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Criminal Revision No. 586 of 1985, heard on 19th November, 1986.
---S. 439--Penal Code (XLV of 1860), Ss. 109, 148, 307 & 506/149- Revisional jurisdiction--Propriety and legality examined--Fourteen accused tried out of which three convicted and remaining acquitted by Trial Court--Appellate Court finding judgment of Magistrate legally not sustainable, remanded case for retrial--Acquitted accused neither summoned nor heard in appeal--Acquitted accused not formally moving High Court to challenge order of remand--High Court in exercise of revisional jurisdiction, held, could examine propriety and legality of order--Impugned order being legally not sustainable was set aside and appellate Court directed to decide afresh in accordance with law after hearing acquitted accused.
Mian Saeedur Rehman Farrukh for Petitioners.
Farooq Bedar, A.A.-G. for the State.
Syed Qamar Hussain for Respondent No.2.
Date of hearing: 19th November, 1986.
Ghulam Muhammad, Muhammad Ashraf and Muhammad Sarwar have challenged the order of the Additional Sessions Judge, dated 17-9-1985 by means of this revision.
The factual position pertaining to this case is that a case under sections 148, 307, 506 read with sections 149 and 109, P.P.C. was registered against the petitioners and 11 others, As investigation proceeded, only the petitioners were challaned.
Abdul Hamid filed a private complaint in which he requested that all the persons who had initially joined the investigation be summoned as accused persons. This complaint and police challan were tried simultaneously. The Magistrate by judgment, dated 9-7-1984 found the three petitioners guilty. They were accordingly convicted under section 325/34, P.P.C. and sentenced to 9 months' R.I., Others accused were acquitted.
'The complainant went in revision. The accused filed appeal. Both were heard together by the Additional Sessions Judge. In the revision filed by the complainant the request was for enhancement of the sentence of the convicts. The complainant 'did not challenge the acquittal of the 11 accused.
The Additional Sessions Judge disposed of revision as well as appeal by judgment dated 17-9-1985 by means of which he remanded the case to the Magistrate for retrial because he was of the view that the judgment of the Magistrate was not legally sustainable.
The grievance of the petitioner is that the Additional Sessions Judge was not competent to order retrial of those persons who were acquitted and whose case was not before him.
Learned counsel submitted that the order of the Additional Sessions Judge to the extent whereby he emitted the case of 11 accused person is void ab initio. He assailed the aforesaid order on two grounds.
(1) There was no request by the complainant for setting aside the order of acquittal;
(2) If at all the Additional Sessions Judge was to act under section 439, Cr.P.C. it was essential for him to have summoned and heard them before the impugned order could be passed.
Learned counsel for the complainant supported the order of the Additional Sessions Judge on the strength of authority cited by the Additional Sessions Judge in his order i.e., Nur Elahi v. The State and others P L D 1966 S C 708.
I have also heard A . Ar. -G . He argued that no doubt it was necessary for the Additional Sessions Judge to have given hearing to the 11 acquitted accused but they have accepted the order because they are not the petitioners before this Court. Otherwise the Additional Sessions Judge was competent in law to pass the impugned order.
In reply to the arguments of the Assistant Advocate-General the counsel submitted that this Court is competent to examine the correctness, legality and propriety of any order of the Court below.
The matter before me is in the revisional jurisdiction of this Court. In this jurisdiction there is no legal bar for me to examine the propriety and legality of the impugned order.
No doubt, the acquitted accused have not formally moved this Court. Nevertheless, if once it is brought to my notice that the impugned order is contrary to law especially when it is against those accused who have been acquitted and who have not been given an opportunity to plead their case and as such have been condemned unheard, I can take note of such illegality.
I am, therefore, of the view that for the reasons given above, the impugned order is not legally sustainable. The same is hereby set aside.
The Additional Sessions Judge is directed to decide the appeal and revision afresh in accordance with law, on merits.
S. A. Case remanded.
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