MUHAMMAD AMJAD RAFIQ, J. 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 sections 3/4 of Illegal Dispossession Act, 2005, the accused/respondents Nos.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 subsection (2) and subsection (3) of section 3 and subsection (1) of section 8 shall, within thirty days of the order, be appealeable before the High Court."
Subsections (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 subsection (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 subsection (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 "subsection (2)" the expression "subsections (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 subsections (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 subsection (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 v. 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 subsections (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 v. The State" (PLD 1988 Karachi 49).
6. The learned counsel for the appellant, next while referring the case "Muhammad Yasin v.
Muhammad Hanif and others" (1997 PCr.LJ 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 v. 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 v. Zafar-ul-Islam and others" (PLD 2004 Supreme Court 298), "Liaqat Ali v.
Muhammad Saleem Shahzad" (2000 YLR 629) and "Ahmad Din v. Haseeb Ullah and 3 others"
(2008 PCr.LJ 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 "Hart Mean v. The State" (PLD 1958 Dacca 333), "Habib Bank Limited v. The State" (PLD 1988 Karachi 49) and "The State v. 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 v. Mst. Sardar Begum and others" (2017 SCMR 999), "Mughal Surgical (Pvt.) Ltd. and others v. Presiding Officer, Punjab Labour Court No.7 and others" (2006 SCMR 590), "Shaikh Gulzar Ali & Co. Ltd. and others v. Special Judge, Special Court of Banking and another" (1991 SCMR 590), "Defence Housing Authority and others v. Rao Imran Nasir" (2021 CLC 310), "Messrs Brecast Industries (Pvt.) Limited through Director/Chief Executive Officers v. Housing Building Finance Corporation through Managing Director" (2020 CLD 557), "All Swat Paper Chips and Pops Owners Association District Swat through President v.
Bakht Afsar Ex-Deo District Shangla Amir Jamat Islami PK-87 Shangla and 5 others" (2019 PCr.LJ 225), "Mian Sharif Shah v. Nawab Khan and 5 others" (PLD 2011 Peshawar 86), "Collectorate of Sales Tax and Federal Excise, Faisalasbad v. Messrs Zaheeer Soap Factory, Faisalabad" (2011 PTD (Trib.) 429), "The State v. Ahmed Rasool and another" (PLD 2004 Karachi 348), "Commissioner of Income-Tax v. Garware Nylons Ltd." (1997 PTD 442), "Sardar Muhammad Khan v. Muhammad Afsar Khan and 3 others" (1991 PCr.LJ 508) "Wahid Bus and Mailsi Transport Co. Ltd. v. Afzal Transport Co. Ltd., Multan and others" (PLD 1966 (W.P) Lahore 684) and "Hart Mean v. 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 Illegal 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 acquittal into one of conviction and it is clear from Illegal Dispossession (Amendment)
Act, (XXVIII of 2017) dated 4th July, 2017 that right of appeal under section 8-A has been provided against conviction under subsections (2) and (3) of section 3; and right of appeal against an order passed under section 8(i) of the Act, therefore, it cannot be inferred that the word "any" includes an order of acquittal. This view is supported with the judgment reported as "Anant Kumar Parshotam v. Members of The Managing Committee, Swami Narayan Temple Trust and others" (2021 PCr.LJ Note 38 Sindh). Therefore, when the complaint is dismissed under section 203, Cr.P.C, or against other interlocutory orders passed during the proceedings, the revisional jurisdiction can be invoked yet challenging acquittal in revisional jurisdiction has no room in the eyes of law. As such, the appellant could at the most assail such acquittal through constitutional petition which is always available to the aggrieved if there is no other efficacious remedy. In this respect guidance is sought from "All Swat Paper's case (2019 P.Cr.L.J 225) and "Mian Sharif Shah v. Nawab Khan and 5 others" (PLD 2011 Peshawar 86).
13. For what has been discussed above, the instant criminal appeal against acquittal in the trial under the Illegal Dispossession Act, 2005 is held to be not maintainable.
[1]A COMPARATIVE ANALYSIS OF THE RIGHT TO APPEAL; PETER D. MARSHALL, Assistant Crown Counsel, Crown Law Office, New Zealand; published in DUKE JOURNAL OF COMPARATIVE AND INTERNATIONAL LAW [Vol. 22:1]
2. The Origins of the English Court of Criminal Appeal By Ken Whiteway; Law Librarian, University of Saskatchewan; Published in (2008) 33 Canadian Law Library Review 309-312.