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Criminal Miscellaneous No. 948/M of 1980, decided on 12th October, 1982.

--- S. 561-A read with S. 439-A-Penal Code (XLV of 1860), S. 307/148/149 - Quashing of proceedings - Evidence, mis appreciation of-Misappreciation or misreading of evidence, held, constituted an illegality-Order of Sessions Judge refusing to go into question whether trial Magistrate made proper appraisal of evidence, held further, illegal and liable to be set aside.

Abdur Rashid Khondkar v. Chandu Matbar and 16 others P L D 1964 S C 795 ref.

--- Ss. 561-A & 439-A read with Ss. 423, 427 & 428 -- Quashing of proceedings- Revisional jurisdiction of Sessions/Additional Sessions Judges, extent of-Reasoning of Additional Sessions Judge that since he could not convict accused-respondents in event of success of revision petition, therefore, it was of no use to embark upon re appraisal of evidence, in its revisional jurisdiction, held, not in keeping with judicial norms-As a Court of revision, Sessions and Additional Sessions Judges, held further, competent to exercise any of powers conferred on them as Court of appeal by Ss. 423, 427 and 428, Cr. P. C. Section 439-A, Cr.P. C. added under the Law Reforms Ordinance, 1972 conferred the same revisional jurisdiction upon the Sessions Judges/Additional Sessions Judges as invested in the High . Court under section 439, Cr. P. C. to be exercised in appropriate cases. This amendment has been brought in to provide a remedy within the easy access of the litigant public and also to lessen the volume of work in the High Courts. A perusal of section 439, Cr. P. C. shows that a court of revision in its discretion can exercise any of the powers conferred on a court of appeal by sections 423, 427 and 428, Cr. P. C. which means that a court of Sessions can exercise corrective jurisdiction in a case where any illegality was occasioned or committed during the trial by the lower Courts.

Muhammad Bakhsh v. Iqbal Ahmad and others 1980 P Cr. L J 191 ref.

Muhammad Bashir Khan for Petitioner.

Sardar Shah Bokhari for Respondents Nos. 2, 9 and 10.

Niaz Ahmad Bokhari for the State.

Date of hearing: 12th October, 1982.

This petition under section 561-A, Cr. P. C. has been filed by Muhammad Azim son of Muhammad Alam (complainant), challenging the legality and correctness of the order dated 15th May, 1980 passed by the learned Additional Sessions Judge whereby he dismissed the revision peti tion filed by the petitioner against the order dated 11^th March, 1980 acquitting the respondents-accused, in limine.

2. Briefly stated facts of the case are that the petitioner lodged an F. I. R. with Mumtazabad police under section 307/448/148 read with section 149, P. P. C. against the respondents Nos. 1 to 15 on the allegation that they dismanteled the wall, the petitioner had constructed around a plot comprising one Kanal, which was jointly purchased by him and one Karam Elahi from the proprietors of Panjnad Textile Mills. Having gone to the spot the petitioner objected to what the respondents had done, but they refused to listen to him and in order to scare him away resorted to firing but luckily nobody was injured. ' After necessary investigation the respondents were challaned to Court. The case was tried by Ch. Mahmood ul-Hassan Magistrate Section 30, Multan, who ultimately acquitted all the respondents by his order dated 11^th March, 1980. Being aggrieved of this order the petitioner applied to the District Magistrate for filling Govern ment appeal against aforementioned order of acquittal but be declined and therefore the petitioner was obliged to file a revision under section 439-A, Cr. P. C. before Sessions Judge challenging the acquittal of the respondents which was marked to the learned Additional Sessions Judge, for disposal who dismissed the same in limine for two-fold reasons. Firstly, that misappreciation of evidence does not constitute an illegality or material irregularity and secondly, that in the event of the revision having succeeded, he had no authority to convict the respondents and therefore no useful purpose would be served by summoning the accused respondents in the revision petition. This order has been assailed before me. Having heard both parties, I find that the view of the learned Additional Sessions Judge that misappreciation of evidence by the trial Court does not constitute illegality or material irregularity, is wholly mis conceived. There is a plethora of authorities, wherein the superior Courts of this country have very clearly held that misappreciation or misreading of evidence does constitute an illegality. It hardly needs to quote any authority to support this view, yet a reference with advantage may be made to Abdur Rashid Khondkar v. Chandu Matbar and 15 others and The State (P L D 1964 S C 795). The second reason for dismissing the revision petition was that since he (Additional Sessions Judge) could not convict the respondents in the event of the success of the revision petition, therefore, it was of no use to embark upon the reapraisal of the evidence at that stage. This approach also, of the learned Sessions Judge, is not in keeping with judicial norms. The Courts themselves are the creation of law and they are supposed to administer the law as it is, without yearning for the grant of one power or the other. The Courts do not feel amused over extension of their jurisdic tion nor do they feel dismayed over limiting their jurisdiction through valid legislation. Section 439-A, Cr. P. C: added under the Law Reforms Ordinance, 1972 conferred the same revisional jurisdiction upon the Sessions Judges/ Additional Sessions Judges as it vested in the High Court under section 439, Cr. P. C. to be exercised in appropriate cases. This amendment has been brought in to provide a remedy within the easy access of the litigant public and also to lessen the volume of work in the High Courts. A perusal of section 439, Cr. P. C. shows that a Court of revision in its discretion can exercise any of the powers conferred on a Court of appeal by sections 423, 427 and 428, Cr. P. C. which means that a Court of Sessions can exercise corrective jurisdiction in a case where any illegality was occasioned or committed during the trial by the lower Courts. The learned Sessions Judge certainly has failed to exercise the jurisdiction vested in him, in the instant case as he did not go into the question, whether or not the trial Magistrate while passing an order of acquittal dated 11th March, 1980 had made proper appraisal of evidence on record, or not. The impugned order thus being illegal is liable to be set aside.

4. In a similar case, decided by my learned brother R. S. Sidhwa, J. Muhammad Bakhsh v. Iqbal Ahmad and others (1980 P Cr. L J 191), it was held s-

"The Sessions Judge has power to hear a revision petition from an order of acquittal passed by a Magistrate in a case instituted upon a Police Challan . The order of the learned Additional Sessions Judge dated 7th June, 1979, holding that the petition is incompetent and dismissing the same in limine is therefore, illegal and has been passed in error. The same deserves to be set aside."

5. Respectfully following the dictum laid down in the aforesaid authority, which applies on all fours to the case in hand, I accept this petition in the exercise of powers under section 561-A, Cr. P. C. set aside the impugned order and remand the revision petition to learned Sessions Judge with the direction that it may be decided by him or be entrusted to any other Additional Sessions Judge in the district for disposal strictly in accordance with the relevant provisions of law. The objection raised by the learned counsel for the respondent that instead of remanding the revi sion petition, it may be disposed of by this Court cannot be accepted for the above reasons.

S. G. D. Revision accepted.

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