HAJRA JAVAID MAKHDOOM---Petitioner Versus MUHAMMAD TEHMAS NASIR and 3 others---

Respondents

Citation: 2024 PCRLJ 1081

Result: Petition Dismissed
Court: Lahore High Court
Date of Decision: 19.12.2023.
Judge(s): Muhammad Tariq Nadeem, J.
Case Number: Writ Petition No. 59534 of 2022
JUDGMENT

Case Summary

Introduction

This case involves a writ petition challenging an order dismissing a

criminal revision petition. The petitioner had filed a private complaint
against his ex-wife under Section 6(5) of the Muslim Family Laws
Ordinance, 1961, alleging that she had contracted a second marriage
without his permission. The trial court acquitted the respondent, and the
petitioner filed a criminal revision, which was dismissed.

Facts of the Case

The petitioner filed a private complaint against his ex-wife, alleging a

second marriage without his permission.
The trial court acquitted the respondent under Section 249-A of the
Criminal Procedure Code (Cr.P.C.).
The petitioner filed a criminal revision, which was dismissed by the
Additional Sessions Judge.
The petitioner filed this writ petition challenging the dismissal of the
criminal revision.

Court Decision

The court dismissed the writ petition, finding it to be misconceived and

without merit. The court held that the petitioner could not challenge the
acquittal order through a writ petition as the remedy lay in an appeal
under Section 417(2) of the Cr.P.C. The court also noted that the
petitioner had failed to demonstrate any legal grounds for interfering with
the trial court's decision.

Law Points Involved

Acquittal under Section 249-A Cr.P.C.: The court discussed the

legal implications of an acquittal under Section 249-A Cr.P.C. and the
available remedies for challenging such an order.
Criminal Revision: The court addressed the scope of criminal
 revision and the limitations on its applicability. The court noted that a
criminal revision is not competent against an acquittal order that can
be challenged through an appeal.
Writ Petition: The court discussed the principles governing writ
petitions and the circumstances under which they are maintainable.
The court held that a writ petition is not competent when an
alternative remedy is available under the law.

Judicial Analysis

The court conducted a thorough analysis of the law and the facts of the
case. The court carefully considered the arguments presented by the
petitioner and the relevant legal provisions. The court's decision
demonstrates a clear understanding of the law and the principles
governing criminal proceedings.

Conclusion

The court found that the petitioner had failed to demonstrate any legal
grounds for challenging the dismissal of the criminal revision. The court
emphasized that the petitioner's remedy lay in an appeal under Section
417(2) of the Cr.P.C. The court dismissed the writ petition as
misconceived and without merit.

Order

Muhammad Tariq Nadeem, J.---Through this writ petition filed

under Article 199 of the Constitution of Islamic Republic of Pakistan,
1973, the petitioner has voiced his grievance as under:-

“In view of the above circumstances, it is most respectfully prayed

that the above titled writ petition may kindly be allowed and the case be
referred back to learned magistrate for retrial and there after for criminal
revision before learned ASJ.

Any other adequate relief which this Honorable Court deems fit just
and proper may also be awarded to the petitioner in order to meet the
ends of justice.”

2. Tersely, the facts of the case are that the petitioner had instituted a
private complaint under section 6(5) of the Muslim Family Laws
Ordinance, 1961, before the learned Judicial Magistrate, Sargodha,
against respondent No.1 with the allegation that he had contracted
second marriage without her permission and, thus, committed an offence.
After recording cursory evidence, learned Judicial Magistrate, Sargodha,
summoned respondent No.1 to face the trial in terms of section 6(5) of the
Ordinance ibid. Respondent No.1 joined the proceedings of the case and
during the pendency of said proceedings, he filed an application under
section 249-A, Cr.P.C. with the assertion that the allegation of contracting
second marriage without the permission of petitioner was totally against
the facts and the private complaint had been filed by petitioner just to
blackmail him. In fact, he had already divorced the petitioner which was
effected on 06.07.2021 and thereafter he contracted second marriage. It
was further asserted by the petitioner that there was no probability of his
conviction in the private complaint, for the reason, he may be acquitted of
the charge under section 249-A, Cr.P.C. This application was accepted by
learned Magistrate Section-30, Sargodha, vide order dated 18.05.2022.
Aggrieved by the above-mentioned order, the petitioner filed a criminal
revision under section 439-A, Cr.P.C. before the court of learned Sessions
Judge, Sargodha, which was entrusted to the court of learned Additional
Sessions Judge, Sargodha, who, after hearing the learned counsel for the
petitioner as well as learned Assistant District Public Prosecutor,
dismissed the same vide order dated 16.07.2022. The petitioner has
challenged both the orders of learned fora below through the instant writ
petition with the prayer that the case may be referred back to learned
Judicial Magistrate for re-trial and criminal revision may also be remanded
back to learned Additional Sessions Judge.

3. It is inter alia contended by learned counsel for the petitioner that

against the order of acquittal under section 249-A, Cr.P.C. a criminal
revision in terms of section 439-A, Cr.P.C. was competent, because,
acquittal order had not been passed on merits. Learned counsel for the
petitioner has placed reliance upon the case-law titled as “The State
through Advocate-General, Sindh High Court of Karachi v. Raja Abdul
Rehman” (2005 SCMR 1544).

