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Criminal Revision No. 73 of 1983, decided on 14th April, 1987.

‑‑‑S. 439‑‑Penal Code (XLV of 1R60), Ss. 302, 307, 147, 148 & 149‑ Revision against acquittal‑‑Maintainability of‑‑Case transferred from Court of Sessions to High Court‑‑Single Judge of High Court, acquitting accused on conclusion of trial‑‑Complainant filing revision petition against acquittal‑‑After considering question of maintainability. Division Bench of High Court admitting petition for regular hearing leaving it open for parties to make application for reconsidering the question of maintainability‑‑Non‑filing of such application, held, would not debar parties to agitate question.

‑‑‑Ss. 411‑A, 435 &439‑‑Penal Code (XLV of 1860), Ss. 302, 307, 147, 148 & 149‑‑Revision against acquittal before High Court‑‑Maintainability of‑ Right of appeal against acquittal, not accruing to complainant‑ Contention that words any proceedings before any inferior Court mentioned in S.435, Cr.P.C. being missing in S. 439, Cr.P.C., revision would be maintainable, found devoid of any force‑‑Complainant, held, would not have unfettered right to file revision against acquittal which would be contrary to apparent intention of Legislature manifested by S. 411‑A, Cr.P.C.‑‑Revision dismissed as incompetent in circumstances.

Malik Firoz Khan Noon v. The State P L D 1958 SC (Pak.) 333 ref.

‑‑‑Not open for High Court to take different view to what Supreme Court had on the matter.

Khalid M. Irshad for Appellant.

Azizullah K. Shaikh for Respondents Nos. 1 to 6.

M.A.I. Qureshi for the State.

Date of hearing: 14th April, 1987.

‑‑The petitioner through this criminal revision application has prayed for the following reliefs:

"It is, therefore, prayed that this Hon'ble Court may be pleased to;

(i) reverse the impugned judgment and convict and sentence the opponents Nos. 1 to 7 for offence under section 302, P.P.C. and under sections 307, 147, 148 and 149, P.P.C., and

(ii) pass any further order that this Honourable Court may deem fit and appropriate in the circumstances of the case:"

2. The brief facts leading to the filing of the above revision application are that one Saeed Ahmed Mughal, hereinafter referred to as the deceased, was killed near Lakhi Gate, Shikarpur on 22‑6‑1974. The F.I.R. was lodged by Muhammad Arif Mughal. The police after investigation submitted challan to the learned Sessions Judge at Shikarpur against seven persons including respondents 1 to 6. Upon the application of the complainant the aforesaid sessions case was transferred on 2‑10‑1977 from the Court of Sessions Judge, Shikarpur to the Court of Sessions Judge at Karachi. After that one Zubair Ahmed filed a transfer application, namely, the Transfer Application No. 10 of 1981 praying therein that the above sessions case may be transferred to the High Court for its trial. The Honourable Chief Justice by his order, dated 7‑6‑1981 transferred the above case from the Court of learned Sessions Judge, Karachi to the file of the High Court and ordered its trial by late Mr. Justice B.G.N. Kazi, who after the conclusion of the trial by his judgment, dated 22‑11‑1982 acquitted all the accused. The petitioner has fled the above criminal revision application as well as a petition for leave to appeal in the Hon'ble Supreme Court against the above judgment which is still pending for its disposal.

3. The above criminal revision had come up for hearing in connection with the objections raised by this Court as to the maintainability of the same on 10‑3‑1983. The learned Judges of the Division Bench noted the judgments of Indian jurisdiction in support of the learned Advocate of the applicant's contention that the revision was competent and expressed doubt in the order of even date as to the maintainability. However, by an order, dated 1‑6‑1983 the petition was admitted for regular hearing with the observation that it shall be open to any party‑to make an application before the case is ripe for regular hearing for reconsideration of the question in regard to the maintainability of the revision application.

When we had taken up the above case, Mr. Azizullah Shaikh learned counsel for the respondents raised the preliminary objection to the effect that the revision was not competent. Thereupon, it was submitted by Mr. Khalid M. Ishaq learned counsel for the petitioner that since the respondents had not made any application as to the maintainability of the above revision application in terms of admission order, dated 1‑6‑1983, the respondents could not raise this objection during the arguments. In our view this objection was not sustainable as the question of maintainability of the revision was expressly noted in the above order, dated 10‑3‑1983 as well as in the admission order, dated 1‑6‑1983. It was open to any of the parties to file an application before the revision was ripe for regular hearing but non filing of such an application does not debar any of the parties to agitate the above question.

