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Criminal Petition No. 328 of 1981, decided on 17th October, 1981.

(Against the order of Lahore High Court, dated 9‑6‑1981 passed in Criminal Revision No. 287 of 1981).

----Art. 185(3) and Criminal Procedure Code (V of 1898), Ss. 417 & 439‑Sessions Court in a murder case accepting application‑ for with drawal of complaint and acquitting accused‑Petitioner asserting to be an eye‑witness of occurrence filing revision before High Court but same dismissed as being not maintainable‑Contention that Court of Session could not allow withdrawal of complaint once cognizance of offence taken and petitioner not being complainant not debarred by provisions of S. 417(2) or 439(5) from instituting revision, held, raise questions of some importance‑‑‑Delay condoned and leave to appeal granted ‑[Complaint Appeal against acquittal‑Revision (criminal)].

Rana Abdul Majid, Advocate Supreme Court with Sh. Abdul Karim, Advocate‑on‑Record for Petitioner.

Rashid Aziz Khan, Additional Advocate‑General Punjab for Respondent.

‑‑A case had been instituted upon a direct complaint filed by Mian Khan, under sections 302/149 and 148, P. P. C. against respondents 1 to 18. The case came up for trial before the Additional Sessions Judge, Gujrat, where the accused were summoned but charge had not yet been framed. On 12‑2‑1981 the learned Additional Sessions Judge, in the presence of the defence counsel, accepted an application filed by Mian Khan, the complainant, seeking withdrawal of the complaint and acquitted the respondents. The petitioner, asserting to be an eye‑witness in the case, filed Revision No. 287 of 1981 before the High Court but the same was dismissed on 9‑6‑1981 ‑as not being maintainable. The reason given was that a revision would lie only when there was no provision for filing appeal but that in view of the provision of section 417, Cr. P. C. an appeal could be filed by a "complainant" which term "should be read in fit cases to be appeal". person who would have a right to file petition for special leave to

2. We have heard learned counsel for the petitioner and also Mr. Rashid Aziz Khan, Additional Advocate‑General who has appeared at the direction of the Court. Under subsection (2) of section 417, Cr. P. C. a complainant in a case instituted upon a complaint can appeal by special leave if granted by the High Court, from an order of acquittal. Subsection (5) of section 43 lays down that "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".

3. The contention is that‑

(1) there being no provision enabling the Court of Session to allow withdrawal of the complaint once cognisance has been taken, the order of the trial Court dated 12‑2‑1981 was without jurisdiction; and

(2) the petitioner was not "complainant" in the case and as such was not debarred by the provisions of section 417(2) or 439(5) for instituting the revision.

4. The questions raised being of some importance, we condone the delay of 8 days in filing the present petition and grant leave to appeal to the petitioner to consider the aforesaid questions.

Delay condoned.

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