Through this criminal appeal under Section 417(2-A) Cr.P.C. Manzoor Khan, appellant has assailed the judgment dated 23.10.2020 passed by the learned Additional Sessions Judge, Rawalpi ndi, whereby respondent No.2 (hereinafter called the respondent) was acquitted of the charge in case FIR No.434 dated 08.06.2014 registered under sections 302, 148 & 149 PPC at Police Station W aris Khan, District Rawalpindi.
2. During the hearing of connected Criminal Appeals against conviction bearing Nos.723 & 612 of 2020, the learned counsels for the present appellant/complainant resisted to advance arguments carrying a stance that office has wrongly fixed this appeal against acquittal before this Bench otherwise it falls within the jurisdiction of learned Division Bench and requested to pass direction for fixation of this appeal against acquittal before the learned Division Bench and till its hearing connected appeals against conviction may be adjourned. They expect that the decision on appeals against conviction either way would affect the outcome of pending appeal against acquittal and it is bad for both the parties.
3. The learned counsels for convicts/appellants in connected Criminal Appeals against conviction though conceded that as per High Court Rules & Orders, respective matters shall be heard in separate Benches yet urged that putting the case in wait until the decision of appeal against acquittal by learned Division Bench would seriously prejudice the right of convicts who are behind the bars since 2014, however , stated that if the sentences of the convicts are suspended and they are released on bail, they would have no objection.
4. The question why appeal against acquittal was fixed before Single Bench was responded by the office in number of cases with a thought that it has been held by learned Division Bench of this court through order dated 21.10.2020 passed in Criminal Miscellaneous No. 3260 of 2020 filed in Criminal Appeal No. 36 of 2015 titled "Muhammad Saleem Vs. The State etc." that appeal against acquittal shall be heard by Single Bench until it is admitted for regular hearing and notice is issued to the accused.
5. The above judgment of Honourable Division Bench has been examined; it has been observed that in cited Criminal Miscellaneous petition a prayer was made before the learned Division Bench to separate the appeal against conviction which has been clubb ed with appeal against acquittal pending before the Bench. The learned Division Bench acceded to the request of the petitioner and ordered for fixation of appeal against conviction before Single Bench and this conclusion arrived at while touching the relevant High Court Rules & Orders which are reproduced as under:- High Court Rules & Orders; (V olume V), Chapter-3 PART B: JURISDICTION OF A SINGLE JUDGE AND OF BENCHES OF THE COURT .
1. Save as provided by law or by these rules or by a special order of the Chief Justice, all cases shall be heard and disposed of by a Judge sitting alone.
Explanation.- A case includes a motion application, petition, reference, suit, appeal, revision or other proceedings to be heard and disposed of by the High Court under any law in the exercise of its ordinary , extra-ordinary , original or appellate jurisdiction.
2. (1) Save as provided by these rules, the following cases shall be heard and disposed of by a Division Bench:-
(i) (a) .................
(b) .....................
(ii) (a) An appeal or reference in a case in which a sentence of death has been passed.
(b) A case in which a notice has been issued to person sentenced to imprisonment or imprisonment for life requiring him to show cause as to why the sentence should not be altered to death.
(c) An appeal by -
(i) the Provincial Government under section 417(1) of the Code of Criminal Procedure, or
(ii) the complainant under section 417(2) of the Code after grant of leave by a Single Judge, or
(iii) an aggrieved person under section 417(2-A) of the Code, from an order of acquittal of a charge punishable with death or imprisonment for life.
