MUHAMMAD QASIM KHAN vs YAR QAND

Through the instant application under section, 561-A, Cr.P.C. The petitioner, Muhammad Qasim Khan, has prayed for the quashment of the judgment and order of the learned Additional Sessions Judge Mardan dated 10-7-1999 vide which he dismissed the revision petition and maintained the judgment and order,, dated 10-10-1998 of the learned District Magistrate Mardan.

2.. The brief facts relevant for the disposal of this petition are that respondent No: l filed a private complaint under section 70 of the Canal and Drainage Act in the Court of Canal Magistrate Mardan wherein the complainant alleged that the petitioner had demolished a watercourse of Irrigation Department. After recording the evidence and on conclusion of the trial the learned Canal Magistrate dismissed the complaint and acquitted the petitioner of the charge on 28-5-1998.

3. Such order of dismissal was challenged before the District Magistrate Mardan who accepted the appeal and remanded the case back to the trial Court for fresh trial vide his order, dated 10-10- 1998. The petitioner then preferred a revision petition before the learned Additional Sessions Judge- II Mardan but the same was dismissed.

4. The learned counsel appearing on behalf of the petitioner has assailed both the orders i.e. Of the District Magistrate and Additional Sessions Judge-I1 Mardan. He contended that the appeal preferred before the District Magistrate Mardan, which appears to have been decided as a revision; was totally incompetent. The learned counsel argued that an appeal against acquittal would lie only before the High Court under section 417, Cr.P.C. And the learned District Magistrate had no authority in law to entertain either an appeal or revision against the order of acquittal. Thus, t 4o order passed by the learned District Magistrate was quorum non-judice: Section 417, Cr.P.C. Being relevant to the instant matter is reproduced as below :-- "417. Appeal in case of acquittal.--(1) Subject to the provision of subsection (4), the Provincial Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any other than a High Court.

(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.

'(2-A) A person aggrieved by the order of acquittal passed by any Court other than a High Court, may, within thirty days, file and appeal against such order.'

(3) No application tinder subsection (2) for the grant of special leave to appeal "from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order.

(4) If, in any case, the application under subsection (2) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under subsection (1)."

The learned counsel also made a reference to subsection (5) of section 439, Cr.P.C. And submitted that where under the Code of Criminal Procedure an appeal lies and no appeal is brought, no proceedings by way of revision can be entertained at the instance of the party who could have appealed. Elaborating his argument, the learned counsel for the petitioner submitted that since the proceedings against the petitioner commenced on a private complaint, ending into his acquittal, therefore, only an appeal could lie under section 417, Cr.P.C. And in case of failure to exercise the right of appeal no revision could be entertained. His such submission is in reference to the order of the learned. District Magistrate whose order reveals that it was decided as a revision against the order of acquittal and the learned counsel stated that the learned District Magistrate had even no authority to convert the appeal into revision. The relevant subsection. (5) of section 439, Cr.P.C., is also reproduced as under:-- "Section 439(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. "

Thus, according to the learned counsel for the petitioner the orders of the learned District Magistrate as well as that of the learned Additional Sessions Judge are nullity in the eyes of law.

The learned counsel relied on Abdul Aziz v. The State and another (1978 PCr.LJ 260) and Nasir Khan and another v. The State (1991 PCr.LJ 19).

5. Mr. Tasleem Hussain, Advocate, learned counsel for the State has squarely supported the arguments of the learned counsel for the petitioner and stated that the learned District Magistrate had no authority in law either to entertain an appeal or a revision against the order of acquittal in view of section 417, Cr.P.C.

6. The learned counsel appearing for respondent No. l has tried to defend the impugned orders of the learned District Magistrate and that of the learned Additional Sessions Judge and submitted that the appeal before the learned District Magistrate was filed under section 407, Cr.P.C. As according to the learned counsel the order was passed by a Magistrate of 2nd Class. No other argument could be articulated by the learned counsel for respondent No. 1.

The submission of the learned counsel that the appeal was filed under section 407, Cr.P.C. Is totally misconceived as under section 407, Cr.P.C. The appeal can be filed only against conviction and not against acquittal. Section 407, Cr.P.C. Is also reproduced as below:-- "Section 407: Appeal from sentence of Magistrate of the Second or Third Class.--(1) Any person convicted on a trial held by any Magistrate of the Second or Third Class, or any person sentenced under section 349 .... May appeal to the District Magistrate."

7. I have considered the rival arguments of both the learned counsel for the parties and .The statement of law is clearer on the point that in case of any acquittal the appeal shall lie to the High Court under section 417, Cr.P.C. The instant matter being the outcome of a private complaint is covered by subsection (2) of section 417, Cr.P.C. Thus, the course adopted by the complainant by filing an appeal before the District Magistrate was totally unwarranted by law and the ensuing order of the learned District Magistrate was coram non judice. The learned Additional Sessions Judge also could not appreciate the legal position on the subject and has wrongly agreed with the remand order. Consequently, this petition is allowed and the impugned orders are quashed.