Form No: HCJD/C-121

ORDER SHEET
IN THE LAHORE HIGH COURT,
MULTAN BENCH, MULTAN.
JUDICIAL DEPARTMENT
Crl. Misc. No.6425-M of 2024

Muhammad Sarfraz etc. Versus The State etc.

S.No. of order/ Date of order/ Order with signatures of Judge, and that of parties
proceeding. proceeding.
or counsel, where necessary.

20.11.2024. Rana Muhammad Nadeem Kanjoo, Advocate for the

petitioners.
Mr. Umar Farooq Khan, APG
Mr. Muhammad Ataullah Nasir Bhatti, Advocate for
the complainant.

Through this petition filed under section 561-A

Cr.P.C. the petitioners have assailed the vires of the order
dated 08.06.2024 passed by the learned Additional
Sessions Judge, Jalalpur Pirwala, District Multan.

2. The brief facts of the case leading to the filing of

the instant petition are that the petitioners were named as
accused in the case F.I.R. No.761 of 2021 registered at
Police Station Jalalpur Pirwala, District Multan on the
information of the respondent No.2 and after the
investigation of the case, the report under section 173
Cr.P.C. was submitted and the petitioners were
summoned to face the trial of the case and the learned
trial court framed the charge against the accused on
15.11.2022 to which they pleaded not guilty and claimed
trial, however, on 28.10.2023 the petitioners submitted
an application under section 249-A Cr.P.C. seeking their
acquittal from the charge as framed against them and the
 2

Crl. Misc. No.6425-M of 2024

learned Magistrate Jalalpur Pirwala on the same day

allowed the said application and directed the acquittal of
the petitioners from the charge framed against them
which order was assailed by the respondent No.2 by way
of filing a criminal revision petition which criminal
revision petition was allowed by the learned Additional
Sessions Judge, Jalalpur Pirwala vide his order dated
08.06.2024 with a direction to the learned trial Court to
retry the petitioners.

3. The learned counsel for the petitioners submitted

that the order dated 08.06.2024 passed by the learned
Additional Sessions Judge, Jalalpur Pirwala was violative
of the provisions of section 417 and 439 sub-section (5)
Cr.P.C., therefore, was not sustainable.

4. The learned Additional Prosecutor General submitted

that the learned Additional Sessions Judge had no
authority under the law to have passed the impugned
order.

5. The learned counsel for the respondent No.2

submitted that as no evidence has been recorded till the
order was passed by the learned Magistrate, therefore, the
correct procedure was followed by the learned Additional
Sessions Judge while passing the impugned order.

6. I have heard the learned counsel for the petitioner,

the learned counsel for the respondent No.2, the learned
Additional Prosecutor General and perused the record
with their able assistance.

7. A perusal of the record reveals that the petitioners

were named as accused in the case F.I.R. No.761 of 2021
registered at Police Station Jalalpur Pirwala, District
Multan on the information of the respondent No.2 and
after the investigation of the case, the report under
 3

Crl. Misc. No.6425-M of 2024

section 173 Cr.P.C. was submitted and the petitioners

were summoned to face the trial of the case and the
learned trial court framed the charge against the accused
on 15.11.2022 to which they pleaded not guilty and
claimed trial, however, on 28.10.2023 the petitioners
submitted an application under section 249-A Cr.P.C.
seeking their acquittal from the charge as framed against
them and the learned Magistrate Jalalpur Pirwala on the
same day allowed the said application and directed the
acquittal of the petitioners from the charge framed
against them which order was assailed by the respondent
No.2 by way of filing a criminal revision petition which
criminal revision petition was allowed by the learned
Additional Sessions Judge, Jalalpur Pirwala vide his
order dated 08.06.2024 with a direction to the learned
trial Court to retry the petitioners. The provisions of the
law with regard to the acquittal of an accused during the
trial held by a Magistrate are very clear in their meaning.
It has been provided under section 417 Cr.P.C., that if an
accused is acquitted in a case, a person aggrieved by the
order of acquittal passed by any court other than a High
Court may within 30 days file an appeal against such
order and the Public Prosecutor may also present an
appeal to the High Court from the order of acquittal
passed by any court other than a High Court. The
provisions of section 417 Cr.P.C read as under:-

“4l7. Appeal in case of acquittal.

(1) Subject to the provisions of subsection (4), the Provincial

Government may, in any case, direct the Public Prosecutor to present
an appeal to the High Court from an original or appellate order of
acquittal passed by any Court other than a High Court.

(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 present such an appeal to the High
Court.

(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.
 4

Crl. Misc. No.6425-M of 2024

(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) If, in any case, the application under subsection (2) for the grant of
special leave to appeal from an order of acquittal is refused, no appeal
from that order of acquittal shall lie under subsection (1)

(5) An appeal against an order of conviction or acquittal under section

354A, 376, 376A, 377 or 377B of the Pakistan Penal Code, 1860 (Act
XLV of 1860) shall be decided within six months.”

It is also a fact that under section 439 sub-section (5)

Cr.P.C., it has been expressly provided by law that where
under the Cr.P.C., an appeal lies then no proceedings by
way of revision shall be entertained at the instance of the
party who could have appealed. Section 439 read as
under:-

“439. High Court’s powers of revision.

(1) In the case of any proceeding the record of which has been
called for by itself or which otherwise comes to its knowledge,
the High Court may, in its discretion, exercise any of the powers
conferred on a Court of Appeal by sections 423, 426, 427 and
428 or on a Court by section 338, and may enhance the sentence;
and, when the Judges composing the Court of Revision are
equally divided in opinion, the case shall be disposed of in
manner provided by section 429.

(2) No order under this section shall be made to the prejudice of

the accused unless he has had an opportunity of being heard
either personally or by pleader in his own defence.

