PLJ 2022 Cr.C. 355
[Lahore High Court Lahore ]
Present:
Muhammad
Amjad Rafiq, J.
SANA
ULLAH KHAN--Appellant
versus
STATE,
etc.--Respondents
Crl. A.
No. 60190 of 2020, decided on 9.11.2021.
Illegal Dispossession
Act, 2005 (XI of 2005)--
----S.
8-A--Right of appeal--Basic question before Court Court is about
maintainability of appeal against acquittal under Section 8-A of Illegal
Dispossession Act, 2005--Plain reading of above provisions show that Act
provides right of appeal only against conviction that may be of any kind either
of imprisonment or fine, or both.
[Pp.
357 & 358] A & B
Criminal Procedure Code, 1898 (V of 1898)--
----S. 439(4)(a)--Revision is not regarded as a matter of
right, yet as discussed above revision against an order of acquittal cannot be
entertained when there is specific prohibition under Section 439(4)(a) of
Cr.P.C. that High Court cannot convert a finding of acquittal into one of
conviction. [P. 359] C
Illegal Dispossession
Act, 2005 (XI of 2005)--
----Ss. 8-A, 3/4--Right
of appeal--Appeal against acquittal--Maintainability--Appeal would be provided
under said Code, whereas, special law has been dealt with separately, so,
unless and until relevant special law gives a right of appeal, it cannot be
imported or inferred as an inherent right--Primary function of modern right of
appeal is to protect against miscarriages of justice--A second function of
criminal appeals is to maintain consistency in trial Courts; Third, appeals
serve important institutional functions; they provide legitimacy to criminal
justice system as a whole; Public confidence in administration of justice
increases when miscarriages do not occur and when Courts dispense criminal
justice consistently and fairly--Fourth, appeals are primary way in which
judges, as public officials subject to oversight, are held accountable for
their performance; Finally, appeals allow questions of law to be settled-- Instant
criminal appeal against acquittal in trial under Illegal Dispossession Act,
2005 is held to be not maintainable.
[Pp.
360, 362 & 363] D, E, & F
Mr. Amir Abdullah Khan Niazi,
Advocate for Appellant.
Rai Asif Mehmood, Deputy
Prosecutor General for State.
Date of hearing: 9.11.2021.
Order
The instant criminal appeal has been filed by Sana Ullah Khan
(complainant) against the judgment dated 24.10.2020 passed by learned
Additional Sessions Judge, Mianwali, whereby, in a complaint lodged by Sana
Ullah Khan under Section 3/4 of Illegal Dispossession Act, 2005, the
accused/Respondents No. 2 to 4 (Shafa Ullah Khan, Matti Ullah Khan and Ikram
Ullah Khan) have been acquitted under Section 265-K, Cr.P.C. from the charge
under Section 3 of the said Act.
2. When questioned as to how the
instant criminal appeal is maintainable against the acquittal of
accused/respondents from a complaint under Illegal Dispossession Act, 2005
(hereinafter may be called as “the Act”) the learned counsel submits that he
has filed this appeal under Section 8-A of the Act, which is maintainable when
read in the light of Section 9 of the said Act, whereby, Code of Criminal
Procedure, 1898 has been made applicable.
3. Heard.
4.
The basic question before this Court is about the maintainability of appeal
against acquittal under Section 8-A of the Illegal Dispossession Act, 2005. For
ready reference Section 8-A is reproduced hereunder:-
“8-A. Appeal. Any order made under
sub-section (2) and sub-section (3) of Section 3 and sub-section (1) of Section
8 shall, within thirty days of the order, be appeale-able before the High
Court.”
Sub-Sections (2)
and (3) of Section 3 of the Act, deal with the persons for whom the right of
appeal is available. Section 3 as a whole is reproduced as under:-
“3. Prevention of illegal possession of
property, etc.--(1) No one shall enter into or upon any property to
dispossess, grab, control or occupy it without having any lawful authority to
do so with the intention to dispossess, grab, control or occupy the property
from owner or occupier of such property.
