PLJ 2008 Cr.C. (
Present: Ghulam Mohyuddin Malik, J.
AZIZ AHMAD--Petitioner
versus
MUMREZ & others--Respondents
Cr. Misc. Q. No. 9 of 2008, decided on 9.5.2008.
Criminal Procedure Code, 1898 (Act V of 1898)--
----S. 561-A--Illegal Dispossession Act, (IX of 2005) S. 9--Provisions of--Applicability--Section 9 of the Illegal Dispossession Act, 2005 provides that Code of Criminal Procedure shall apply to the proceedings under the said Act unless provided otherwise. [P. 885] A
Illegal Dispossession Act, 2005 (IX of 2005)--
----S. 9--Criminal Procedure Code, (V of 1898), S. 417(2)--Dismissal of complaint--Remedy against--Provisions of Section 9 of Illegal Dispossession Act, against the order of acquittal and dismissal of private complaint only remedy is by way of appeal under Section 417(2) of Criminal Procedure Code, 1898. [P. 885] B
Criminal Procedure Code, 1898 (Act V of 1898)--
----Ss. 561-A & 439(5)--Right of appeal against order of acquittal--Non-availing of--Revision against--Inherent powers of the Court--Competency of--Provision of law indicates that right of appeal against the order of acquittal has been conferred to an aggrieved person--Section 439(5) of the Criminal Procedure Code, contains prohibition to the effect that where right of appeal is provided and no appeal is brought, no proceedings by way of revision shall be competent against the order of acquittal--Revision order u/S. 561-A of the Criminal Procedure Code, is not competent because the provisions cannot be circumvented through revision under the inherent jurisdiction of the Court. [P. 885] C
PLD 1976 SC 461.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 561-A--Inherent jurisdiction of High Court--Scope of--High Court in its inherent jurisdiction can interfere only when no other adequate legal remedy for redressal of grievance is available to the aggrieved party--These powers are neither additional nor alternative and as such these can be invoked only when no other remedy is available.
[Pp. 885 & 886] D
PLD 1976 SC 461.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 561--Revision against order of acquittal--Validity--Request for conversion of petition u/S. 561 of the Criminal Procedure Code, 1898 into appeal--Rejection of--For filing appeal in case of private complaint, separate procedure is provided i.e. the aggrieved person shall submit an application for the grant of special leave to appeal and no such application shall be entertainable after the expiry of sixty days from the date of the impugned order and that a person aggrieved by the order of acquittal can within thirty days file an appeal against such order, neither the petition is well in time nor it can be straightway converted into appeal--Petition dismissed.
[P. 886] E
Mr. Muhammad Humayun Turangzai, Advocate for Petitioner.
Ms. Hamshida Begum, Advocate for State.
Date of hearing: 9.5.2008.
Order
This petition is filed by the petitioner under Section 561-A Cr.P.C. against the order dated 5.11.2007 passed by learned Additional Sessions Judge, Lakki Marwat, whereby, the Court dismissed the complaint of the petitioner filed under Section 3 of Illegal Dis-possession Act, 2005 and thereby acquitted the accused/respondent from the charge leveled against them.
2. On the previous date of hearing, pre-admission notice was given to the State and also learned counsel for the petitioner was asked to assist the Court whether against the order of acquittal, petition under Section 561-A Cr.P.C. for quashment of impugned judgment and order is legally competent.
3. The learned counsel for the petitioner contends that against the impugned judgment and order, application under Section 561-A Cr.P.C. lies and that if it is not competent then may it be treated as an appeal.
4. On the other hand, learned State counsel by opposing the arguments advanced by the petitioner, submitted that the petition being barred by law is liable to be dismissed.
5. I have considered the submissions made by the learned counsel for the parties and have carefully perused the record. Section-9 of the Illegal Dispossession Act, 2005 provides that Code of Criminal Procedure 1898 shall apply to the proceedings under the said act unless provided otherwise in the act, if we take into consideration the provision of Criminal Procedure Code then against the order of acquittal and dismissal of private complaint remedy is by way of appeal under Section 417 sub-section (2), which reads as under:--
417. Appeal in case of acquittal.--(1) Subject to the provisions of sub-section (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 Court 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.
(2A) 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.
(3) No application under sub-section (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.
6. The perusal of above mentioned provision of law clearly indicates that right of appeal against the order of acquittal has been conferred to an aggrieved person. Section 439 sub-sections (5) of the Code contains prohibition to the effect that where right of appeal is provided and no appeal is brought under this Code, no proceedings by way of revision shall be competent against the order of acquittal. Meaning thereby that under the law, revision of order under Section 561-A Cr.P.C. against the order of acquittal is not competent because the provision cannot be circumvented through revision under the inherent jurisdiction of this Court. The High Court in its inherent jurisdiction can