P L D 1989 Lahore 513 (PLP)

Munawar Khan petitioner lodged an F.I.R. against Shakil Ahmad and Amjad Ali respondents for an offence under section 307/34 P.P. C. and the respondents were challaned to the Court. The prosecution failed to produce evidence which was closed by the learned Magistrate vide order 20‑7‑1988 and acquittal recorded under section 249‑A, Cr.P. C. The order was called in question in a revision petition before the learned Sessions Judge, Islamabad who vide impuged order dated 12‑12‑1988 dismissed the same on the ground that against the order of acquittal appeal was competent and not a revision. Against this order the present petition under section 561‑A, Cr.P.C. has been moved with the prayer that the impugned order may be set aside and the learned Sessions Judge directed to dispose of the revision petition on merits.

2. Preliminary objection was raised by the learned counsel for the respondents with reference to Noor‑ur‑Rehman v. The State and another 1987 P.Cr.LJ 2171 and Atta Ullah Khan v. Muhammad Akram and five others 1985 P.Cr.LJ 2409 to canvass the point that an order passed by the Sessions Judge under section 439‑A cannot be impugned under section 561‑A, Cr.P.C. as it would tantamount to entertaining a second revision. The objection was met by the learned counsel for the petitioner by relying upon Muhammad Shafique and others v. Abdul Hayee and others 1987 SCMR 1371 wherein it was laid down by their Lordships of the Supreme Court that the powers possessed by the Court under section 435/439, Cr.P.C. do not impinge, curtail, or limit in any manner whatsoever the powers under section 561‑A ibid. The powers under the two provisions of law are independent and jurisdiction can be exercised under the latter to prevent the abuse of the process of Court or to secure the ends of justice. In view of the dictum laid down by the Supreme Court the preliminary objection must be rejected. 3.On behalf of the petitioner contention was raised with reference to Syed Parial Shah v. The State and four others PLD 1973 Kar. 265 that once the revision petition had been admitted by the learned Sessions Judge the same ought to have been decided on merits. The learned Sessions Judge observed that as the order under section 249‑A, Cr.P.C. had been recorded as of acquittal so an appeal was competent, with the final result that the revision was dismissed. Subsection (5) of section 439‑A clearly provides that where under the Code 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. It was a challan case and, as admitted at the Bar, the Provincial Government/ District Magistrate was not moved to file appeal nor any certificate was filed that filing of appeal had I been declined and so the revision petition was not competent. If any authority is needed, Muhammad Yusuf v. Muhammad Akhtar and 3 others 1971 P.Cr.L J 749 would suffice. Since the learned Sessions Judge disposed of the revision petition on merits so the argument raised by the learned counsel for the petitioner must fail. The language of the petition runs to the effect that the order of the learned Sessions Judge was not proper and request was made that the revision petition be remanded to him for decision on merits. This is like moving the High Court to reappraise the merits of the order passed in revision and such an exercise will run counter to clause (b) of subsection (4) of section 439, Cr.P.C. which lays down that nothing in this section shall be deemed to authorise a High Court to entertain any proceeding in revision with respect to an order made by the Sessions Judge under section 439‑A . Hence on the language of the petition as drafted with the prayer made, this Court cannot go into the legality or propriety or otherwise of the order recorded by the learned Sessions Judge.

4. However, as observed above, the High Court can be moved under section 561‑A to prevent the abuse of the process of Court or to secure the ends of justice (1987 SCMR 1371). The question is, has there been a failure of justice in the present case? The orders recorded by the learned trial Magistrate have been read out in Court by the learned counsel for the petitioner from his brief. On 9‑12‑1987 the copies of the statements and other documents were supplied to the accused and the case adjourned to 13‑1‑1987 for framing the charge. On this date they were charge‑sheeted and the case adjourned to 9‑3‑1988 for prosecution evidence and it was ordered that the witnesses would be got served by the complainant. However, on the next date (9‑4‑1988) one witness was present but the presiding officer was on leave. The case was adjourned to 15‑6‑1988 but no witness was present on that date and so the witnesses were ordered to be summoned through warrants of arrest. On 20‑7‑1988 the witnesses were served through warrants but in spite of it none was present. Of course it can be argued that the Magistrate should have proceeded to use further coercive measures to force their attendance but it was asserted at the Bar and it appears from the F.I.R. that one eye‑witness at least was a relative of the complainant but neither the complainant nor the said witness was present on the date the order of acquittal was recorded by the Magistrate. It is also not to be lost sight of that it was a case of ineffective one fire shot. The previous enmity between the complainant and the respondents being admitted in the F.I.R. and it being a case of ineffective single shot the exercise of discretion not to grant further adjournment with the consequence of closure of evidence, it cannot be said that there has been failure of justice. In any case, the circumstances of the case do not call for the exercise of inherent powers of the Court under section 561‑A, Cr.P.C.

6. The petition is dismissed. M. A . K. /M‑1426/L Petition dismissed.