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Criminal Revision No. 64 of 1952 decided on 13th Sep tember, 1952, against the order of Sessions Judge, Bahawalpur, dated 15th March, 1952.

S. 439‑Complain ant's Revision against acquittal‑District Magistrate not moved for preferring appeal‑High Court may entertain Revision if there has been a denial of fair trial or a flagrant failure of justice.

Where the petitioner had not adopted the right course of moving the Government to prefer an appeal from acquittal but moved the Sessions judge who was not the proper person to be moved in the matter.

Held, that the High Court itself is competent to interfere if it thinks that there has been either a denial of the right of a fair trial or flagrant failure of justice.

Nathu Mat v. Abdul Haq A I R 1930 Lah. 159 ; Kesho Prasad,Singh v. Ram Swarup Ahir and others A I R 1926 Pat. 176 and Wazir Kunjra v. Emperor A I R 1929 Pat. 139 rel.

Rana Munawar Ilahi, for Petitioner.

Government Advocate, for the Crown.

‑7 persons were challaned under section 326 Pakistan P. C. read with sections 148 and 149. The story of the prosecution was that on 16th of September 1949 all the accused who are either related or friends of Allah Ditta caught hold of the complainant Luqman while he was watering his field, on the suspicion that he had illicit connection with the wife ofr Allah .Ditta ; and took him to the well of Allah Ditta and cut his nose and a lip. The companions of Allah Ditta also belaboured him. The report was made to the police and the accused were challaned. The trial Magistrate acquitted them all. The revision petition was made to the Sessions Judge Bahawalpur and. it was also requested to move the Government to prefer an appeal, against the order of acquittal. The learned Sessions judge agreed with the view of the trial Court and dismissed the petition. This is a second petition before this Court. It was contended by Mr. Sleem, the learned Government Advocate that no revision lies against the order of the rejection of the request to the learned Sessions judge to move the Government 'to prefer an appeal against the order of acquittal. I agree with him because that request was an unprecedented approach to the learned Sessions Judge. But it will be kept in view that there was also a clear prayer, giving the reasons therefor, to move the High Court to exercise its revisional powers to set aside the order of acquittal and to order re‑trial of the accused. Under these circumstances the application could not be rejected in toto. The learned Sessions judge was bound to consider the revisional application and to ignore the redundant request made to him to move the Government to prefer an appeal against the acquittal. The order of the learned Sessions‑Judge would show that he had attached no importance to the first request and treated and decided the application as a revisional application and dismis sed it. The question now is whether the petition for revision deserved acceptance. In Nathu Mal v. Abdul Haq A I R 1930 Lah. 159, Tek Chand J. had laid down that "An improper order of acquittal can be set aside by the High Court either on a regular appeal by the Local Government when ordinarily moved by the District Magistrate or in revision ordinarily on a reference by the Sessions Judge. Where the first alternative is not available there can be no legal bar to the adoption of the second alternative. But the power is to be exercised in exceptional cases only where there has been either denial of the right of a fair trial or a flagrant failure of justice". He further observed that "Section 439 need not be read subject to section 417 and reference can be entertained when the Local Government has been moved to prefer an appeal or having been moved has declined to prefer such appeal". Kesho Prasad Singh v: Ram Swarup Ahir and others A I R 1926 Pat. 176 and Wazir Kunjra v. Emperor A I R 1929 Pat. 139 were relied upon.

In the present case the petitioner did not adopt the right course to move the Government to prefer an appeal against the order of acquittal. He moved the Sessions judge in his petition for revision. In the Criminal P. C. Sessions judge is not the proper person to be moved in this matter. Besides this the learned Sessions judge did not attend to this request. It is evident therefore that not only that the Government did not prefer an appeal against the order of acquittal but there was no proper move to the Government in this connection. Consequently there was no appeal against the order of acquittal before this Court. On the revisional side the learned Sessions judge did not treat it as a fit case to move the High Court for interference. If there had been such a move then the High Court could interfere only on the grounds of denial of the right of a fair trial or a flagrant failure of justice. Despite the fact that the learned Sessions judge had not made any recommenda tion to the High Court to interfere with the order of acquittal I am of opinion that in the second revision to the High Court the High Court itself is competent to interfere with it if it thinks that there have been either a denial of the right of a fair trial or a flagrant failure of justice.

Mr. Rana was unable to tell me that either of the two requirements which can justify interference by the High Court in the order of acquittal exist in the present case. According to the story of the prosecution there were three persons in addition to the complainant who had seen the occurrence and there were many persons who had reached the spot when a hue and cry was raised by the complainant. Except one Jumma the real brother of the complainant none of the witnesses support ed the case of the prosecution. All express their ignorance of the occurrence.

The trial judge gave importance to the defence evidence which was to the effect that the complainant did say at that time that he was attacked and injured by persons with muffled faces who could not be identified. The statement of the brother of the complainant was disbelieved by the trial Judge treating him as an interested person. It cannot be said that the learned Magistrate could not arrive at that conclusion. There is no other evidence on the file. Mr. Rana could not tell me the utility of accepting it as a revisional application and ordering re‑trial. There was no fresh evidence in the posses sion of the complainant which could be placed by him before the Court during the re‑trial. Mr. Rana was compelled to admit the position that re‑trial could be of no use to his client. Thus there is no ground for me to accept this petition and it is dismissed.

A. H.

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