4. I have heard the learned counsel for the petitioner at length on the
above short point and also gone through the documents appended with
this petition.

5. Although petitioner has not challenged any specific order in the

prayer clause as well as in the caption of instant writ petition yet he has
prayed for the remand of case to the trial court as well as criminal
revision to the court of Additional Sessions Judge. I am afraid that the
prayer of the petitioner is misconceived, because, matter cannot be
referred back to both the fora below at the same time. Even otherwise,
supplication of the petitioner is without the backing of law. After going
through the documents available with the file, I have noticed that the
petitioner had filed a private complaint under section 6(5) of the Muslim
Family Laws Ordinance, 1961, against respondent No.1, wherein
respondent No.1 filed an application under section 249-A, Cr.P.C. which
was accepted by the trial court vide order dated 18.05.2022 whereby
respondent No.1 was acquitted mainly on the ground that he had already
divorced the petitioner before contracting second marriage. Being
aggrieved, the petitioner filed criminal revision against the acquittal of
respondent No.1, which was dismissed by Additional Sessions Judge,
Sargodha, vide order dated 16.07.2022 with the following observations:-

“3. According to assistance of learned counsel for the petitioner,

learned ADPP, and record reveals that through impugned order learned
lower court acquitted the respondent No.2, under section 249-A Cr.P.C,
and present petitioner challenged the acquittal of respondent No.2,
through instant revision petition. Order of acquittal under section 249-A
Cr.P.C, not amenable to revision in view of remedy available to the
petitioner under section 417 (2) Cr.P.C. Subsection (5) of section 439-A
Cr.P.C, clearly provide that where in a court an appeal lies and no appeal
is brought, not proceeded by way of revision shall be entertain at the
instance of petitioner who could have appealed. Learned ADPP also added
that instant revision is not proceedable. Hence, instant revision petition is
accordingly dismissed. The certified copy of this order be sent to the
learned Lower Court for information. The file of this revision petition be
consigned to record room after its due completion.”

6. The question, whether the order of acquittal under section 249-A,

Cr.P.C. was amenable to criminal revision or the same was assailable
before this Court through a petition for special leave to appeal as provided
under section 417(2) Cr.P.C. has not been satisfactorily answered by
learned counsel for the petitioner. For reference, section 417(2) Cr.P.C. is
reproduced as infra:-

“417. Appeal in case of acquittal: (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.”

Likewise by virtue of section 439(5), Cr.P.C. there is bar on the

revisional jurisdiction of the court in the cases where remedy of appeal is
provided under the Code ibid. Sections 439 and 439-A, Cr.P.C. are
described as infra for the purpose of clarity:-

“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 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 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 439-A.]

(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.”

“439-A. Sessions Judge’s powers of revision: (1) In the case of any

proceeding before a Magistrate the record of which has been called for by
the Sessions Judge or which otherwise comes to his knowledge, the
Sessions Judge may exercise any of the powers conferred on the High
Court by section 439.

(2) An Additional Sessions Judge shall have and may exercise all the
powers of a Sessions Judge under this Chapter in respect of any case
which may be transferred to him under any general or special order of the
Sessions Judge].
7. Another intriguing aspect of this case which cannot be ignored is that
whether a petition under Article 199 of the Constitution of Islamic
Republic of Pakistan, 1973, is competent against the order of acquittal
under section 249-A, Cr.P.C, in this regard, I am of the firm view that
when the statute has provided a specific alternate remedy of appeal
against acquittal, constitutional petition is not competent against such an
order, therefore, the writ petition in hand is not maintainable in the eyes
of the law.

8. So far as the wisdom laid down by the Supreme Court of Pakistan in

case-law titled as “The State through Advocate-General, Sindh High Court
of Karachi v. Raja Abdul Rehman (2005 SCMR 1544) is concerned,
although it has been held in the aforementioned case-law that the order of
acquittal of accused under section 249-A, Cr.P.C. would not have the same
sanctity as order of acquittal on merits and the principles applicable to
second category of acquittal would not apply to first category of acquittal,
but I am of the view that it does not mean that the acquittal order passed
under section 249-A, Cr.P.C. is amenable to revisional jurisdiction as
enshrined in section 439-A, Cr.P.C. After going through the above
mentioned case-law, it manifests that even in the said case also, appeal in
terms of section 417, Cr.P.C. was filed before the Sindh High Court
against the acquittal of accused under section 249-A, Cr.P.C. which was
dismissed in limine and the same was challenged before the Supreme
Court of Pakistan. In this way, it is abundantly clear that the case-law
relied upon by learned counsel for the petitioner is not helpful to him.

9. It is noteworthy that criminal appeal and revision have different

features. Appeal is filed on question of law and facts in the light of section
418, Cr.P.C. whereas in criminal revision only correctness, legality and
propriety of any finding, sentence or order is to be seen. A criminal
revision is not competent against the order of acquittal, because, it is
prohibited according to section 439(4)(a) Cr.P.C.

10. Aftermath of above discussion is that the criminal revision before the
court of learned Additional Sessions Judge was not competent, because,
an order of acquittal can only be assailed by way of remedy provided
under section 417(2), Cr.P.C. and not otherwise, therefore, there is no
illegality or perversity in the order passed by learned Additional Sessions
Judge, who has rightly dismissed the criminal revision. Resultantly, this
constitutional petition has no force and the same is hereby dismissed in
limine.