Dr. Khurshid bibal, J.-
1. Whether the Consumer Court's order under section 15 of the Khyber Pakhtunkhwa Consumers Protection Act, 1997 ("the Act") is appealable under section 17(2) of the Act, read with sections 404 and 423 of the Criminal Procedure Code, 1898 ("the Code"), is a question pivotal to the maintainability of Criminal Appeals No.1453-P/2019, 165P/2021, 1081-P/2021, and RFA No.18-P/2022, filed before this Court, pursuant to such orders. Since these matters involve a single question of law as aforesaid, therefore, we propose to address it through this single opinion.
2. Arguments heard. Record perused.
3. The Act was enacted to promote and protect the rights of consumers against unfair trade practices and substandard goods and services by providing a legal framework for the redressal of consumers' grievances in an expeditious manner.
Its preamble accentuates the significance of safeguarding consumer interests to ensure their access to justice and fair treatment in the marketplace. For this purpose, Consumer Courts were established under section 11A of the Act. The jurisdiction of these Courts, and the manner in which complaints are to be filed by consumers, are provided in sections 12 and 13, while the manner in which proceedings are to be conducted on the complaints, is detailed in section 14 of the Act. As per section 15 of the Act, if the Consumer Court, after conducting the proceedings under section 14, finds the goods defective or the allegations regarding services as proved, it may direct the opposite party to:
(a) to remove defect from the goods in question;
(b) to replace the goods with new goods of similar description which shall be free from any defect;
(c) to return to the complainant the price or, as the case may be, the charges paid by the complainant;
(d) to do such other things as may be directed for adequate and proper compliance with the requirements of section 4, section 5 or section 6;
(e) to pay such amount as may be awarded by it as compensation to the consumer for any loss or negligence of the opposite party.
4. In addition, as per section 16 of the Act, where any right of a consumer, required to be protected under the Act, is in any way infringed, or is likely to be infringed, the person responsible for such infringement shall be punished with rigorous imprisonment for not less than seven days or with a fine that may extend to fifty hundred thousand rupees, but not less than ten thousand rupees, or with both, and shall also be liable to provide such compensation or relief to the consumer as may be determined by the Court. Similarly, where the Court deems it appropriate, it may order the removal of the defects in the product involved or its replacement.
5. Nevertheless, a person aggrieved by an order of the Consumer Court has not been left without a remedy. Rather, a remedy of appeal is expressly provided under section 17(2) of the Act. This provision is reproduced hereunder for ready reference:
17. Appeal.--- (1) [...]
(2) Any person aggrieved by an order made by the Court may prefer an appeal against such order to the High Court within period of thirty days from the date of the order, and the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), in respect of appeal to the High Court shall, mutatis mutandis, apply.
(Underline is ours for emphasis.)
6. A bare reading of this provision reveals that a person aggrieved by an order made by the Consumer Court has the statutory right to file an appeal against it before this Court, within a period of thirty days from the date of the order. However, the type of orders that would be amenable to appeal remained a subject of debate during the arguments.
7. The learned A.A.G. raised objection regarding the maintainability of these appeals, arguing that the order being appealed against must be one under section 16, and not under section 15 of the Act. According to him, since the latter part of the above quoted provision clearly states that the provisions of the Code in respect of appeals to this Court shall, mutatis mutandis, apply, therefore, it is necessary to examine the nature of the order vis--vis the powers and functions of the Consumer Court. It was argued that the jurisdiction conferred upon the Consumer Court by section 15 is civil in nature, whereas, the jurisdiction under section 16 is criminal in nature. It was added that the relevant provision of the Code to be applied is section 404, which allows an appeal only from an order of a criminal court. Since the orders under section 15 of the Act are civil in nature, he argued, these orders are not amenable to appeal under section 17(2) of the Act. Concluding his arguments, the learned A.A.G. submitted that as the orders under section 16 of the Act are of a nature similar to those passed by a Criminal Court, and in accordance with section 404 of the Code, an appeal can only lie from an order passed by a Criminal Court. In support of his arguments, he referred to and relied upon a judgment rendered by a learned Single Judge of this Court in All Swat Paper Chips and Pops Owners Association, District Swat through President v. Bakht Afsar Ex-DEO, District Shangla Amir Jumat Islami PK-87 Shangla and 05 others (2019 PCr.LJ 225 Peshawar).
