' Muhammad Anis, respondent, felt annoyed over the acts of forgery etc. Allegedly committed by Parvez Muzammil Keen and others, petitioners, for his removal from the partnership' of Messrs Keen Agencies, Peshawar by preparing some bogus documents and, therefore, he filed a complaint against them in the Court of M.I.C., Peshawar, which was, however, dismissed on the grounds that there was no direct evidence or charges against the accused; that there was delay of four years in filing the complaint; that earlier complaint filed by the complainant on the same set of facts was also filed by this Court; and that the Investigation Agency in its report had stated that the complaint is baseless and filed for the harassment of the respondents/accused.
2. The respondents preferred a revision petition against the order of the Magistrate, but the same was dismissed by the learned Sessions Judge vide order, dated 11-11-1996 for the reasons that no irregularity or illegality was found to had been committed by the trial Court and that the revision petition was also required to had been filed before the High Court.
3. The respondent thereafter filed a petition under section 561-A, Cr.P.C. Before this Court, which stood accepted vide order, dated 21-12-1999 with directions to the learned Sessions Judge to rewrite the judgment as the order impugned was not capable to disclose as to whether the revision was accepted or rejected.
4. The petitioners, after remand, submitted an application before the learned Sessions Judge wherein they agitated the questions of jurisdiction and maintainability of the petition, which was rejected by the learned Sessions Judge vide order, dated 23-4 1999.
5. The petitioners then filed a petition under section 561-A, Cr.P.C. Before this Court, which was also dismissed in limine, however, the case was ordered to be transferred to the Court of learned ft dditional Sessions Judge (Mr. Aimon Zia) for hearing arguments, once for all and to decide the question of maintainability as well.
6. The learned Additional Sessions Judge vide impugned judgment, dated 15-12-1999 has accepted the revision petition by holding that revision against acquittal is competent and that the powers under section 249-A. Cr.P.C. Have wrongly been exercised by the learned Magistrate.
7. In this petition under section 561-A, Cr.P.C., the petitioners have questioned the legality and propriety of the impugned order passed in revision by the learned Additional Sessions Judge on the ground that section 439(5), Cr.P.C. Provides that where 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, thus it was vehemently argued by the learned counsel for the petitioners that as a right of appeal was provided to the respondents under section 417(2), Cr.P.C., therefore, proper remedy for the respondents was to file an application for leave to appeal before this Court against the impugned acquittal order and not a revision petition before the learned Additional Sessions Judge, which in the light of the provisions of section 417(2), Cr.P.C. Was not at all maintainable. He, therefore; contended that the order of the learned Additional Sessions Judge is illegal, in contravention of the settled principles of administration of criminal justice and abuse of process of Court, as even on merit the case of the respondent was very weak, not warranting its remand to the learned Magistrate.
8. The learned counsel for the respondent on the other hand argued that the revision petition was very much competent, as it was filed against an order of acquittal passed under section 249-A, Cr.P.C. And not an order of acquittal passed under section 245, Cr.P.C.
9. A revision petition before the Sessions Judge lies under section 439-A, Cr.P.C. But with an exception in section 439(5), Cr.P.C. To the effect that where under the 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. In a complaint case against acquittal, an aggrieved party could competently file an appeal if special leave to appeal is granted by the High Court in accordance with the provisions of section 417(2), Cr.P.C. Against an order of acquittal, both passed by the original Court as well as by the appellate Court. There is no distinction between the acquittal recorded under section 245, Cr.P.C. Or recorded under section 249-A, Cr.P.C. For the purposes of filing appeal or revision, because in both the ibid provisions word "acquittal" has been used and also under section 417(2), Cr.P.C. As in this section too the Legislature has used the words "appeal in case of acquittal" and there was nothing to preclude the Legilature from making any distinction in acquittal recorded under section 249-A, Cr.P.C. Or acquittal recorded under section 245, Cr.P.C. In case the Legislature intended to draw any distinction in the matter of appeal between both kinds of acquittal, then the Legislature could/should have added a proviso, placing bar on filing of appeal against acquittal recorded under section 249-A, Cr.P.C.
