1. Through this application under section 561-A, Cr.P.C. applicant Mir Muhammad has prayed that the orders dated 10-1-2002 and 20-5-2002 passed by the learned Sessions Judge, Larkana, and learned 1st Additional Sessions Judge Larkana, respectively in Suo Motu Revision No,1 of 2002 setting aside the order of acquittal of the applicant passed by learned Judicial Magistrate IV, Larkana, be set aside/quashed so as to prevent the abuse of the process of Court and for securing the ends of justice.
2. The facts giving rise to the filing of the application are that a direct complaint was filed by learned Special Judge Anti-Corruption, Larkana, against present applicant Mir Muhammad who is Circle Officer, Anti-Corruption Establishment, Shikarpur, under section 175, P.P.C. for failing to execute the process issued against Muhammad Panjal who is complainant in Direct Complaint No,9 of 2001 (Muhammad Panjal v. Riaz Ahmad). Initially a notice under section 175, P.P.C. was issued and applicant Mir Muhammad was called upon to appear in Court on 13-8-2001 and show cause as to why action should not be taken against him but applicant Mir Muhammad did not appear before the learned Special Judge, ACE, Larkana, on 13-8-2001 and simply sent a reply shifting his responsibility upon a Constable, namely Abdul Karim who was deputed by him to serve the process. The reply was not found satisfactory as such an order was passed for registration of a complaint under section 175, P.P.C. against Mir Muhammad. It appears that the direct complaint filed by the learned Special Judge ACE, Larkana, in Court of learned Judicial Magistrate -IV, Larkana, was brought on record and process was issued against applicant Mir Muhammad. After service of the process, copies were supplied to accused Mir Muhammad on 30-10-2001 and charge was framed on 7-11-2001. On the same day an application under section 249-A, Cr.P.C. was filed by accused/applicant Mir Muhammad which was allowed and he was acquitted on the same day by the learned IVth Judicial Magistrate, Larkana.
3. It further appears that while scrutinising the record of the cases decided by the learned IVth Judicial Magistrate, Larkana, it transpired to the learned Sessions Judge that the order of acquittal of applicant Mir Muhammad appeared to be illegal as such while exercising his suo motu powers under sections 435 and 439, Cr.P.C. the learned Sessions Judge ordered for taking-up the matter as a suo motu revision and issued notices to the learned District Attorney as well as accused/ applicant so that the legality and propriety of the order passed by the learned Magistrate could be examined. This suo motu revision was assigned to learned 1st Additional Sessions Judge, Larkana, who proceeded with the matter and after hearing the learned counsel for the respondent/ accused and the learned DDA set aside the order of learned Magistrate and remanded the case for being decided afresh by some other Magistrate having jurisdiction. The applicant/accused has, thus, challenged the aforementioned orders of the learned Sessions Judge, Larkana, and learned 1st Additional Sessions Judge, Larkana.
4. I have heard Mr. Abdul Qadir Abro, learned counsel for the applicant/accused and Mr. Sher Muhammad Shar, learned Assistant Advocate General, Sindh.
5. The main ground of attack from the side of the applicant is that in the absence of an appeal by the Government or the learned Special Judge, ACE, Larkana, under section 417, Cr.P.C., the order of acquittal could not be set aside or reversed by the learned 1st Additional Sessions Judge, Larkana, in such a manner and fashion. The learned counsel has urged that after insertion of subsection (2A) to section 417, Cr.P.C. an order of acquittal passed by any Court, other than a High Court, could be challenged by way of filing of an appeal against such order within thirty days of the passing of the impugned order and under section 439(5), Cr.P.C. there is a clear bar on filing of a revision if no appeal is filed though the code provided a remedy by way of appeal. In order to appreciate the contentions of learned counsel for the applicant I feel it necessary to reproduce section 417 (2A), Cr.P.C. which reads as follows:-- " 417(2A). A person aggrieved by the order of acquittal passed by any Court, other than a High Court, may, within thirty days, file an appeal against such order.
6. Again, section 439(5), Cr.P.C. 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." (Underlining is mine) .
7. In order to appreciate the contentions of the learned counsel for the applicant it is also necessary to have a look at section 435, Cr.P.C. which empowers a Sessions Judge to call for and examine the record of any proceedings before any inferior Criminal Court situate within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail on or on his own bond pending the examination of the record.
8. A careful reading of Clause (5) of section 439, Cr.P.C. will show that the bar contained in this subsection applies only to the revisions entertained at the instance of the party who could have appealed. Thus it will be seen that subsection (5) to section 439, Cr.P.C. does not take away the powers of the High Court or a Sessions Court to exercise its suo motu powers under section 435, Cr.P.C. by initiating suo moto revisions in appropriate cases. The objection raised by the learned counsel for the applicant has, therefore, no force. Had it been a case of exercise of revisional jurisdiction on the basis of an application filed by a complainant or an aggrieved person, perhaps the position would have been different. The exercise of powers under sections 435, 439 read with Section 439-A, Cr.P.C. by the learned Sessions Judge and the learned 1st Additional Sessions Judge do not appear to be in excess of authority or jurisdiction, illegal or even improper.
9. So far the merits of the case, are concerned and that it was an appropriate case for exercise of such jurisdiction, it appears from the record that soon after framing the charge against the applicant the learned Magistrate on the basis of certain documents placed before him by the accused alongwith his application under section 249-A, Cr.P.C. decided to exercise such powers and acquitted the accused on the defence plea without providing an opportunity to the complainant side to prove their case in the first instance through evidence which the prosecution proposed to produce during the trial. The impugned order passed by the learned Magistrate does not appear to be legal and no exception can be taken to the view expressed by the learned Sessions Judge in his order dated 10th January, 2002 regarding its legality and propriety. The cases reported as (i) Abdul Majeed and four others v. Messrs H. Ghulam Muhammad and Brothers Limited and another (1995, P.Cr. L.J. 1369), (ii) Ghulam Muhammad v. Additional Sessions Judge and three others (1998 M.L.D 1605) and (iii) Muhammad Bashir v. Gazal Hussain and two others (2002 P.Cr.L.J.
10. 513) are distinguishable because in all the said three cases, the private individuals had filed the direct complaints but did not file appeals against acquittal and had preferred to file revision applications before the Sessions Judge which were found to be not maintainable by the learned Sessions Judge as well as the High Court. In the instant case the learned Sessions Judge has exercised his suo moto powers under sections 435/439/439-A, Cr.P.C. to which no exception can be taken at this stage under the circumstances of the case.
11. I am, therefore, of the considered view that no case is made out for exercise of its inherent powers by this Court under section 561-A, Cr.P.C. During the trial the applicant/accused shall have every right to place his defence before the learned trial Court and to dislodge the prosecution case at the relevant time. Any observations made by the learned Sessions Judge, Larkana, 1st - Additional Sessions Judge, Larkana, or by this Court shall not cause any prejudice the case of the applicant/accused during the trial.
12. The above are the reasons for the short order dismissing this application after conclusion of hearing at Katcha Peshi stage on 28-5-2002.