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Criminal Revision No. 31 of 1952, decided on 9th March, 1952, against the order of Sessions Judge, Bahawalpur, dated 30th December, 1951.
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-------- S. 439 (5)‑Revision not entertainable where accused had not appealed to Court of Session.
One of two accused appealed to the Court of Session and was acquitted. The other then preferred a revision in High Court
Held that the revision was not entertainable by reason of subsection (5) of section 439 Cr. P. C.
‑Two persons Umardin and Muhammad Din were convicted, the former under section 324 read with section 109 Pakistan Penal Code and the latter under section 324 Pakistan Penal Code. Umardin appealed and was acquitted. Muhammad Din instead of appealing to the learned Sessions judge came up in revision before this Court. A pre liminary objection is taken on behalf of the Crown that the revision is not entertainable under section 439 (5) of the Criminal Procedure Code which reads :‑
"Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertain ed at the instance of the party who could have appealed."
On page 2484 of the Criminal Procedure Code by Chitaley, IV Ed., the learned Commentator under note 23 has summarised the cases in which no revision can be entertained. One of which is, "whether there is another remedy open to the party and he has not pursued it" He has quoted a number of rulings to support his view. Later on under note 46 he has observed that a revision cannot be entertained in an appealable case, 'at the instance of the party' who could have appeased but has not done so. The subsection applies, how ever, only where an appeal lies 'under the Code' against the particular order in question ; where an appeal lies under some other provision of law, it does not present the maintainability of‑ a revision under the Code.
The learned counsel for the petitioner was unable to meet this petition. I am therefore of opinion that the present revision is not entertainable and merits rejection and is hereby rejected.
A. H.
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