LAW OF REFERENCE AND

REVISION
Ch: XXXII (Ss. 432-444)
Code of Criminal Procedure, 1898
[Justice Dr. Munir Ahmad Mughal]
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Introduction
Part VII of the Code of Criminal
Procedure, 1898 contains two chapters.
One chapter (ch.31) deals with the
appeals and the other chapter (ch.32)
deals with Reference and Revision. Six
sections of Ch. 32 (i.e. Sections 432 and
433 were on Reference; section 434 was
on Power to reserve questions; section
437 was on commitment, section 438
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was on report to High Court and section

441 was on statements of Presidency
Magistrates) stand omitted. And one
section 439-A added by Law Reforms
Ordinance, 1972.
Now sections 435, 436, 439, 439-A, 440,
441 and 442 are in force which deal with
the following matters respectively:
Power to call for records of inferior
Court.
High Courts powers of revision.
Session Judges powers of revision.
Optional with Court to hear parties.
High Courts order to be certified to
the lower Court or Magistrate.
The article will discuss all these
matters in the light of the judicial
precedent on the subject.

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What is reference?
At present reference is relevant with
regard to section 374 Cr. P. C. according
to which when the Court of Session
passes sentence of death, the proceedings
shall be submitted to the High Court and
the sentence shall not be executed unless
it is confirmed by the High Court.

What is an appeal?
The word appeal means to remove a
cause formally from an inferior Court to
a higher Court with a view to ascertain
whether the judgment is sustainable
having been passed by a Court of
competent jurisdiction, sentence being
awarded according to law and
proceedings conducted conforming the
provision so provided. The right of
appeal is a matter of procedure. It is
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substantial right created by a statute and

only exerciseable when expressly given.1
Appeal being a continuation of original
matter, appellate forum enjoys same
authority and ample discretion to specify
nature of sentence by declaring the same
to run concurrently.2
A right of appeal in criminal matters is
statutory one and is governed by section
404 Cr. P. C. that forms the
commencement of Chapter XXXI of Cr.
P. C. dealing with appeals. It is further
pointed out that a right of appeal has to
be specifically provided for in the statute,
as it cannot arise by implication. It may
further be noticed that a right of appeal is
not a mere matter of procedure, but is a
vested right, which inheres in a party
from the commencement of the action in
1
2

PLD 1966 Lahore 684.

PLD 1994 Quetta 1
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the Court of first instance. Thus when

there is no right of appeal in a special
Act, then the finding of acquittal or
conviction passed there under becomes
final.3
What is a revision?
Revision means to place a lis4 of the
lower Court to the higher forum for
correction of manifest illegality or
prevention of gross miscarriage of
justice.5
Revision is not a continuation of the suit,
appeal or trial. It is only a step in aid for
invoking power of Superintendence of
the higher forum for correcting the

PLD 2004 Karachi 348.

Lis means a cause, a case, a matter.
5
PLD 199 Karachi 114.
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irregularities if any in the judgment and

order of the subordinate Court.6
When interference by way of
revision is justified?
As a broad proposition it can be stated
that interference may be justified:
(a) where the decision is grossly
erroneous;
(b) where there is no compliance with,
the provisions of law;
(c) where the finding of fact affecting
the decision is not based on the
evidence;
(d) where material evidence on the
parties is not considered; and
(e) where judicial discretion is
exercised arbitrarily or perversely.7
6
7

1981 P. Cr. L. J. 165

AIR 1996 Goa 32 (FB).
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When Revisional jurisdiction is to

be normally exercised?
The jurisdiction normally is to be
exercised in exceptional cases to cover
glaring defect in procedure or material
error on point of law resulting
miscarriage of justice.8
In Mushtaq Ahmad case it was held by
the Honourable Supreme Court that the
High Court has the power to interfere
upon information in whatever way
received. High Court has also right to
exercise its own initiative and there can
be no warrant for the proposition that the
High Court is debarred from examining
the record suo moto.9

8
9

1991 Criminal Law Journal 1195 (Patna).

PLD 1966 SC 126 [Mushtaq Ahmad v. State].
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Who can file a revision?

It is not necessary that only an aggrieved
person can invoke the Revisional
jurisdiction of the High Court. Any
person can move the High Court under
section 435, 436 and 439 Cr. P. C. on its
Revisional side.10
The Revisional jurisdiction can be
exercised by the High Court by
being moved by convicted person
himself; or
by any other person; or
suo moto on the basis of its own
knowledge derived from any source
whatsoever.11
Distinction between Reference and
Revision
10
11

PLD 1996 Karachi 306.