(2) Whoever contravenes the provisions of
the sub-section (1) shall, without prejudice to any punishment to which he may
be liable under any other law for the time being in force, be punishable with
imprisonment which may extend to ten years and with fine and the victim of the
offence shall also be compensated in accordance with the provisions of Section
544-A of the Code.
(3) Whoever forcibly and wrongfully
dispossesses any owner or occupier of any property and his act does not fall
within sub-section (1), shall be punished with imprisonment which may extend to
three years or with fine or with both, in addition to any other punishment to
which he may be liable under any other law for the time being in force. The
person dispossessed shall also be compensated in accordance with provisions of
Section 544-A of the Code.”
Plain
reading of above provisions show that the Act provides right of appeal only
against the conviction that may be of any kind either of imprisonment or fine,
or both, therefore, the word “any” has been used. Previously no right of appeal
was available in the Act, therefore, later the legislator felt necessary to
give right of appeal against conviction recorded under this Act, therefore,
Section 8A was inserted through Illegal Dispossession (Amendment) Act,. (XXVIII
of 2017) dated 4th July, 2017. Similarly the right of appeal against the order
under Section 8(1) was also provided through the same amendment, whereby in
Section 8, for the expression “sub-section (2)” the expression “sub-section (2)
and (3)” was substituted, thus after amendment Section 8 runs as under:
“8.
Delivery of possession of property to owner, etc.--(1) On conclusion of
trial, if the Court finds that an owner or occupier of the property was
illegally dispossessed or property was grabbed in contravention of Section 3,
the Court may, at the time of passing order under sub-Sections (2) and (3) of
that section, direct the accused or any person claiming through him for
restoration of the possession of the property to the owner or, as the case may
be, the occupier, if not already restored to him under Section 7.
(2) For the purpose
of sub-section (1), the Court may, where it is required, direct the
officer-in-charge of the police station for such assistance as may be required
for restoration of the possession of the property to the owner or, as the case
may be, the occupier.”
5. Learned counsel for the appellant while placing reliance on
the case “Mst. Farah Deeba versus said muhammad alias Toti and another”
(2021 MLD 580) contends that the word “any” used in Section 8-A means any order
either of conviction or acquittal because it is passed while dealing with the
complaint under sub-section (2) and (3) of Section 3 of the Act. The contention
of learned counsel for the appellant is not sustainable for the reason that legislator
has not provided right of appeal against all orders passed under the provisions
of this Act. For reference, following are the orders which can be passed during
proceedings under the Act on a complaint, but no appeal is provided
there-against:-
i) Dismissal of
complaint under Section 203, Cr.P.C. when there is no sufficient ground;
ii) Taking
cognizance of complaint and summoning of accused;
iii) Direction to
the police to arrest the accused as authorized under Section 4(3) of the Act;
iv) Order of
attachment of property under Section 6 of the Act;
v) Order of
eviction and mode of recovery of possession as an interim relief under Section
7 of the Act;
vi) Rejection of
application under Section 265-K, Cr.P.C.;
vii) On conclusion
of trial, award of compensatory costs to the person complained against if the
complaint is found false, frivolous or vexatious under Section 5(4) of the Act.
The
above situations reflect that the legislator has not felt the necessity to
provide a right of appeal against such orders because they are regulated under
the provisions of Code of Criminal Procedure and most of the suitable remedy is
to invoke revisional jurisdiction of the High Court. Unlike appeal, the
revision is not regarded as a matter of right, yet as discussed above revision
against an order of acquittal cannot be entertained when there is specific
prohibition under Section 439(4)(a) of Cr.P.C. that the High Court cannot
convert a finding of acquittal into one of conviction. Reference is made to the
case “Habib Bank Limited versus The State” (PLD 1988 Karachi 49).
