' The petitioner through this Constitutional petition calls in question the orders dated 6-4-2000 and 5-10-1999 passed by the respondents Nos.1 and 2 respectively on an application filed by respondents Nos.3 to 6 under section 249-A, Cr.P.C. Before the learned trial Court, who vide its order dated 5-10-1999 accepted the same and discharged the accused/respondents from the charge levelled against them in a Qalandra under section 427, P.P.C. Recorded at Police Station, City, Rawalpindi on 5-2-1999. The petitioner challenged the said order before the learned Sessions Judge, Rawalpindi by way of revision petition which came up for hearing before a learned Additional Sessions Judge, Rawalpinid, who vide his order dated 6-4-2000 dismissed the revision on the ground that his remedy lay in an appeal under section 417, Cr.P.C.
2. The learned counsel for the petitioner while placing reliance on Muhammad Yasin v. Muhammad Hanif and others 1997 PCr.LJ 1626 argued that the revision was maintamable in law and the findings of the learned revisional Court is based on incorrect interpretation of section 249-A, Cr.P.C.
3, On the other hand, Syed Sajjad Hussain Shah, the learned Assistant Advocate General assisted by Mr. Ghulam Asghar Khokhar, Advocate for the respondents No6,3 to 6 vehemently controverted the arguments raised on petitioner's behalf. It was argued that the revision against the order passed under section 249-A, Cr.P.C. Is not competent in law. Adds that the remedy lay in an appeal provided under section 417 of the Cr.P.C. Reliance has been placed on Liaqat Ali v. Muhammad Salem Shahzad and others 2000 YLR 629, wherein the learned Magistrate during the proceedings of the, case acquitted the accused by invoking provisions of section 249-A, Cr.P.C., which order was challenged in revision and was allowed by the learned Additional Sessions Judge. The learned Single Judge in Chamber of this Court, as he then was, set aside the revisional order on the ground that section 417(2-A) of the Cr.P.C. Provides an appeal against the order of acquittal. Similar view was taken in the case of Faqir Muhammad v. State and others 2001 PCr.LJ 444. Support was sought from the provisions of section 439(5), Cr.P.C. Which provide that where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the parties who could have appealed. In Pervez Muzammil Khan and 5 others v.
Muhammad Anis and another 2002 PCr.LJ Peshawar 2072, after noticing the case-law on the subject it was held that there is no distinction between the acquittal of the accused recorded under section 245 of the Cr.P.C. Or under section 249-A of the Cr.P.C. For the purposes of filing an appeal under section 417, Cr.P.C. In Ghulam Muhammad v. Additional Sessions Judge and 3 others 1998 M LD 1605, while taking notice of the case of Muhammad Yasin v. Muhammad Hanif and others 1997 PCr.LJ 1626, it was held that in case of acquittal recorded under section 249-A. Cr,P,C. An appeal alone is competent.
4. I have heard the learned counsel for the parties and examined the case-law cited by both the learned counsel for the parties.
5. The learned Judicial Magistrate accepted the application of the respondents under section 249- A, Cr.P.C. And discharged the accused. Section 249-A. Of the Cr.P.C. Empowers the Magistrate to acquit the accused at any stage of the proceedings. Power to discharge is not available under section 249-A, Cr. P . C .
6. Acquittal is recorded under section 245 of the Cr.P.C. It provides that the Magistrate upon taking evidence and examining the accused finds the accused if not guilty, he shall record an order of acquittal. Section 417, Cr.P.C., provides an appeal in case of acquittal while section 439 of the Cr.P.C.
Confers power of revision. In the case of any proceedings the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of appeal by sections 423, 426, 427 and 428 or on a Court by section 338, and may enhance the sentence.
7. Word discharge is not defined in the Code. One has to look to its dictionary meaning. Discharge means commitment, or period of confinement, relieve of residual liability (Concise Oxford Dictionary) and in Chambers English Dictionary Discharge mean to free from or relieve of a charge of any kind; to set free; to acquit; to dismiss.
8, The word "Acquittal" is defined in Black's Law Dictionary which means release, abiolution, or discharge from an obligation, liability or engagement. In criminal Law the legal and formal certification of the innocence of a person who has been charged with crime; a deliverance or setting free a person from a charge of guilt; finding of not guilty.
9. There is a marked difference between discharge and acquittal. Discharge can be on account of absence of the complainant and not on the merit of the case; accused discharged on police report under section 173, Cr.P.C. Or discharged being declared innocent by the police are some of the instances.
9-A. In the instant case, the learned Judicial Magistrate though used the word discharge by accepting the application under section 249-A, of the Cr.P.C. It will be read as acquittal. As learned Single Judge of this Court, as he then was, in the case of Muhammad Yasin v. Muhammad Hanif and others 1997 PCr.LJ 1626, found remarkable difference between the acquittal recorded under section 245, Cr.P.C. And one under section 249-A, of the Cr.P.C. In his view, if evidence is not recorded and an order of acquittal is passed under section 249-A, Cr.P.C., it is amenable to the revisional jurisdiction of the Sessions Judge, but, in case acquittal is recorded after prosecution evidence and examining of the accused an appeal will lie under section 417, of the Cr.P.C. I have not been able to persuade myself with the view expressed by the learned Single Judge in the above case in view of the clear and unambiguous language used in section 249-A of the Cr.P.C. Providing acquittal at any stage of the case, if the charge is groundless. Even otherwise, acquittal recorded by the competent Court of law on recording of evidence or without recording of evidence, will not determine the remedy of revision or appeal, but the same is governed by statutory provisions of law. After introduction of subsection (2-A) in section 417 of the Cr.P.C. Any person aggrieved by an order of acquittal has been conferred a right to file an appeal against the acquittal. In presence of remedy by way of appeal, the revision is not competent under section 439(5) of the Cr. P .C.
10. In view of the aforenoted discussion, the revision was not maintainable before the learned Additional Sessions Judge, who has rightly refused to entertain the same ending in dismissal.
Resultantly, this Constitutional petition is without force and the same is dismissed.