Revision and writ is not maintainable against acquittal order in 249A crpc

The Lahore High Court dismissed the writ petition (No. 59534 of 2022) filed by Hajra Javaid Makhdoom. The petitioner had challenged the acquittal of Muhammad Tehmas Nasir under Section 249-A, Cr.P.C., arguing that the trial court's acquittal and subsequent dismissal of a criminal revision were incorrect. The court held that a criminal revision was not an appropriate remedy for challenging an acquittal under Section 249-A, as the proper remedy was an appeal under Section 417(2), Cr.P.C. The court further stated that constitutional petitions under Article 199 are not applicable for challenging orders of acquittal when specific statutory remedies are provided. Consequently, the petition was dismissed.

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE.

JUDICIAL DEPARTMENT

Writ Petition No. 59534 of 2022

Hajra Javaid Makhdoom

Versus

Muhammad Tehmas Nasir, etc.

S.No. of order/

Proceeding

Date of order/

Proceeding

Order with signature of Judge and that of

parties or counsel, where necessary.

19-12-2023

Dr. Khalid Ranjha, Advocate for the petitioner

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.”

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 J

udicial 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

W.P. No.59534 of 2022

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.

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).

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.

W.P. No.59534 of 2022

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, u / s 249-A Cr.P.C, and present

petitioner challenged the acquittal of respondent No.2,

through instant revision petition. Order of acquittal u/s

249-A Cr.P.C, not amenable to revision in view of

remedy available to the petitioner u / s 417 (2) Cr.P.C.

Sub-section 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

W.P. No.59534 of 2022

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.”

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:-

“4l7. 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 section 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

W.P. No.59534 of 2022

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 sub-section (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 Session Judge].

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.

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

W.P. No.59534 of 2022

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.

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,

W.P. No.59534 of 2022

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.

(Muhammad Tariq Nadeem)

Judge

Approved for reporting.

Judge

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