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Criminal Miscellaneous Application No. 4 of 1987, decided on 25th June, 1987.

‑‑Ss. 173, 249‑A, 417(1), 435, 437(5) 439 &561‑A‑‑Penal Code (XLV of 1860), Ss. 304, 307, 109, 406 & 120‑B‑‑Quashing of order‑‑Accused acquitted by Assistant Sessions Judge when, after perusal of case papers, he found that name of accused was shown in column No. 4 of Challan and no cognizable offence was made out against him‑‑Order of acquittal set aside by Sessions Judge‑‑Assistant Sessions Judge having power under S. 173, Criminal Procedure Code, to release an accused, Sessions Judge, held, was not competent to set aside his order of acquittal‑‑Order of Sessions Judge quashed.

Saadat Ali Khan v. Crown P L D 1952 Baluchistan 1; P L D 1962 (W.P) Kar. 753 and Kishen Singh v. State A I R 1963 Pb. 173 (D.B.) rel.

Abul Khair for Appellant.

Allah Bux Laghari for the State.

Nemo for Respondent No. 3.

Date of hearing: 9th June, 1987.

This Criminal Miscellaneous Application is directed against the Order of Sessions Judge (South) Karachi dated 7‑12‑1986 whereby he set aside the order of acquittal of the petitioner under section 249‑A, Cr.P.C. and ordered for retrial.

2. Briefly stated the prosecution story is that co‑accused Zal Mir and Ayaz Muhammad, contacted the complainant Muhammad Hayat at Dera Ghazi Khan and they posed themselves as recruiting agents of Overseas Employment for sending the employees through launches to Dubai and Kuwait. They demanded Rs.7,500 per head. About 173 persons accepted their offer. They were asked to come to Karachi and were made to stay in the Hotel of Bangash at Karachi for onward journey to Dubai.

3. On 1‑10‑1976 all the above said persons were boarded in the Launch. After roaming about in the open sea in the night when they reached near Manora and found lights and illuminations of the Port, the driver of the Launch told them that they have reached Dubai. He further told them that police was present at the fort, hence he cannot drop them at the Port, and asked them to jump from the Launch and reach the port by swimming. Consequently all the persons jumped into the sea as a result 4 persons were drowned and died. A case was registered against all the accused including petitioner Salahuddin under sections 304, 307, 109, 406, 512 and 120‑B, P.P.C. The police after usual investigation submitted challan in the court against Asghar Ali and 5 co‑accused who were produced in custody. Name of the petitioner was shown in column No. 2, after he was released under section 497, Cr.P.C., as the evidence against him was not sufficient.

4. The challan was submitted on 21‑10‑1976. On 16‑7‑1985 following order was passed by XVII Assistant Sessions Judge, Karachi.

Heard learned advocate for the applicant Salahuddin.

From the perusal of case papers it appears that the accused/applicant Salahuddin has been shown in column No. 4 of the challan.

The name of the accused transpired in the F.I.R. subsequently police after investigation found applicant innocent and let him off u/s 497, Cr.P.C.

This office has issued notice to the applicant. The notice is withdrawn as the police had found no cognisable offence against the applicant. I therefore, discharge the applicant being not required in this case, any more."

5. It appears that N.B.W. was again issued by the office of the trial Court against the petitioner and therefore, he made an application for cancellation thereof and the same were cancelled by order dated 27‑3 1986. A Revision Application under section 435/439‑A, Cr.P.C. was moved by APP before the Sessions Judge challenging the‑order of acquittal passed by the learned trial Court. The same was allowed as already shown above and has now been impugned by this revision. I have heard Mr. Abut Khair Ansari, Advocate for the applicant and Mr. Ali Bux Laghari, counsel for the State at length. It was contended by the Advocate for the applicant that where an accused is acquitted under section 249‑A, Cr.P.C. or any other provision of the said code, the law has given a right to the Provincial Government to direct the Public Prosecutor to present an appeal to the High Court under subsection (1) of section 417, Cr.P.C. Admittedly no such acquittal appeal was preferred by the State in this case. He further submitted that a revision cannot be entertained in an appealable case at the instance of the party who could have appealed but has not done so. The revision was therefore, in competent and learned Sessions Judge had no jurisdiction to entertain the same and to set‑aside the acquittal.

6. Reference in this connection may be made to subsection (5) of section 437, Cr.P.C. which has clearly laid down as under:‑‑

"(5) where under this (ode an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed:"

7. Reference in this connection may also be made to the case of Saadat Ali Khan v. Crown reported in PLD 1952 Baluchistan I, where it has been held as under;‑‑

"Before proceeding to hear arguments, the learned Public Prosecutor drew my attention to the fact that the convict appellant had been acquitted of the offence of accepting illegal gratification under section 161, Pakistan Penal Code and requested me to use the powers conferred by section 439, Criminal Procedure Code and remark on the order of acquittal. It would clearly be improper for me to accede to thi3 request for if the Crown is dissatisfied with the order of acquittal, it is at liberty to lodge an appeal in accordance with the provisions of section 417, Criminal Procedure Code. Moreover, subsection (5) of Section 439, Criminal Procedure Code is a mandatory provision of law prohibiting a Court from exercising its powers of revision in cases where an appeal is competent but has not been lodged.

8. Similar view was taken in PLD 1962 (W.P.) Karachi 753 (The State v. Abrar Hussain Shah and another), where it has been held as under:‑‑

"To me it is plain that the trial Magistrate was somewhat hasty in acquitting the respondent under section 247, Cr.P.C. without having given the complainant an opportunity of being served with the summons issued to him. Nevertheless, the fact remains that this error committed by the trial Magistrate was easily remediable through the medium of an acquittal appeal. In fact even the complainant had approached the District Magistrate with a request for the services of an Assistant Public Prosecutor to draft an appeal under section 417, Cr.P.C., yet the District Magistrate did not move in the matter of an acquittal appeal but chose to address this reference to this High Court for the purpose of bringing into operation the Revisional Jurisdiction of this High Court. Now, it has been held again and again that this Revisional Jurisdiction is one that has to be exercised sparingly and only in exceptional cases where the interest of public justice requires interference for the correction of a manifest illegality or for the prevention of a gross miscarriage of justice. Where the law provides a remedy by way of an appeal and the party could avail himself of his remedy does not choose to do so, this High Court will not call into service its Revisional Jurisdiction in order to assist such a party. Besides, the language of section 439(5), Cr.P.C. is imperative and the verb used is shall' and not m3y'.

9. The Indian High Courts also share the same view as was held in A I R 1963 Pub. 173 (D.B.) Kishen Singh v. State.

10. Moreover it may be pointed out that the name of the applicant was shown in Column No. 2 of the challan and he was released on bail by Investigating Officer as provided under section 169, Cr.P.C. which is as under:‑

"Release of accused when evidence deficient‑‑If upon an investigation under‑ this Chapter, it appears to the officer incharge of the police station or to the police officer making the investigation that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance on a police report and to try the accused or send him for trial:"

"Section (3) of section 03, Cr.P.C. and gives power to Court to discharge the bond executed under 169 Cr.P.C. to join the accused:"

The Assistant Sessions Judge having once exercised, the power given to the Court under section 173, Cr.P.C. having once decided to discharge the bond and not to join the accused has exercised the option in favour of the accused. He is now debarred from joining the applicant as an accused again. Hence I hold that the learned Assistant Sessions Judge had powers to release the accused and the learned Sessions Judge had no power to quash the said order.

12. I, therefore, allow the application and quash the impugned order.

M.Y.H./S‑65/K Petition allowed.

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