' This appeal was filed on 18-8-1997 against a judgment of the Additional Sessions Judge, Shandadpur acquitting respondent No,1 in S.C. No,57 of 1996 registered on the basis of a complaint presented by the appellant. On 15-9-1997 notice to respondent No,1 was directed to be issued by my learned brother Zakir Hussain K. Mirza, J. Pursuant to such notice Mr. Qurban Ali Chohan, Advocate entered appearance on behalf of the aforesaid respondent and raised a preliminary objection as to the maintainability of this appeal. According to the learned counsel since the order of acquittal was passed in a case instituted upon a complaint an appeal could only be preferred upon grant of special leave by this Court in terms of subsection (2) of section 417, Cr.P.C. And no application for special leave having been preferred within sixty days of the order of acquittal. This appeal could not be entertained under subsection (3) of section 417, Cr.P.C.
2. On the other hand Mr. Imam Bux Baloch learned counsel for the appellant contended that under subsection (2-A) of section 417, Cr.P.C., which was inserted through Act XX of 1994, any person aggrieved by an order of acquittal could prefer an appeal to this Court against such acquittal within thirty days of the order without applying for special leave. Mr. Baloch contended that the appellant was an aggrieved person and since the appeal had been presented within thirty days of the impugned order of acquittal appeal is maintainable. Mr. Chohan replied that subsection (2-A) did not apply to orders passed in cases instituted upon complaints. Since this controversy was of substantial importance and could arise in a number of cases I decided to treat this case as a preliminary objection and requested the learned Assistant Advocate-General to prepare himself on this aspect and also requested S. Madad Ali Shah, Senior Advocate to assist the Court. I have heard all the learned counsel at length in support of their points of view.
3. Before discussing the submission of the learned counsel it may be pertinent to mention that under original section 417 of the Code of Criminal Procedure an appeal against the judgment of acquittal could only be presented by a Public Prosecutor under the direction of the Provincial Government. Through the Law Reform Act of 1972 a complaint, in a case instituted upon a private complaint was also given a right to prefer an appeal after grant of special leave to do so by the High Court. Section 417, Cr.P.C. Was accordingly substituted to read as under:-- "417. Appeal in case of acquittal.--- (1) Subject to the provisions of subsection (4), the Provincial Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court.
(2) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
(3) No application under subsection (2) for the grani of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order.
(4) If, in any case, the application under subsection (2) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under subsection (1)."
4. Through an amendment in the Code brought about by Act XX of 1994 which became effective from 14-11-1994 the right to prefer an appeal was extended to any "person aggrieved by the order of acquittal" in the following terms:-- "Section 417(2A).--- 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."
5. Mr. Qurban Ali Chohan learned counsel for the respondent No,1 argued that the right to prefer an appeal against the judgment of acquittal was different from the right to do so against a judgment of conviction and while the later has been liberally granted in our legal system the former has always been severely restricted. He referred to a number of reported decision enunciated this principle and the constraint that the Courts have imposed upon themselves while interfering with judgment of acquittal. However, it is not necessary to refer to them. The general proposition to the above extent is well-recognized. He further pointed out that under the original section 417(2), Cr.P.C.
Reproduced above while the State (through Public Prosecutor) had an unfettered right to appeal against the judgment of acquittal such right was made available to a private party only to a restricted extent i,e, the only a complainant in a case instituted upon a complaint could prefer such an appeal and that too by the special leave of the High Court.
6. Mr. Chohan indeed contended that after the insertion of subsection (2-A) in section 417, Cr.P.C. a right to prefer an appeal against an order of acquittal also became available to a private person aggrieved by such orders. He nevertheless maintained that such right could only be deemed to be available in cases founded upon police challan and not private complaints. To hold otherwise, according to the learned counsel would render subsection (2), Cr.P.C. Prescribing the different condition as to obtaining special leave wholly redundant. Mr. Amanullah Qureshi learned Assistant Advocate-General also supported this contention.
7. Syed Madad Ali Shah, amicus curiae also supported Mr. Chohan's contention. In the first instance he referred to certain reported judgment emphasising the restriction on the powers of the High Court interfering with order of acquittal. He then attempted to explain the rational for introduction of subsection (2-A) in section 417, Cr.P.C. According to the learned counsel for the purpose of preferring appeal against the orders of acquittal the law always treated cases found appeals challans and private complaint differently. In the latter cases an appeal could be preferred by complainant under subsection (2) of section 417 while in the former it could only be preferred by the Public Prosecutor on the directions of the Provincial Government. Different period of limitations were also prescribed as a complaint could file an appeal within 60 days from the order of acquittal under section 417(2) whereas a period of 6 months was available to the Public Prosecutor under section 417(1) read with Article 177 of the Schedule to Limitation Act. Moreover, a complainant was also required to obtain special leave of the High Court before preferring an appeal. This restriction according to the learned counsel was imposed to protect acquitted person as there were greater chances of false involvement in cases founded upon private complaints.
