P L D 1992 Lahore 524 (PLP)

Behram. Khan and four others, the petitioners herein, by this petition made under section 561‑A, Cr.P.C. call in question the validity of the order, dated 16‑11‑1991, by which a learned Additional Sessions Judge at Sialkot, on the acceptance of revision petition filed by Muhammad‑ Siddique respondent, set aside the findings of their acquittal recorded by the Magistrate 1st Class, Daska, vide his order, dated 7‑8‑1989 and directed their retrial by that Court.

2. The facts relevant for the disposal of this petition are that on 7‑3‑1985 at 7 a.m. when Behram Khan petitioner alongwith Shatab Khan and Muhammad Afzal was present in the street near the house of Shatab Khan at village Dhaleke to condole the death of his son, who had died on 1‑3:1985, the complainant party took the marriage procession of the son of Dhoop Khan accompanied by ‑ playing bands and drums from that street. This caused annoyance to the petitioners and a controversy triggered on that account led to a fight, as a result of which Shatab Khan suffered six injuries, including a grievous one. The matter was reported to the police and a case was registered against the opposite‑party. As a counterblast Muhammad Siddique respondent also got a case registered against the petitioners. On the completion of investigation both the cases were sent up to Illaqa Magistrate, Daska, for trial and ultimately vide judgment, dated 7‑8‑1989, the accused in both the cases were acquitted. Respondent No. 2, however, filed a revision petition before the learned Additional Sessions Judge, Sialkot, which was eventually accepted by the impugned order. Hence this petition.

3. It is contended on behalf of the petitioners that The revision Petition filed by MAammad Siddique respondent in the Court of learned Additional Sessions Judge, Sialkot, was not accompanied by the certificate of the District Magistrate signifying his refusal to file a State appeal against the acquittal of the petitioners and as such it was not maintainable; (b) the learned Additional Sessions Judge, Sialkot, recorded definite finding about the guilt of the petitioners, leaving no option for the trial Court except to convict and sentence the petitioners; and (c) the prosecution evidence was so lacunic that the learned trial Judge was justified in recording the finding of acquittal of the petitioners which could not be lightly ‑interfered with in revision.

4. As regards the first contention of the counsel, in view of the recent amendment of the Chapter of the Pakistan Penal Code relating to bodily offences and certain other. relevant laws on the subject, the legal position has radically changed. On account of this change, the emphasis has now shifted from the State representing the society to the individual i.e., the person aggrieved, and he is now equally competent to procescute or forgive the offender. Therefore, it is now no more necessary that a person filing revision against the acquittal of his opponents in a case should first approach the District Magistrate concerned for filing appeal against the acquittal and if he refuses to do so, he should obtain his certificate to that effect and append the same with the revision petition as a condition precedent for its entertainment by the revisional Court. Therefore, the omission on the part of 'the petitioner to obtain the certificate of the District Magistrate concerned and to place the same on the record of the revision filed by him in the Court of learned Additional Sessions Judge, was not injurious to its maintainability.

5. So far as the second contention of the learned counsel is concerned‑, that too is without force. For remanding a case for retrial the appellate or revisional Court has to comment upon the evidence and other circumstances of the case, some times touching even its merit as, but those comments are always of tentative ‑nature meant only for the disposal of the appeal or revision, as the case may be, and have no binding effect on the Court below. Therefore, the petitioners need not worry on that account.

6. Third and the last contention of the petitioners' counsel also doe's not cut much ice. If nothing else, the only act of the learned trial Magistrate of having decided the case summarily on the application of the petitioners made under section 249‑A, Cr.P.C., when the evidence in the case had concluded, by itself was sufficient to remand the case for retrial. The retrial in this case would, in fact, remain confined only to the rewriting of judgment as the evidence produced by the parties stood already completed.

7. For Various reasons stated above, there is no substance in the revision and the same is dismissed in limine. M.B.A./B‑39/1, Petition dismissed,