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Writ Petition No. 131-BIBWP of 1982; decided on 1st June, 1982.

----S. 439-A-Revision (criminal)- Despite issuance of none bailable warrants for procuring attendance of witnesses, witnesses not served and prosecution case closed without issuing non-bailable warrants as a last resort-Order, held, erroneous-First revision petition against such order having been dismissed in default without legal sanctity, second revision- petition, held, competent in circum stances.

Qaiser Mahmud Shafi for Petitioner.

This constitutional writ petition has been filed udder Article 199 of the Constitution of Islamic Republic of Pakistan (1973) for a declaration to the effect that the order pronounced by Malik. Khizar Hayat, the learned Additional Sessions Judge dated 16th March, 1982 is without lawful authority and of no legal effect.

2. The relevant facts of this case in substance are that the petitioners were involved in a case under sections 148; 430, 506 read with section 149 of the P. P. C. The case was tried by Rana Abdul Ghaffar Khan, Magistrate 1st Class, Khanpur. He recorded the statements of the P. Ws. and summoned the Investigating Officer and the Ziladar. They did not appear and bailable warrants of their arrest were issued. They were not served and the learned trial Magistrate closed the prosecution evidence and consequently acquitted the petitioners.

3. Before the pronouncement of judgment, the complainant moved a petition under section 540, Cr.P.C. for summoning Qamar Hussain A.S.I., the Investigating Officer and the Ziladar of the Irrigation Department. That application was dismissed. The complainant filed a revision petition before Mr. Muhammad Mian Qureshi the learned Sessions Judge Rahim Yar Khan which was dismissed in default on 12th April, 1981. On a second revision petition filed by the complainant, Malik Khizar Hayat, the learned Additional Sessions Judge, Rahim Yar Khan accepted the revision petition and directed that the investigating officer and the Ziladar who were impor tant witnesses to prove a case under section 430, P. P. C., should be summoned and the case be decided afresh.

4. The learned counsel appearing for the petitioners has contended that when a revision petition is dismissed in default then the provisions of section 561-A, Cr.-P. C. can be invoked in a High Court for the restoration of the same. He could not quote any authority as to what is to be done when a revision petition is dismissed in default by a Sessions Judge because a Sessions Judge lacks the inherent powers under section 561-A, Cr. P. C. It may be noted that there is no provision in the Cr. P. C. for the dismissal of a revision petition in default and the orders of the learned Sessions Judge dated 12th April, 1981 are not correct. In this manner, a second revision petition is competent. The learned first revisional Court has exercised jurisdiction in accepting the petition of the complainant under section 540, Cr. P. C. The proceedings taken by the learned trial Court, were obviously in contravention of the provisions of the Cr. P. C. When the Ziladar and the Investigating Officer were not served despite the issuance of bailable warrants of arrest, then the right course for the learned trial Court was to issue non-bailable warrants for their arrest in order to procure their attendance. Consequently, the order regarding the closing of the prosecution evidence is also erroneous. The learned Additional Sessions Judge was competent to accept revision petition and make a direction to decide the case afresh. The said order is not without lawful authority or of no legal effect. The petitioners cannot invoke the constitutional jurisdiction of this Court in this matter. The writ petition stands dismissed in limine.

Petition dismissed.

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