8. After highlighting these distinctions Syed Madad Ali Shah proceeded to explain the reson d'etre for enactment of subsection (2-A). According to learned counsel whereas in a case basis on a private complaint the complainant could also approach the High Court against the judgment of acquittal (subject of course, to prescribe limitations), in challan cases an aggrieved person or even the victim of offence himself was seriously handicapped in seeking recourse against erroneous judgment of acquittal. He had no option but to approach the agencies of a Government for directing a Public Prosecutor to file an appeal. A somewhat detailed and c cumbersomed process was involved in taking a decision as to whether such an appeal should be actually presented and that is why unusually longer period of limitation (6 months) was provided. At times, owing to bureaucratic red-tapism and slackness appeals in genuine cases were not presented in time.
Victims and aggrieved parties had no remedy against inaction of Government officials or Public Prosecutors. Courts were at time constrain to exercise their revisional jurisdiction liberally to provide relief to victims and affected parties.
9. According to the learned counsel it was against these back-drop that section 417(2-A) was enacted vide Act XX of 1994 w,e,f, 19-11-1994. Under the new dispensation the right to file an appeal has been conferred on any aggrieved person. Mr. Madad Ali Shah frankly conceded that the expression "aggrieved" is a word of very wide import. He referred to a Division Bench judgment of the High Court of Balochistan in the case of State through Deputy Director, F.I.A. v. Zahid Nadeem 1996 M LD 506. He agreed that normally a complainant in a complaint case could be considered aggrieved by an order of acquittal. Nevertheless he maintained that in the present context the remedy conferred by the Legislature by its very nature could only be relatable to challan cases following under section 417(1) and not complaint cases under section 417 (2). He argued that the amendment was brought about to eviate the difficulty and problems suffered by those whose cases were covered by section 417(1) only as not such difficulty was explained by complainants in complaint cases.
10. Mr. Madad Ali Shah further argued that in case of Legislature intended to extend the right of appeal against the acquittal even in a complaint case it would have done so by specific intendment. The Legislature in its wisdom has left section 417(2) untouched. If right of appeal under section 417(2-A) is construed to be extended to any aggrieved person even in a complaint case, it might lead to an anomaly that whereas a complainant is required to seek special leave of the High Court, a person who did not pursue the matter at the level of the trial Court might do so without obtaining leave.
11. Mr. Imam Bux Baloch learned counsel for appellant on the other hand argued that with the insertion of subsection (2-A) the right to appeal against the judgment of acquittal has been drastically altered. According to the learned counsel under the new dispensation this right has been extended not merely to a person who was the complainant before the trial Court but to any other person aggrieved by an order of acquittal. The expression "aggrieved" has a very wide connotation. He relied upon a Division Bench judgment of the High Court of Balochistan in the case of State through Deputy Director, F.I.A., Quetta v. Zahid Nadim 1996 M LD 506 which was initially referred to by S. Madad Ali Shah. In this case an appeal against a judgment of acquittal recorded by the Sessions Court, in an offence investigated by the Federal Investigating Agency was preferred by the Deputy Director of the Agency. An objection was raised inter alia on the ground that an appeal could only be preferred by the Provincial Government through Public Prosecutor.
Repelling the objection their Lordships held that after the insertion of section 417(2-A), Cr.P.C. Any person aggrieved by the order of acquittal could prefer an appeal and the expression aggrieved was wide enough even to include an agency which had investigated the offence. Amirul Mulk Mengal, J. (as his lordship then was) speaking for the Division Bench observed:-- "it appears to us that when the Shariat was declared as the governing law the Government thought it proper to extend right of appeal to a person aggrieved against the order of acquittal. The word 'person aggrieved' has been intentionally used so as to include Agency of the Government. "
12. having carefully considered the arguments at the bar and respectfully agree with the exposition of law by the High Court of Balochistan. I am inclined to take the view that the contention of the learned counsel for the appellant must prevail. With respect to the able analysis of Mr. Madad Ali Shah and Mr. Qurban Ali Chohan I am unable to accept the contention that for the purpose of appeals against acquittal orders in challan cases and those in complaint cases must be treated as altogether different species. The arguments of the learned counsel overlooks the facts that prior to 1972 only the Governmeni had a right to present an appeal to the High Court through the Public Prosecutor against an order of the acquittal. This obviously implied that both in a challan case as well as the complaint case the Government could prefer such appeal. Through amendment in 1972 a right to prefer an appeal in a complaint case, upon grant of special leave, was also conferred upon the complainant. This however, did not affect the right of the Government to do so even in a complaint case. Indeed subsection (4) of section 417, Cr.P.C. Clarifies the position. It provides that only when leave to appeal has been refused to private complainant, a Government would also be precluded from preferring an appeal. When no such refusal has been taken place the Government can also prefer any appeal even in a complaint case. It is, therefore, evident that appeals against acquittal both in challan and complaint cases were treated on the same level and in 1972 an additional, though limited right to prefer an appeal was conferred upon private party by subsection (2) notwithstanding the right of the Government to do so. Therefore, in my humble opinion, Mr. Madad Ali Shah is not quite right in contending that section 417(1) is only confined to challan cases or that section 417(2) excludes the application of section 417(1).
