This application filed under section 561-A, Cr.P.C. Raises an interesting question with regard to maintainability of a criminal revision application before the Court of Session in disregard of the provisions contained in subsection (5) of section 439, Cr.P.C.
2. On 28-1-1987 the respondent No. 2 filed a complaint against the applicants and 5 others for the offence under section 147-148-506(2)-457-323-149, P.P.C., in the Court of A.C.M., Sukkur, which was brought on regular file. The case was subsequently transferred to the Court of Joint Civil Judge and F.C.M., Sukkur. On 20-3-1988 the learned Magistrate acquitted the applicants and others under section 247, Cr.P.C, with the following order: "This is an application sent by Mr. Amanullah Shaikh Advocate for complainant for adjournment on the ground that the brother of complainant is admitted in the hospital at Sukkur and he has gone to visit his brother. I have perused the record which shows that R & P has been transferred from the file of learned A.LM., Sukkur received by this Court on 7-1-1987. Complainant had failed to attend the Court since 27-6-1987, For one or the two dates applications were filed for the condonation of the absence of complainant, while on the other dates of hearing complainant had remained absent without intimation. On 18-2-1988 Advocate for complainant moved application for condonation "'-- ` `s of the absence of complainant on the ground that uncle of the complainant has expired since last days, the said application was allowed. On 8-3-1988 Advocate for complainant has moved application for condonation of the absence of the complainant on which the absence of complainant was excused, warned for future, hence this application, From the file it reveals that complainant has lost his interest in the case, hence he disappears from the Court deliberately. The accused are attending the Court regularly though. They are Government servants. Under the circumstances, I reject this application and dismiss the complaint under section 247, Cr.P.C. And acquit the accused present in Court, They are on bail and their bail bonds stand cancelled."
3. The respondent No.2 who had a remedy under subsection. (2) of section 417, Cr.P.C. For special leave to appeal did not avail the same and instead challenged the impugned order under section 439-A, Cr.P.C. Before the Court of Session Sukkur. The learned Sessions Judge allowed this revision application and remanded the case for retrial. By this application filed under section 561-A, Cr.P.C., the applicants have invoked the inherent powers of this Court.
4. I have heard Mr. A.R. Faruq Pirzada, learned counsel for applicants, Mr. Shaikh Amanullah, learned counsel for respondent No.2, and Mr. Zawar Hussain Jafferi, learned A.A: G. For State.
5. Admittedly the case against the applicants and others was instituted upon a complaint. The order of acquittal was recorded under section 247, Cr.P.C. Subsection (2) of section 417, Cr.P.C.
Provided a remedy to complainant, viz. Respondent No.2 in the following words: "If such an order 'of acquittal is passed in any case instituted upon complaint and the High Court, on, an application made to it by the complainant in this behalf grants special leave to appeal from the order of acquittal the complainant may present such an- appeal to the High Court."
6. The respondent No.2 did not approach this Court in terms of subsection (2) of section 417, Cr.P.C., and instead filed a criminal revision before the Court of Session challenging the order dated 20-3- 1988 passed by Joint Civil Judge and F.C.M. Sukkur, which was barred under subsection (5) of section 439, Cr. P.C. In the following words: "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:"
Therefore, regardless of the merits of the case the revision application filed by respondent No.2 before the Court of Session was incompetent.! The cases reported as Jurno Wali Muhammad v., Emperor AIR 1914 Sindh 139, Emperor v. Jam Fakir AIR 1922 Sindh 22, State v. Alakh Narain Singh and others AIR 1954 Patna 161, State v. Abrar Hussain Shah and another PLD 1962 Kar. 753, Qamrul Islam v The State and another 1981 P Cr. L J 586, and Khair Shah and 4 others v. Hyder Shah and another PLD 1982 Karachi 128 fully establish the point that the Court of Revision will not interfere under section 439, Cr.P.C. (or 439-A, Cr.P.C. In cases where an appeal was open to the party concerned.
7. It appears that the learned Sessions Judge was influenced by a case reported as Mushtaq Hussain Shamsi v. The State and another 1985 P Cr. L J 535. In which a learned Single Judge of this Court took a contrary view. I have carefully examined this judgment, but in my view it does not furnish any assistance in resolving the legal controversy involved in this application under section 561-A, Cr. P.C. In the skeleton provided by the Legislature I have not discovered the result, which apparently an examination by the learned Judge had produced.
8. In the circumstances mentioned above, I allow the application and set aside the impugned judgment dated 23-2-1989.