P (PLP)

ABDUR RAHMAN, J.‑Gaman, Muhammad Niwaz and Bhawala were tried by the Additional Sessions Judge, Multan, under section 302 of the Pakistan Penal Code for the murder of Hadi Hussain Shab. They were acquitted on the 13th December, 1949. In spite of efforts on behalf of the relations of the deceased, the Provincial Government refused to file an appeal against this order of acquittal to the High Court of Judicature at Lahore under section 417 of the Code of Criminal Procedure. Being unsuccess ful‑with the Provincial Government a petition for revision under section 439 of the Code of Criminal Procedure was filed by one Matlub Hussain, presumably a relation of the deceased, in the Lahore High Court. It was dismissed by a learned single judge of that Court on the 27th September, 1950. Not being satisfied with that order Matlub Hussain has applied to this Court for special leave to appeal under section 3 of the Privy Council (Aboli tion of Jurisdiction) Act, 1950. Section 439 of the Code of Criminal Procedure invests High Courts with very wide powers to call for the record of any case and to exercise, in their discretion, any of the powers conferred either on a Court of Appeal, or on a Court by certain sections referred to therein. There are, however, certain limitations placed upon the High Court. They are not, for instance, authorised to convert a finding of acquittal into one of conviction ; though they can, in a suitable case, set aside an order of acquittal and direct a retrial. There are certain other limitations but it is unnecessary to refer to them here. The jurisdiction under section 439 may be invoked

(i) by a High Court itself on its own initiative, or (ii) when a case is reported to the High Court under section 438 of the Code, or (iii) when any person, whether aggrieved or not, brings the proceedings to the notice of the High Court. Confining ourselves to cases falling under category (iii) referred to above, this is permissible as the words "which otherwise comes to its knowledge" used in subsection (1) of section 439 of the Code, are wide enough to entitle any person to bring any proceedings of a subordinate Court to the notice of the High Court. The peti tioner was thus authorised to set the law in motion by filing a petition fox revision; but nothing has been said and no authority shown that by doing so he had become a party to the proceedings which had given rise to the petition for revision. The rule stated in section 440 of the Code that no party has a right to be heard either personally or by pleader before any Court when exercising its powers of revision seems to point the other way. In a murder case no person other than the accused, who is being prosecuted, or the Crown at whose instance he is being prose cuted, appear to be parties. If by making an application under section 439 of the Code, a person does not become a party to the case, though he may be a party for the limited purpose of a petition for revision, which he may have filed in a High Court, it seems, it would not be open to him to come to this Court for asking special leave to appeal. Whether he had made an application under section 439 of the Code to the High Curt, which had failed, or that he was otherwise interested in the proceedings, which had taken place in the Court of Session, or in any other Court, appear to be irrelevant. The point has not been fully discussed before us and we are not, therefore, inclined to express our final opinion in the matter, although we are, as at present advised, inclined to the view that not being a party to the proceedings, the petitioner, who had put in a revision in the murder case, would have no locus standi to make an application for special leave to this Court. Conceding, however, without admitting, that he had by putting in a petition for revision, become a party to the proceedings, we are absolutely clear in our minds that the special leave to appeal should not be granted in the present case. The accused had after a full trial been acquitted by the Sessions Judge. The Provincial Government refused to appeal and the Lahore High Court refused to interfere in the exercise of their revisional jurisdiction. Nothing was pointed out at the hearing to show that the trial was in any manner vitiated. The Sessions judge had heard the evidence and formed an opinion in favour of the accused. Not being a Court of criminal appeal, this Court does not generally review the evi dence unless it finds the judgment to be based on evidence which is found to be inadmissible, or such serious mistake in regard to the procedure is found to have been committed as to have occasioned a failure of justice. There may be other exceptional cases in which this Court may be persuaded to interfere. This is only when justice is found to have miscarried. But nothing was shown or found to have happened in this case so as to attract any of the principles on which this Court interferes. The authority to prefer an appeal against an order of acquittal has been, however, conferred by the Code of Criminal Procedure on the Provincial Government alone, and no other person should, either directly or indirectly, be allowed to usurp that function which is to be exercised with great care and caution. It might not be irrelevant to point out that a provision which entitles an authority to file an appeal against an order of acquittal is, so far as we are aware, to be found only in the sub‑continent of India. It was not shown that the right to prefer an appeal against an order of acquittal was recognised in any other part of Common wealth or in fact in any other civilised country. For the above reasons, we dismiss this petition. K. M. A./ A. H. Petition dismissed.