' FAZAL-UR-REHMAN, J.---This is a Criminal Revision Petition under section 435/439, Cr.P.C. Filed by Additional Advocate-General, Balochistan against the order of the Judicial Magistrate, Bhag, dated 26-11-1998.
2. Briefly stated the facts of the case are that on 1-11-1995 P.W. Muhammad Hanif, S.H.0., Police Station, Bhag along with other police employees was patrolling the area where he received information regarding presence of respondent Gul Khan at BuX Stand and accordingly he went there. It is alleged that the respondent was wanted in various criminal cases. It was also alleged that the respondent/accused who was standing near a bus was called for but on seeing the police party he started running away and when followed he opened fire on police party with pistol. It is stated that in exchange the police party also made firing in its defence. It is stated that the respondent entered into the house of one Hameed Shah where Kamal Khan, brother of respondent was present as guard also opened fire with kalashnikov upon police party. It is stated that SDM also came at the spot. Accordingly a case being Crime No,50 of 1995 under section 324, Qisas and Diyat Ordinance and section 353, P.P.C. Was lodged against the respondent and his brother Kamal Khan.
It is stated that respondent and his brother were produced to the police by one Haji Ganji Sasoli on 2-11-1995. According to challan that since no sufficient evidence was collected against Kamal Khan therefore, he was discharged under section 63 of the Cr.P.C. It is stated that no evidence was collected during investigation so as to warrant forwarding of challan under section 324, Qisas and Diyat Ordinance and under section 353, P.P.C. Against the respondent. After usual investigation the respondent alone was sent up to face his trial under section 33741, Qisas and Diyat Ordinance before the Magistrate. During the trial the Court examined five prosecution witnesses.
3. On 29-10-1998 an application under section 249-A, Cr.P.0 was moved by the respondent for his acquittal. The learned Judicial Magistrate after hearing learned counsel for the respondent/accused and prosecutor passed an order of acquittal in the manner hereinabove mentioned. It is in these circumstances that the present petition has been filed.
4. We have heard Mr. Abdul Rahim. Advocate, learned counsel representing the State while respondent appeared in person.
5. Learned counsel who is representing the State was posed a question as to how this revision petition is competent and maintainable against an order of acquittal when the right of appeal is provided under section 417 of the Cr.P.C. Learned counseljA has argued that since the order of acquittal had been passed under section 249-A of the Cr.P.C, therefore, revision petition is competent. In support of his argument the learned State Counsel has relied upon an authority reported in 1997 Pakistan Criminal Law Journal page 1626 Lahore. The cited authority is neither applicable to the case in hand nor we concur with the view expressed therein in view of provisions contained in sections 417, 423(a) and 428, Cr.P.C.
6. (i) Section 417(1), Cr.P.C. Deals with the presentation of appeal to the High Court by the public prosecutor on the direction of the Provincial Government from an original or appellate order of acquittal passed by any Court other than a High Court. No appeal has been filed by the Provincial Government under this subsection.
(ii) As per provisions contained under section 417 (2) of the Cr.P.0 the complainant can file an appeal, if the High Court grants special leave to appeal, that is possible only in those cases where the order of acquittal is passed in any case instituted upon the complaint, which is not the case here as the present case was instituted on a challan by police and not on complaint. It may also be pointed out here that no such application is entertain able after expiry of 60 days.
(iii) Right of appeal has been granted to an aggrieved person as envisaged by section 417 (2-A) of the Cr.P.0 which subsection was inserted by the Code of Criminal Procedure (Second Amendment)
Act (XX of 1994) passed on 6-11-1994. This subsection provides time limit for filing an appeal within 30 days.
7. Even in an appeal against acquittal the accused/respondents are equipped with double presumption of innocence as held by the superior Courts. For the sake of argument if this revision is treated as an appeal even then it cannot succeed on merits. The learned trial Court did not believe the police witnesses in the circumstances of the case when the private witness has not supported the prosecution version. According to learned Magistrate despite of adopting coercive method the prosecution has failed to produce Investigating Officer. Even if the Investigating Officer is examined it will not improve the case of the prosecution which fact is evident from the mere perusal of challan but would have been detrimental to the prosecution case. The evidence has been assessed by the learned trial Court and the relevant portion of the impugned order is reproduced below for the sake of facility:--- "On the perusal of record it appears that the accused Gul Muhammad is facing trial from more than three years. In this period the prosecution was given so much chance for producing evidence but it has no interest in this case. The occurrence has been happened in the bazar at about 11-00 a.m. But police did not associate and produced the private witnesses when they have been informed that the accused involved in many cases is present in Bus Adda. Only one private witness produced who is P.W.3 Muhammad Rahim son of Haji Ghulam Qadir stated on oath that when he was on duty at his office, heard the firing and saw the police party firing upon accused Gul Muhammad, he entered into the house of Abdul Hameed Shah. In the meanwhile, Assistant Commissioner came there and asked about the matter. Tehsildar was also Along with him on occurrence. He further deposed that Sher Muhammad also was on occurrence at that time, but prosecution did not produce Sher Muhammad. In the cross-examination he admitted that police was firing upon accused person and accused Gul Muhammad as empty-handed.
' On the perusal of record it was also found that the Investigating Officer Aftab lqbal, S.I./S.H.O., Bhag has not recorded the statements of Magistrates who were present on occurrence. Neither he associated the Assistant Commissioner nor Tehsildar as witness of occurrence. Besides the prosecution story is that brother of accused Kamal Khan fired a burst with Kalashnikov upon police party while said accused was arrested by police and shifted in judicial but on 18-11-1995 the Investigating Officer/S.H.O., Aftab lqbal submitted a report to S.D.M., Bhag that there is no any evidence against accused Kamal Khan he requested for discharge of accused under sec-tion 63, Cr.P.C. Agreeing with this prayer the Assistant Commissioner discharged him and also Aftab lqbal, S.H.O. Mentioned in the challan that after scrutinizing of inquiry it is found by him that there was no allegation against accused Kamal Khan, therefore, he was discharged under section 63, Cr.P.0 but it could not believe because he himself has recorded the statements of police witnesses under section 161, Cr.P.C. All of them are nominating to the accused Kamal Khan, four witnesses recorded their statements before this Court they are also deposed that Kamal Khan accused fired a burst upon police party and threatened them."
8. The order of acquittal strengthens the initial presumption of innocence of the accused person and it can be interfered by the High Court only if it is perverse to evidence or is based on unreasonable grounds. The order of the trial Court is neither arbitrary nor perverse. Similarly it does not suffer from any illegality or material irregularity.
9. Having discussed the factual and legal aspects of the case we are of the opinion that this petition is not competent. The impugned order also calls for no interference by this Court. We had dismissed the revision by our short order, dated 1-7-1999. The above are the reasons in support of that order.