8. Contrarily, the learned counsel for the appellants argued that since section 17(2) of the Act does not distinguish between orders made under sections 15 or 16 of the Act, therefore, an appeal would be maintainable regardless of whether the order was passed under section 15 or section 16. It was contended that the second portion--underlined in the text in paragraph 5, above--of section 17(2), which pertains to the applicability of the provisions of the Code with respect to appeals to this Court, shows that only the procedural framework of the Code at the appellate stage would apply to appeals under this Act. This, he argued, is because the Act itself is silent regarding the procedure governing appeals before this Court under the Act.
9. In our view, the language of section 17(2) is well conceivable, therefore, leaves nothing in doubt with regard to the maintainability of appeals against orders passed by the Consumer Court. This provision does not distinguish between orders made under section 15, which pertains to remedies of civil nature such as rectification, replacement, or compensation, and those made under section 16, which involves criminal culpabilities. If intended otherwise, the Legislature, being conscious of the distinct nature of the orders under sections 15 and 16 of the Act, would have expressly, or by necessary implication, distinguished such orders for the purpose of appeals.
10. Moreover, as the Act does not itself provide the procedure governing the appeals, therefore, the inclusion of the words "and the provisions of the Code of Criminal Procedure, 1898, in respect of appeal to the High Court shall, mutatis mutandis, apply" in sub-section (2) of section 17 is indicative of the fact that the appellate framework of the Code would apply to appeals under the Act, so as to maintain consistency with the procedure prescribed by the Code for deciding the appeals. It is imperative to state that as per the Black's Law Dictionary (Revised 7th Edition 1999, p1039), the term "mutatis mutandis", as aforesaid, means, "with the necessary changes in points of detail, meaning that matters or things are generally the same, but to alter when necessary, as to names, offices, and the like, Houseman v. Waterhouse." It is, thus, also obvious that these provisions are to be applied with necessary adjustments to fit in the context of consumer protection cases.
11. We are cognizant of the fact that orders under section 15 are civil in nature, focusing on remedies for defective goods or deficient services. We are also conscious of the fact that under section 404 of the Code, an appeal would lie only from a judgment or order passed by a Criminal Court.
However, the Act, being a special law, expressly provides the right to appeal to this Court, and as noted above, the nature of the Act--which encompasses both civil remedies and criminal penalties, specifically in sections 15 and 16--necessitates a consistent and uniform mechanism for deciding the appeals at the appellate stage. The reference to the Code in the second clause of section 17(2) ensures procedural safeguards for both types of orders, enabling this Court to exercise comprehensive appellate jurisdiction, including powers to modify, reverse, or affirm the orders of #e the Consumer Court in the broader perspective of section 423 7 of the Code.
12. In conclusion, the right to appeal under section 17(2) extends to all orders of the Consumer Court, including those under section 15. Since the Act does not provide any procedure governing the appeals at the appellate stage, the reference to the Code is purely procedural, aimed at ensuring an effective and consistent framework at the appellate stage. The bar created by section 404 of the Code does not apply to appeals under section 17(2), as the latter, being a special law, expressly provides the right to appeal to this Court. The inclusion of the phrase "mutatis mutandis" pertains solely to procedural aspects and does not subject the appeal to the bar under section
404. Furthermore, section 3 of the Act underpins this view by providing that its provisions are in addition to, and not in derogation of, any other law for the time being in force. This implies that the right of appeal under the Act operates independently of the bar imposed by section 404, thereby supplementing the existing legal framework rather than being subordinate to it. Therefore, the explicit statutory right in section 17(2) carves out an exception to the general bar imposed by section 404 of the Code. The question formulated is answered accordingly.
13. Yes, in similar circumstances, this Court in All Swat Paper's case (supra) held otherwise and consequently, converted those appeals into writ petitions. However, this being a Bench of greater numeric strength, and for the foregoing reasons, it is of the unanimous opinion that the said judgment, most respectfully, needs to be revisited. It is accordingly revisited and overruled to the extent as aforesaid.
14. As the issue of maintainability stood addressed and the arguments on the merits are to follow, therefore, the office is directed to list these matters for hearing at an appropriate date.