AIR 1971 SC 1925; AIR 1962 SC 1530
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 Reference is made when a question

arises in a pending case as to the
validity of any Act, Ordinance or
Regulation and determination of such
question is necessary for the just
decision of the case. The Presidency
Magistrate only had a power to refer
a case involving a question of law.
Since long the provisions of law
relating to the Presidency Magistrates
have been omitted and now it is only
an academic subject to understand the
difference between reference and
revision. Revision lies on a point of
law only.
Reference lies to the High Court only
while Revision lies to other Courts
also.
Reference lie in pending cases only.
Revision may lie in both pending and
decided cases.
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 There is only one stage in reference

while there are two stages in revision,
i.e. the first stage is of preliminary
examination and the second stage is
reversal or alteration of sentence or
order.

Power of High Court in Revision

and Writ jurisdiction, distinction.
Powers of revision under this section are
much wider in scope than the powers of
the High Court in writ petition. Whereas
in writ petition the High Court ca only
consider the question of jurisdiction or
legality a Revisional Court exercising
power under this section can not only
consider the legality but also correctness
and even the propriety of any finding,
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sentence or order recorded or passed by

and the regularity of any proceedings of
any inferior Court. In other words it can
not only go into the evidence and reverse
the finding of fact, but can even consider
the propriety of an order or the propriety
of adopting any particular procedure. 12
Briefly stated points of distinction
between an Appellate jurisdiction and
Revisional jurisdiction of a High Court
are as under:
(i) An appeal is a statutory right
given to the appellant which he
can demand from the Court either
on a question of fact or on a
question of law or upon both. In
revision the applicant has no
statutory right beyond inviting the
attention of the Court. The Court
12

PLD 1981 SC 522.

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(ii)

(iii)

(iv)

(v)

has a discretion to exercise its

Revisional power or not.
In appeal the High Court decides
both on questions of law and fact.
In revision it only decides or
adjudicates on a question of law,
but it may, for the ends of justice,
enter into questions of fact.
In appeal the High Court cannot
enhance the sentence, but in
revision it can.
In appeal the High Court can
convert an acquittal into
conviction and vice versa, but in
revision it cannot convert a
finding of acquittal in to one of
conviction.
The power of High Court in
appeal is not as wide as that in
revision. In exercising its
Revisional jurisdiction the High
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Court may even cure any

irregularity or illegality but that is
not so in appeal.
(vi) In disposing of a criminal appeal
the Court will interfere unless it is
satisfied as to the guilt of the
accused, while on revision the
High Court will not interfere
unless the conscience of the Court
is aroused to such an extent as to
compel it to say expressly that the
applicant ought not to have been
convicted on the evidence.
(vii) The High Court cannot dismiss an
appeal without affording the
appellant or his pleader a
reasonable opportunity of being
heard. But in revision the High
Court is not bound to hear the
applicant or his pleader save

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while enhancing any sentence the

accused shall be heard as of right.
(viii) In appeal the High Court cannot
direct the tender of pardon, but it
can d so in the exercise of its
Revisional jurisdiction.
What is the intention of law to
confer suo moto power of revision
on High Court ?
Intention of law to confer suo moto
power of revision on h c is to ensure that
the Court subordinate to it should art
strictly within legal bounds and should
not transgress their jurisdiction and that
findings , sentences or orders recorded or
passed by them are just and legal.13

13

2000 SCMR 735.

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Federal Shariat Court

Article203-DD of the Constitution
simply empowers the Federal Shariat
Court to call for record of any case
relating to the enforcement of Hudood
offences and examine correctness,
legality or propriety of the proceedings.
It does not lay down the procedure, for
which purpose reference is to be made to
section 439 Cr. P. C. The Federal Shariat
Court is also empowered to call for any
record suo moto without any application
from any party or State, for the purposes
of satisfying itself as to the correctness,
legality or propriety of any finding,
sentence or order recorded by a
subordinate Court.14

14

PLD 1986 FSC 282.