While referring above Rules, it was pointed out that as per Rule 2(1) an appeal against acquittal u/s 417 (2-A) of the code shall be heard by the learned Division Bench and claim of the petitioner therein for fixation of appeal against conviction before Single Bench was accepted by the learned Division Bench with the observation that until notice in appeal against acquittal is issued (by the Division Bench), appeal against conviction shall be heard by single Bench. It was affirmed that except cases mentioned under Sub Rule 2(1) above, all others shall be heard by a learned Single Bench. The Honourable Division Bench though acknowledged that there is no denial to the proposition of law that one forum should ad-judge a judgment pronounced by a subordinate court and challenged through different modes i.e. appeals or revisions, so that any contradictory opinion may not arise and also cited case law which precisely concludes that the practice generally adopted by Criminal Courts is to hear all appeals and revision petitions arising out of the same judgment together and to pronounce judgment in these cases together; but at the end it was declared in following terms:-
8. In the situation in hand, the above-m entioned principle that one forum should ad-ju dge a judgment of a subordinate court and challenged through different modes, would only be applicable, if an appeal against acquittal , filed under Section 417 of Code of Criminal Procedure, 1898 is admitted for regular hearing and notice(s) to acquitted accused is/are, issued. Prior to that, the respective matters shall proceed in respective forums.
(Bold, underline supplied for emphasize)
Consequently , the learned Division Bench held that till happening of the abovementioned occasion i.e., admission of the appeal against acquittal and issuance of notice to acquitted accused, the appeal against conviction is proceedable before a learned Single Bench and passed following order;
10. Resultantly , the application in hand is allowed and request made therein for sending the titled appeal to the learned Single Bench is accorded.
6. The above command shows that titled appeal (against conviction) was directed to be heard by Single Bench. It was held that until the notice in appeal against acquittal (pending before the learned Division Bench) is issued, all matters shall proceed in respective forum s, and the words "respective forums" has a clear connotation of fixation of respective appeals before concerned Benches as per High Court Rules & Orders cited above.
7. Similar conclusion was drawn by this Court through another order dated 29.06.2021 passed in Criminal Appeal No.132466/2018 titled "Muhammad Arshad & another . Versus The State & another", operative part is reproduced under for reference: -
8. Before parting with this order , in the light of discussion made hereinabove and at the costs of a little repetition, it is observed that since an appeal against the judgment of acquittal under Section 417 Cr.P.C falling within the purview of Rule 2(1)(ii) of Chapter-3, Part-B of the Lahore High Court Rules and Orders (Volume V), has to be heard by a Division Bench, whereas an appeal against conviction not involving the death sentence, having arisen out of the one and the same judgment, is to be heard by a Single Bench under Rule 1 of the abovementioned Chapter and despite the difference in the principles applicable to interfere with the judgment of acquittal and that of against conviction, there remains a likelih ood of conflict of opinion on the same record, which may cause prejudice to the case of either side, in case the appeal against conviction is decided prior to the decision of appeal against acquittal, therefore, to rule out such possibility I feel it to be equitable for this Court to issue a direction to the Additional Registrar (Judicial) of this Court for fixation of appeals falling within the purview of Rule 2(1)(ii)(b) ibid before final hearing of such appeals against conviction.
The above clarification is further fortified through High Court Rules & Orders (Volume-V) cited in Chapter-1 (Judicial Business); Part-A (b) THE PRESENT ATION OF PETITIONS FOR REVISION UNDER SECTIONS 435 AND 439 OF THE CODE OF CRIMINAL PROCEDURE , which are as under:-
1. Every petition for revision under sections 435 and 439 of Criminal Procedure Code shall state:-
(i) --------------
(ii) -------------
(iii) ------------
(iv) ------------
(v) Appeal under section 417(2-A), Cr.P.C. shall be filed by an aggrieved person against the order of acquittal within thirty days and shall be accompanied by the certified copies of the F.I.R. and the impugned judgment. This appeal shall be placed before a Division Bench in motion and further action taken in accordance with the orders passed by the Division Bench.
(Bold & underline supplied for emphasize)
8. This clearly shows that it is the Division Bench which would pass order on appeal against acquittal and further orders for fixation of connected matters before it if feels appropriate. Thus, fixation of appeal against acquittal before this Bench is against the spirit of above Rules. Office is directed to fix this appeal and others alike before the learned Division Bench.