TALIB HUSSAIN Versus PEHLWAN KHAN AND Other
This matter concerns a petition for leave to appeal against a High Court order that dismissed a criminal revision petition as not maintainable. The case originated from a direct complaint filed under sections 302/149 and 148 of the Pakistan Penal Code 1860. The trial court, the Additional Sessions Judge, Gujrat, permitted the complainant to withdraw the complaint and acquitted the accused before the charge was framed. The petitioner, claiming to be an eye-witness, sought revision, which the High Court rejected, citing the availability of an appeal under section 417 of the Code of Criminal Procedure 1898. The Supreme Court granted leave to appeal to address two critical legal questions: first, whether a Court of Session possesses the jurisdiction to allow the withdrawal of a complaint once cognizance of the matter has been taken; and second, whether an eye-witness who is not the formal complainant is barred by sections 417(2) or 439(5) of the Code of Criminal Procedure 1898 from filing a revision petition against an acquittal order. The Court condoned the delay in filing the petition.
- Does a Court of Session have the jurisdiction to allow the withdrawal of a complaint after cognizance has been taken?
- Is an eye-witness who is not the formal complainant barred by section 439(5) of the Code of Criminal Procedure 1898 from filing a revision petition against an acquittal?
- Section 302, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 417, Code of Criminal Procedure 1898
- Section 439, Code of Criminal Procedure 1898
ORDER
M. S. H. QURESHI, J.--A case had been instituted upon a direct complaint filed by Mian Khan, under sections 302/149 and 148, P. P. C. Against respondents 1 to 18. The case came up for trial before the Additional Sessions Judge, Gujrat, where the accused were summoned but charge had not yet been framed. On 12-2-1981 the learned Additional Sessions Judge, in the presence of the defence counsel, accepted an application filed by Mian Khan, the complainant, seeking withdrawal of the complaint and acquitted the respondents. The petitioner, asserting to be an eye-witness in the case, filed Revision No. 287 of 1981 before the High Court but the same was dismissed on 9-6-1981 - as not being maintainable. The reason given was that a revision would lie only when there was no provision for filing appeal but that in view of the provision of section 417, Cr. P. C. An appeal could be filed by a "complainant" which term "should be read in fit cases to be appeal". Person who would have a right to file petition for special leave to
2. We have heard learned counsel for the petitioner and also Mr. Rashid Aziz Khan, Additional Advocate-General who has appeared at the direction of the Court. Under subsection (2) of section 417, Cr. P. C. a complainant in a case instituted upon a complaint can appeal by special leave if granted by the High Court, from an order of acquittal. Subsection (5) of section 43 lays down 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".
3. The contention is that-
(1) there being no provision enabling the Court of Session to allow withdrawal of the complaint once cognisance has been taken, the order of the trial Court dated 12-2-1981 was without jurisdiction; and
(2) the petitioner was not "complainant" in the case and as such was not debarred by the provisions of section 417(2) or 439(5) for instituting the revision.
4. The questions raised being of some importance, we condone the delay of 8 days in filing the present petition and grant leave to appeal to the petitioner to consider the aforesaid questions.
Delay condoned.