1991 PLP 504 (MLD)

Yusuf Ali Khan for Petitioner. Q. M. Salim for Respondents. Date of hearing: 30th September, 19911. Through this Constitutional Petition Muhammad Ibrahim petitioner seeks declaration to the effect that the order dated 20-1-1990 passed by the learned Sessions, Judge, Faisalabad, respondent No.7 is without lawful authority and of no legal effect,

2. The facts leading to this petition briefly are that on the report of Muhammad Ibrahim petitioner a criminal case under sections 170. 411), 5iKo and 149, P.P.C. was registered against Faral Muhammad and 4 others respondents Nos.1 to 5 at Police Station Khurarianwala on 17-4-1988. After investigation challan was submitted against respondents Nos. 1 to 5 in the Court of Magistrate 1st Class. Jaranwala Respondent No.6, who on 26-3-1989 acquitted the accused/respondents of the charge under section. 249-A Cr.P.C., although no evidence had been recorded in the case. Feeling aggrieved thereby, the petitioner filed revision, which was dismissed by the learned Sessions Judge, Faisalabad on 20-1-1990 mainly on the grounds that neither the District Magistrate was moved by the complainant to file appeal against acquittal nor any certificate had been filed that he declined to file such an appeal, that at one stage, the accused were found innocent and that sanction for the prosecution of the two government officials namely Fazal Muhammad Girdawar and Muhammad Akhtar Patwari was not obtained by the prosecution.

3. Learned counsel for the petitioner argued that the complainant was not obliged under the law to move District Magistrate to tile appeal or annex any certificate that he declined to file such appeal with the revision to be filed before the learned Sessions Judge under section 439-A, Cr.P.C., that the opinion of the police given at one stage of the investigation was not binding on the Court ands that the Girdawar and Patwari were not acting in discharge of their duties as public servants when they committed the alleged crime more particularly, offence under section 148/149/506, P.P.C. and that there was no legal justification to acquit the accused under section 249-A; Cr.P.C. Qazi Muhammad Saleem, the learned counsel appearing for respondents Nos.1 to 5 has frankly and rightly conceded to the contentions of the learned counsel for the petitioner. I also agree with the learned counsel for the petitioner, inasmuch as, High Court Rules and Orders requiring the filing of certificate from District Magistrate to the effect that he had declined to file appeal against acquittal, is not applicable to the revisions to be filed under section 439-A, Cr.P.C. before the Court of Session. The relevant High Court Rules and Orders relate to the revision to be filed in the High Court. Alter the addition of section 439-A, Cr.P.C. conferring the revisional powers on the Court of Session, no corresponding amendment was made in the High Court Rules and-Orders. So, neither the complainant was/is obliged to move District Magistrate to file appeal against, acquittal nor any certificate from him to the effect that he had declined to file such appeal was/is required to be annexed with the revision application to be filed before the Session Court. The accused/petitioner could not have been acquitted simply because they were found innocent at one stage of investigation. Furthermore, no sanction for the production of public servant committing crime in his private capacity was required. All the three grounds on which the learned Sessions Judge has based his order of acquittal are fanciful. Pursuant to the above discussion, there is no option but to declare the order of the learned Sessions Judge dated 20-1-1990 to be without lawful authority and of no legal effect. Resultantly, the' learned -Sessions Judge, Faisalabad shall rehear the revision filed by the petitioner against Fazal Muhammad and 4 others respondents Nos. 1 to 5 which was dismissed by him on 20-1-1990. S.A./M-2529/1 Case remanded: