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Writ Petition No. 2211 of 1985, decided on 2nd November, 1985.

‑‑‑Ss. 249‑A & 439‑A‑‑Provisional Constitution Order (1 of 1981), Art. 9‑‑Revision‑‑Magistrate acquitting accused under S. 249‑A, Cr.P.C.‑ Sessions Judge setting aside order of acquittal on revision by complainant under S. 439‑A, Cr.P.C.‑‑Held, remedy sought under S. 439‑A, Cr.P.C. was proper, no exception could, therefore, be taken to order passed by Sessions Judge.

Ch. Muhammad Asif Ranjha for Petitioners.

Ch. Mushtaq Ahmad Khan for the Complainant.

This constitutional petition is directed against the order, dated 12‑3‑1985 passed by the learned Additional Sessions Judge, Sialkot whereby he accepted the revision petition and set aside the acquittal of the petitioners and ordered their retrial.

2. The facts necessary for the disposal of the petition are that the petitioners were tried under section 325/34, P.P.C. for causing injuries to Muhammad Ashraf with Dangs on 10‑7‑1980. They were tried by the Assistant Commissioner, Daska who, vide his order, dated 28‑11‑1983 acquitted them under section 249‑A, Cr.P.C. on the ground that the prosecution had not been able to conclude its evidence despite granting several opportunities. Muhammad Ashraf complainant filed a revision against the said order in the Court of learned Additional Sessions Judge, Sialkot. The learned Additional Sessions Judge set aside the order of acquittal on the ground that the trial Court should have decided the case on the basis of evidence available on record. He also observed that the trial Court should proceed further in the matter without recording further evidence.

3. Feeling dissatisfied with the order of the learned Additional Sessions Judge, Muhammad Khalid etc. the accused have filed this constitutional petition. It is stated that the acquittal order could not have been set aside by invoking the revisional jurisdiction under section 439‑A, Cr.P.C. Without first moving the State for filing an appeal the revision was not competent. And the revision could only be filed if the State had refused to file an appeal. Since no effort was made by the State or by the complainant party to move the State for filing an appeal, the revision was not competent.

4. Ch. Mushtaq Ahmad Khan, Advocate was appeared on behalf of the complainant to assist the learned Assistant Advocate‑General. He states that the District Magistrate, Sialkot was moved in the matter but he had declined to proceed further in the matter. He has produced a copy of the order, dated 13‑2‑1984 passed by the District Magistrate, Sialkot in this behalf. After refusal by the State to file an appeal/revision against acquittal a private party was competent to file the revision. Right of appeal under section 417, Cr.P.C. is available to the Provincial Government only and not to the private parties. Their only remedy was to file a revision against the order sought to be challenged. Hence no exception can be legally taken to the filing of the revision. The learned Additional Sessions Judge was possessed of complete jurisdiction in the matter and no lacuna or defect appears in the order passed by him. In consequence the petition fails and is dismissed accordingly.

M.A.K. Petition dismissed.

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