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Criminal Miscellaneous Application No. 939 of 1981, decided on 28th October, 1984.

‑‑‑Ss. 202 & 247‑‑Penal Code (XLV of 1860), 5.506‑‑Acquittal‑‑Offence under S .506, P. P. C. divided into two parts‑‑First part, bailable and compoundable whereas second part non‑bailable and not compoundable‑ Court while issuing process not mentioning under which part case fell‑ Offence under S.506, P.P:C. cognizable‑‑ Acquittal of accused under 5.247, Cr.P.C. on ground of absence of complainant, held, not legal as provisions of S.247, Cr.P.C. were ‑not applicable in circumstances.

‑‑‑Ss.561‑A, 247 & 439‑A‑‑Revision, scope of‑‑Complaint case‑‑Alternate remedy by way of appeal, available‑‑Held, without availing such remedy, revision could only be filed on point of law when gross miscarriage committed‑‑Sessions Judge under S.439‑A, Cr.P.C. not competent to set aside order of acquittal in complaint case‑‑Magistrate acquitting accused under 5.247, Cr.P.C., when case had not proceeded and charge not framed‑‑Such order of acquittal ab initio illegal and liable to be set aside‑‑Order of Sessions Judge under 5.439‑A, Cr.P.C. setting aside acquittal, held further, calls for no interference.

1984 P Cr. L J 504; 1980 P Cr. L J 192; 1981 P Cr . L J 586; P L D 1982 Kar. 128; P L D 1978 S C 121 and P L D 1962 S C 397 ref.

P L D 1984 Lah. 204

Iftikhar Javed for Petitioner.

Abbas Farooqui for the State.

Date of hearing: 14th October, 1984.

This is a petition under section 561‑A, Cr.P.C. wherein it has been prayed that order passed by IVth Additional District and Sessions Judge, Karachi on 1‑10‑1984 in Criminal Revision No.134 of 1980 remanding the case back to trial Court, be quashed.

2. The facts relating to this petition are that respondent Dr. Muhammad Feroze Khan filed a direct complaint under section 506, P.P.C. on 31st July, 1979 in the Court of Additional City Magistrate, Mehmood abad, Karachi, who on 11‑7‑1984 registered the case and ordered bailable warrants in the sum of Rs.5,000 against the respondent. The case remained pending before the trial Court and on 13‑4‑1980 the Magistrate having jurisdiction of Mehmoodabad, dismissed the complaint under section 247, Cr.P.C. on the ground that complainant was absent and acquitted the accused. The complainant, who is respondent No.2, filed a Criminal Revision under section 435 read with 439‑A, Cr.P.C. in the Court of, Sessions Judge, Karachi. The above revision was disposed of by Vth ;,, Additional Sessions Judge. He, by an order dated Ist October, 1981, set aside the order of acquittal and remanded back the case to the Magistrate with a direction to proceed with the case and decide in accordance with the law.

3. Mr. Iftikhar Javed learned counsel appearing for the petitioner has contended that the Additional Sessions Judge has erred in allowing revision application because the petitioner was acquitted and complainant had not filed acquittal appeal. His arguments are that when alternate remedy by way of appeal is available the revision is not competent. Mr. Iftikhar Javed has relied upon the cases reported in P L D 1984 Lab. 204, 1984 P Cr. L J 504, 1980 P Cr. L J 192, 1981 P Cr. L J 586 and P L D 1982 Kar. 128 and submitted that in view of the above authorities the order of the learned Additional Sessions Judge is liable to be set aside.

4. Mr. Abbas Farooqi, learned counsel appearing for the State, has submitted that the Additional City Magistrate has wrongly applied section 247, Cr. P. C. as offence under section 506 is cognizable, non‑bailable and not compoundable. His contention is that learned Additional Sessions Judge has properly set aside the illegal order of the trial Court. The learned counsel has relied upon the cases reported in P L D 1978 S C 121 and P L D 1962 S C 397.