We had, therefore, called upon Mr. Azizullah Shaikh to submit his arguments on the above point. Mr. Azizullah Shaikh has referred to section 411‑A of the Cr.P.C. which reads as follows:‑

"411‑A. Appeal from sentence of High Court:‑‑ (1) Except in cases in which an appeal lies to the Supreme court under Article 185 of the Constitution any person convicted on a trial held by a High Court in the exercise of its original criminal jurisdiction may, notwithstanding anything contained in section 418 or section 423, subsection (2), or in the Letters Patent of any High Court, appeal to the High Court‑‑

(a) against the conviction on any ground of appeal which involves a matter of law only;

(b) with the leave of appellate Court, or upon the certificate of the Judge who tried the case that it is a fit case for appeal, against the conviction on any ground of appeal which involves a matter of fact only, or a matter of mixed law and fact, or any other ground which appears to the appellate Court to be sufficient ground of appeal; and

(c) with the leave of the appellate Court, against the sentence passed unless the sentence is one fixed by law.

(2) Notwithstanding anything contained in section 417, the Provincial Government may direct the Public Prosecutor to present an appeal to the High Court from any order of acquittal passed by the High Court in the exercise of its original criminal jurisdiction, and such appeal may notwithstanding anything contained in section 418 or section 423, subsection (2), or in the Letters Patent of any High Court, but subject to the restrictions imposed by clause (b) and clause (c) of subsection (1) of this section on an appeal against a conviction, lies on a matter of fact as well as matter of law.

(3) Notwithstanding anything elsewhere contained in any Act or Regulation an appeal under this section shall be heard by a Division Bench of the High Court composed of not less than two Judges, being Judges other than the Judge or Judges by whom the original trial was held; and if the constitution of such a Division Bench is impracticable, the High Court shall report the circumstances to the Provincial Government which shall take action with a view to the transfer of the appeal under section 527 to another High Court.

(4) Subject to such rules as may from time to time be made by the Supreme Court in this behalf, and to such conditions as the High Court may establish or require, an appeal shall lie to the Supreme Court from any order made on appeal under subsection (1) by a Division Bench of the High Court in respect of which order the High Court declares that the matter is a fit one for such appeal."

4. It may be pointed out that the above section was incorporated by Act XXVI of 1943 and was amended by the Federal Adaptation of Laws Order, 4 of 1975. A perusal of the above-quoted section indicates that under subsection (1) any person convicted on a trial held by a High Court in the exercise of its original criminal jurisdiction has been given the right to file an appeal against the conviction on any ground which involves a matter of law only or with the leave of the appellate Court or upon the certificate of the Judge who tried the case that it is a fit case for appeal against conviction on any ground of appeal which involves a matter of fact only or in matter of mixed law and fact or any other ground which appears to the appellate Court to be sufficient ground for appeal or with the leave of the appellate Court against the sentence passed unless the sentence is one fixed by law. Whereas under the abovequoted subsection (2) the Provincial Government has been conferred the right to file an appeal against any order of acquittal passed by the High Court in the exercise of its original criminal jurisdiction subject to the restrictions imposed by clause (b) and clause (c) of the above subsection (1) which appeal will be on a matter of fact as well as on a matter of law. It is not necessary to refer to the other quoted subsections of the above section.

5. Mr. Azizullah Shaikh has, therefore, submitted that since the complainant has not been given the right to file an appeal against the acquittal, he cannot file a revision. In furtherance of his above submission, he has relied upon the observations made by Muhammad Munir, C.J., in the case of Malik Firoz Khan Noon v. The State reported in P L D 1958 SC (Pak.) 33, the relevant observations of which read as follows:‑

"As regards the contention that since the appellate bench may remit the case for retrial to the original bench, the latter is a Court of competent jurisdiction subordinate to the appellate bench, all that need be stated is that the argument begs the question and assumes what has to be shown. If the original bench is not subordinate, the case cannot be remitted to it for retrial. The remittal must be to some other competent Court because after the trial of a case in exercise of the extraordinary criminal jurisdiction of the High Court the original bench, being functus officio, ceases to exist, and can be re‑formed only by an order of the Chief Justice if the case after having been remitted to another subordinate Court of competent jurisdiction is again intended to be tried on the original side of the High Court.

