2001 P Cr (PLP)

(b) Penal Code (XLV of 1860)

Ss. 307/34

Criminal Procedure Code (V of 1898), S.439

Revision petition against acquittal

Appeal of the complainant before the Sessions Court against the acquittal of accused by the Trial Court was itself not maintainable and if the said judgment in appeal was treated as a judgment in revision, then a second revision before High Court was not maintainable so as to question the said acquittal of accused

Revision petition was dismissed in circumstances. Malik Muhammad Aslam for Petitioner. Malik Muhammad Farrukh Mahmood, Aslam Javed Minhas and Saleem Nawaz Abbasi, A.A.G. for Respondents. Date of hearing: 29th February, 2000. The necessary facts giving rise to the present revision petition are that at about 6-30 p.m. on 20-9-1989 one Riaz Ahmad, a cousin of Muhammad Yasin complainant, had sustained injuries at the hands of respondents Nos.1 to 3 herein and for the said incident F.I.R. No.301 was registered at Police Station Hasilpur, District Bahawalpur on the same day at 9-40 p.m. for an offence under sections 307/34, P.P.C. After completion of investigation a challan was submitted before the learned trial Court and vide judgment, dated 15-6-1995 a learned Judicial Magistrate Section 30, Bahawalpur convicted respondent No.1 for an offence under section 325, P.P.C. and sentenced him to 2 years' R.I. and a fine of Rs.1,000 or in default of payment thereof to suffer simple imprisonment for 3 months. The benefit under section 382-B, Cr.P.C. was extended to respondent No.1. However, through the same judgment respondents Nos.2 and 3 were acquitted by the learned trial Court. The said judgment was assailed before the learned Court of Session, Bahawalpur by respondent No.1 as well as by the present petitioner-complainant through separate appeals. Vide judgment, dated 2-8-1995 a learned Additional Sessions Judge, Bahawalpur partly accepted respondent No.1's appeal and, while converting his conviction from one under section 325, P.P.C. to that under section

326. P.P.C., sentence was reduced to R.I. for one year. The sentence of fine as well as the benefit of section 382-B, Cr.P.C. were, however, maintained. Through the same judgment the present petitioner's appeal was dismissed and the acquittal of respondents Nos. 2 and 3 was maintained, Thereafter, respondent No.1 never challenged his conviction and sentence and I have been informed by the learned counsel for the respondents that respondent No.1 has already served out his sentence way back in the year 1996.

2. Through the present revision petition the petitioner-complainant has challenged the acquittal of the respondents from the charge under sections 307/34, P.P.C. Elaborate arguments have been addressed and the record of the case has been perused with the assistance of the learned counsel for the parties.

3. After hearing the learned counsel for the parties and going through the record it has been noticed by this Court that the acquittal of respondent No.1 from a charge under sections 307/34, P.P.C. cannot be set aside by this Court in revisional jurisdiction and at this stage the acquittal of respondent No.1 cannot be converted into a conviction on the said charge. In this regard a reference may be made to the provisions of section 439(4)(a), Cr.P.C. As regards respondents Nos.2 and 3 suffice it to observe that the appeal of the petitioner-complainant before the learned Court of Session against their acquittal recorded by the learned trial Court was itself not maintainable and if the said judgment in appeal is treated as a judgment in revision then a second revision before this Court was not maintainable so as to question the said respondents' acquittal. Thus, in these circumstances it is not open for this Court at this stage to convict respondents Nos. 1 to 3 for an offence under sections 307/34, P.P.C. Realising this legal position the only prayer made by the learned counsel for the petitioner at this stage is that the sentence passed against respondent No.1 for an offence under section 326, P.P.C. may be suitably enhanced. In this context it has been felt by this Court that the reasons advanced by the learned Additional Sessions Judge for taking lenient view in the matter of respondent No.1's sentence are neither perverse nor arbitrary. Apart from that the occurrence in question had taken place more than ten years ago and in the year 1996 respondent No.1 had actually served out the sentence passed against him. Respondent No.1 has also appeared before this Court in person today alongwith his learned counsel and respondent No.1 has remorsefully begged for forgiveness and has clearly maintained that not only that he is sorry for what he had done in the past but also that he shall be extremely careful in the future. It is pertinent to mention here that ever-since his release from jail in the year 1996 the complainant party has never alleged any misbehaviour against respondent No.

1. Therefore, while exercising my discretion in the matter of sentence, I have not felt persuaded to enhance the sentence of respondent No.1 at this late stage of the case. For the foregoing reasons this petition is hereby dismissed. N.H.Q./M-422/L Revision dismissed.