10. In the case in hand, the remedy to file an appeal with special leave of this Court was available to the respondent, but instead of filing an application for leave to appeal before this Court under section 417(2), Cr.P.C., the respondent preferred a revision petition against the order of the Magistrate.
11. During the course of arguments, both the learned counsel for the parties placed reliance on certain authorities in support of their respective contentions. The learned Additional Sessions Judge in the impugned judgment has also placed reliance on those authorities which have been cited by the learned counsel for the (petitioner)/respondent before me in support of his contention.
12. With respect, the facts and circumstances under which the rulings were mad in the said cases are distinguishable from the facts and circumstances of the instant cases. The distinguishable features in the said judgments are to the effect that in 1994 PCr.LJ 2297, the application under section 249-A, Cr.P.C. Was dismissed by the Magistrate and revision petition against that order was held competent. In the judgment reported in 1984 MLD 1488, the legal point that revision powers of the Sessions Court and the High Court are concurrent has been discussed. Similarly, in the case reported in 1986 PCr.LJ 2179 the validity of proceedings before the Magistrate was challenged under sections 435/439, Cr.P.C. The learned Sessions Judge had dismissed the revision petition in limine on the ground that the petitioners could obtain relief by invoking the provisions of section 249-A, Cr.P.C. Before the trial Court. On writ petition, the Hon'ble High Court held that the provision of section 249-A, Cr.P.C. Are impediment in his way to hear and decide the revision petition on merits.
The judgment reported in 1997 PCr.LJ (sic) though to some extent is applicable to the facts of the present case, but with profound respect, this judgment is in conflict with the explicit provisions of section 439(5), Cr.P.C. Also the view taken by this Court while interpreting section 439(5) and section 417(2), Cr.P.C. Is different.
13. This Court in the judgment delivered in Civil Revision No, 55 of 1998, decided on 21-5-1999 has held that she criminal revision petition filed -against the judgment of Zilla Qazi/Sessions Judge, Malakand whereby he recorded acquittal of the respondents under section 265-K, Cr.P.C. Was not at all competent in view of the provisions laid down in section 439(5), Cr.P.C. Against this judgment, the aggrieved party filed a petition for leave to appeal before the august Supreme Court of Pakistan, but leave was refused vide judgment, dated 22-12-1990 The relevant portion from the judgment is reproduced as under:--- "We, however, drew the attention of the learned counsel to para.6 of the trial Court judgment wherein detailed reasons have been given for acquittal, and asked him; whether, he would, be in a position to refute any of the reasons given for acquittal. The learned counsel was practically unable to discredit any of the grounds for acquittal in that para. It has been observed by the trial Court that there is no eye-witness in this case, as those who have been examined have not given eye- witness account. Moreover, it was admitted before the trial Court by the Investigating Officer that there was no eye-witness in this case. The learned counsel was not in a position to say that any eye witness remains to be examined. The High Court dismissed the revision petition as not competent and as time-barred. In view of the peculiar circumstances narrated above we are not inclined to interfere with the High Court order. Leave is refused and petition is dismissed."
' In the present case, the learned Magistrate while recording acquittal of the petitioners has given reasons for acquittal, such as that in the complaint no evidence or direct charge was shown against anyone of the respondents besides the fact that the complaint was brought after a period of 4 years; that the liability of the petitioners was of civil nature; that the alleged forged documents are already sub judice before a competent civil Court in a civil suit and that a complaint on the same allegation was earlier filed by this Court.
14. Similar view was again expressed by this Court in the case of Taza Khan v. Taaliman Khan (Criminal Revision No, 49 of 1998, decided on 26-3-1999) wherein too it was observed that:-- "This is not disputed that the present revision petition has been filed against an order whereby acquittal was granted to accused-respondents, which is appealable under section 417 of the Cr.P.C. And unless the right of appeal is exercised no revision could be entertained."
