Muhammad Noor Meskanzai, J.--Through this Constitutional Petition, petitioner seeks enhancement of sentence awarded to private Respondents No. 1 to 4 by means of judgment dated 12th May, 2009 delivered by Judicial Magistrate, Dera Murad Jamali, to achieve the object following prayer has been made:-- "It is therefore prayed that this Hon'ble Court may be pleased to allow the petition and enhance the sentence/conviction of Respondents No. 1 to 4 as specified in the provisions of Section 337-A, D & F PPC and also Daman may also be revised according to the provisions of Section 337-A, D, F PPC.
Notices may kindly be issued to Respondents No. 1 to 4.
Prayer is made in the interest of justice.
2. Facts briefly stated are that FIR No. 33 of 2008 was lodged by petitioner against Respondents No. 1 to 4 with Police Station Sadder, Dera Murad Jamali on 25th March, 2008, which culminated in submission of Challan No. 37-A of 2008. Charge was framed on Respondents No. 1 to 3 on 11th August, 2008, whereas charge was framed on Respondent No. 4 on 29th January, 2009. The trial Court after examination of prosecution witnesses recorded statement of Respondents No. 1 to 4 under Section 342 Cr.P.C. The proceedings resulted in conviction vide judgment dated 12th May, 2009, wherein following sentence was passed:-- "Thus, keeping in view above findings and discussion I am of the opinion view that prosecution succeeded to establish its case against the accused persons named above and the offences which have been committed by the trial facing accused falls under Section 337-A(ii) & F(i) PPC. As the Section 337-A(ii) PPC is punishable with Tazir and arsh to be given to the victim. Since the offence was committed in year 2008 and according to the valuation of Diyat fixed by Federal Government Rs.754430/(seven lac fifty four thousand four hundred and thirty rupees) which is equal to 30630 grams of silver. The valuation of arsh which is 5% of Diyat and the value of Diyat is Rs.754430 and 5% will be Rs.37721.5. Therefore, the accused are convicted under Section 337-A(ii)
P.P.0 and are sentenced to undergo four (04) months each as tazir and they are liable to pay arsh amounting to Rs. 37727.5, as there are 4 accused persons so each accused has to pay Rs.4930.25/- (Nine thousand four hundred and thirty rupees and twenty five pysa) to victim Muhammad Afzal.
They further convicted under Section 337-F(i) P.P.C. and with sentenced to undergo three (03) months each as tazir with Daman of amounting Rs.1000/- (one thousand rupees) each and they will remain in the custody up till they pay the amount of Arsh/Daman mentioned above to victim i.e. Muhammad Afzal. However, the benefit of Section 382-(b) Cr.P.C. is extended in favour of accused person and both the sentences shall run concurrently. The accused are present on bail they be taken into custody and be sent to jail for completion of aforesaid sentences."
3. Being dissatisfied with the conviction recorded by the trial Court, Criminal Appeal No. 01 of 2009 was preferred by convicts/private Respondents No. 1 to 4, whereas petitioner filed Criminal Revision No. 03 of 2009 and sought enhancement in the sentence so awarded by the trial Court.
4. The learned Additional Sessions Judge, Naseer Abad at Dera Murad Jamali vide its order dated 18th August, 2009 dismissed both appeal and revision filed by the parties. Petitioner being aggrieved with the dismissal of his revision petition has filed this Constitutional Petition.
5. At the very outset, learned counsel for petitioner was confronted with the question of maintainability of petition, he submitted that since inherent jurisdiction of High Court cannot be resorted to the sole remedy lies in filing of Constitutional Petition. To supplement his arguments, he placed reliance on the judgment reported in PLD 1963 SC page 237, 2008 SCMR page 322, PLD 1974 Peshawar page 28 and PLD 1981 SC page 522.
6. We heard the learned counsel for the petitioner, perused the available documents annexed with the petition and also gone through the judgments referred to hereinabove. The counsel for petitioner failed to satisfy us on the point of maintainability of petition. Usually after exhausting the remedy of revisional powers under Sections 435 and 439 Cr.P.C., as a last resort in genuine cases, High Court can be moved under Section 561-A Cr.P.C. by invoking the inherent jurisdiction. Despite the fact that attention of learned counsel for petitioner was invited to the said situation, but the learned counsel for petitioner insisted that the only remedy lies in filing of Constitutional Petition.
We are afraid the proposition so advanced does not occupy the field. In the judgment reported in 2010 SCMR page 105 (Muhammad Fiaz Khan vs. Ajmair Khan), the Hon'ble Supreme Court held as under: "Even otherwise the writ petition was not maintainable in the High Court against the order passed by the learned Additional District Judge in criminal revision petition as law laict down by this Court in Badruddin's case PLD 1993 SC 399."
The citations referred to by the learned counsel for petitioner are not only distinguishable but irrelevant. The dictum laid down by the Apex Court in PLD 1963 SC page 237 instead of helping the petitioner renders the petition incompetent because in view of availability of remedy by way of criminal revision there is a bar to have a resort to a petition under Section 561-A Cr.P.C. Under such circumstances resort cannot be had to Article 199 of the Constitution. As regards 2008 SCMR page 322 pertains to an election matter, PLD 1974 Peshawar page 28 was in respect of detention matter and PLD 1981 SC page 522 does not support the petitioner.
In the light of above discussion, we are of the opinion that the instant Constitutional Petition is not maintainable, as such the same is dismissed in limine with no order as to costs.