1993 P Cr (PLP)

Ghulam Sikander's case P L D 1985 SC 11 ref. Ahmad Saeed Khan for Petitioners. Rana Naseem Sabir for the State. Sharif Khokhar for Respondent No.2. Date of hearing: 1st December, 1991. The present criminal revision petition arises out of order, dated 7-4-1977, passed by Muhammad Nawaz, Additional Sessions Judge-III, Sahiwal, whereby the revision petition filed by the complainant/respondent No.2 against the acquittal of the petitioners by the learned trial Court vide its judgment, dated 22-3-1976, was allowed and the case was remanded to the learned trial Court for fresh trial.

2. The brief facts leading to the present criminal revision petition are as follows:-- That the case had been registered against the petitioners vide F.I.R. No.19/75, dated 14-2-1975 at Police Station Shahbore, District Sahiwal, under the provisions of section 307/324/148/149, P.P.C. They were sent up for trial before Mr. M. Akram Khalid, Magistrate Section 30, Okara.

3. To prove its case the prosecution had produced eleven P.Ws. However, the learned trial Court had acquitted all the accused/ petitioners vide its judgment, dated 22-3-1976, as stated above, on the grounds that the F.I.R. had been recorded after preliminary investigation and the motive was not proved nor the blood was secured from the spot, and as the P.Ws. were the interested witnesses, and the important witness, Nawaz son of Nawab could not be examined at the trial.

4. The complainant /respondent Not, aggrieved thereby, tiled a criminal revision petition before the learned Additional Sessions Judge, Sahiwal. He was pleased to remand the case to the learned trial Court for trial afresh on the grounds that the learned trial Court had erred in the appraisal of the prosecution evidence on the record, and that the learned trial Court had not framed the charge in accordance with the provisions of section 242, Cr.P.C.

5. The learned counsel for the petitioners submitted that the criminal revision petition brought before the learned Additional Sessions Judge was not competent as the same had been filed before the expiry of the period of limitation for bringing an appeal against acquittal and even thereafter no such certificate had been obtained from the District Magistrate, for filing of the said criminal revision petition, under section 417, Cr.P.C. Further submitted that the failure of the prosecution to comply with the provisions of section 242, Cr.P.C. should not be held against the accused/petitioners and that, in any case, such an irregularity was curable under the provisions of section 537, Cr.P.C. Further submitted that, in any case, the order of acquittal cannot be interfered with unless it is patently unfair or leads to grave miscarriage of justice, which was not the case under the facts and circumstances of the case in question.

6. On the other hand, the learned counsel for respondent No.2 argued that the remand of the accused may not be interfered with but failed to support his case in any manner, with reference to any provision of law or precedent, and conceded that no attempt had been made in the instant case to abide by the provisions of section 417, Cr.P.C. by obtaining the District Magistrate's certificate before filing the criminal revision petition.

7. Therefore, as held in Muhammad Yusuf v. Muhammad Akhtar and 3 others 1971 P Cr. L J 794, the criminal revision petition even before the High Court is not competent unless tire petitioner therein had first approached the District Magistrate for filing appeal against acquittal, and without obtaining a certificate to the effect that the Provincial Government had refused to file such an appeal. As in the instant case, as stated above, neither respondent No.2 /petitioner in the criminal revision petition in question had approached the District Magistrate for filing an appeal against acquittal nor had obtained any certificate to the effect that the Provincial Government had refused to file such an appeal, the criminal revision petition was not competent against the order of acquittal dated 22-3-1976. Furthermore, there is force in the contention raised on behalf of- the, respondent that the failure of the prosecution in complying with the provisions of section 242, Cr.P.C. should not be held against the petitioners. In fact, to remand the case on that basis shall provide all opportunity to the prosecution to fill up the lacunae in its case, which is against the established principles of administration of criminal justice. Hence, a remand on such a ground was unwarranted; and in addition thereto, an order of acquittal shall not be interfered with even if a different view was possible on the basis of evidence on the record. In this respect, strength is sought from Ghulam Sikander's case, reported as P L D 1985 SC 11.

8. Pursuant to the above discussion, the present criminal revision petition is hereby allowed and the impugned order, dated 7-4-1977 is hereby set aside. N.H.Q./Y-9/L Petition allowed.