1988 P Cr (PLP)

S. 439-A--Revisioa--Maintainability--Neither period of limitation for filing appeal by State elapsed before filing application under S.439-A, Cr.P.C. nor State refused to file an appeal against acquittal--Revision application under S.439-A, Cr.P.C., held, premature and dismissed. Mansoob Ali Qureshi for Applicant. Muhammad Rauf for Respondents Nos. 2 to 5. Khan Sanaullah for the State. Date of hearing: 20th January, 1987. By this revision application the applicant has impugned the order passed by the learned Sessions Judge (South) Karachi, dated 9-7-1986, whereby a revision filed by the applicant under the provisions of section 439-A, Cr.P.C. was dismissed as not maintainable. The facts giving rise to this revision application are that the applicant Abdul Khalil lodged a report with the police on 20-11-1985 alleging that the respondents Nos. 2 to 5, had attacked him with fists and blows and caused injuries to him. A case was registered under section 325/34, P.P. C. and consequently challan was submitted before the learned trial Court. After examining five witnesses in the case the learned trial Court passed an order dated 29-2-1986 acquitting the respondents Nos.2 to 5 in the case after invoking its jurisdiction under section 249-A, Cr.P.C. A show-cause notice was also ordered to be issued against the applicant under section 250, Cr.P.C. for payment of compensation to the accused in the case. Aggrieved by this order the applicant invoked the jurisdiction of the Sessions Court under section 439-A, Cr.P.C. The application filed by the applicant was dismissed by the learned Sessions Judge holding that the revision application was not maintainable since the State had not been moved first to file an acquittal appeal under section 417, Cr.P.C. After hearing Mr. Mansoob Ali Qureshi, learned counsel for the applicant and Mr. Khan Sanaullah Khan, learned counsel for the State, I find the judgment of the learned Sessions Judge unexceptionable. According to section 417, Cr.P.C. subsection (1). "subject to the provisions of subsection (4), the Provincial Government may in any case direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal, passed by any Court other than a High Court." The period of limitation for filing such appeal admittedly is six months from passing of the judgment of acquittal. Since the judgment impugned before the learned Sessions Judge was announced on 20-2-1986 obviously the period of six months' had not elapsed before filing the application under section 439-A, before the learned Sessions Court. Under such circumstances the revision application was still premature since there was no refusal by the State to file an acquittal appeal and the same could still be filed by the former. Consequently, I find no force in this application and the same is dismissed. M . Y . H . / A-238/ K Revision dismissed.