13. Mr. Imam Bux Baloch smears to be quite right in contending that section 417(2-A) only extends the right to prefer appeal against a judgment of acquittal without in any manner imposing the rights already available under other subsection of section 417 and there is no justification for reading unnecessary restriction in the newly introduced provision. Indeed, the judgment of Balochistan High Court leads suppori to his view. Admittedly, the right of Provincial Government to prefer an appeal through a Public Prosecutor under section 417(1) remains intact. In addition thereto, however, even a concerned officer or agency of the Government may, however, also file such an appeal without following the requirements of section 417(1) i,e, moving the Provincial Government or presenting the appeal through the Public Prosecutor only, provided that such appeal is filed within 30 days of the judgment as required by section 417(2-A). On the same principle, there is no reason why such a right, in addition to section 417(2), should not be acknowledged to vest in a private person if he satisfies the condition envisaged in subsection (2-A) i,e, shows that he is aggrieved by the impugned judgment and files such appeal within the prescribed period of limitation.
14. It may be observed that their lordships did not find any anomaly in a position that whereas the Government could only prefer an appeal through a Public Prosecutor under subsection (1) of section 417, an officer or agency of the Government could approach the Court directly or through any counsel under subsection (2-A). They construed the provision of subsection (2-A) as conferring an independent right to appeal in addition to the right available under other provisions.
When the restriction imposed upon Government agencies under subsection (1) do not apply to appeals preferred under this subsection, there is no reason to infer that those imposed by subsection (2) would apply when appellants are private parties. Indeed a question of anomaly would only arise if subsection (2-A) is construed to apply only to certain restricted situations. In my humble view therefore, the interpretation of subsection (2-A) in the aforesaid judgment militates against the contention of Syed Madad Ali Shah to the effect that this provision was enacted only to provide redress in certain particular situation and ought to be construed accordingly.
15. On the other their lordships have held that the subsection (2-A) was enacted by way of incorporating the principles of Sharia in our criminal law system. I am inclined to share the same view. In this context, it may be explained that in the Anglo-Saxon system of law, upon which our penal system was founded, a criminal offences were only treated as public wrongs and administration of criminal law was almost exclusively the function or responsibility of the State. A person affected by, or even a victim of offence could claim damages or compensation or civil wrong but prosecution for a penal offence was left under the charge of functionaries of the State.
Prosecution through private complaints was only an exception to the rule and even in such cases when offences were found to be serious the function of prosecution was to be taken over by the State. Prior to 1972 all prosecution before Sessions Court could be conducted by Public Prosecutors alone under section 270, Cr.P.C. And afflicted parties could only assist the prosecution.
16. Under the Islamic Penal System however, the distinction between public and private wrong is not so pronounced. The provision relating to Qisas and Diyat in our Penal Code clearly illustrate this principle that a private individual afflicted by offences is entitled to demand punishment and also to compound the offence. Viewed in this context it is apparent that subsection (2-A) in section 417 was designed to give effect to Shariat Principles conferring a right to prefer an appeal against an order of acquittal upon any person aggrieved by such order in addition to and without affecting the rights available under other provisions. It must, necessarily, follow that if the appellant fulfils the conditions laid down in this subsection his appeal would be maintainable, irrespective of the question whether he could also prefer an appeal under any other provision of section 417.
17. Before concluding I may however, observe even if I was to hold that section 417(2-A) is not applicable to this appeal, the preliminary objections could not be sustained. Mr. Madad Ali Shah candidly brought to my notice a judgment of the Division Bench of this Court in the case of Bashir Ahmad v. State 1990 PCr.LJ 780 where procedure relating to entertainment of leave to appeal petitions and appeals under Article 185 of the Constitution was, by analogy, held to apply to appeals through special leave against judgments of acquittal under section 417. In the case of Elahi Bux v. Bilquis Begum 1992 SCM R 2443 after holding that a direct appeal under Article 185(2) of the Constitution was not maintainable their lordships of the honourable Supreme Court, at the oral request of counsel treated the memo of appeal as a petition for leave to appeal under Article 185(3) and after granting leave proceeded to decide it on merit. Indeed procedural technicalities could not be allowed to defeat right conferred by law.
18. In view of the above, the preliminary objections must be overruled. I am indeed grateful to the learned counsel for the parties and to Syed Madad Ali Shah, Advocate who appeared as amicus curiae for their invaluable assistance. The appeal may be fixed for hearing in due course.