' The facts leading to the present acquittal appeal filed by Ms. Rachel oseph are that the respondents Aftabuddin Qureshi and Umer Elahi were convicted and sentenced by the learned Judicial Magistrate, Court No,VI, Karachi. They preferred appeal against their conviction and they were acquitted by judgment, dated 9-5-1998 passed by the learned 1st Additional Sessions Judge, Karachi South.
2. Being aggrieved with the acquittal of respondents referred hereinabove, the complainant filed the present acquittal appeal.
3. The brief facts of the prosecution case as disclosed in the F.I.R., lodged by appellant/complainant Ms. Rachel Joseph on 6-1-1992 are that, she (complainant) being trustee of Bani Israel Trust, entered into a contract with respondent/accused Aftabuddin Qureshi through an agreement, dated 13-7-1988 for the construction of Bani Israel Trust Building. It was settled that a synagogue, flats and shops would be constructed and handed over to the appellant. After construction the respondent Aftabuddin handed over the possession of first floor to her (complainant) on 16-10- 1990. She locked the synagogue. After about six months the respondent Aftabuddin alongwith his brother-in-law respondent Umer Elahi occupied the northern portion of the first floor adjacent to stairs and fraudulently issued rent receipt(s) in the name of respondent Umer Elahi without any authority. The appellant contacted respondent Aftabuddin and asked him to refrain from doing so but he paid no heed to it. The appellant waited for the respondents Nos.1 and 2 to vacate the premises but they failed to do. The appellant, therefore, lodged first information report with the police.
4. At the very outset, when this matter came up for hearing, Mr. Abdul Latif Channa, the learned counsel for the respondents Nos.1 and 2 challenged the maintainability of this appeal. He contended that the incident occurred on 6-1-1992 and respondents/accused were sent up to stand trial on 10-5-1992. He further contended that on that date aggrieved party i,e, complainant had no right to file appeal under section 417, Cr.P.C. He urged that in the first instance this preliminary objection may be decided. It is in these circumstances that the parties were called upon to make submissions on this preliminary point.
5. I have heard Mr. Muhammad Ilyas Khan, learned counsel for the appellant and Mr. Abdul Latif Channa, learned counsel for the respondents Nos.1 and 2. I have also perused the material placed on record.
6. The perusal of record shows that the incident in this case occurred on 6-1-1992 and the respondents/accused were sent up to stand trial on 10-5-1992. The respondents were convicted and sentenced by the learned Judicial Magistrate Vlth, Karachi South, on 30-6-1997.
7. The respondent/accused preferred appeal against their conviction and sentence before the Sessions Court. They were acquitted by the impugned judgment, dated 9-5-1998 passed by the learned First Additional Sessions Judge, Karachi (South).
8. It will be pertinent to give the brief history of section 417, Cr.P.C. There is no cavil with the proposition that initially in the Code of Criminal Procedure, 1898 there was no provision for filing of appeal under 'section 417, Cr.P.C. By a private aggrieved party. It was laid down that only Provincial Government was competent to file such appeal under section 417, Cr.P.C. And Public Prosecutor was empowered to present such appeal before the High Court from an original or appellate order passed by any Court subordinate to High Court. The definition of Public Prosecutor is given in section 4(t), Cr.P.C.
9. By virtue of Law Reforms Ordinance, 1972 (Ordinance XII of 1972), the section 417, Cr.P.C. Was amended as follows:-- "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 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 grant 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)."
10. By virtue of aforesaid amendment a private complainant was entitled to make an application for the grant of special leave to appeal from the order of acquittal passed in any case instituted upon complaint. The word "complaint" has been defined under section 4(h), Cr.P.C.
11. Again in the year 1994 second amendment was brought by the Legislature in the Code of Criminal Procedure by way of (Second Amendment) Act, 1994 (Act XX of 1994), whereby section 2-A was inserted in section 417, Cr.P.C. It will be pertinent to reproduce herein under the said amendment.
"Subsection (2-A) of section 417, Cr.P.C. 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."
12. By virtue of this amendment acquittal appeal could be filed in any case by an aggrieved person.
The complainant, thus, could file an appeal against judgment of acquittal passed even in a case which was sent up by an Investigation Agency under section 173, Cr.P.C. Likewise, any other aggrieved person could also file such an appeal against an order of acquittal passed by any Court other than High Court.
13. Now I will advert to the point urged by the learned counsel for the private respondents/accused with regard to the maintainability of this appeal.
14. When subsection (2-A) was inserted in section 417, Cr.P.C. Admittedly the case between the parties was sub judice before the trial Court.
15. In the case of Joseph Suche & Co. Ltd. (1875) 1 CH. D 41 it was observed that the view of Crawford was that if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would be favourably inclined towards giving effect to such procedural statutes retrospectively. The principle is clear that a statute unless it expressly provides is not to be construed in a manner so as to affect proceeding which were pending at the time of its enactment. Thus, by inserting section 2-A in section 417, Cr.P.C. Only the procedure was changed without altering the substantive law. The law of procedure defines the mode of litigation and it is also to be seen whether promulgation of an enactment caused any injustice. In my view the appellant was competent to file appeal against the order of acquittal in this case.
16. The point regarding retrospectivity came under consideration in the case of Adnan Afzal v.
Captain Sher Afzal PLD 1969 SC 187, wherein it was held by their Lordships of Supreme Court that matters relating to remedy, mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. In the said report it was further observed that Crawford too takes the view that question relating to jurisdiction over a cause of action, venue, parties, pleadings and rules of evidence also pertain to procedure.
