Karamat Nazir Bhandari, J.--The two petitioners alongwith Respondent No, 2, were charged on 18.1.1994 under Section 379/406/411 PPC to face trial. The allegation arose out of F.I.R. No, 152 dated 8.12.1991 registered at Police Station Saddar Bairooni, District Rawalpindi in respect of occurrence taking place at 2.00 p.m. on 8.12.1991. On an application of the accused that the case property was not available, the learned Magistrate 1st Class, Rawalpindi vide order dated 25.1.1995 acquitted the accused. This acquittal was challenged in a Criminal Revision No, 02/1995 in the Court of Additional Sessions Judge, Rawalpindi but was withdrawn on 28.8.1995 after being pointed out that as the complainant has a right of appeal under the then amended law the revision was not competent.
Thereafter, the complainant filed an appeal (Crl. A. No, 155/1995) in the Lahore High Court, Rawalpindi Bench which was dismissed as time barred on 20.7.1999.
2. Apparently while dismissing the appeal as above, the learned Judge in Chambers considered that the case was fit for exercise of suo-motu revisional power of the High Court. He, therefore, proceeded to exercise the same and after hearing the parties: set aside the order of acquittal and remanded the case to the trial Magistrate for using coercive measures for production of case property as also for forcing attendance of witnesses. The learned Judge directed that the trial be concluded preferably within three months. This judgment is dated 17.12.2002. The two petitioners/accused seek leave to appeal.
3. To a question, learned counsel for the petitioners stated that inspite of direction of the High Court, the trial has not concluded within three months and that none of the parties has recoursed to the High Court for further direction in this behalf.
4. Learned counsel for the complainant has however, informed that nine prosecution witnesses have been examined and only one is left.
5. In support of the petition, learned counsel has, inter-alia, contended that exercise of revisional power after dismissal of appeal is not competent; that in any case, the High Court could not have exercised its revisional power against the revisional order of the Additional Sessions Judge and that the occurrence relates to the year 1991 and the trial of the accused after delay of 11/12 years amounts to an abuse of process of Court. In support of his submissions, he has, inter-alia, relied upon the cases Abdul Aleem us. Special Judge (Customs), Lahore and others (1982 SCM R 73), Sarwar Ali vs. The State (1983 Pakistan Criminal Law Journal 329), Raja Abdul Majeed vs. The State and another, (PLD 1997 Kan 358), Haji Syed Rafi Ahmed vs. Additional Sessions Judge, Rawalpindi and another (PLD 1992 SC 251) and Muhammad Afsar vs. Sakhi Muhammad and 22 others (PLD 1989 Lah. 228).
6. Learned counsel for the complainant in reply has refuted the above submissions and has supported the impugned judgment by pointing out that if the trial does not take place, it would amount to miscarriage of justice, in the facts and circumstances of the case. He has argued that the learned Magistrate has mis-used his powers under Section 249-A, Cr.P.C. as the learned Magistrate made no efforts to procure the attendance of Abdul Waheed, Superdar and compel him to produce the case property. He has also submitted that inspite of attendance of witnesses on many dates, the accused did not allow them to be examined, on one or the other pretext.
7. It is axiomatic principle that detection of crime and trial of offenders is in the collective interest of the society. A balance is to be struck between the interests of the society and the rights of an offender. Section 249-A, Cr.P.C. is, an exception to the normal rule that acquittal takes place after full trial. This provision reflects a compromise between the collective good of the Society and the rights of an individual offender. The idea is to spare the offender the rigors of full trial if the Court at any stage finds that the charge is groundless and the prosecution is not likely to succeed.
8. In this case, the High Court has noticed the irregularities and the illegalities committed by the trial Magistrate in recording the acquittal of the petitioners. The learned Magistrate did not make any serious effort to procure the case property. He benignly disregarded his coercive powers under the Criminal Procedure Code, 1898. He did not care to record statement of witnesses who have been appearing before him, for the reason, inter-alia, that the case property was not available.
These are omissions of the trial Court led to premature stifling of prosecution. On facts, therefore, we are satisfied that the High Court has passed the correct order.
9. The criminal revision was dismissed by an Additional Sessions Judge on the ground of incompetence, in view of the availability of right of appeal. It was dismissed as withdrawn. This dismissal undisputedly is not on merits. Similarly, the High Court dismissed the complainant's appeal not on merits but on the ground that the same was barred by time. In the circumstances, we are of the view that the exercise of suo-motu revisional power by the High Court is unexceptionable. Reliance of learned counsel for the petitioners on Section 439(4)(b), Cr.P.C. which bars exercise of revisional jurisdiction by the High Court against a revisional order passed by the Court of Additional Sessions Judge, is of no use. As noted, the revision by the Additional Sessions Judge was allowed to be withdrawn so as to enable the complainant to utilize the right of appeal.
We are not prepared to accept that in this case, the learned Additional Sessions Judge can be said to have "exercised" revisional jurisdiction. On the contrary it is a case of legitimate refusal to exercise jurisdiction. The cases cited by the learned counsel are either not applicable or are distinguishable on facts.
10. The submission that since complainant's appeal was dismissed as barred by time, the High Court could not have exercised suo-motu revisional jurisdiction as it would "subvert" the acquittal and "deflect the normal course of criminal justice" is equally devoid of force and has to be rejected.
The cumulative reading of Section 435 and Section 439 of the Code of Criminal Procedure, 1898 indicates that such a constraint cannot be spelt out. The law giver is very clear in its intention and wherever it prohibited the exercise of revisional power, it stated so clearly. Reference can be made to sub-section (5) of Section 439 Cr.P.C. which lays down : "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".
Emphasis is added.
In other words the prohibition against the exercise of revisional jurisdiction is at the instance of the complainant whose appeal was dismissed as barred by time. No prohibition can be spelt out in the circumstance such as prevailing in this case, against exercise of suo-motu revisional power. It may be added that the legislature in its wisdom has conferred revisional power in wide terms so as to ensure that miscarriage of justice does not take place by the acts advertent or inadvertent, by complicity or otherwise of the parties 'interested in the litigation.
11. It is true that the Courts have been taking exception to belated trials. But the application of this principle depends on the facts and circumstances of each case. In this case, as we have held above the order of acquittal recorded by the trial Magistrate under Section 249-A, Cr.P.C. was illegal and ought not to have been passed. From 1995 to this date the trial has not taken place due to pendency of revision and appeal. The delay, in the circumstances, is not unconscionable so as to warrant quashment of trial.
12. For the above reasons, we find no force in this Petition, which is hereby dismissed and leave to appeal id declined.