' Through this petition under section 561-A, Cr.P.C. The petitioner seeks the setting aside of order, dated 7-7-2001 passed by Mr. Muhammad Mansoor Zaman, learned Additional Sessions Judge, Kharian, by which he has accepted the revision petition of respondent No,1 and has set aside the order, dated 26-1-1999 passed by Mr. Muhammad Iqbal Goraya, learned Magistrate Section 30, Kharian, by which he has acquitted the petitioner under section 249-A, Cr.P.C. In the private complaint filed by respondent No,1 against the petitioner.
2. The brief facts of the case are that a private complaint was filed by respondent No,1 against the petitioner alleging therein that he is guilty of offences under sections 420, 465, 467, 468, 471 and 109, P.P.C. In which the petitioner was summoned to face the trial by the learned Magistrate Section 30, Kharian. The petitioner moved an application under section 249-A, Cr.P.C. And argued that as the civil litigation is pending between the parties on the same dispute, the pendency of the criminal complaint is abuse of process of law. The learned trial Magistrate accepted the application and acquitted the petitioner and others from the private complaint.
3. Aggrieved by the said order, revision petition was filed under section 435, Cr.P.C. By respondent No,1 which has been accepted by the learned Additional Sessions Judge, through the impugned order, dated 7-7-2001.
4. Learned counsel for the petitioner has argued that the revision petition was not competent because the remedy of filing of appeal against the acquittal order under section 417(2), Cr.P.C. Was available to respondent No,1, and the order passed by the learned Additional Sessions Judge impugned in this petition is without jurisdiction and without lawful authority and is liable to be set aside. It is further contended that the civil dispute between the parties is pending adjudication before the Court of competent jurisdiction hence the criminal proceedings on the same subject are abuse of process of law. He relies upon judgments reported as Nasir Khan and another v. The State 1991 PCr.LJ 19, Ghulam Muhammad v. Additional Sessions Judge and 3 others 1998 MLD 1605, Abdul Majeed and 4 others v. Messrs H. Ghulam Muhammad & Brothers Ltd. And another 1995 PCr.LJ 1369, Muhammad Safdar and 4 others v. The State and another PLD 1996 Lah. 457 and Abdullah Jan Khan v. Saifur Rehman Khan and others NLR 1997 Crl.
607.
5. On the other hand learned counsel appearing on behalf of respondent No,1 has argued that the revision petition was maintainable as the application under section 249-A, Cr.P.C. Was accepted and the petitioner was acquitted without recording the evidence. He relied upon Muhammad Yasin v. Muhammad Hanif 1997 PCr.LJ 1626.
6. Learned counsel for the petitioner contends that in the abovesaid case a distinction has been drawn in the case in which evidence has not been recorded and the private complaint has been dismissed, the revision petition is maintainable. It is further contended that the criminal proceedings can go side by side alongwith the civil litigation and the peculiar circumstances of the case demand that the criminal proceedings shall also continue and it is not abuse of process of law.
7. I have heard the learned counsel for the parties and also perused the documents attached with this petition. In this case there are two main questions which are to be resolved through this judgment. The first question is whether the revision petition under section 435, Cr.P.C. Is maintainable or not. Section 435, Cr.P.C. Is reproduced as under:-- "Power to call for records of inferior Courts.--- The High Court or any Sessions Judge may call for and examine the record of any proceeding 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 or on his own bond pending the examination of the record."
Subsection (5) of section 439, Cr.P.C. Is reproduced as under:-- "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."
' This question has been decided by the superior Courts in a number of cases. In 1995 PCr.LJ 1369, the Karachi High Court has held that the revision petition is not maintainable against the order of the Judicial Magistrate, the remedy of filing an appeal against the acquittal order was available. In 1991 PCr.LJ 19, petition for quashment was filed challenging the order passed in the revision petition which was filed against the order passed under section 249-A, Cr.P.C. By the learned Magistrate whereby he acquitted the accused persons, it was held that the revision petition was not maintainable before the Sessions Court due to the bar under subsection (5) of section 439, Cr.P.C.
As the remedy for filing of appeal under section 417(2), Cr.P.C. Was available and the judgment was set aside. Similar question came up for consideration in 1998 MLD 1605. In this case same view has been taken by this Court. The case of Muhammad Yasin (supra) relied upon by the learned counsel for respondent No,1 reported in 1997 PCr.LJ 1626 has also been discussed in which it has been held that the consistent view of the superior judiciary is that where remedy of appeal under section .417(2), Cr.P.C. Is available, the revision petition is not maintainable. The relevant portion is as under:-- "Trial Court having acquitted accused of the charge, complainant instead of availing remedy of appeal against acquittal available to him under section 417, Cr.P.C. Filed revision under section 439-A, Cr.P.C. Before Appellate Court. Appellate Court below, had rightly dismissed revision being.Not maintainable."
I am in agreement with the judgments referred to above and after perusal of subsection (5) of section 439, Cr.P.C. No revision petition is competent before the Sessions Court against an order which is challengeable in appeal under section 417(2), Cr.P.C. As the petitioner was acquitted from the charge under section 249-A, Cr.P.C. By the learned Magistrate Section 30, the remedy was available to the respondent by way of filing an appeal, and the revision petition was not competent and the order passed on 7-7-2001 is illegal and unlawful. The second question raised in this petition is that admittedly civil litigation on the same subject is pending before the Courts of competent jurisdiction and the subject-matter is the same which has been subsequently converted into a criminal offence hence where the Civil Court has taken the cognizance and is deciding the same issue, the filing of private complaint and the pendency of the same before the trial Court is abuse of process of law. The consistent view of the superior Courts is that if the matter is sub judice then the proceedings before the trial Court shall be stayed till the final disposal of the civil suits. I am fortified by the view taken in judgment reported as A. Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353.
8. As the civil litigation is going on between the parties on the same subject hence the pendency of the private complaint is abuse of process of law and cannot be allowed to continue in the peculiar circumstances of this case and the possibility cannot be ruled out that the private complainant has been filed with mala fide intention and ulterior motive in order to pressurize the petitioner and restrained him from pursuing his case in the Civil Courts independently.
9. For the foregoing reasons this petition is accepted. The order, dated 7-7-2001 passed by the learned Additional Sessions Judge, Kharian, is set aside and the order, dated 26-1-1999 passed by the learned Magistrate Section 30, Kharian is maintained. There will be, however, no order as to costs.