MUHAMMAD NASIM AKHTAR Versus THE STATE Nemo , Sardar Muhammad Khurshid

This is a petition under section 561‑A, Cr.P.C. by Muhammad Nasim Akhtar and others, petitioners Nos. 1 to 6 for the quashment of the order passed by a learned Additional Sessions Judge of Lahore on 20‑1‑1983.

2. The brief facts leading up to this petition are that a case under section 364/342/506/328, P.P.C. was registered at Police Station Yakki Gate, Lahore on 21‑7‑1980 against Muhammad Nasim Akhtar and others, petitioners Nos. 1 to 6. After the challan was submitted, petitioners Nos. 1 to 6 alongwith two others were charged under section 506/342/328/364, P.P.C. After the evidence of the prosecution witnesses yet remained, an application under section 249‑A,Cr.P.C. was moved on behalf of the petitioners for their acquittal, which application was allowed and the petitioners were acquitted on 9‑12‑1981. Muhammad Bashir, complainant, thereupon filed a revision petition under section 439‑A, Cr.P.C. against the said order, but in view of the fact that the District Magistrate had not yet issued certificate to him refusing to move an appeal against the impugned order, the complainant requested for permission to withdraw the said petition, with permission to file the same afresh, after the certificate was secured. In this view of the matter, the learned Additional Sessions Judge dismissed the said revision as withdrawn on 4‑4‑1982. The complainant, thereafter, received intimation from the District Magistrate, Lahore, on 21‑6‑1982 that the State had refused to file an appeal against the acquittal of the petitioners. Accordingly the complainant then filed a revision petition under section 439‑A, Cr.P.C. against the order of acquittal, which was allowed by a learned Additional Sessions Judge on 20‑1‑1983. In setting aside the acquittal, the learned Additional Sessions Judge held that an offence under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance of 1979 also stood made out and that as the case was exclusively triable by the Court of Session, the Magistrate had usurped jurisdiction. Accordingly, he set aside the order of acquittal passed by the Magistrate under section 249‑A, Cr.P.C. and remanded the case back to the said Magistrate with the direction to act according to law and to process the case in accordance with the provisions of section 190, Cr.P.C. Being aggrieved by the said order, the petitioners filed a quashment petition in this High Court, which is now before me for disposal.

3. The name of Mr. K.H. Khurshid, Advocate for the petitioners, appears in the cause list for today's date of hearing. Neither he nor any of the petitioners is present. Sardar Muhammad Khurshid, Advocate appears for the State. With the assistance of the learned counsel for the State, I have gone into the case. The first revision against the order of the acquittal was permitted to be withdrawn by the learned Judge as by that time the District Magistrate had not issued p certificate to the complainant certifying refusal on the part of the State to prefer an appeal. The withdrawal .was demanded because of this flaw, with the prayer that a further revision would be filed after the said certificate was received. When the said certificate was received thereafter from the District Magistrate, Lahore, on 28‑6‑1.982 the second revision was filed. The second revision is basically not a second revision in the accepted sense, because the first revision petition was allowed to be withdrawn due to a technical flaw, with the permission to the complainant to refile the same afresh, after the certificate from the District Magistrate was received. In these circumstances, the judgment of the learned Additional Sessions Judge, dated 20‑1‑1983 suffers from no legal infirmity.

4. There being no merit in this petition, the same is dismissed.

S.G.D./M‑803/L Petition dismissed.