2002 PLP 1348 (MLD)

Raja Ali Imran and Khuram Ghias for the State. Date of hearing: 11th March, 2002. Syed Muhammad Mumtaz Shah has, through the instant petition filed under sections 439/561‑A, Cr.P.C., called in question the correctness and legality of the orders, dated 30‑4‑1995 and 4‑2‑1996 passed by the learned E.A.C.‑III, and the learned Additional Sessions Judge, Abbottabad respectively.

2. The short facts of the case are that the petitioner filed a private complaint under sections 188/504/506, P.P.C, against respondents Nos. l to 3 which was dismissed by the learned E.A.C. on 30‑4‑1995 for want of prosecution and the respondents were acquitted. The petitioner was aggrieved of such order of acquittal and preferred a revision petition before the learned Sessions Judge, Abbottabad The learned Additional Sessions Judge who was seized of the matter dismissed the petition being incompetent on the ground that the petitioner could file an appeal before this Court under section 417(2), Cr.P.C.

3. The learned counsel appearing is support of this criminal revision has persistently submitted that the Additional Sessions Judge was wrong in dismissing the revision petition and urged that the same was competently filed before the Sessions Judge because the order of acquittal was not based on merits and the acquittal was the result of dismissal of complaint for non‑appearance of the petitioner/complainant. He maintained that under section 417(2‑A), Cr.P.C. an appeal can be filed in this Court only when the order of acquittal is passed on merits and after evaluating the evidence by the trial Court.

4. On the other hand, the learned counsel for the respondents has opposed this petition by defending the impugned order of the learned Additional Sessions Judge and urged that every kind of order of acquittal can be challenged under section 417(2‑A), Cr.P.C. by the person aggrieved by such order and the order of the learned Additional Sessions Judge does not suffer from any legal infirmity.

5. I have heard the arguments of both the learned counsel and have examined the record. Section 417 of the Criminal Procedure Code deals with appeals in cases of acquittal. Subsection (2‑A) has been added to section 417, Cr.P.C. by Act XIX of, 1994 which is in the following terms:‑‑ "(2‑A) A person aggrieved by the order of acquittal passed by any Court, other than a High Court, may, within thirty days, file an appeal against such order." This provision of law in very clear language provides for an appeal against the order of acquittal which is absolute in its terms and by no dimension restricted in its application, to any particular category of cases of acquittal. It also does not exclude any class of cases of acquittal. It enfolds all cases where acquittal is recorded either on the basis of evidence or are the outcome of provisions like section 247, Cr.P.C. If a law by itself does not recognize any restriction then it would be totally', unwarranted to introduce to it self‑perceived conditions which would, in' its effect, cause undesired reduction of its scope.

6. Another feature of this case which assumes remarkable significance is that this petition is barred by section 439(4)(b) which provides that nothing in this section shall be deemed to authorize a High Court to entertain any proceedings in revision with respect to an order made by the Sessions Judge under section 439‑A, Cr.P.C. In the instant matter the petitioner has already filed an application under section 439‑A, Cr.P.C. which culminated into the impugned order recorded by the learned Additional Sessions Judge subsection (5) of section 439, Cr.P.C. further provides that whereunder the Code of Criminal Procedure an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. As has been observed above, the order of the Magistrate dated 30‑4‑1995 was amenable to the appellate jurisdiction of this Court, therefore, in view of subsection (5) of section 439, Cr.P.C., this revision is found incompetent.

7. In view of the situation emerging out of the above discussion I am of the firm view that the instant petition is not competent and the same is dismissed. N.H.Q./481/P Petition dismissed.