' By this appeal the appellants have challenged the judgment passed by the learned Special Judge, Anti-Corruption (Provincial), Hyderabad in Special Case No,65 of 1987.
' According to the facts of the case the Circle Officer Anti-Corruption Establishment, Hyderabad had sent up the present appellants to the Court for trial on 11-8-1987 under section 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act II of 1947, hereinafter referred to as the Act. In this case the F.I.R. Was lodged by one Lalchand at the A.C.E. Police Station, Hyderabad on 17-7-1984 to the effect that Subedar Muhammad Sharif of Nasarpur Police Station had arrested his brother Neno who was kept in wrongful confinement and that the said S.H.O. Was demanding Rs,25,000 from the complainant which was ultimately reduced to Rs,2,200. Such F.I.R. Was registered by the Circle Officer and he then procured the witness Ghulam Nabi Memon the then Mukhtiarkar and F.C.M., Hyderabad and ultimately formed a trap party. The circle officer then with others went to Nasarpur in a Suzuki vehicle where they reached at about 1-30 p.m. At that stage the complainant was introduced to the circle officer and the Magistrate who was supervising the trap and the contents of the F.I.R. Were got verified from him. One of the members of the trap party namely S.I.
Mulazim Hussain had brought P.W. Muhammad Qasim to act as Mashir in the case. The amount was given to the complainant for onward transmission to the accused. It is said that trap party kept themselves concealed while the complainant and the Mashir Muhammad Qasim went to the police. Station where they found appellant Motan Head Constable sitting with one P.W. Abdul Jabbar Memon and it is alleged that after having paid the money the Mashir signaled the trap party who pounced upon n the accused and recovered the money from P.W. Abdul Jabbar who stated that appellant Motan had given this money to him for counting. The trap report was prepared and after usual investigation the case was sent up for trial against both the appellants and the charge was framed when the abovesaid sections of the Act to which the appellants pleaded not guilty and claimed trial. The prosecution examined 15 witnesses and also gave up five witnesses. The trial Court after hearing the arguments of the parties was pleased to pass the impugned judgment and convicted and sentenced the appellants to suffer R.I. For 3 months each under section 343, P.P.C. Read with section 34, P.P.C. And to pay a fine of Rs,500 or in default to suffer further R.I. For three months. The appellants were also awarded identical sentences by convicting them under section 5(2) of the Act. Being aggrieved the appellants have preferred this appeal.
' I have heard the learned counsel for the appellants as well as Mr. Abdul Ghani Memon, Advocate appearing for the State. The points for determination in this case are:-- "(1) Whether the accused in collusion with each other or in furtherance of their common intention wrongfully confined P.W. Nenomal at P.P. Nasarpur from 15-7-1984 to 17-7-1984?
(2) Whether accused Muhammad Sharif being a public servant agreed to accept from complainant Lalchand for himself gratification of Rs,2,200 other than legal remuneration, as a motive or reward for releasing Nenomal brother of complainant Lalchand from his wrongful confinement?
(3) Whether accused Motal Khan being a public servant agreed to and actually accepted a sum of Rs,2,200 from complainant Lalchand as gratification other than legal remuneration from himself or for S.I. Muhammad Sharif, as a motive or reward for releasing Nenomal from the wrongful confinement?"
' Learned counsel for the appellants has submitted that this is a case, which, on the face of it suffers from material irregularities and can certainly be said to be a case of no evidence. At the very outset counsel has pointed that though the present appellant Muhammad Sharif the then S.H.O. Of Nasarpur Police Station has been tried and convicted but there is no iota of evidence against him.
Admittedly he was not present at the police station at the time when the amount is alleged to have been handed over to the appellant Motan nor the said Motan or P.W. Abdul Jabbar, from whom the money has been recovered, have made any statement that they had received the amount for or on behalf of appellant Muhammad Sharif. Mere word of complainant by itself would not lie sufficient to pass the conviction of any such matter where the prosecution has not been able to prove their case even against other appellant. Accordingly, I find that the prosecution has miserably failed to bring home the charge against the appellant Muhammad Sharif.
' As regards the appellant Motan, the learned counsel for the appellants has pointed out to one glaring irregularity i,e, the same person (City Mukthiarkar and F.C.M., Hyderabad) has acted as the Magistrate supervising the trap and has also drafted and submitted the trap report while he has also acted as a Mashir in the case. The learned counsel for the appellants has then pointed out that in the present case according to the prosecution the amount was handed over to H.C. Motan in presence of Mashir Muhammad Qasim and that this Motan had handed over the amount to P.W.
