ABDUL MAJEED and 4 others vs Messrs H. GHULAM MUHAMMAD & BROTHERS

1. ' Arguments in this Criminal Revision were heard on 2-11-1994 on which date a short order was passed by which this Criminal Revision was allowed and the order, dated 12-11-1992 passed by the learned Sessions Judge, Karachi (West) was quashed. The reasons were to be recorded later.

2. These are the reasons for the short order passed on 2-11-1994.

2. Facts relevant for this order are, that Nasir Rashid, a senior executive of Messrs H. Ghulam Muhammad & Brothers, owners of a factory at S.I.T.E., Mauripur Road, Karachi, reported to the police on 30-5-991 that the applicants Abdul Majeed, Sher Muhammad, Fateh Muhammad, Muhammad Yousuf and Shams Jamal, the employees of the factory had stolen some spare parts of the machines from the Factory. The basis for making such report by Nasir Rashid was an information given to him by his Chowkidar Gul Zaman. Gul Zaman had informed Nasir Rashid that after the duty hours, the applicants had returned back to the factory and they wanted to work on the machines.

3. Chowkidar Gul Zaman stated that he had gone to bring tea for them and that on return he found that the applicants had left on a Vespa Scooter in his presence and that some parts of the machines were found missing. The complainant Nasir Rashid, apart from filing the report with the police, had filed a civil suit also against the applicants for recovery of the value of the articles. The police had challaned the applicants in the Court of Additional City Magistrate, Court No,1, Karachi

(West) for offence under section 14, Offences Against Properties (E.O.H.) Ordinance, 1979. The trial Court acquitted the applicants on 7-12-1991. Thereafter, Nasir Rashid filed Criminal Revision before the Sessions Judge, Karachi (West) on the ground that the order of acquittal was not based on evidence and that the acquittal was not proper. The Sessions Judge, Karachi allowed the Revision and held the acquittal as not warranted by law and set aside the order of acquittal by the City.

4. Magistrate and remanded the case back for retrial to the trial Court. Against this order of the Sessions Judge, Karachi passed in revision, the present application under section 561-A, Cr.P.C. Has been moved in this Court and it has been contended by the learned counsel for the applicant that remedy available to the respondent No,1 Nasir Rashid under section 417(1), Cr.P.C. Was not availed, therefore, this revision before the Sessions Judge, was not competent under the law and consequently the order passed by Sessions Judge, Karachi (West) on 12-11-1992 setting aside the acquittal of the accused is not in accordance with law, and hence liable to be quashed. The applicants have, therefore, prayed for quashing the order, dated 12-11-1992 under the provisions of section 561-A, Cr.P.C.

5. I have heard the arguments of the learned counsel for both the parties. It is admitted position in this case that the respondent No,1 Nasir Rashid did not move the District Magistrate for filing of appeal against acquittal nor the Advocate-General filed any such appeal. Therefore, the respondent has clearly slept over his right to file an appeal. In case where the remedy is available, but the appeal has not been filed, no revision under section 439, Cr.P.C. Can be filed. I am supported in this view, by the case of Nasir Khan v. The State, reported in 1991 PCr.LJ 219. The learned counsel for the State has also conceded to this position of law and has not supported the impugned order. The learned counsel for the respondent No,1 has not been able to controvert the legal position as decided in the reported case cited above. Under these circumstances, I find that the impugned order, dated 12-11-1992 passed by the Sessions Judge, Karachi (West) is not based on law, and is in clear violation of the provisions of section 417(1). Therefore, this order cannot be sustained and the same is, therefore, quashed under section 561-A, Cr.P.C. As a result, this Criminal Miscellaneous is allowed.