P.C. by the complainant and not otherwise. An acquittal order being appealable under section 417, Cr.P.C. cannot be assailed directly in revision under sections 435, 439 or 439-A, Cr.P.C. without availing the remedy of appeal as envisaged under subsection (5) of section 439, Cr.P.C. Under section 439-A(1) and (2) respectively a Sessions Judge and an Additional Sessions Judge to whom any case which may be transferred by a Sessions Judge under any general or special order enjoy the same powers as are conferred and exercisable by a High Court under section 439, Cr.P.C. and therefore such powers available to a Sessions Judge or an Additional Sessions Judge are controlled by section 439, Cr.P.C. and cannot be exercised to an extent to which a High Court is not competent to do so. Complete and absolute bar operates under subsection 4(a) of section 439, Cr.P.C. on the powers of a High Court to convert a finding of acquittal into one of conviction; which provision including those contained in section 439, Cr.P.C. have full application to the powers exercisable by a Sessions Judge or an Additional Sessions Judge within the purview of subsections (1) and (2) of section 439-A, Cr.P.C. respectively. Without exhausting the remedy of appeal available to the complainant against the acquittal order the revision petition was not competent, consequently the revisional Court had no jurisdiction vested in it to have entertained the petition in view of the provisions of subsection (5) of section 439, Cr.P.C. The revision petition was not converted into appeal though the Court was competent to do so nor such a request was made by the respondent No. 2.

5. Apart from the impugned judgment being void and without jurisdiction, it is glaringly noticeable that the learned Judge was totally ignorant about the provisions of law applicable for awarding term of imprisonment to an offender for non-payment of fine, which in no case under section 65, P.P.C. exceeds one -fourth of the term of imprisonment provided for the offence to which an offender is convicted. It is astonishing and shocking to note that the petitioner has not been convicted under section 427, P.P.C. yet the liability of damages payable to the complainant has been determined against the petitioner and in default of payment of such amount of damages, it has been directed that the petitioner to be kept in custody till realization of the awarded amount. The impugned order passed by the learned Additional Sessions Judge-I,' on entertaining the revision against the finding of acquittal and converting the same into conviction, being in violation of the provisions of subsections 4(a) and (5) of section 439, Cr.P.C. is not sustainable, which, accordingly, is set aside consequently, the petition is accepted and the impugned order is quashed. N.H.Q./656/Q Order quashed.