AHMAD DIN vs HASEEB ULLAH and 3 others

' KHURSHID ANWAR BHINDER, J.--- Through the present petition, petitioner has called in question orders, dated 14-9-2005 passed by the learned Illaqa Magistrate and dated 21-2-2006 passed by the learned Additional Sessions Judge, Lahore.

2. Brief facts of the case are that complainant/petitioner got a case registered against the respondent vide F.I.R. No,428, dated 18-11-2003 under section 406, P.P.C. At Police Station Gulshan- e-Ravi, Lahore on the allegations that wife of the complainant Mst. Sajida Bibi arranged two committees of Rs,40,000 each to which the respondent was also member and he received Rs,80,000 from the wife of the complainant and after receiving the aforesaid amount he closed his shop in the Mohallah of the complainant and joined service with DAEWOO Bus Company and refused to pay back the said amount. When the complainant demanded the money back, the accused respondent extended threats.

3. After submission of the challan before the learned trial Court, the respondent made an application under 249-A, Cr.P.C. For his acquittal contending therein that there is nothing one record to attract the provisions of section 406, P.P.C. Which relates to criminal breach of trust as neither any property was entrusted to him as a trust nor he has misappropriated the same as there was no legal contract between the wife of the petitioner and the respondent. The learned Judicial Magistrate Section 30, Lahore vide his order, dated 14-9-2005 while allowing the aforesaid application acquitted the respondent under section 249-A, Cr.P.C. The petitioner being aggrieved of the aforesaid order filed a criminal revision before the learned Additional Sessions Judge, Lahore, who vide his order, dated 21-2-2006 dismissed the same holding that the revision against the acquittal order is not maintainable, hence the present constitutional petition.

4. Learned counsel for the petitioner submits that the learned Additional Sessions Judge has illegally passed the order without jurisdiction which is a nullity in the eyes of law as the learned Additional Sessions Judge failed to understand that the order was made by the learned Judicial Magistrate under section 249-A, Cr.P.C. Against which the revision lies. Before the learned Sessions Judge and not before this Court.

5. On the other hand, learned Assistant Advocate-General assisted by the learned counsel for the respondent vehemently controverted the arguments raised by the learned counsel for the petitioner. They submit that the revision against the order passed under section 249-A, Cr.P.C. Is not competent and the remedy against such an order is by way of filing an appeal under section 417(2-A), Cr.P.C.

6. I have heard the learned counsel for the petitioner, learned A.A.-G. For the State and the learned counsel for the respondent. The learned Judicial Magistrate while allowing the application of the respondent under section 249-A, Cr.P.C. Acquitted the respondent. Under section 249-A, Cr.P.C. the Judicial Magistrate has the power to acquit the accused at any stage of proceedings. Section 417, Cr.P.C. provides an appeal in case of acquittal while section 439, Cr.P.C. Confers power of revision. It is crystal clear from the language of section 417(2-A), Cr.P.C. That 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 and there is no distinction between acquittal under section 249-A, Cr.P.C. Or acquittal after recording of the evidence under section 245, Cr.P.C. The 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 the statutory provisions of law as is clear from the language of section 417(2-A) that any person aggrieved by an order of acquittal has been conferred a right to file an appeal against the acquittal, as such, the learned Additional Sessions Judge has rightly held that the revision ,petition is not maintainable under IC section 439(5) of the Cr.P.C. And has committed no illegality while passing the impugned order.

7. Now coming to the question of maintainability of this constitutional petition, I am of the considered view that where the statute has provided an adequate remedy, the constitutional petition would not be competent against such an order. The petitioner has the remedy under section 417(2-A), Cr.P.C. By way of filing an appeal against the order of acquittal, therefore, the present constitutional petition is also not maintainable before this Court.

8. In view of the aforementioned discussion, the revision was not maintainable before the learned Additional Sessions Judge, who has rightly refused to entertain the same ending in dismissal.

Resultantly, this constitutional petition is without force and the same is hereby dismissed.