5. The admitted position in the present case is that process in the shape of bailable warrants for the offence under section 506 was ordered by the Additional City Magistrate as stated above and without framing charge and recording the evidence, the Magistrate, by applying section 247, Cr.P.C. acquitted the petitioner. The offence under section 506, P.P.C. is divided into twp parts. The first part is bailable and compoundable whereas the' second part is non‑bailable and not compoundable. Whatever the case may be, the offence is cognizable and the learned Magistrate, while issuing process, has not said under IA which part the case falls, therefore, I am of the view that the Additional City Magistrate has wrongly applied section 247, Cr.P.C. and acquitted the applicant. In case of Aslam Pervez v. The State reported in P L D 1984 Lab 204 it has been he18 that inherent powers of the High Court not at all available to cross where bar is contained in Cr.P.C. This case is distinguishable from the present quashment application. In a case of Khair Shah and 4 others v. Hyder Shah and another, reported in P L D 1982 Kar. 128 Mr. Justice Nasir Aslam Zahid of this Court has held that no revision is competent against acquittal but application can be filed by the complainant under section 417, subsection (2), Cr.P.C. to High Court for leave to appeal. In that case Criminal Revision application was disposed of by the learned Judge of this Court in exercise of powers vested under section 561‑A, Cr.P.C. and set aside the order of the learned Additional Sessions Judge, Sukkur.

In case of Shamsul Qamar alias Sepoy v. The State reported in 1984 P Cr. L J 504 it has been observed that the inherent jurisdiction having been preserved in interest of justice to redress grievance for which no other procedure is available under the Code of Criminal Procedure and in case Sessions Judge, erroneously failing to exercise jurisdiction vested in it under section 439‑A, Cr.P.C. the High Court is competent to interfere with that order in exercise of its inherent jurisdiction, though it cannot confer an additional or alternate juris diction.

In a case of Qamarul Islam v. The State and another, reported in 1981 P Cr. L J 586 Mr‑Justice Chous Ali Shah of this Court while disposing of Criminal Revision No.154 of 1978 has observed that section 439, subsection (5), Cr. P. C. provides that where under this Code an appeal lies and no appeal is brought, the proceeding by way of revision shall not be entertained at the instance of the party who could have appealed and that the party could avail himself of this remedy does not choose to do so, this Court will not call into service its revisional jurisdiction in order to assist the party. He has also observed that revisional jurisdiction is to be exercised sparingly and only in cases where there is a manifest illegality or gross miscarriage of justice.

6. The legal position, so far revisional jurisdiction of High Court is concerned, is vCry clear that when alternate remedy by way of appeal is available, the revision could only be filed on the point of law when gross miscarriage is committed. In these circumstances I fully agree with Mr. Iftikhar Javed that ordinarily the Sessions Judge is not competent to set aside the order of acquittal while exercising revisions jurisdiction as contemplated under section 439‑A, Cr. P.C. But now it is to be seen whether order passed under section 247, Cr.P.C., without framing any charge or recording, any evidence, amounts to an acquittal. On this a reference has been made to a case of Rana Muhammad Afzal Khan v. The State P L D 1962 S C 397. In that case the Magistrate had refused to take a cognizance and their Lordships have held that this is not an acquittal and acquittal so recorded by the Additional Sessions Judge is not a bar for the prosecution to file complaint. In a case of Sved Alamdar Hussain Shah v. Abdul Basheer Qureshi and 2 others reported in P L D 1978 S C 121 their Lordships have observed as under:‑

"It is in this limited sense that the word "prosecution" appears to have been used in Article 13 of the Constitution. Significantly, the marginal heading indicates that this Article is a protection against double punishment which tends to show that it is only where the prosecution has finally concluded and ended either in acquittal or conviction that a fresh prosecution for the same offence would be barred.

The petitioner was, in the first instance, tried by the Military Court, but Martial Law was lifted before judgment could be pronounced and the case thus remained undecided. He was then tried by a Magistrate, before whom the trial was still in progress when the case was ordered to be transferred to the Sessions. In none of these forums was prosecution pursued to the end, with a view to its accomplishment; and it cannot be said that the petitioner's present trial is in any way derogatory to the principles of autre fois acquit or autre fois convict, or violative of Article 13 of the Constitution assuming its provisions were operative, which, however, is not the case."

In the above‑reported cases which provide guidance it is clear that this order of acquittal passed by the Additional City Magistrate under section 247, Cr.P.C. when the case has not proceeded, charge was note' framed cannot be termed as acquittal, and ab initio the order of acquittal passed by the City Magistrate is illegal and liable to be set aside.

7. In these circumstances I am of the view that the order passed under section 439‑A, Cr.P.C. by the Additional Sessions Judge calls for no interference. The present quashment application is, therefore, dismissed and the case to proceed according to law.

M. A. K. Petition dismissed.

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