1988 P Cr (PLP)

Facts necessary for decision of this petition are as follows: - Sardar Muhammad P.W.3 on 21-8-1985 filed a complaint under section 323/452/506/148/149, P.P.C. against Muhammad Saddique, Muhammad Latif, Muhammad Shafi, Muhammad Rafique and Bashir Ahmad regarding en occurrence- which took place about a month earlier at 4/5 p.m. on 22-8-1985. It was alleged by Sardar Muhammad in his complaint that Muhammad Saddique and four others armed with sticks came to his shop. They trespassed in the premises and injured his brother Sawal Muhammad P.W. The occurrence was witnessed by Muhammad Amin, Muhammad Ashraf, Ghulam Haider and others. It was alleged that after medical examination he contacted the Police for registration of case but did not succeed on account of which he was constrained to file the present complaint. The learned Magistrate after recording preliminary evidence summoned Muhammad Saddique etc. 5 accused to face trial in complaint.

2. In support of its case prosecution examined six witnesses in all. P.W.1 Muhammad Ashraf, P.W.2 Ghulam Haider and P.W.4 Sawal Muhammad were examined as eye-witnesses. They supported the prosecution case. Sardar Muhammad P.W.3, complainant also appeared in support of his complaint. P.W.5 Dr. Javed Hassan and P.W.6 Haji Muhammad Latif furnished medical evidence. The accused after close of prosecution evidence denied the allegations against them. They requested for recording of their statements on oath under section 340(2), Cr.P.C. in rebuttal. The said statements were however, not recorded by the learned trial Magistrate. The accused examined Ghulam Farid D.W.1 in their defence. Mr. Abdul Majid, Magistrate 1st Class vide judgment dated 28-2-1987 acquitted Bashir Ahmad accused and convicted Muhammad Saddique, Muhammad Latif, Muhammad Shafi and Muhammad Rafique accused under section 323/452/148/149, P.P.C. and sentenced each of them to suffer one year R.I. Muhammad Saddique etc. convicts challenged their conviction and sentence before learned Sessions Judge, Toba Tek Singh who vide the impugned judgment, dated 16-5-1987 acquitted them of all the charges. The learned Sessions Judge in the impugned judgment held, firstly, that the formal charge was not framed relating to the offences of which they were accused nor were they asked whether they admit that they had committed the offence with which they have been charged. Secondly; that after recording statements of accused under section 342, Cr.P. C. -the learned Magistrate did not comply with the provision of section 364, Cr.P.C. and thirdly that in their statements after close of prosecution evidence the accused specifically requested the Court to record their statements on oath in rebuttal but they were not given any chance to appear as witnesses in support of their defence. The learned Sessions Judge therefore, concluded that the proceedings during trial by the Magistrate were illegal. On merits, the learned Sessions Judge held that the complainant has failed to prove his case against the accused. This finding was based on, firstly, the delay of one month in lodging of the complaint, secondly the conflict in the story put forth by the complainant in his complaint and the story narrated by him during trial of the case and finally that the possession of the shop in question was restored to Muhammad Saddique accused by Magistrate after recalling the order of attachment recorded earlier in proceedings under section 145, Cr.P.C.

3. Sardar Muhammad complainant has challenged the appellate order dated 16-5-1987 through this petition for special leave to appeal under section 417(2), Cr.P.C.

4. I have heard learned counsel for the petitioners and have perused the record. The findings of learned Sessions Judge regarding illegality in proceedings of the trial and on merits of the complaint are borne out from the record: The accused were neither formally charged nor asked to admit, or deny the charge as required under section 242, Cr.P.C. The learned Magistrate did append a certificate under section 364, Cr.P.C. under the statement of Muhammad Saddique accused, recorded after close of prosecution evidence but the said certificate was not given after recording the statements of the remaining four accused. In their statements under section 342, Cr.P.C. the accused specifically offered to make statements on oath in rebuttal to the complainant's case but the learned trial Magistrate failed to record their statements under section 340(2), Cr.P.C. The above illegalities were not curable under section 537, Cr.P.C. and vitiated the proceedings of trial against the accused. The conclusions arrived at by learned Sessions Judge in his appellate judgment are borne out from the evidence on record. The impugned judgment is unexceptionable meriting dismissal of this petition.

5. There is however, another aspect which requires consideration. The accused were' convicted and sentenced by the learned trial Magistrate vide judgment dated 28-2-1987. They challenged the said judgment through appeal before learned Sessions Judge, Toba Tek Singh. Their appeal was accepted as a consequence of which they were acquitted. A petition for special leave to appeal under subsection (2) of section 417, Cr.P.C. was competent against order of acquittal passed in any case instituted upon complaint and not against an appellate order of acquittal. The provisions of section 417, Cr.P.C. are reproduced below:- 417.-- (1) Subject to the provisions of subsection (2) the Provincial Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal, passed by any Court other than a High Court. (2) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf-grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. (3) No application under subsection (2) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order. (4) If, in any case, the application under subsection (2) for the grant of special leave to appeal from an order of acquittal is refused no appeal from that order of acquittal shall lie under, subsection (1).

6. Subsection (1) of section 417 provides that subject to provisions of subsection (4) the Provincial Government, may in any case direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than the High Court. Subsection (1) provides appeal not only from an original order but also against an appellate order of acquittal. Subsection (2) of section 417 lays down that if an order of acquittal is passed in any case instituted upon complaint, the High Court on an application by the complainant may grant special leave to appeal from an order of acquittal. This provision does not specify or, include an appellate order of acquittal. In my view under subsection (2) of section 417, Cr.P.C. only an order of acquittal recorded in a complaint by trial Court could be challenged in High Court by presenting a petition for special leave to appeal and appellate order of acquittal cannot be called in question under this provision of law. In view of the above discussion I find no merit in this petition, which is accordingly dismissed in limine. M.B.A./S-255/L Petition dismissed.