Abdul Jabbar. The said Mashir Muhammad Qasim does not support this contention of the prosecution. He has categorically stated that no amount was paid in his presence. The other witness Abdul Jabbar in his evidence has stated as under:- "I was talking with Jamadar and he was going through my application when one boy came there and asked about Subedar. The Jamadar told him that the Subedar is not there. Then the boy asked Jamadar Motan to take from him the money as Amanat. The Jamadar asked the boy to bring Gul Kakepoto and give the money to him by himself, whereupon the boy went away but he came back and told the Jamadar that Gul was not available. Thereafter, the boy gave back money to me for counting but just then there was the raid of Anti-Corruption Police. They beat me, snatched the money from me and arrested me. They made me sit in the car. I was taken to the Anti-Corruption Office and was confined there."
' The above piece of evidence would not only show that no such amount had been passed to the hands of appellant Motan but factually this P.W. Abdul Jabbar was made an accused and treated as such but subsequently for the reasons best known to the prosecution he was converted and assigned the role of a witness. It may also be observed that according to the entire evidence brought on record not a single witness had seen the money passing from the hands of the complainant to those of the appellant Motan including the Motan support the claim.
' In view of the above discussion I am of the view that the prosecution has utterly failed to prove the case against any of the appellants. Accordingly I allow this appeal, set aside the judgment, conviction and sentence. The appellant is on bail, his bail bonds are cancelled.
Appeal allowed.
1995 MLD 92 [Karachi] Before Rana Bhagwan Das, .J HABIBULLAH QURESHI---Applicant versus FAROOQUE and 3 others---Respondents Criminal Miscellaneous Application No,136 of 1995, heard on 27th June, 1995.
(a) Criminal Procedure Code (V of 1898)--- ----Ss. 439-A & 561-A---Revisional jurisdiction, exercise of---Sessions Judge in exercise of his revisional jurisdiction under S.439-A, Cr.P.C. Set aside order passed by Magistrate on a number of valid grounds---Sessions Judge by interfering with order passed by Magistrate had neither acted illegally nor without lawful authority as he had given cogent reasons for disagreeing with the view of Magistrate and order passed by Sessions Judge was well-considered and well- reasoned---No illegality or material irregularity having been shown to have been committed by Sessions Judge, High Court in exercise of its power vested in it under S.561-A, Cr.P.C. Could not interfere with order of Sessions Judge. [p. 94] A
(b) Criminal Procedure Code (V of 1898)--- ----Ss. 439 & 439-A---Second revision, competency of---Remedy of revision available to petitioner under 5.439, Cr.P.C. Having fully been availed of by him, application for second revision would not be competent before High Court as jurisdiction of Court of Session and High Court under that provision of law was concurrent---Section 439-A, Cr.P.C. Was introduced in the Code of Criminal Procedure with a view to relieve High Court of additional burden of hearing revision applications from orders passed by a large number of Magistrates and filing of petitions in writ jurisdiction against judgment and final orders passed under Criminal Procedure Code. [p. 95] B Attaullah Khan v. Muhammad Akram and 5 others 1985 PCr.LJ 2409 and Zafar Hussain v.
Muhammad Amin and others 1990 PCr.LJ 1928 ref.
(c) Criminal Procedure Code (V of 1898)--- ----S. 561-A---Revision by Sessions Court---Jurisdiction of High Court under S.561-A, Cr.P.C.--- Scope---Petitioner having availed of remedy provided under law, could not invoke jurisdiction of High Court under S.561-A, Cr.P.C. Which was to be exercised to secure ends of justice or to prevent abuse of process of Court---Jurisdiction under S.561-A, Cr.P.C. Was not available to a party by way of additional or alternative jurisdiction after exhausting revisional jurisdiction---Even otherwise jurisdiction under S.561-A, Cr.P.C. Could be exercised in relation to proceedings pending before a subordinate Court and not cases where proceedings had come to an end---Sessions Judge having finally disposed of revision application, inherent jurisdiction of High Court could not be exercised at that stage as it would be neither just nor proper. [p. 95] C Karimuddin Ahmed Qureshi for Applicant. Muhammad Hamza Khan for Respondents.
Shafi Muhammad Memon, Asstt. A.-G. For the State.
