This application under sections 4351439 read with 417 (2), Cr. P. C. Has been preferred by the applicant against the judgment dated 19th May, 1979, of the learned Additional Deputy Commissioner and A. D. M. (South), Karachi, whereby he acquitted the respondent No. 2.
2. Briefly the facts giving rise to this matter are that the respondent No. 2 Ghulam Ali, is proprietor of a shop. "Kashmir Corner" located at Hotel Al Mehran, Karachi. The applicant who is Game Inspector of Karachi District raided his shop on 22nd February, 1978. He was accompanied by Dr. M. H. Rizvi, Member, Sind Wild Life Management Board, Mr. M. B. Chughtai, District Game Warden, Karachi, and Mr. Khan Mohammad Khan, Deputy Conservator of Forests at the time of raid. The following articles which are skins of the protected animals were secured as a result of the raid:-
(i) Leopard skins (tanned) 14 numbers.
(ii) Crocodile skins (tanned) 1 number.
(i.e) Snow Leopard Skin cap 1 number.
The applicant after informing the Police Station concerned filed such complaint against the respondent No. 2 in the Court of Additional District Magistrate (South) Karachi, under sections 7, 9, 12, 18, 22 and 34 of Sind Wild Life Protection Ordinance, 1972. The prosecution examined complainant Qamarul Islam P. W. 2, Dr. M. H. Rizvi, P. W. 1, Mr. N. B. Chughtai, P. W. 3 and Mr. Khan Mohammad Khan P. W: 4.
3. The respondent No. 2 denied having possessed the articles illegally and stated that he held a licence for it. He also examined, one Ali Afsar, Salesman of his shop in defence as D. W.
1. The learner) Magistrate after appraisal of evidence acquitted the respondent No. 2.
4. The applicant before preferring this application moved the Govern--ment to file appeal against the acquittal of the respondent No. 2 but his request was not acceded to and he therefore filed this application on 17November, 1979.
5. Mr. Mohammad Ali Shaikh, the learned counsel for the appli--cant has contended that the learned Magistrate has not properly appreciated the legal aspect of the case as .Far as possession of trophies under section 10 of Sind Wild Life Ordinance is concerned. His finding to the effect that the skins were mere trophies and not intended to be sold and therefore no offence was committed is in total disregard of sections 9 and 10 of Sind Wild Life Protection Ordinance, 1979 as it included trophies as well. Moreover, the respondent No. 2 has admitted the possession of the articles and holding a valid licence for possessing it. Brit the same has not been produced by him which clearly showed that he held no licence on the day when the skins were secured from his shop. He was therefore liable for punishment under section 17 of Sind Wild Life Protection Ordinance, 1972 and the skins in question by virtue of section 20 of the Ordinance vested in Government.
6. It has been lastly contended that the complains filed by the applicant was governed by section 30 of the Ordinance and therefore was not a private complaint and provisions of section 417 (2), shall not be attracted in this case. The order of acquittal being against the provi--sions of law was liable to be set aside for re-trial of the case. He has relied upon Grindlay's Bank Ltd., Karachi v. P. D.
Wadha (PLD 1978 Kar. 610).
7. Mr. Mohammad Ashraf Kazi, the learned counsel for the respondent No. 2 apart from other contentions on merits of the case has stated that this application is barred by section 439 (5), Cr. P.
C., as the applicant had remedy by way of appeal and he has failed to avail it. He relies upon:-
(i) State v. Abrar Hussain Shah PLD 1962 Kar. 753.
(ii) State v. Muhammad Hussain PLD 1968 SC 265.
(i.e) State v. S. A. Sadiq 1973 P Cr. L J 100.
8. Mr. Ali Bux Leghari, the learned counsel appearing on behalf of the State has contended that even after refusal to file appeal by the Government, the applicant had a right to prefer appeal against the acquittal under section 417 (2), Cr. P. C. Which has not been availed of by him. Since he has failed to prefer appeal, this application is barred by section 439 (5), Cr. P. C.
9. I have considered the contentions of the learned counsel for the applicant as well as respondents. I have also carefully examined the citations referred to by the learned counsel for the parties. Before I deal with the matter on merits. I think it is of importance to examine the question of maintainability of this application. There is no doubt that the trial in this case has initiated upon a complaint filed by the applicant. The section 417 (2), Cr. P. C., clearly provides that an application for special leave in case of such an order of acquittal may be presented by the complainant which has not been availed of by the applicant. Never--theless such an application is to be preferred within sixty days of the order of the acquittal as provided by section 417 (3), Cr. P. C. In this case, the judgment was announced on 19th May, 1979, and true copy of the same filed with the Revision application shows that it has beer supplied to the applicant on 15th July, 1979. He has presented this application in this Court on 17th November, 1979 which is after more than four months. The applicant moved the Government to file appeal against the acquittal of the applicant but he himself did not avail of the remedy available to him under section 417 (2) and (3) Cr. P. C. Now therefore section 439 (5), Cr. P. C. Which provides 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 party who could have appealed is imperative. Where the law provides a remedy by way of an appeal and the party who could avail himself of this remedy does not choose to do so, this Court will not call into service its revisional jurisdiction in order to assist such a party as the revisional jurisdiction is to be exercised sparingly and only in cases where there is a manifest illegality orth gross miscarriage of justice which is not the case in this matter. I am supported in my view in the following cases:-
(i) The State Through Additional Advocate-General, West Pakistan, Peshawar v. S. A. Sadiq and another.
(ii) The State v. Mohammad Hussain, and (i.e) The State v. Abrar Hussain and another.
10. In the result this application is therefore evidently incompetent under the circumstances of the case and is hereby dismissed.