Salik Aziz, one of the legal heirs of Mst. Rukhsana Aziz, instituted instant petition impugning the order dated 29.4.2017 passed by the. VIII Additional District and Sessions Judge, Karachi East, in Criminal Revision No. 21 of 2012 (Rukhsana Aziz v. Mst. Zeba Emad and others ) whereby he dismissed an application filed by legal heirs seeking permission to pursue the aforesaid Revision Application filed by deceased Mst. Rukhsana Aziz in her life time.
2. Briefly facts of the case are that Mst. Zeba Emad was tenant of Mst. Rukhsana Aziz. The tenant gave a cheque to her landlady which on presentation dishonoured. Accordingly , a report was lodged at concerned Police Station against Mst. Zeba Emad. The rent proceedings initiated by Mst. Rukhsana against tenant Mst. Zeba Emad were decided in former's favour . However , 'Mst. Zeba instituted a civil suit and filed forged/fake sale agreement before V Civil Judge, Karachi pending to have purchased the said property/tenement. Mst. Rukhsana Aziz lodged FIR No.366/ 2009 under Sections 420, 468, 471, 34, P.P.C. At Shahrah-e-Faisal Police Station, Karachi, against Muhammad Emad son of Irshad Ali and Mst. Zeba Emad wife of Muhammad Emad (respondents Nos. 1 and 2 respectively) alleging that the sale agreement is sheer forgery for cheating her. The case was tried by XII Judicial Magistrate, Karachi Central, who vide Judgment dated 13.3.2012 passed in J.M. Case No.1354 of 2010 convicted the respondents Nos.1 and 2 under Sections 468/471, P.P.C. and sentenced them to suffer RI for two years with fine of Rs.10,000.00 each. Against said Judgment, Mst. Rukhsana Aziz filed Revision Application No.21 of 2012 seeking enhancement of sentence awarded to the private respondents. However , during pendency of the Criminal Revision Application, applicant expired on 16.11.2015. Hence, her legal heirs filed an application before VIII Additional District and Sessions Judge, Karachi East, seeking permission to pursue the said Revision. The said application was dismissed by the VIII Additional District Judge, vide orders impugned herein.
3. Learned counsel for the petitioner submitted that the Court below has passed the impugned order in slipshod manner and has erroneously relied upon Section 417(2-A) of Cr.P.C. which relates to appeal against acquittal. She further submitted that in instant case, the trial Court while convicting the private respondents under Sections 468/471, P.P.C. has erroneously taken a lenient view and awarded lesser punishment of only two years with fine when the case was fully proved. She pointed out that Section 467, P.P.C. entails punishment with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years. She emphasized that the Applicant/landlady , mother of petitioner herein, in her life time has filed the revision application seeking enhancement in the quantum of sentenc e and her death would not render the revision application infructuous which is still pending adjudication on the file of the learned Additional District Judge.
4. Conversely , the learned counsel for private respondents and Additional Prosecutor General supported the impugned order and submitted that Section 467, P.P.C. also provides punishment with imprisonment of either description for a term which may extend to ten years. Therefore, even on merits the revision has no force and in such an, eventuality any application moved by the legal heirs to pursue the revisio n after the death of complainant merits no consideration and was rightly thrown out by the learned Additional District and Sessions Judge.
5. We have heard the learned counsel for the parties and perused the material available on record. In instant proceedings, late Mst. Rukhsana Aziz in her life time challenged the quantum of sentence awarded to the private respondents and said revision application is still pending adjudication. However , there is nothing on record nor argued that private respondents have challenged the sentence an conviction awarded to them, In Vol. 9 of.
Halsbury's Laws of England, at page 232, a crime is said to be an unlawful act or default which is an offence against the public, and renders the person guilty of the act or default liable to legal punishment. In Revision in question, the deceased applicant being aggrieved that the respondent though found guilty of the act of forgery were not suitably punished sought enhancement of the sentence and that said revision application is still pending adjudication. We may observe that a criminal revision application, competently filed and ,entertained, cannot be rejected as abated on account of death of revisionist, whether complainant or accused. However , in the event of death of accused respondent, in our opinion, proceedings cannot be continu ed against his legal heirs for enhancement of substantive sentence. For any offence committed by an accused, his legal heirs cannot be 'subjected to substantive sentence being contrary to basic tenets of criminal jurisprudence. Even otherwise, Section 440 of the Code provides that no party has any right to be heard either personally or by pleader of 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 that section shall be deemed to affect subsection (2) to Section 439 Cr.P.C. In view of the specific provision in the Code there can be no doubt that in revision applications there is no right created for the parties but the Court for ends of justice may hear parties concerned or those interested in the matter or even any other person if it is deemed that, he would be assisting the Court in coming to a just and correct decision. In this regard, one should not also forget the well-known principle that justice should not only be done but it must be seen that the people should feel that justice is being done. Therefore, in our view, the sole question as to the enhancement of sentence awarded to the respondents raised in the Revision Application, just to meet the needs of justice, can be looked into after the death of the applicant/complainant and matter can be pursued on behalf of deceased applicant by her legal heirs, petitioner herein. In view of above, the application filed by the deceased's legal heirs, who are the fit persons for hearing and reaching at a justice decision, was erroneously discarded by the learned VIII Additional Sessions Judge.
6. Additionally the learned Additional District and Sessions Judge while rejecting the application through impugned order has placed reliance on 2009 PCr.LJ 127, which was cited by the applicant/petitioner herein in support of the application. While relying on the said case law and dismissing the application in question, the Court below has lost sight of the provision of Section 417 subs ection (2-A), Cr P.C., which provides that 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 .
The term "person aggrieved" was highlighted in the aforesaid case law in paragraph No.9 of the Judgment but the Court below only quoted the placitum. For ready reference we reproduce paragraph 9, which reads as under:-- "9. Another important aspect of the case is that this is case wherein the appeal against acquittal has been filed by Muhammad Tufail complainant (PW-1). Neither he is the injured on. r is he eye-witness of the occurrence, even he is not related to injured PW Zulfiqar , so he cannot be termed as aggrieved within the meaning of section 417, Cr.P.C. It is settled proposition of law that the appeal against acquittal in a hurt case defined by the P.P.C. and tried by courts constituted under Criminal Procedure Code shall be competent by a person who has been hurt or by of the legal heirs within the scheme of law otherwise the appeal against acquittal would be incompetent. Reliance can be placed on 1999 Appeal Cases 465."
In the instant case, in the year 2009 Mst. Rukhsana Aziz, mother of the petitioner , lodged FIR against the private respondents, who were also her tenants, for preparing a forged sale agreement. That criminal case after full dressed trial was ended in conviction and sentence, quantum of which was challenged in instant revision in the year 2012 and in the year 2015 Mst. Rukhsana Aziz died. Therefore, in our consid ered view, her legal heirs being person aggrieved can pursue the said revision in order to further the ends of justice. Moreover , once the Court below issued process and entertained the revision application, it is enjoined upon it to dispose of the same on merits while the legal heirs can only invite attention of the Court towards illegality and or impropriety , if any, in the Judgment of the trial Court.
7. For foregoing reasons, the captioned petition is converted into a criminal miscellaneous application and allowed in above terms. Impugned order dated 29.4.2017 passed in Revision Application No.21 of 2012 is set-aside with direction to the learned VIII Additional District and Sessions Judge, Karachi East to decide the matter on merits in accordance with law .
Office is directed to number this petition as criminal miscellaneous application.