6. The learned counsel for the appellant, next while referring
the case “Muhamamd Yasin versus Muhammad Hanif and others” (1997
PCr.L.J. 1626) submitted that when accused are acquitted under Section 249-A,
Cr.P.C. such order can be assailed in revisional jurisdiction under Section
439-A, Cr.P.C. Firstly, this judgment referred by learned counsel has been
dissented with by another Bench of this Court in the case “Muhammad Akram
versus Additional Sessions Judge, Rawalpindi and 6 others” (2005 YLR 1037),
and secondly if the view expressed in the above judgment, referred by learned
counsel for the appellant is prevailed then there would be an anomaly if the
Sessions Judge stays with order of Magistrate and stamped the acquittal, what
remedy would be available to aggrieved person because against order passed in
revision, an appeal is not provided. Additionally the contention of learned
counsel is out of score as per dictum laid down in the case “Bashir Ahmad versus
Zafar-ul-Islam and others” (PLD 2004 Supreme Court 298), “Liaqat Ali versus
Muhammad Saleem Shahzad” (2000 YLR 629), and “Ahmad Din versus Haseeb
Ullah and 3 others” (2008 P Cr.L.J. 1067), that an order of acquittal
whether passed after full dressed trial or under Section 249-A or 265-K,
Cr.P.C., could only be challenged through appeal before the High Court as per
Section 417, Cr.P.C.
7. It is trite that right of appeal
is a statutory right and is not inherent with advent of law or constitution of
a Court. Unless a right of appeal is specifically granted it cannot be inferred
or borrowed from implied interpretation of any law, as the learned counsel for
the petitioner tried to stretch Section 9 of the Act, whereby, the provisions
of Code of Criminal Procedure, 1898 have been made applicable to the
proceedings under the said Act. Reliance is placed on the cases “Harmean
versus The State” (PLD 1958 Dacca 333), “Habib Bank Limited versus The
State” (PLD 1988 Karachi 49) and “The State versus Mst. Fazeelat Bibi”
(PLD 2010 Lahore 498).
8. This principle is embodied in
Section 404 of Cr.P.C., which runs as under:
“404. Unless otherwise provided, no appeal
to lie.--No appeal shall lie from any judgment or order of a Criminal Court
except as provided for by this Code or by any other law for the time being in
force.”
This
section clearly shows that only in the cases which are being dealt with under
the Code of Criminal Procedure, the appeal would be provided under the said
Code, whereas, special law has been dealt with separately, so, unless and until
the relevant special law gives a right of appeal, it cannot be imported or
inferred as an inherent right. The case law reported in “State Life
Insurance Corporation Of Pakistan through Chairman and others versus Mst.
Sardar Begum and others” (2017 SCMR 999), “Mughal Surgical (Pvt.) Ltd. and
others versus Presiding Officer, Punjab Labour Court No. 7 and others” (2006
SCMR 590), “Shaikh Gulzar Ali & Co. Ltd. and others versus Special Judge,
Special Courts of Banking and another” (1991 SCMR 590), “Defence Housing
Authority and others versus Rao Imran Nasir” (2021 CLC 310), “Messrs Brecast
Industries (Pvt) Limited through Director/Chief Executive Officers versus
Housing Building Finance Corporation through Managing Director” (2020 CLD 557),
“All Swat Paper Chips and Pops Owners Association District Swat through
President versus Bakht Afsar Ex-Deo District Shangla Amir Jumat Islami PK-87
Shangla and 5 others” (2019 PCr.L.J 225), “Mian Sharif Shah versus Nawab Khan
and 5 others” (PLD 2011 Peshawar 86), “Collectorate of Sales Tax And Federal
Excise, Faisalabad versus Messrs Zaheeer Soap Factory, Faisalbad” (2011 PTD
(Trib.) 429), “The State versus Ahmed Rasool and another” (PLD 2004 Karachi
348), “Commissioner Of Income-Tax versus Garware Nylons Ltd. (1997 PTD 442),
“Sardar Muhammad Khan versus Muhammad Afsar Khan and 3 others” (1991 PCr.L.J
508) “Wahid Bus and Mailsi Transport Co. Ltd. versus Afzal Transport Co. Ltd., Multan
and others” (PLD 1966 (W.P) Lahore 684), and “Hart Mean versus The State”
(PLD 1958 Dacca 333) are referred.
