1990 P Cr (PLP)

ABDUL MAJEED MALLICIC, CJ.

The petition is addressed against the order of acquittal of accused respondents, passed by the Additional District Magistrate, Mirpur, on March 7, 1987.

2. The respondents were ascribed offences under sections 307 and 341, A.P.C. and were tried for the same. Haji Sattar Muhammad deceased made a report to the police on October 20, 1980 at 1-30 p.m. to the effect that last evening when he was travelling in his car from Taxila to Gurah Sanwala, his native village and arrived near Bhalote water pond, the accused came across. Muhammad Aslam accused was driving his car. He was armed with revolver. Mangti accused was sitting in another car, which was also occupied by some other unknown persons. A jeep was occupied by six persons. They were armed with guns and revolvers. Muhammad Aslam made four fires with his revolver on the car of the complainant. The complainant fled his car but he was chased by the accused for over a distance of a mile and was fired from behind. Some of the gun fires hit the car of the complainant. Somehow, he escaped luckily. The assault was, made with intention to kill him. The complainant and accused party were on inimical terms on account of previous litigation. The accused installed a Petrol Pump in front of the house of the complainant. The complainant challenged the action of the accused in the Court of law. As a result, the Petrol Pump was ordered to be removed. Second time, they installed a weighing machine but the same was also ordered to be removed by the Deputy Commissioner. The accused pleaded not guilty. The prosecution produced Haji Sattar Muhammad, complainant, Muhammad Nazir, his driver, Raj Muhammad, Sher Baz, Sardar Noor Muhammad S.1., Khawaja Muhammad Abdullah, S.I. Mujahid Akram, Photographer and Raja Abdul Razaq, Inspector Police.

3. The order of acquittal was not challenged in appeal by the State. Haji Sattar Muhammad assailed the order of acquittal by revision. The revision was moved on August 24, 1987. The order of revision is unaccompanied by the certificate of the District Magistrate. During the pendency of the petition, Haji Sattar Muhammad died.

4. Ch. Lai Hussain, the learned counsel for the accused-respondent raised a preliminary objection, to the effect that the revision petition automatically abated on the death of Haji Sattar Muhammad. In the circumstances, the learned counsel who represented the deceased-petitioner, has no locus standi, to address the Court. He cited 1989 P Cr. L J 2028 and 1977 P Cr. L J 89.

5. Section 439(1), Cr.P.C. postulates that in case of any proceeding the record of which has been called for by the High Court, or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers On referred on the Court of appeal under sections 423, 426, 427, 428 and 338, P. C. and may enhance the sentence. Subsection (5) further lays down that here under the Code, an appeal lies and no appeal is brought, no proceedings by any of revision shall be entertained at the instance of the party who could have appealed. It is accepted that the right of appeal vests with the State and not the complainant. Therefore, the complainant is not deprived to prefer revision petition in the case where the State fails to lodge an appeal against acquittal. In the present case, the revision petition was presented by the petitioner while he "as alive. It as duly registered and process was issued to the respondents. The Court issued process on applying its mind to the impugned order. 1t is, therefore, presumed that the Court while issuing process to the respondents, was satisfied at an illegality, prima facie, was committed, on account of which the intervention of the Court was imperative. The complainant, ordinarily, can invite the attention d the Court to any illegality committed by the trial Court resulting in acquittal of accused. 1n the present case, this has been done. Therefore, once the Court under process, it is enjoined upon it to dispose of the revision petition on merits. The objection is, therefore, repelled. The authorities cited by the learned counsel ill support of his objection, are not considered helpful to the proposition.

6. It is well-accepted that there is vital difference in appellate and revisional powers of this Court. In an appeal against acquittal, this Court enjoys the authority to convert acquittal into a conviction on the satisfaction that the acquittal was unwarranted. But such authority is not available in exercise of divisional powers. 1n revisional jurisdiction, an acquittal may be set aside when the High Court feels convinced that the order of acquittal was passed patently in rogation to the rules of procedure or that the impugned order was the result of patent miscarriage of justice. In absence of either of those conditions, an acquittal cannot be set aside so much so to remand the case for fresh decision of the trial Court. In other words, an order which rests on appreciation of evidence, cannot be lightly interfered with. The High Court may come to a different conclusion on merits but that by itself cannot be a ground to reverse the acquittal. In Feroze Khan's case P L D 1966 SC 424, Mr. Justice S.A. Rehman, the learned Judge who spoke for the Court, on making analysis of the scope of revisional jurisdiction, vis a-vis an order of acquittal, observed as; "But the discretion vesting in the High Court under section 439 of the Code of Criminal Procedure has to be exercised in accordance with the dictates of justice and not arbitrarily, or in a fanciful manner. In particular in cases of revision petitions from an acquittal, where the State has not thought it fit to challenge the acquittal by an appeal, the Courts would be very slow to interfere, unless non-interference would involve an endorsement of a patently unfair order, or one which leads to miscarriage of justice. If the view taken by the Courts below is reasonably possible on a consideration of all the facts and circumstances of the case, then the entertainment of a feeling, that an alternative view of the evidence might have been taken, would not justify the superior Court in setting aside an order of acquittal. As was observed by this Court in Abdul Rashid Khandkar v. Chandu Matbar, the governing consideration must always be whether in relation to the proved facts and circumstances, justice has been done, in accordance with law."

7. In this case, the trial Magistrate acquitted the accused as, in his opinion, the prosecution failed to prove its case beyond reasonable doubt. We have perused the impugned order in the light of the evidence of the prosecution. Apart from the absence of delay in making the F.I.R., the prosecution version suffers from material contradictions. Haji Sattar Muhammad complainant disclosed that his car was ambushed by the accused who were equipped with fire-arms. Muhammad Aslam accused was shown to have fired on his car. The revolver of Muhammad Aslam was recovered by the police. It was sent to the Ballistic Expert. The report of the Expert was on the file but the same was not duly proved in evidence. The recovery of alleged crime empties was shown to have been made from the road, the place of incident. The alleged recovery was equally not convincing. There were also inconsistencies in the evidence of Muhammad Nazir, P.W. He denied some material particulars of his statement previously made before the police under section 161, Cr.P.C., as such made improvements in his C statement before the Court. Raj Muhammad, P.W. deposed that he was coming from Dina and when he reached the place of occurrence, he saw the cars of the complainant and the accused. Muhammad Aslam was in the car and Mangti in the jeep. He saw the accused firing on the car of the complainant. His presence on the road, the place of incident, was not ackowledged by Haji Sattar Muhammad, complainant and Muhammad Nazir. Sher Baz, another witness proved the alleged recoveries. Sardar Noor Muhammad, Sub-Inspector stated that he recovered the revolver, the weapon of offence at the instance of Muhammad Aslam accused. The recovery was shown to have been made in Kashif Hotel in Mirpur City. The accused was already arrested. The witness was unable to explain as to how the revolver was recovered in the Hotel from the accused while he was already arrested by him. It is not shown as to why the recovery was not made at the time of his arrest. The witness further said that the revolver was not sealed in parcel. It was admitted that the parcel of the revolver was prepared under the order of P.D.S.P. after some interval. The aforesaid evidence, obviously, was not free from doubt. We find no reason to record our disagreement with the trial Magistrate. In the circumstances, the impugned order is not shown perverse. There is no force in the petition. It is, therefore, dismissed. S.A./406/H.C.A. Revision dismissed.