' This revision petition was admitted to regular hearing against the judgment of acquittal passed by the Additional Sessions Judge, Sahiwal, by the High Court vide order dated 23rd May, 1977. It was transferred by the order of the learned Chief Justice vide order dated 12th July 1977 to this Court.
The learned counsel for the petitioner appeared on 7th August 1977 and it was pointed out that criminal revision is not competent in view of the Law Reforms (Amendment) Ordinance, 1975, and special leave to appeal should have been filed in the High Court. The learned counsel for the petitioner sought adjournment on the ground that he wanted to examine the proposition of law with which he was confronted for the first time according to his contention and adjournment was granted.
2. The learned counsel for the parties have been heard in detail and the record has been perused.
According to the facts of the case, the petitioner filed a private complaint against the respondent in the Court of Canal Magistrate, Sahiwal, that the respondent hired a bulldozer and demolished the khaal of the complainant petitioner by this bulldozer. It was also stated that the petitioner- complainant is the general attorney of Mst. Wazir Begum who is owner of Killas Nos. 11, 12, 19 and 20 of Square No. 3 in Chak No. 132/9L, Tehsil and District Sahiwal. The said watercourse which is alleged to have been demolished by the respondent, was a source of irrigation for the land of Mst. Wazir Begum and due to this reason she had been completely deprived to irrigate her land and it was prayed that the respondent be convicted under section 70(7) of the Canal and Drainage Act, 1873, and it was also prayed that the respondent may be ordered to rebuild the watercourse. Both the parties led their evidence and after apps eciating the evidence, the learned Magistrate convicted the respondent under section 70(7) of the Canal and Drainage Act and sentenced him to a fine of Rs. 50 only and it was also directed that the respondent should construct the watercourse which had been demolished by him. Aggrieved by this conviction by the learned trial Magistrate, the respondent filed an appeal before the Additional Sessions Judge, Sahiwal, which was accepted and the impugned judgment of the trial Court was set aside vide order dated 26th February 1977.
Aggrieved by this judgment of acquittal, the petitioner filed a revision petition in this Court on the 28th of March, 1977.
3. The sole point for determination before this Court is whether the revision petition is competent.
Law Reforms (Amendment) Ordinance (XXIV of 1975) was enforced on 21st December 1975 by which Law Reforms Ordinance (XII of 1972) was amended and subject to all amendments in the Criminal Procedure Code, the Law Reforms Ordinance, 1972, was made applicable. Section 417(2) of the Code of Criminal Procedure reads as under :- "417(2).-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 prfsent such an appeal to the High Court."
Subsection (3) says- "417(3).-No application under subsection (2) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order."
4. Admittedly, the proceedings were initiated by the petitioner on a private complaint to the Canal Magistrate and that conviction has been set aside and an order of acquittal has been passed by the learned Additional Sessions Judge, and in view of this Amendment which was made in 1972 but was made applicable on 21st December 1975, the petitioner should have filed a special leave to appeal before the High Court against the order of acquittal, but instead of filing a special leave to appeal against the acquittal he has filed a revision petition.
5. Section 439(5) of the Code of Criminal Procedure reads as under:- "439(5)-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."
' The reading of this subsection would indicate that if the right of appeal is available to the petitioner and it has not been exercised, then the revision petition is not competent. The word "appeal" used in section 439(5), Cr. P. C. Includes special leave to appeal for the purpose of section
439. It is, therefore, held that the right of special leave to appeal was available to the petitioner but the has not exercised the same. Under these circumstances, the revision petition is not competent, and the same is dismissed as not maintainable.
6. Criminal Miscellaneous Application No. 2 of 1977 has been filed under section 561-A of the Code of Criminal Procedure for early hearing. This application becomes infructuous and is dismissed.
7. Criminal Miscellaneous. Application No. 1 of 1977 has been filed under section 561, Cr. P. C. Wherein it was prayed that the certificate from the District Magistrate under section 417, Cr. P. C., is not necessary. This petition also becomes infructuous and is also dismissed.
8. The learned counsel for the petitioner has prayed verbally that this revision petition may be converted into a petition for special leave to appeal. This request cannot be acceded to because the impugned judgment of the Additional Sessions Judge was delivered on 26th February 1977 and the limitation within which special leave to appeal can be filed is sixty days only from the date of order under section 417(3) of the Code of Criminal Procedure. Since the prescribed period is sixty days and the prayer could be made up to the 26th of April 1977, this prayer is also disallowed.