STATE Vs. ABDUL MAJID

JUDGEMENT

(1.) THIS is a revision application submitted by the learned Assistant Advocate General against an order of acquittal passed by L. Mulk Raj, Special Judge, Srinagar, whereby the non-applicants, Dr. Abdul Majid Inayat Ullah, Habib Ullah and Mohi-uD/- in Pukhta were acquitted. The case against the non applicants along with many others was tried under the provisions of the Enemy Agents Ordinance. No appeal is permissible under the provisions of this ordinance, but the learned Assistant Advocate General submitted this revision application under Section 9 sub sections (3) of the said Ordinance. In his application the learned Assistant Advocate General has made out that the facts proved against the non-applicants accused are incompatible with their innocence and that the evidence against them has not been properly weighed by the learned Special Judge.

(2.) THIS application came up for hearing at Jammu when the non-applicants Rajas Inayat Ullah and Habib Ullah and Mohi-uD/- in Pukhta made their appearance. Dr. Abdul Majid was not present. In view of the fact that Rajas Inayatullah and Habibullah and Mohi-uD/- in Pukhta made their appearance at a far off place like Jammu, I did not think it proper to postpone the case and drag the accused over and again to Jammu, simply because Dr. Abdul Majid did not make his appearance. I heard arguments on their behalf at Jammu, but reserved my orders till a later date when I should have heard Dr. Abdul Majid also. Dr. Abdul Majid has made his appearance now and the case on his behalf has been argued by Mr. Hafiz.

(3.) THE second point that has been raised in this behalf by the learned Advocate appearing on behalf of the accused is as to whether this Court has, while hearing a revision application, got the power to convert a finding of acquittal into a conviction. The learned Assistant Advocate General has argued that the reviewing judge has power, while hearing a revision application submitted under sub sections (3) of Section 9 to alter an acquittal into a conviction. I am afraid I cannot agree with the interpretation put by the learned Assistant Advocate General on sub sections (3) of Section 9. Sub-Section (3) of Section 9 gives power to a reviewing judge to exercise any of the powers which are exercisable by him in the case of such proceedings as are submitted to him for review under sub sections (1) of Section 9. Under sub sections (2) of Section 9 the reviewing judge can exercise in his discretion any of the powers exercisable under Section 439, Criminal Procedure Code, by the High Court in the case of any proceedings to which the said section refers. From this it becomes clear that a reviewing judge can exercise only those powers while hearing a revision application under sub sections (3) of Section 9, Enemy Agents Ordinance as are enumerated in Section 439, Criminal Procedure Code Sub-Section (4) of Section 439, Criminal Procedure Code, lays down amongst other things that this section shall not be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. Such being the state of law the only order that can be passed in case the reviewing judge makes his mind to accept the revision petition, is to order a re-trial.