1985 P Cr (PLP)

(c) Criminal Procedure Code (V of 1898)‑‑ ‑‑‑Ss.417, 439(5), 245, 249‑A & 561‑A‑‑Hazara Forest Act (VI of 1936), S.26‑‑S.439(5) forbids High Court/Sessions Court to entertain proceedings by way of revision at instance of party, who could have appealed and has not appealed‑‑Revision filed in Court of Sessions Judge, in circumstances, not competent and order passed in revision, held, void‑‑Order challenged in revision being bad in law, High Court in exercise of inherent powers under S.561‑A, Cr.P.C. set aside such order and remanded case to Magistrate for retrial. S. Sikandar Shah for Appellant. Ghulam Mustafa Awan for Respondent. Date of hearing: 26th and 27th of November, 1984. One Master Muhammad Ashraf, faced a trial under section 26, N.‑W.F.P, Hazara Forest Act, 1936 read with sections 172/177/174/182/ 471/469/468/466/465, P.P.C. in the Court of Magistrate Ist Class (Forest), Mansehra who vide his judgment and order, dated 30‑4‑83 acquitted the accused under section 245 read with section 249‑A, Cr. P. C., and further finding it a case of false, frivolous and vexatious accusation, hence Mohammad Arif, Forest Guard, the alleged complainant/informer was fined Rs.5,000 payable as compensation to Muhammad Ashraf. The accused /respondent Muhammad Arif has come up in appeal against the order of acquittal with a prayer to set aside the impugned order and to remand the case to the lower Court for re‑trial. A further prayer for the quashment of the order under section 250, Cr.P.C. was also made.

2. It has been brought to the notice of the Court that the State had simultaneously filed a revision in the Court of Sessions Judge, Mansehra under section 439‑A, Cr.P.C. and on acceptance of the revision the Court of Sessions Judge has set aside the impugned order of .the Court of Magistrate 1st Class (Forest), Mansehra and has further remanded the case for re‑trial.

3. In the circumstances, learned counsel for the appellant requested the Court that since the impugned order has been set aside by a competent Court of revision, as such, the appeal has become infructuous and he would, therefore, withdraw from his appeal. Learned counsel for the respondent‑accused has also been found in agreement with the view point advanced by the learned counsel for the appellant and was thus to bear no objection to the dismissal of the appeal as withdrawn.

4. Herein a damage report, dated 21‑3‑1981 was prepared by Muhammad Arif, Forest Guard, the appellant which was made the basis of a complaint /challan by the Divisional Forest Officer, under section 26, Hazara Forest Act, citing Sajjad Ahmad Forester, Muhammad Arif, Forest Guard (appellant) and Muhammad Khurshid, Forest Guard, as prosecution witnesses. The said challan/complaint was taken cognizance of by the Court of Magistrate Ist Class (Forest), Mansehra, who ultimately passed the impugned order of acquittal of the accused and imposition of a fine of Rs.5,000 on Muhammad Arif, the appellant under section 250, Cr.P.C. Be as it is, whether it is a challan case or a complain; case, Muhammad Arif, the appellant has not directly made the allegations orally or in writing to the Magistrate with a view of his taking action under the Criminal Procedure Code that some person herein the respondent has committed the offence, that he has to assume the status of a complainant to be entitled to apply for Special Leave to Appeal against the order of acquittal under section 417(2), Cr.P.C. His appeal to the extent is simply misconceived and is hereby held to be incompetent'. Since there was imposed a fine of Rs.5,000 on him payable as compensation to the accused/ respondent under section 250, Cr.P.C. he could challenge the said order in a revision and his appeal to the extent merits to be converted into a revision under section 439, Cr.P.C. The record shows that he has not been served upon with a notice to show cause why he B should not compensate the accused‑respondent on account of false, frivolous or vexatious accusation made by him. On this score alone the order of imposition of fine by the Magistrate Ist Class on Muhammad Arif appellant /petitioner merits to be set aside. S. The State or the complainant has the right of appeal against the order of acquittal under section 417, Cr.P.C. Section 439(5), Cr.P.C. forbids the High Court/Sessions Court to entertain proceedings by way of revision at the instance of a party who could have appealed and has not appealed against an appealable order. Criminal revision No.34/12 of 1983 filed by the State against the impugned order in the Court of Sessions Judge, Mansehra was as such not competent and any orders passed in the criminal revision are apt to be declared void. In the situation, the learned counsel for the parties and the learned Public Prosecutor were apprised that, in the circumstances, when the order of the learned Sessions Judge in Criminal Revision No.34/12 of 1983 was otherwise spelling out merit as that the impugned order of the Magistrate Ist Class (Forest) Mansehra, was bad in law for Muhammad Arif, the appellant /petitioner was busy in his examination on the day of hearing and his non‑attendance in the Court as a P. W. was not wilful and the Court need not have resorted to section 245 read with section 249‑A, Cr.P.C. to acquit the accused, this Court shall resort to exercise inherent powers under section 561‑A, Cr.P.C. with a purpose to prevent the abuse of the process of Court in order to secure the ends of justice. Learned counsel for the parties and the Public Prosecutor were to very graciously accept the legal position enunciated above. Accordingly this Court makes the resultant order that the impugned order of Magistrate Ist Class (Forest), Mansehra dated 30‑4‑1983 is hereby set aside as a whole and the case is remanded for re‑trial from the stage of the impugned order with opportunity to the parties to produce evidence in support of their respective versions. M. A. K. Case remanded.