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What are the exact words of law

legislated in sections 435, 436, 439,
439-A, 440, and 442 Cr. P. C.?
The text of the law on the whole subject
of revision is as under:
435. Power to call for records of
inferior Courts.
(1) The High Court or any Sessions
Judge may call for and examine the
record of any proceeding before any
inferior Criminal Court situate within the
local limits of its or his jurisdiction for
the purpose of satisfying itself or himself
as to the correctness, legality or
propriety of any finding, sentence or
order recorded or passed, and as to the
regularity of any proceedings of such
inferior Court and may, when calling for
such record, direct that the execution of
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any sentence be suspended and, if the

accused is in confinement, that he be
released on bail or on his own bond
pending the examination of the record.
Explanation. All magistrates shall be
deemed to be inferior to the Sessions
Judge for the purposes of this sub-section.
436. Power to order further inquiry.
On examining any record under section
435 or otherwise:(a) the High Court may direct the
Sessions Judge to require any Magistrate
subordinate to him to make, and the
Sessions Judge himself may direct any
Magistrate subordinate to him to make,
further inquiry into any complaint which
has been dismissed under section 203 or
subsection (3) of section 204, or into the
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case of any person accused of an offence

who has been discharged.
(b) the High Court or the Sessions Judge
may direct any Magistrate to make
further inquiry in to any proceeding in
which a order of discharge or release has
been made under section 119;
Provided that no Court or the Sessions
Judge shall make any direction under this
section for enquiry into the case of a
person who has been released or
discharged under section 119, unless
such person has had an opportunity of
showing cause why such direction
should not be made.
439. High Courts powers of revision.
(1) In the case of any proceeding the
record of which has been called for by
itself or which otherwise comes to its
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knowledge, the High Court may, in its

discretion, exercise any of the powers
conferred on a Court of Appeal by
sections 423, 426, 427 and 428 or on a
Court by section 338, and may enhance
the sentence and, when the Judges
composing the Court of revision are
equally divided in opinion, the case shall
be disposed of in manner provided by
section 429.
(2) No order under this section shall be
made to the prejudice of the accused
unless he has had an opportunity of
being heard either personally or by
pleader in his own defence.
(3) Where the sentence dealt with under
this section has been passed by a
Magistrate, the Court shall not inflict a
greater punishment for the offence which,
in the opinion of such Court, the accused
has committed, than might have been
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inflicted for such offence by a Magistrate

of the first class.
(4) Nothing in this section shall be
deemed to authorise a High Court:
(a) to convert a finding of acquittal
intone of conviction; or
(b) to entertain any proceedings in
revision with respect to an order made by
the Sessions Judge under section 439-A.
(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 party who could have
appealed.
(6) Notwithstanding anything contained
in this section, any convicted person to
whom an opportunity has been given
under sub-section (2) for showing cause,
why his sentence should not be enhanced
shall, in showing cause, be entitled to
show cause against his conviction.
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439-A. Sessions Judges power of

revision.
(1) In the case of any proceedings before
a Magistrate the record of which has
been called for by the Sessions Judge or
which otherwise comes to his knowledge,
the Sessions Judge may exercise any of
the powers conferred on the High Court
by section 439.
(2) An additional Sessions Judge shall
have and may exercise all the powers of
a Sessions Judge under this Chapter in
respect of any case which may be
transferred to him under any general or
special order of the Sessions Judge.
440. Optional with Court to hear
parties.

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No party has any right to be heard either

personally or by pleader before any
Court when exercising its powers of
revision:
Provided that the Court may, if it thinks
fit, when exercising such powers hear
any party either personally or by pleader,
and that nothing in this section shall be
deemed to affect section 439, subsection
(2).
442. High Courts order to be
certified to the lower Court or
Magistrate.
When a case is revised under this
Chapter by the High Court ,it shall, in
manner hereinbefore provided by section
425, certify its decision or order to the
Court by which the finding, sentence or
order revised was recorded or passed,
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and the Court or Magistrate to which the

decision or order is so certified shall
thereupon make such orders as are
conformable to the decision so certified;
and, if necessary the record shall be
amended in accordance therewith.

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Table of Contents of this Article

Introduction.................................................................................................................1
What is reference? .......................................................................................................3
What is an appeal?.......................................................................................................3
What is a revision? ......................................................................................................5
When interference by way of revision is justified?.......................................................6
When Revisional jurisdiction is to be normally exercised?...........................................7
Who can file a revision? ..............................................................................................8
Distinction between Reference and Revision ...............................................................8
Power of High Court in Revision and Writ jurisdiction, distinction............................ 10
What is the intention of law to confer suo moto power of revision on High Court ? ...14
Federal Shariat Court.................................................................................................15
What are the exact words of law legislated in sections 435, 436, 439, 439-A, 440, and
442 Cr. P. C.? ............................................................................................................16
435. Power to call for records of inferior Courts....................................................... 16
436. Power to order further inquiry. ...........................................................................17
439. High Courts powers of revision. .......................................................................18
439-A. Sessions Judges power of revision. ............................................................... 21
440. Optional with Court to hear parties. ...................................................................21
442. High Courts order to be certified to the lower Court or Magistrate. ...................22
Table of Contents of this Article ................................................................................24

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