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Revision No. 62 of 1954, decided on 14th October, 1954 against the order of Additional Sessions Judge, Poonch, dated 2nd December, 1953.

Ss. 417 and 439 Omission to appeal from order of acquittal-Revision whether competent.

The contention that the omission to file an appeal under section 417 renders an order of acquittal immune from attack is indeed not sustainable.

Khwaja Muhammad Sharif, Government Advocate for Petitioner.

Abdul Hamid, for Respondent.

-The facts which have occasioned this revision petition may be briefly stated as follows :-

Muhammad Said respondent along with two other persons was placed on his trial for offences punishable under sections 302 and 323 read with section 34 A. P. C. before Sardar Yar Muhammad Khan, Additional Sessions judge, Poonch. The learned Additional Sessions judge acquitted Muhammad Said on the ground that his complicity in the crime was doubtful and convicted his two other confederates. The Public Prose cutor made an application to the District Magistrate, Poonch, who is the representative of the Government in such matters to prefer an appeal against acquittal of Muhammad Said. No action was taken on this application in the first instance. The Public Prosecutor then moved the Government through the Secretary for Law who summoned the file of the case. When the file reached the office of Law Secretary the time limit for filing the appeal had expired. The Public Prosecutor then filed this revision petition against the acquittal of Muhammad Said. A notice of the petition was sent to the Government Advocate and he appeared to support it with the result that the respondent Muhammad Said was ordered to before this Court in response to the petition.

The Counsel representing Muhammad Said has raised a preliminary objection that the revision petition is not compe tent because subsection 5 of the section 439 Criminal P. C. is a mendatory provision of law prohibiting a Court from exer cising its powers of revision in cases where an appeal is competent but hap not been lodged. The learned Government Advocate has contended on the authority of A I R (31) 1944 All. 137 that the fact that a right of appeal against .an order of acquittal is given by section 417 furnishes no justification for the argument that, in the absence of such an appeal, the order cannot, under any circumstances, be touched or varied. According to him it is one thing to give a right of appeal to an individual or to an authority and it is quite another to empower a Court to do something, which it could do if an appeal was preferred, even though no such appeal has been preferred. Section 439 is an apt illustration on the point which subject to the restriction imposed by subsection (4), empowers the High Court to exercise the powers of an appellate Court even though no appeal had been preferred.

The contention of the learned Government Advocate does not appear to be forcible in the circumstances of the case. Under section 439 Criminal P. C. in cases of conviction it is open to the High Court to set aside the conviction and acquit the accused even though he preferred no appeal against his conviction.. It is also well settled that, even in the absence of an appeal by the Provincial Government, it is open to the High Court under section 439 to set aside an acquittal and order a retrial vide A I R 1937 All. 143. It is thus no doubt manifest that the mere omission or failure of the Provincial Government for any reason to appeal against an order of acquittal does not, in all cases, attach finality to that order, and such order is liable to be set aside by the High Court in the exercise of its revisional jurisdiction. The contention that the omission to file an appeal under section 417 renders an A order of acquittal immune from attack is indeed not sustainable.

The question still remains whether the Government not taking advantage of the privilege allowed to it by law can move the High Court to interfere with the acquittal order in the exercise of its revisional jurisdiction. The answer to this question cannot but be in the negative. In the presence of the express provision made in Clause 5 to section 439 Criminal P. C. To look at the case from a different point of view also leads one to the same conclusion. In the exercise of its revisional jurisdiction the High Court can only set aside the acquittal order and order a re-trial and cannot convert the finding of acquittal into that of conviction. It is not alleged that the trial in the present case was contrary to any fundamental rule or procedure. It is simply contended that the acquittal order was not passed on a view of the evidence which reasonable Judicial Officer could have taken. The order for re-trial if passed, therefore, would amount to a direction to the Sessions judge to convict which would not at all be fair to the accused. The trial is the foundation of the case and if the trial is vitiated, the judgment in appeal which is super structure built on the foundation would not stand. It cannot be conceived that the judge on re-trial will escape an unconcious bias in favour of accepting the evidence of witnesses when the High Court holds that the acquittal order was passed on a perverse view of the evidence led in the case on the side of the prosecution. The order for re-trial even if it be made in the present case will therefore serve no useful purpose.

For the above reasons, we find that the objection of the Counsel for the respondent is good and must prevail. The revision petition is accordingly dismissed.

A. H. Petition dismissed.

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