17. By inserting subsection (2-A) in section 417, Cr.P.C. Only remedy by way of appeal was provided to an aggrieved person against an order of acquittal passed by any Court other than High Court.
This amendment is procedural in nature and it will have retrospective effect.
18. The point in issue came up before a Division Bench of Quetta High Court in an acquittal appeal in the case of Zahid Ali v. Sheikh Abdul Hameed and another 1996 PCr.LJ 586. It was observed at pages 590 to 592 of the said report as follows:-- "Before proceeding further, it would be expedient to determine the question regarding maintainability of acquittal appeal filed by the complainant, who is the real brother of deceased.
According to appellant section 2(a) was added/inserted in section 417, Cr.P.C. Vide Notification, dated 14-11-1994. This appeal has been filed in March, 1995. Subsection 2(a) of section 417, Cr.P.C.
Reads as under-- 'Subsection 2(a) of section 417, Cr.P.C.--- 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'.
' Thus, after amendment in section 417, Cr.P.C. The Legislature conferred a right of appeal on a person aggrieved by the order of acquittal passed by any Court other than a High Court. The argument advanced was that when the case was pending trial no such right was available to the complainant or a person aggrieved by the order of acquittal. Since the appeal is continuation of proceedings, therefore, any change even in filing an appeal is to be governed by the old procedure because the amendment has no retrospective effect. Reliance has been placed on PLD 1965 SC
681. From perusal of the said judgment it appears that the Supreme Court held that a Statute cannot be said to have retrospective operation because it applies a new mode of procedure to suits commenced before its passing. In other words if a Statule deals merely with the procedure in action and does not affect the rights of the parties it will be held to apply, prima facie, to all actions, pending as well as future. It is only if it be more than a mere matter of procedure, i,e,, if it touches a right in existence at the passing of the new Act that the aggrieved party would be entitled to succeed in giving a successful challenge to the retrospective effect of a new Act. Similarly our attention was drawn to PLD 1969 SC 599 wherein an observation was made that Statutes are presumed to be applicable to cases and facts coming into existence after their enactment unless there be clear intention to give them retrospective effect. Similarly, learned counsel placed other authorities to the same effect and contended that present appeal has been filed by brother of the deceased and not by the State, therefore, the same is not maintainable because prior to the amendment only Provincial Government could file such an appeal.
' We respectfully follow the dictum of the Supreme Court. But the only question is whether the ratio decidendi applies to the facts of the present case. Here the right of appeal against an order of acquittal has been conferred to any aggrieved person and this amendment has been made in law vide Notification, dated 14-11-1994; whereas present appeal has been filed on 15-3-1995 against the judgment passed on 14-2-1995.
' Amendment has been made in order to commensurate the law with the Shariah which gives such a right to an aggrieved party. Secondly, when this amendment was brought in law the case of the accused was at the trial stage and no procedure of trial has been changed nor any right of present accused has been infringed. Even if this amendment is held to have affect prospectively, the present appeal is covered by it. None of the rights of the accused has been taken away by this amendment, but the Legislature thought it expedient to confer a right on a person aggrieved by acquittal in order to broaden the scope because sometimes due to inadvertence or red-tapism the Provincial Government did not prefer appeal against acquittal. The intention of the Legislature is very much clear that this law has to take effect as regards cases which were pending trial so as to confer a right to any aggrieved person (the brother of deceased in present case) to prefer an appeal against acquittal in order to bring this section in conformity with Islamic Injunctions.
' After conscious consideration, we are of the view that accused plea has no force for the following reasons--
(i) The intention of the Legislature is manifest and clear that from the date of promulgation of this amendment a right of appeal has been given to a person aggrieved by any order of acquittal;
(ii) this has been done in order to bring law in conformity with Islamic Injunctions;
(iii) even otherwise it has been observed by the Supreme Court quoting Maxwel PLD 1965 SC 681 that where the Legislature has made its intention clear that the amending Act should have a retrospective operation, there is no doubt that it must be so construed even though the consequences may entail hardship to a party. But even without express words to that effect, retrospective effect may be given to an amending law if the new law manifests such a necessary intendment. With regard to procedural laws, says Maxwell at p.217 of his book the general principle seems to be that alterations in procedure are retrospective unless there be some good reason against such a view;
(iv) no right of accused has been impaired or infringed by this amendment. A right of appeal against acquittal was already there under section 417, Cr.P.C. And it has only been extended to a person aggrieved in addition to the Provincial Government which, in our opinion, has not impaired the right of any of the parties;
(v) the accused cannot challenge the right given to an aggrieved person, of appeal, against acquittal when the matter was not mature for filing of appeal when the amendment was brought.
In fact, we do not find any force in the arguments because when this amendment was brought question of filing of appeal had not arisen as the matter was at the trial stage.
' For all such reasons we hold that the argument of the accused is devoid of any force and present appeal has rightly been filed under subsection (2-A) of section 417, Cr.P.C., which is maintainable to be decided on its own merits."
19. The upshot of the above discussion is that before the conclusion of case before trial Court, section 2-A was inserted in section 417, Cr.P.C. Thus, the above appeal is maintainable in law. The preliminary objection raised by the learned counsel for the respondents/accused as regards the maintainability of present appeal is without substance and it is hereby overruled. The office may now fix the above appeal for hearing on merits.