For the reasons just stated, the Judge trying a criminal case in exercise of the extraordinary criminal jurisdiction of the High Court cannot be held to be an inferior criminal Court within the meaning of section 435 of the Code of Criminal Procedure. Nor can it be said that the record of the trial Judge in such a case otherwise comes to the knowledge of the High Court within the meaning of section 439 of the Code. The record mentioned in that section is the record of an inferior Court and not of the High Court itself which is always supposed to be within the knowledge of that Court, and to which the words in section 439 which otherwise comes to its knowledge' are clearly inapplicable. I am, therefore, of the view that the bench hearing the appeal of the convicted persons under section 411‑A has no revisional jurisdiction over the Judge who tried this case and consequently, no power to expunge any remarks or passages from his judgment. In this view of the matter it is unnecessary to consider the next contention of Mr. Bashir Ahmad that by reason of the difference in the phraseology of section 435 and section 423 of the Code of Criminal Procedure, a Court of revision has wider powers, both as regards subject‑matter and the form of revisional order, than a Court of Appeal. And it is not and cannot be contended that an appellate Court, merely as such Court, has the jurisdiction to expunge passages from a judgment under appeal. Of course it has the power to express its own view of the matter or matters to which the objectionable passages relate but it does not possess the power of expunction simpliciter, which in its nature and incidents, is essentially different. Any contrary view would invest all appellate Courts, including subordinate Courts, with a power which has never existed, been exercised or claimed. And in the present case, the appellant has, in view of the terms of section 411‑A, no locus standi to move the appellate Court under that section and the Court cannot act suo motu, its powers to entertain an appeal and to pass orders thereon having been exhaustively defined by section 411‑A read with section 423, Criminal Procedure Code. The power to grant relief of the present nature is neither included in the appellate Court's power to make any amendment' which obviously refers to the power to make an amendment in the effective order of the original Court or in the order that the appellate Court may pass under clauses (a), (b) and (c) of subsection (1) of section 423, nor in the power to make any consequential or incidental order which refers to the power to make an order subsidiary to the effective order that it may decide to make under those clauses:'

6. On the other hand, Mr. Khalid M. Ishaque learned counsel for the petitioner has vehemently urged that though in section 435, Cr.P.C. the words any proceedings before any inferior Criminal Court' have been used but the same are missing in section 439 and, therefore, the High Court can entertain the above revision by virtue of above section 439. The Hon'ble Chief Justice of the Hon'ble Supreme Court of Pakistan in the abovequoted observations has also construed section 439, Cr.P.C. and has pointed out that reference to the Court in the above section is also to an inferior Court as to the High Court, therefore, the above contention is devoid of any force in view of the above judgment of the Supreme Court. Then Mr. Khalid M. Ishaque has referred to the following cases:‑

(1) Krishanaji Vithal Kangutakkar v. Emperor reported in A I R (36) 1949 Bom. 29, in which a Division Bench of the Bombay High Court while construing section 435 held that the High Court in Sessions exercising original criminal jurisdiction is inferior to the High Court on its appellate side as appeal lies from the former to the latter. It was also observed that inferior does not carry with it any stigma or any suggestion that the Court is under the administrative orders of the superior Court but it merely means judicially inferior to the High Court.

(2) Parbati Devi v. The State reported in A I R 1952 Cal. 835. In the above case, a Division Bench of the Calcutta High Court held that while hearing an appeal under section 411‑A the High Court can exercise jurisdiction under the revisionary powers under section 439 and may exercise any power conferred on a Court of appeal by section 423. It was also held that even if there be any doubt about the extent of the jurisdiction of the High Court under the revisionary powers, there is no doubt that it has, in the absence of any direct provisions in the Code, the inherent power to adopt a procedure to secure the ends of justice.

(3) Sunil Chandra Roy and another v. The State reported in A I R 1954 Cal. 305, in which a Division Bench of the Calcutta High Court while construing section 423 (1)(b) held that the expression used in the above provision is Court subordinate to such appellate Court' which can only mean a Court from which appeals lie to the appellate Court concerned. It was further held that a Judge of High Court exercising criminal original jurisdiction is not subordinate to the High Court hearing criminal appeals from the Courts in the Province under clause 27 of the Letters Patent. It was also pointed out in the above case that the appellate Court for the purpose of section 410 of the Cr.P.C. is not the same as that for the purpose of section 411‑A. It was also held that against the conviction by a Judge of the High Court on transfer of a case arising from a district and which had been committed to a Court of Sessions does not function as Sessions Judge but a Judge of the High Court exercising criminal original jurisdiction and, therefore, an appeal would lie under section 411‑A against an order of conviction.

(4) Ladli Parshad Jaiswal v. The Karnal Distillery Co. Ltd., Karnal and others, reported in A I R 1963 SC 1279. In the above case, the Supreme Court of India while construing Article 133(a) of the Indian Constitution with reference to the words used therein namely Court immediately below" held that a single Judge of the High Court is Court immediately below Division Bench for hearing Letters Patent Appeal but it is not a subordinate Court.

7. The above cases of the Indian jurisdiction do support the contention of Mr. Khalid M. Ishaque to some extent. However, in our view, it is not open to us in presence of the aboveqouted observations of the Honourable Supreme Court of Pakistan to take different view in the matter.

However, we may also observe that under section 411‑A, Cr.P.C. a convicted accused has been given a right to file an appeal against his conviction and sentence subject to the restrictions contained therein referred to hereinabove in para. 4. Keeping in view the above provisions, we cannot hold that a complainant party has unfettered right to file a revision against an acquittal order under section 439, Cr.P.C. on questions of law and facts as it will be contrary to the apparent intention of the Legislature manifested by the above section 411‑A, Cr.P.C.

8. For the aforesaid reasons this petition is dismissed as being incompetent. These are the reasons in pursuance of short order of even date.

S.A./N‑26/K Appeal dismissed.

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