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Criminal Revision No. 14‑D of 1984, decided on 16th January, 1985.

‑‑‑Ss. 439, 417 & 430‑‑Penal Code (XLV of 1860), Ss. 302/34 & 325‑‑Trial Court acquitting accused under S. 302/34, P.P.C. and convicting them under S. 325, P.P.C.‑‑Complainant on rejection of his application for recommendation to Provincial Government to file an appeal against acquittal under S. 302/34, P.P.C. by District Magistrate, filing revision petition‑‑High Court, meanwhile dismissing appeal filed by accused against their conviction under S. 325, P.P.C.‑‑Held, "any proceedings" referred to in Chap. XXXII, Cr. P. C. had reference to proceedings Bending before any inferior Court‑‑By no stretch of imagination findings affirmed by High Court by upholding conviction of accused under S.325, P. P. C. would be subject to scrutiny by High Court under revisional jurisdiction provided in Chap. XXXII, Cr. P. C.‑‑Even otherwise High Court while dismissing appeal of accused not deeming it justified to order retrial of accused for offence under S. 302/34, P.P.C. by setting aside their conviction under S. 325, P.P.C.‑‑Revision petition of complainant being incompetent dismissed in circumstances.

A I R 1945 All. 432 ref.

---S. 439‑‑Penal Code (XLV of 1860), Ss302/34 & 325 Acquittal Revision against‑‑Accused acquitted under S. 302/34, P.P.C. and convicted under S. 325, P.P.C.‑‑High Court dismissing appeal of accused and affirming findings of trial Court‑‑Complainant filing revision against acquittal of accused under S. 302/34, P.P.C.‑‑Appellate Court had ample powers to set aside conviction of accused under S. 325, P.P.C. and to order retrial of accused under S. 302, P.P.C. if it was of view that findings given by trial Court were incorrect‑‑Appellate Court did not deem it justified to order retrial of accused for offence under S.302/34, P.P.C. by setting aside their convictions recorded under S.325, P.P.C.‑‑Revision petition even otherwise incompetent as findings given by High Court affirming judgment of trial Court could not be subjected to scrutiny under revisional powers of High Court‑‑Revision petition being incompetent, dismissed in circumstances.

S. Zafar Abbas Zaidi for Petitioner.

Sanaullah Khan Gandapoor for Respondents Nos. 2 and 3.

Muhammad Khan for the State.

Date of hearing: 14th January, 1985.

Muhammad Bakhsh, father of Muhammad Ramzan deceased aggrieved by the order of Sessions Judge, D.I. Khan, dated 29‑1‑1984, and on the rejection of his application made to the District Magistrate, D.I. Khan asking for recommendation to the Provincial government to file an appeal against the order of acquittal of the accused‑respondents under S. 302/34, P.P.C. has come to this Court in revision under section 439, Cr. P. C. for setting aside the said order of acquittal and re‑trial of the accused for the offence mentioned above.

2. It may be briefly stated that in the report lodged by Muhammad Ramzan (deceased) in injured condition, a case under section 324/325/34, P.P.C. was registered against the accused /respondents for having stabbed him with a knife and giving him hatchet blows. Later on the injured expired and the section of law was changed to section 302/34, P.P.C. After the trial, the learned Sessions Judge found the accused respondents Nos. 2 and 3 herein guilty of an offence under section 325, P.P.C. and while acquitting both of them of the charge under section 302/34, P.P.C. convicted each of them to 4 years R.I. and a fine of Rs.1,000 each. They were further ordered to pay compensation to the complainant vide his order, dated 29‑1‑1984. This order of conviction was affirmed by a learned Judge of this Court in appeal filed by the convicts.

3. Aggrieved by the order of acquittal of the accused‑respondents under section 302/34, P.P.C. the complainant made an application in the first instance, to the District Magistrate, D.I. Khan seeking his recommendations to the Provincial Government for filing an appeal. However, this prayer was refused to him, whereafter he has filed this revision petition.

4. Mr. Sanaullah Khan Gandapoor, counsel for the accused respondents raised a preliminary objection to the competency of this revision petition. It was contended that a learned Judge of this Court while hearing appeal of the accused‑respondents affirmed the findings of the learned Sessions Judge while maintaining the same in appeal filed by the convicts. Hence no petition for revision is competent, as it would amount to be sitting on the judgment of the High Court. In reply, the learned counsel for the petitioner made reference to section 430, Cr. P. C. where finality is attached to the order passed in appeal, except in the cases provided for in section 417 and Chapter XXXII of the Code. According to him, chapter 32 deals with the revisional powers of the Courts. He, therefore, was of the view that this Court in its revisional jurisdiction can go into the facts of the case and pass any order provided for under section 439, Cr. P. C.

5. Mr. Muhammad Khan, Advocate for the State did not support the revision petition and adopted the arguments of the counsel for the accused‑respondents. In support of this view, he cited A I R 1945 All. 432.

6. After hearing the learned counsel for the parties and going through the relevant law on the subject, I find that the contentions raised by the learned counsel for the accused‑respondents must prevail. Chapter XXXII of the Cr. P. C., to which reference has been made by the learned counsel for the petitioner, deals with the revisional jurisdiction of the Courts, specially that of the High Court in this case. It empowers the Court to call for the record of any proceedings of which otherwise comes to its knowledge and in its discretion exercise any of the powers conferred on a Court of appeal by sections 423, 426, 427 and 428 or a Court by section 338, P.P.C. "Any proceedings" referred to in the aforementioned section has been held by various High Courts to have reference to proceedings pending before any inferior criminal Court. In the instant case, by no stretch of imagination, the findings affirmed by the Honourable Judge of this Court by upholding the conviction of the accused‑respondents under section 325, P.P.C. would be held to be subject to scrutiny by this Court under the aforementioned revisional jurisdiction. There is another aspect of this case too. While hearing an appeal under section 423, P.P.C. the appellate Court had amply powers to set aside the conviction of the accused under section 325, P.P.C. and to order the re‑trial of the accused under section 302, P.P.C. if the learned Judge was of the view that the findings given by the learned Sessions Judge were incorrect. It would be presumed that the appellate Court did not deem it justified to order the re‑trial of the accused for offence under section 302/34, P.P.C. by setting aside their convictions recorded under section 325, P.P.C.

7. For the aforesaid reasons, this revision petition is incompetent. Hence rejected as such.

H. A. K. Revision dismissed

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