' MUHAMMAD ALAM KHAN, J.---Through the present application Hakeem Ghulam Muhammad son of Aziz-ur-Rehman seeks special leave to appeal under section 417(2), Cr.P.C. To file appeal against the judgment of Mr. Auranzeb Khattak, Additional Sessions Judge-III, D.I. Khan, dated 22-1-2008 vide which the complaint of the petitioner filed under sections 457/427/379/382/448/395/34, P.P.C. Was dismissed and the accused respondents were acquitted.
2. At the outset, when the petition for special leave to appeal came for hearing before this Court, it was pointed out to the learned counsel for the petitioner that the same is time-barred as envisaged under section 417(3), Cr.P.C. As the impugned order was passed on 22-1-2008 and the petition for leave to appeal had to be filed within 60 days from the date of acquittal which expired on 13-3-2008.
3. The petitioner filed the present application seeking special leave to appeal without annexing an attested copy of the impugned order and on an objection raised by office when the case file was returned, the petitioner application for the attested copy on 7-4-2008 which was delivered to him on 30-4-2008, so, even the application for obtaining the attested copy was made when the limitation period had already expired, so, the application having been filed on 15-4-2008 is time- barred.
4. Confronted with this situation the learned counsel for the petitioner submitted that the present application for special leave to appeal be treated as revision petition under the provisions of section 439, Cr.P.C. Reliance in this respect was placed on the case of Muhammad Akram, v. Haji Mir Aziz Ahmad and 3 others (2000 PCr.LJ 489).
5. I have gone through the record annexed with the petition and also considered the submissions of the learned counsel for the petitioner.
6. This is an admitted fact that the impugned order was passed by the learned Additional Sessions Judge, D.I. Khan on 22-1-2008 and the last date for filing application for special leave to appeal was 13-3-2008. The petition having been filed on 15-4-2008 is time-barred.
7. The contention of learned counsel for the petitioner, that the present application for special leave to appeal be treated as revision petition under section 439, Cr.P.C. Is without any substance as under the above section of law when an appeal lies and no appeal is filed, then no proceedings by way of revision shall be entertainable at the instance of the party who could have appealed. So, when the appeal is not maintainable, the same cannot be converted into revision as the revision too is not maintainable. The case-law referred to by the learned counsel for the petitioner has got no relevancy with the acts and legal position involved in the present case.
8. The next question for consideration is that whether the right of appeal mentioned in section 439, Cr.P.C. Would include the right of special leave to appeal under section 417(2), Cr.P.C. And the answer to this question is in positive in view of the dictum laid down in the case of Abdul Aziz v. The State and others (1978 PCr.LJ 260).
9. In view of the facts and circumstances of the case narrated above, Criminal Miscellaneous No.80 of 2008 fails which is dismissed in limine and special leave to appeal is reused.