2005 PLP 896 (MLD)

The petitioner by filing this Constitutional petition has called in question the legality of the judgment dated 15-4-1996 passed by the learned Additional Sessions Judge, Wazirabad, whereby he while setting aside the order of acquittal dated 5-4-1995 passed by Magistrate Section 30 Wazirabad, remanded the case for its decision afresh on merit.

2. Succinctly the facts as revealed from the contents of this petition were that the petitioner was a qualified Family Welfare Worker and had been posted as such at Family Welfare Centre, Ghakkar, District Gujranwala; on 29-12-1992, at 12-00 noon, Riasat Ali complainant brought his pregnant wife Mst. Maqbool Bibi to the Centre for check-up; she was treated by the petitioner, during course of which she died; the complainant made an application to the Senior Superintendent of Police, Gujranwala for registration of a case against the petitioner, resulting in registration of case F.I.R. No.5 of 1993 dated 10-1-1993, under section 316, P.P.C. at Police Station Ghakkar Mandi; during the course of investigation, she was found guilty and challan was submitted before the Court for her trial.

3. On receipt of the challan, the learned trial Magistrate framed charge under section 319, P.P.C. and put the same to the petitioner, to which she pleaded not guilty and claimed to be tried. The prosecution witnesses had been summoned twice and on their failure to appear, the petitioner preferred an application under section 249-A, Cr.P.C. seeking her acquittal, which ultimately succeeded and the petitioner earned acquittal vide order dated 5-4-1995. Feeling aggrieved of the said order, the complainant filed a revision petition before the learned Additional Sessions Judge, Wazirabad, who proceeded to accept the same vide the impugned judgment dated 15-4-1996 and remanded the case to the trial Court for decision afresh. Hence, this Constitutional petition.

4. Both the sides have been heard at length. The sole issue involved herein is whether the revision petition under section 435, Cr.P.C. before the learned Court of Session against acquittal order under section 249-A, Cr.P.C. passed by the Magistrate Section 30 was maintainable or not. Section 435, Cr.P.C. is reproduced as under:-- "Power to call for records of inferior Courts.

The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record". Subsection (5) of section 439, Cr.P.C. is also reproduced as under:-- "Where under this 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." This question has already been dealt with by the superior judiciary in a number of cases and the preponderance of view has been that a revision petition is not maintainable against an order of acquittal passed by the Judicial Magistrate, however, remedy of filing an appeal under section 417(2-A), Cr.P.C. is available. It would be advantageous to place reliance on cases, Abdul Majeed and 4 others v. Messrs H. Ghulam Muhammad & Brother's Ltd. and another (1995 PCr.LJ 1369) and Muhammad Bashir v. Fazal Hussain and 2 others (2002 PCr.LJ 513). The view of a learned Single Judge of this Court in case of Muhammad Yasin v. Muhammad Hanif and others (1997 PCr.LJ 1626) that revision petition was competent under section 439-A, Cr.P.C. against an order of acquittal recorded under section 249-A, Cr.P.C. is against the preponderance of view as already stated hereinabove and appears to have been taken due to lack of proper legal assistance.

5. After going through the aforesaid provisions of law and the citations, I am of the considered view that no revision is competent before the Sessions Court against an order, which is challengeable in appeal under section 417(2-A), Cr.P.C. As the petitioner had been acquitted of the charge under section 249-A, Cr.P.C. by the learned Magistrate Section 30, the remedy of filing an appeal was available to the complainant and the revision petition was not competent, so the impugned judgment dated 15-4-1996 is declared to be without any lawful authority and as such of no legal effect.

6. Resultantly, this petition is allowed and the impugned judgment dated 15-4-1996 passed by the learned Additional Sessions Judge, Wazirabad is set aside being illegal and unlawful. Since a legal proposition was involved, therefore, there will be no order as to costs. N.H.Q./M-926/L Petition allowed.