(3) Where the sentence dealt with under this section has been
passed by a Magistrate the Court shall not inflict a greater
punishment for the offence which, in the opinion of such Court,
the accused has committed than might have been inflicted for
such offence by a Magistrate of the first class.

(4) Nothing in this section shall be deemed to authorize a High

Court—(a) to convert a finding of acquittal into one of
conviction; or (b) to entertain any proceedings in revision with
respect to an order made by the Sessions
Judge under section 439A.

(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.

(6) Notwithstanding anything contained in this section, any

convicted person to whom an opportunity has been given under
subsection (2) of showing cause why his sentence should not be
enhanced shall, in showing cause, be entitled also to show cause
against his conviction.” (emphasis supplied)
 5

Crl. Misc. No.6425-M of 2024

In this particular case the petitioners were acquitted in the

case F.I.R. No.761 of 2021 registered at Police Station
Jalalpur Pirwala, District Multan and, therefore, the
respondent No.2, the complainant of the case, had to file
an appeal against their acquittal under section 417
Cr.P.C., however, proceeded to file a criminal revision
petition which was not even permissible under the
provisions of section 439 sub-section (5) Cr.P.C.
Furthermore, the learned Additional Sessions Judge while
accepting the said criminal revision petition also erred in
law and exercised jurisdiction which he did not have. It
does not matter whether the acquittal of an accused in a
case has been ordered after the recording of evidence or
without recording of evidence and as it is an acquittal in a
case therefore an appeal has to be filed under section 417
Cr.P.C. . No proceedings by way of criminal revision
petition under section 439 Cr.P.C. are envisaged in a case
where accused has been acquitted by any court other than
a High Court. This Court in the case of Mst. Bahisht Bibi
Versus Maqbool Ahmad and 5 others (2003 P Cr. L J 768
) has already held as under :-

“The respondents were tried in a private complaint and

acquitted vide order, dated 22‑11‑1999 against which order
the petitioner had a remedy under section 417(2), Cr.P.C.
before this Court by tiling petition for special leave to
appeal instead of filing this application the petitioner opted
to file revision petition in the Court of learned Additional
Sessions Judge which was dismissed and now this revision
petition has been filed. Basically the order of acquittal
dated 22‑11‑1999 passed in the private complaint tiled by
the petitioner has been challenged in this revision petition
and the same is not maintainable under subsection (5) of
section 439, Cr.P.C. which provides that 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.”
 6

Crl. Misc. No.6425-M of 2024

In the case of MST. MAMOONA AKHTAR VERSUS

MAGISTRATE SECTION 30, WAZIRABAD, DISTRICT
GUJRANWALA and 2 others (2005 M L D 896) this
Court has held as under :-

“After going through the aforesaid provisions of law and

the citations, I am of the considered view that no revision
is competent before the Sessions Court against an order,
which is challengeable in appeal under section 417(2-A),
Cr.P.C. As the petitioner had been acquitted of the charge
under section 249-A, Cr.P.C. by the learned Magistrate
Section 30, the remedy of filing an appeal was available to
the complainant and the revision petition was not
competent, so the impugned judgment dated 15-4-1996 is
declared to be without any lawful authority and as such of
no legal effect.”

In the case of GHULAM MUHAMMAD Versus

ADDITIONAL SESSIONS JUDGE and 3 others (1998 M
L D 1605) this Court has held as under :-

“The remedy of appeal was available to the petitioner

against the order of the Trial Court acquitting the accused
while exercising power under section 249-A, Cr.P.C. The
petitioner failed to file an appeal against the order of the
Magistrate. The Additional Sessions Judge was justified in
dismissing the revision vide impugned order dated 7-8-
1996.”

In the case of MUHAMMAD AKRAM versus

ADDITIONAL SESSIONS JUDGE, RAWALPINDI and 6
others (2005 Y L R 1037) this Court has held as under :-

“9-A. In the instant case, the learned Judicial Magistrate

though used the word discharge by accepting the
application under section 249-A, of the Cr.P.C. it will be
read as acquittal. As learned Single Judge of this Court, as
he then was, in the case of Muhammad Yasin v.
Muhammad Hanif and others 1997 PCr.LJ 1626, found
remarkable difference between the acquittal recorded
under section 245, Cr.P.C. and one under section 249-A, of
 7

Crl. Misc. No.6425-M of 2024

the Cr.P.C. In his view, if evidence is not recorded and an

order of acquittal is passed under section 249-A, Cr.P.C., it
is amenable to the revisional jurisdiction of the Sessions
Judge, but, in case acquittal is recorded after prosecution
evidence and examining of the accused an appeal will lie
under section 417, of the Cr.P.C. I have not been able to
persuade myself with the view expressed by the learned
Single Judge in the above case in view of the clear and
unambiguous language used in section 249-A of the
Cr.P.C. providing acquittal at any stage of the case, if the
charge is groundless. Even otherwise, acquittal recorded
by the competent Court of law on recording of evidence or
without recording of evidence, will not determine the
remedy of revision or appeal, but the same is governed by
statutory provisions of law. After introduction of
subsection (2-A) in section 417 of the Cr.P.C. any person
aggrieved by an order of acquittal has been conferred
a right to file an appeal against the acquittal. In presence
of remedy by way of appeal, the revision is not competent
under section 439(5) of the Cr.P.C.”

8. In view of the above discussion, this petition is

allowed and the order dated 08.06.2024 passed by
learned Additional Sessions Judge, Jalalpur Pirwala is set
aside. Obviously the respondent No.2 shall be at liberty
to avail the remedy available to her under the law to
assail the acquittal of the petitioners by way of filing an
appeal against the said order in accordance with the law.

(SADIQ MAHMUD KHURRAM)

JUDGE
Malik Iftikhar

Approved for Reporting

Judge