9. Rights of appeal are
increasingly ubiquitous; the ability to appeal against conviction and sentence
is, in most jurisdictions, a matter of right, either statutory or
constitutional but this has not always been the case. The right to appeal is a
comparatively recent addition to the common law criminal process: for
centuries, these legal systems, in stark contrast to those of continental
Europe, did not provide a means by which defendants could effectively challenge
their convictions.[1]
Operation of the Court of Criminal Appeal for England and Wales which began
sitting on May 15, 1908; the prerogative of mercy, exercised after 1837 by the
Home Secretary, could be invoked; however, the only form of judicial review of
a verdict was rather limited one provided by the legislation of 1848.
Parliament considered thirty-one bills on the subject between 1844 and 1906,
but all were either withdrawn or died on the order paper. By the middle of the
19th century, however, several newspapers had taken up the cry for reform. The
Times, for example, ran an editorial on November 13, 1847, in the interest of
that numerous class of persons who have been condemned contrary to law and
justice, and who are left to languish out the best years of their life in
imprisonment or banishment for want of such power of appeal. The Criminal Code
(Indictable Offences) Bill, 1878, drafted by Sir James Fitzjames Stephen, had
provisions which would have created an appeal Court. The bill was withdrawn but
it was his work on the bill that led, in part, to his elevation to the bench.
Ultimately it was the public clamor arising from four criminal cases that
resulted in the establishment of the Court of Criminal Appeal. Perhaps
ironically, Stephen figured prominently in two of them:-
R. v. Lipski
R. v. Maybrick
R. v. Edalji
R. v. Beck
So, what could not
be achieved by repeated attempts in Parliament, pressure from within the legal
profession, and generations of editorial writers, was finally brought about by
public and government reaction to four cases. Israel Lipski began the process,
but it was really the publicity surrounding the release of Mrs. Maybrick
(1904), the second trial of Adolf Beck (1904), and the release of George Edalji
(1906) that brought matters to a head.[2]
10. At the broadest level of generality, appeals are concerned
with correcting error; mechanisms for error correction are an important feature
of developed legal systems: developed legal systems make provision for
correcting error. Error, in the sense of good faith, differences of opinion
about finding the facts or about formulating or applying rules of law, is
expected as a regular occurrence. Error correction, as an overarching value, in
turn serves a number of distinct functions.
11.
The primary function of the modern right of appeal is to protect against
miscarriages of justice. A second function of criminal appeals is to maintain
consistency in trial Courts; Third, appeals serve important institutional
functions; they provide legitimacy to the criminal justice system as a whole;
Public confidence in the administration of justice increases when miscarriages
do not occur and when Courts dispense criminal justice consistently and fairly.
Fourth, appeals are the primary way in which judges, as public officials
subject to oversight, are held accountable for their performance; Finally,
appeals allow questions of law to be settled. The jurists, therefore, define
the remedy of appeal as under:
• A request
especially to a Court of law to change a previous decision.
• Timely resort by
an unsuccessful party in a lawsuit or administrative proceeding to an
appropriate superior Court empowered to review a final decision on the ground
that it was based upon an erroneous application of law.
• An application
for the judicial examination by a higher tribunal of the decision of any lower
tribunal.
12. It is thus clear from the above discussion that right of
appeal is always a creation of Constitution or Statute and legislator has
deliberately omitted to give right of appeal against an acquittal in the
IIlegal Dispossession Act, 2005 under the principle of finality of judgment.
However, there are some situations, wherein appeal is not provided but the
aggrieved can invoke revisional powers of the Court and that could be
permissible under Code of Criminal Procedure as it is applicable to the Act,
and revision unlike an appeal is not regarded as a matter of right and it is
optional with Court to hear the parties as mentioned in Section 440 of Code of
Criminal Procedure, 1898. Even there is difference between scope of appeal and
revision; appeal is preferred on question of law as well as on facts as per
Section 418 Cr.P.C., whereas, in revision only correctness, legality and
propriety of any finding, sentence or order is to be examined, yet revision
cannot be filed against acquittal particularly when it is prohibited under
Section 439(4)(a), Cr.P.C., that High Court cannot convert a finding of