Date of hearing: 27th June, 1995.
' The petitioner is aggrieved by an order, dated 28-3-1995 passed by learned Sessions Judge, Hyderabad under section 439-A, Cr.P.C. In Criminal Revisional Application No,96 of 1994 setting aside the order passed by Additional City Magistrate, Husri, dated 30-11-1994 whereby learned Magistrate had declared co-accused Muhammad Younus as proclaimed offender within the meaning of section 87, Cr.P.C.
2. Petitioner filed a private complaint against the respondents in relation to commission of offences under sections 147, 148, 149, 341, 504 and 506, P.P.C. Sometimes in 1987. It is stated at the bar that after holding an enquiry into the complaint process was issued against respondents Nos.1 to 3 as well as Muhammad Younus. While the respondents after service of the process of the Court surrendered before the lower Court, co-accused Muhammad Younus could not be served with the process of the Court with the result that after recording statement of a process-server learned Magistrate decided to proceed against him under section 512, Cr.P.C. And declared him as proclaimed offender.
3. Being aggrieved by this order, petitioner challenged the same before the learned Sessions Judge, Hyderabad who in the exercise of his jurisdiction under section 439-A, Cr.P.C. Set aside the order passed by the Magistrate on a number of valid grounds. In view of old age of the case, learned Sessions Judge by the same order directed the Magistrate to bifurcate the case of the respondents from the case of Muhammad Younus and to decide the case according to law within a period of three months. It is as against this order that the present application under section 561- A, Cr.P.C. Was filed before this Court with a prayer that this Court after examination of the R and Ps of both the Courts, correctness, legality and propriety of the order may set aside the order passed by learned Sessions Judge, Hyderabad.
4. At the very outset it is pertinent to note that this petition was drafted as a Criminal Revision Application under sections 439, 435 and 436, Cr.P.C. But subsequently these sections were scored off by pen and section 561-A, Cr.P.C. Was written at the title of the application.
5. I have heard learned counsel appearing for the parties as well as the learned Assistant Advocate-General.
6. On an examination of the record, I find that learned Sessions Judge by interfering with the impugned order neither acted illegally nor without lawful authority. He has given cogent reasons for disagreeing with the view of the learned Magistrate for declaring co-accused Muhammad Younus as a proclaimed offender. These reasons need not be reiterated here and it will suffice to say that impugned order is well-considered and well-reasoned. No illegality or material irregularity is shown to have been committed by the revisional Court, for the exercise of inherent jurisdiction vested in this Court under section 561-A, Cr.P.C.
7. Remedy under section 439, Cr.P.C. Being available to the petitioner and the same having been availed of by him fully second revision application would not be competent before this Court as the jurisdiction of the Court of Session and High Court under this provision of law is concurrent and it has been held by the superior Courts that ordinarily a party should invoke the jurisdiction of the lower forum in the event of a concurrent jurisdiction vested in two different Courts. Section 439-A, Cr.P.C. Was introduced in the Code of Criminal Procedure by Law Reforms Ordinance, 1972 with a view to relieve the High Court of additional burden of hearing revision applications from the orders passed by a large number of Magistrates and filing of petitions in writ jurisdiction against judgments and final orders passed under the Criminal Procedure Code. The petitioner having availed of the remedy provided under law cannot invoke the jurisdiction of this Court under section 561-A, Cr.P.C. Which is exercised to secure the ends of justice or to prevent the abuse of the process of Court. Jurisdiction under section 561-A, Cr.P.C. Is not available to a party by way of additional or alternative jurisdiction after exhausting revisional jurisdiction. I am fortified in this view by the case reported as Attaullah Khan v. Muhammad Akram and 5 others 1985 Pcr.LJ 2409 and Zafar Hussain v. Muhammad Amin and others 1990 PCr.LJ 1928. No case-law to the contrary has been cited at the bar and there is no strong reason to deviate from the view taken earlier in the matter.
8. There is another aspect of the matter. Jurisdiction under section 561-A, Cr.P.C. Can be exercised in relation to proceedings pending before a subordinate Court and not in cases where proceedings have come to an end. Learned Sessions Judge has finally disposed of the revision application therefore, inherent jurisdiction of this Court cannot be exercised at this stage as it would be neither just nor proper.
9. For these reasons I am of the considered view that this application is highly misconceived and not maintainable at law. It is accordingly dismissed.