1971 P Cr (PLP)

S. 439‑Revision against acquittal‑View taken by trial Court reasonably possible on consideration of all facts and circumstances and nothing to show that view taken by Court was perverse or foolish‑Interference, held, not justified in circumstances. Feroze Khan v. Capt. Ghulam Nabi Khan and another P L D 1966 S C 424 rel. Masood Zakriya for Petitioner. Malik Saeed Hassan for Respondent No. 1. Nemo for Respondents Nos. 2 to 4. The respondents were tried by the Special Judge, Anti -Corruption, for offence under section 166/167/34, P. P. C. He acquitted them by his order dated 7th August 1963, The petitioner in this case, who was the complainant before the learned Special Judge, without moving the District Magistrate for filing an appeal and without any certificate to the effect that the Provincial Government had refused to file an appeal, moved this Court under section 439, Cr. P. C. The rule on the subject is rule 1‑A of the High Court Rules and Orders Volume V which reads as under: "With reference to section 439 (5), Criminal Procedure Code, the Deputy Registrar will not receive any petition for revision of an order of acquittal unless it is accompanied by a copy of an order of the Magistrate of the District, refusing to move the Provincial Government to appeal under section 417, Cr. P. C." No such certificate is attached with the petition r When the matter came up for hearing before my learned brother Muhammad Hayat Junejo, J. he made a reference in his order to In re: Sh. Abdul Kareem (P L D 1950 Lah. 439) in which similar question was agitated. A Full Bench of this Court while dealing with a case of professional misconduct of a certain counsel, who filed revision in a case of acquittal without the relevant certificate, held such an Advocate' guilty of grave misconduct. This revision, can be thrown out on this ground alone. 2. I would like to deal with the petition on merits as well. It the trial before the Special Judge four witnesses were examined and copies of Khasra Girdawaris Exh. P. A., Exh. P. B. and Exh. P. D., and that of the Misal Haqiat (Exh. P. C.) and also the order passed by Malik Muhammad Shafi Naib Tehsildar (respondent in this case) on 7‑6‑1962 were produced. Sultan Ahmad (P. W. 1) stated that the matter was referred to him by the Tehsildar for conciliation between the parties and on his failure in the attempt the matter was returned to the Tehsildar, Dil Muhammad Patwari (P. W. 2) deposed that in Rabi 1962 the disputed land was under the cultivation of Muhammad Yousaf complainant and his brother Muhammad Younis. Name of Yousaf was then removed. The correction according to him was made on account of the various reports made in 1962. Abdul Hamid Moharrir (P. W. 3) was directed to produce application of Muhammad Younis regarding batai of the land in village Baripur. The application could not be produced. The complainant himself appeared as P. W. 4 and reiterated his complaint against the respondents in detail. 3. The allegations were denied by the respondents who in defence produced seven witnesses. D. Ws. 2, 3, 4 and 7 deposed that in Rabi 1962 the land was in exclusive possession of Muhammad Rafiq only. The learned Special Judge considered the entire evidence produced before him and acquitted the respondents from the charge. There is no illegality committed in the trial and it cannot be urged with success that the view taken by the learned Special Judge in passing the order of acquittal is perverse or foolish. In Feroze Khan v. Capt. Ghulam Nabi Khan and another (P L D 1966 S C 424) it was held that in cases of revision petitions from acquittal, where the State has not thought 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. This is not the case before us. The view taken by the Special Judge is reasonably possible on consideration of all facts and circumstances of the case. Assuming I can take an alternate view of the evidence that would not justify interference by Superior Court in setting aside an order of acquittal passed in the year 1963. 4. For the foregoing reasons this petition fails and is dismissed. Petition dismissed