15. I would also like to cite some other reported judgments of the Karachi and Lahore High Courts, wherein it has been clearly laid down that where remedy of appeal is provided, the remedy of revision could not be invoked. The relevant citations from the said judgments are hereby reproduced as under:--- PLD 1982 Karachi 128 "Ss. 435 & 439 read with Ss. 249 & 417(2)---Revision, competency of---Contention that accused having been acquitted in a direct complaint under S.247, Cr.P.C. No revision competent and only an application under S.417(2), . Cr.P.C. Could be filed to seek leave of High Court - Contention, held, correct."
1991 PCr.LJ 19 (Karachi).
"Ss. 561-A, 439(5), 439-A, 247 & 417(2) --- Penal Code (XLV of 1860), Ss. 147/148/506/457/323/149--- Quashing of judgment---Case against accused petitioners and others was instituted upon a complaint in which order of acquittal was recorded by Trial Court under S.247, Cr.P.C. Complainant did not approach High Court under S.417(2), Cr:P.C. And instead filed a criminal revision before Sessions Court against order of acquittal which was allowed and case was remanded for retrial--- Such order was challenged by accused petitioners under S.561-A, Cr.P.C.---Revision petition filed by complainant before Sessions Court against order of acquittal, held, was barred under S.439(5), Cr.P.C. As he had a remedy by way of appeal under S.417(2), Cr.P.C.---Revision petition filed by complainant before Sessions Court being incompetent, judgment passed by it was set aside."
"Ss. 448, 491 & 380 ---Criminal Procedure Code (V of 1898), Ss.439-A, 417(2) & 561-A---Quashing of order---Against the order of acquittal of accused passed by Magistrate under S.249-A, Cr.P.C. In the private complaint remedy open to the complainant was by way of a petition for leave to appeal before High Court under section 417(2), Cr.P.C.---Revision petition before the Sessions Court against the said order of acquittal, therefore, was not competent and the order passed by Sessions Court setting aside the order of acquittal and remanding the case to Trial Court was without jurisdiction and the same was quashed accordingly."
1998 MLD 1605 (Lahore).
"Ss. 249-A, 417 & 439-A --- Penal Code (XLV of 1860), ' S.188---Revision---Maintainability---Trial Court having acquitted accused of the charge, complainant instead of availing remedy of appeal against acquittal available to him under S.417, Cr.P.C. Filed revision under S.439-A, Cr.P.C. Before appellate Court-Appellate Court below, had rightly dismissed revision being not maintainable."
1999 MLD 585 (Lahore).
"S. 380---Criminal Procedure Code (V of 1898), Ss. 439-A, ' 249-A, 417(2) & 561-A---Quashing of order---Complaint caseAcquittal---Revision against--- Maintainability---Revision petition against order of acquittal passed in a complaint case not competent---Magistrate had acquitted the accused under S.249-A, Cr.P.C. In a complaint case--- No revision petition was competent against the said order before the Sessions Court in view of the express provisions contained in S.417(2), Cr.P.C.--Only remedy available to complainant against the aforesaid order of acquittal was to file an appeal under S.417(2), Cr.P.C.--Sessions Court's order passed in its revisional jurisdiction remanding the case to Trial Court was, consequently, set aside being coram non judice."
16. In view of what has been discussed above, I am of the view, that the revision petition filed by the respondent before the learned Additional Sessions Judge against the acquittal order under section 249-A, Cr.P.C. Was not maintainable under the provisions of section 439(5), Cr.P.C. As the respondent was having the remedy of filing an application for special leave to appeal before this Court under section 417(2), Cr.P.C. The impugned judgment of the learned Additional Sessions Judge, therefore, suffers from legal infirmity, is not sustainable and liable to be quashed under the inherent powers of this Court under section 561-A, C.
Judgment quashed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.