1998 PLP 1605 (MLD)

Malik Muhammad Bakhsh Sheikh for Petitioner. Malik Haider Jamal for Respondents. Rana Muhammad Arif, Addl. A.-G. for the State. As both the Writ Petitions i.e. 5457-M of 1996 and 5458-M of 1996 are between the same parties and common questions of law and facts are involved therein, therefore, I am disposing of both these matters together by this order.

2. Brief facts of the case are that a case F.I.R. No.441 of 1994 dated 11-11-1994 for the offence under section 188, P.P.C. at Police Station Jahanian Tehsil and District Khanewal as well as another case F. I. R. No. 160 of 1995 dated 6-6-1995 for the same offence at the same Police Station stood registered against the respondent No.3 on the order of the A.C. Khanewal on a written application submitted by the petitioner with the allegation of removal of the respective crop from the field under his tenancy without giving due share to him in violation of provisions of section 144 of Cr.P.C. having been imposed by the authority concerned; the police after receiving the information ultimately challaned the respondent No.3 for facing the trial for aforesaid charge in both the cases. The cases were pending trial when .respondent No.3 submitted an application under section 249-A of Cr.P.C. in both the cases seeking his acquittal. The learned trial Court after hearing the parties acquitted respondent No.3 in both the cases on 24-12-1995. The petitioner filed a petition under section 439-A, Cr.P.C. vide Criminal Revision No.6/10 of 1996 in the Court of learned Additional Sessions Judge, Khanewal which was dismissed as non maintainable, whereafter the present writ petitions have been preferred against the impugned order dated 7-8-1996 passed by the Additional Sessions Judge, Khanewal.

3. The learned Additional Attorney-General at the very outset submits that this petition is not maintainable. The petitioner could file an appeal under section 417, Cr.P.C. against the order of acquittal passed by the trial Court in favour of respondent Np,3 on 24-12-1995; that where right of appeal is available revision is not maintainable. He has referred 1995 P.Cr.L.J. 1369 "Abdul Majeed and four others v. Messrs H Ghulam Muhammad & Brothers Ltd. and another" and 1991 PCr.LJ 19" Nasir Khan and another v. The State".

4. The learned counsel for the petition on the other hand submitted that the revision petition is maintainable and the learned Additional Sessions Judge has erroneously dismissed the same. He has relied upon 1997 P.Cr.L.J. 1626 "Muhammad Yasin v. Muhammad Hanif and others" PLD 1996 Lah. 471 'Muhammad Sharif v. Jamshed Ali etc.

5. I have heard the learned counsel for the petitioner as well as learned Additional Attorney-General at length. The record of the case has been persued with their assistance The judgments relied upon by the learned Additional Attorney-General are fully applicable to the facts of the present case. The petitioner has a remedy of appeal under section 417, Cr.P.C. against the order of acquittal passed by the learned magistrate in favour of the respondent No.3. Subsection (5) of section 439, Cr.P.C. reads as follows:-- "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. " The aforesaid provision of law leaves no doubt that the petitioner could file appeal against the order of acquittal passed by the Trial Court. Instead of filing an appeal in the High Court the petitioner has chosen to file a revision before the Sessions Court. The learned Additional Sessions Judge was justified to treating the revision petition as non maintainable. The Karachi High Court in Nasir Khan's case while interpreting the scope of subsection (5) of section 439, Cr.P.C. and section 417(2) of the Cr.P.C. in similar circumstances held that the revision petition filed by the complainant before the Sessions Court against the order of acquittal was barred as he has remedy by way of an appeal under section 417(2) of the Cr.P.C. The revision petition filed by the complainant before the Sessions Court was declared incompetent. Similarly in the other judgment same view was taken by another Judge of the Karachi High Court in Abdul Majeed's case referred supra. Where remedy of appeal is available but the same has not been utilized, no revision under section 439, Cr.P.C. can be filed. In this case reliance was placed on the earlier judgment of the (sic).

6. Now coming to the judgments cited by the learned counsel for the petitioner, both of them are not applicable to the facts of the present case. In the case of Muhammad Sharif (PLD 1996 Lah.. 471) a point of alternate remedy was considered and the delay was condoned in entertaining the appeal of the complainant. Indirectly it was laid down that -the revision petition against the order of acquittal was not maintainable before the Sessions Court. However, while condoning the delay and treating the petition. as appeal the case was remanded to the trial Court. In the case of Muhammad Yasin referred by the learned counsel for the petitioner the provision of section 439(5), Cr.P.C. was not at all discussed. After going through the judgments referred to above and the provisions contained in section 439(5) of the Cr.P.C. the learned Additional Sessions Judge was justified, in dismissing the revision as non-maintainable. The remedy of appeal was available to the petitioner against the order of the Trial Court acquitting the accused while exercising power under section 249-A, Cr.P.C. The petitioner failed to file an appeal against the order of the Magistrate. The Additional Sessions Judge was justified in dismissing the revision vide impugned order dated 7-8-1996. The order of the learned Additional Sessions Judge is just, proper and in accordance with law and calls for no interference in exercise of Constitutional jurisdiction of this Court. Both the petitions have no merit and are dismissed with no order as to costs. H.B.T./G-81/L Petitions dismissed.