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Criminal Miscellaneous Application No. 1870 of 1986, decided on 12th April, 1987.

‑‑‑Ss. 249‑A & 561‑A‑‑Penal Code (XLV of 1860), S. 506/34 Revisional jurisdiction‑‑Private complaint‑‑Accused acquitted under S. 249‑A, Cr.P.C. by Magistrate‑‑Provincial Government not filing appeal against acquittal‑‑Complainant not applying for special leave to appeal‑‑Revision against order of acquittal, held, was not entertainable by Sessions Judge.

Muhammad Arif v. Muhammad Ashraf 1985 P Cr.L J 803 ref.

‑‑S. 561‑A‑‑Penal Code (XLV of 1860), S. 506/34‑‑Quashing of orders of lower Courts‑‑Private complaint, allegedly vexatious and frivolous filed only to seek vengeance‑‑Powers under S. 561‑A, Cr.P.C. declined to be exercised to order re‑trial of case which would amount to perpetuate injustice and order of acquittal under S. 249‑‑A, Cr.P.C. passed by Magistrate not interfered in circumstances.

Ashraf Tanoli for Petitioners.

Nemo for Respondents (absent) .

Date of hearing: 12th April, 1987.

This is an application under section 561‑A, Cr.P.C.

2. Applicant No. 1 is Care‑taker in the Governor of Baluchistan known as Baluchistan House, Karachi. One Mir Aslam was working in the said Baluchistan House, whose services were terminated on account of his unsatisfactory work by the Military Secretary to the Governor of Baluchistan. Respondent No. 2 is cousin of Mir Aslam. Aggrieved by the said dismissal order the respondent No. 2 made several applications and raised hue and cry against the said dismissal. He falsely gave out that the services of Mir Aslam were terminated at the instance of applicant No. 1, which was categorically denied by the Military Secretary to the Governor of Baluchistan. Eventually he filed a complaint against the applicant No.1 and his two sons. Applicants Nos. 2 and 3 before the A.C.M. VI East Karachi under, section 506/34, P.P.C., alleging that the applicants had threatened to kill him. The learned Magistrate recorded the statement of the complainant and held preliminary enquiry and ordered issuance of "Summons" against all the applicants in the sum of Rs.3,000 each. Consequently, the applicants appeared before the learned Magistrate and furnished surety. The case was fixed for supply of copies as required under section 241‑A(2)(b), Cr.P.C. but the same were not supplied by the complainant. Hence the learned Magistrate dismissed the complaint and acquitted all the three applicants under section 249‑A, Cr.P.C.

3. A revision application was presented before the learned Sessions Judge East Karachi under section 435, Cr.P.C. The learned Sessions Judge allowed the said revision application and set aside the acquittal order of the applicants and remanded the case to the XIII Additional City Magistrate, Karachi East for retrial.

4. I have heard Mr. Ashraf Khan Tanoli, Advocate for the applicants. The respondent No. 2 and his counsel have chosen to remain absent. The counsel for the State has also not appeared.

5. Subsection (5) of section 439, Cr.P.C. reads as under:‑‑

"5.‑‑ Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed:"

6. There is no doubt that an appeal is provided under section 417 subsection (1) as well as subsection (2) of Cr.P.C. against an order of acquittal passed by any Court other than a High Court. Section 417 reads as under:‑‑

"417. Appeal in case of acquittal:‑‑ (1) Subject to the provisions of subsection , the Provincial Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order or acquittal passed by any Court other than a High Court.

(2) If such an order of acquittal is passed in any case instituted upon complaint and the High Court on an application made to it by the complaint in this behalf, grants special leave to appeal from the order of acquittal the complainant may present such an appeal to the High Court.

(3) No application under subsection (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of the order.

(4) If, in any case, the application under subsection (2) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under subsection (1):"

7. It would, therefore, appear that it was not open to the learned Sessions Judge to entertain a revision application against the order of acquittal of the applicant passed by the learned Magistrate, as the Provincial Government had not filed any acquittal appeal as required by subsection (1) and the respondent No. 2 had not applied for grant of special leave to appeal from the order of the acquittal as required by subsection (2) of section 417, Cr.P.C. Similar view was taken by Abdul Karim Kundi, J. in the case of Muhammad Arif v. Muhammad Ashraf reported in 1985 PCr.LJ, 803.

8. The next question for consideration before me is as to whether 1 should exercise my powers under section 561‑A, Cr.P.C. and order re‑trial of the applicants after quashing the order of the learned Magistrate as was done by Kundi, J. in the case under ruling or not. I am of the considered view that since the direct complaint filed by the respondent No 2 was allegedly vexatious and frivolous in that he had done so only with a view to take vengeance as according to him the dismissal of his cousin Mir Aslam was at the instance of applicant No. 1, this Court, therefore, should not interfere with the orders of the learned Magistrate which have also got the moral backing behind them. I, therefore, do not propose to exercise the powers conferred upon this Court under section 561‑A, Cr.P.C. or to order re‑trial of the case as that would on the contrary perpetuate injustice.

9. I, therefore, allow the application and quash the impugned order of the learned Sessions Judge, dated 29‑9‑1986.

S.A./N‑27/K Order quashed.

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