RIAZ KAYANI, J.---Haji Riaz-ud-Din, Chairman, Union Council, Dilawar Cheema, Tehsil Wazirabad, District Gujranwala filed an appeal under section 417(2) of the Code of Criminal Procedure for seeking special leave to appeal against the order of Resident Magistrate, Wazirabad dated 17-8- 1991 acquitting respondent No. l Muhammad Iqbal.
2. The matter was placed before the learned Single Judge of this Court who after perusal of the record passed a detailed order, dated 14-3-1992, concluding prima facie that the acquittal order impugned had caused miscarriage of justice as overwhelming evidence on the record was brushed aside taking extraneous consideration into account in passing the order of acquittal.
Consequently, petition for special leave to appeal which was earlier numbered as 6 of 1992, after grant of leave was converted into appeal and number 252 of 1992 was assigned by the office.
3. When the appeal was set down for final hearing after completion of service learned counsel appearing for the respondents raised a preliminary objection that once leave to appeal is granted under section 417, subsection (2) of the Code of Criminal Procedure, on the application of the complainant/appellant, law envisages filing of appeal which has not been done so in the instant case, although, three years have passed, therefore, an illegality incurable in nature has been perpetrated and any attempt to file a fresh appeal would be barred by time as law permits 30 days within which period appeal against acquittal in a complaint case has to be filed by the complainant. After hearing the counsel for the appellant, on an adjourned date, learned Judge vide a detailed order, directed the office to place the matter before the Honourable Chief Justice for constituting a Division Bench for hearing, to arrive at an authoritative pronouncement.
4. We have in detail heard the respective counsels and have also perused the record and the precedent cases cited by them.
5. In order to decide the moot point it is essential to re-produce the law relating to appeals against acquittal in a complaint case. Subsection (2) of section 417 of the Code of Criminal Procedure takes into account appeals against acquittal in a complaint case, same is reproduced as under:--
(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.
(2-A) .................................................
(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 60 days from the date of that order.
6. Learned counsel for the respondents urged that subsection (2) of section 417, Cr.P.C. Envisages in the first, instance an application to be made by, the complainant for seeking special leave to appeal from this Court and after application of mind, from the perusal of the record and hearing of the arguments if this Court is satisfied that the order of the Court from which the appeal has been filed has given tentative and cosmetic reasons for the acquittal of the accused and the order needs to be reversed or at least a full-fledged hearing is necessary for re-appraisal of the evidence, then leave is granted and once that object is achieved, the complainant has to present memorandum of appeal taking all the grounds which he has to agitate, to succeed. It was argued with vehemence that after the grant of leave to appeal vide order, dated 14-3-1992, no memorandum of appeal has been filed and by bare reading of subsection (3) limitation, provided is 60 days from the date of the order of the acquittal. Period having expired any attempt now to file the memorandum of appeal would be barred by time. In support of his arguments learned counsel for the respondents relied on the case of Sardar Muhammad Akbar v. Qasim and 2 others reported in PLD 1988 Peshawar 130.
7. Learned counsel for the appellant in reply submitted that there is no such mandate spelt out from the provisions of section 417, Cr.P.C. Which enjoins the appellant to file a memorandum of appeal after leave has been granted to him by this Court on his application, as both, the application and the so-called memorandum of appeal would contain same averments it would amount to duplication, an exercise which the law givers loathe. In support of his argument he has relied upon a Division Bench judgment in the case of Bashir Ahmad v. The State reported in 1990 Pakistan Criminal Law Journal, 780.
8. We have lent our ears to the arguments of the respective counsels and have made detailed exegesis of the case law after perusal of the record.
9. Undoubtedly, the complainant aggrieved by such an order of acquittal is in the first instance required to make an application to the High Court seeking leave to appeal and once leave is granted, he may present such an appeal to the High Court.
10. Use of word "may" is very conspicuous and has been intentionally used by the Legislature keeping in mind that the earlier application made by the complainant seeking leave to appeal would be containing averments attacking the judgement of acquittal and it is only when the complainant satisfies the High Court that the reasons of acquittal are not in accordance with the standards set up by the Superior Courts for judicial scrutiny he can succeed in getting the leave to appeal. Enjoining the complainant to once again present memorandum of appeal to the High Court would be requiring him to repeat the contents of the application already made. This exercise definitely involves duplication and it is for this reason that the word "may" has been used which does not make it mandatory upon the complainant to file a fresh memo. Of appeal. If the intention of the Legislature was -to make it incumbent upon the complainant, after leave was allowed to move memorandum of appeal the word used would have been shall. This not being. The position word "may" does not create any obligation and is merely 'directory in nature. Usually, once leave to appeal is allowed office on the same file erases the number of leave to appeal previously allotted and writes the word "Criminal Appeal" by allotting it a new number.
11. Argument of the learned counsel for the respondents viewed from another angle becomes more fallacious M the provisions of subsection (2) of section 417, Cr.P.C. Are procedural in nature and matters relating to procedure never spell out rigours appended to a command of law in absence of penal consequences. The application for leave to appeal after the grant of leave by itself assumes the form of an appeal.
12. With profound respects we do not subscribe to the view taken by the Peshawar High Court in the case of Sardar Muhammad Akbar v. Qasim and two others (PLD 1988 Peshawar 130). The dictum which proceeds on assumption that filing of the memo. Of appeal is obligatory once leave is granted as it takes into account option of the complainant to file or not to file the appeal. The complainant may withdraw his appeal at any stage or may not appear to pursue the appeal at the time when it is fixed for regular hearing. This by itself would indicate his option not to pursue the appeal, however, the filing of the memorandum of appeal would not, to our mind, be a condition precedent for the exercise of this option.
13. The second limb of the argument advanced by the learned counsel for the respondents that the memo., of appeal having not been filed within the statutory period of 60 days, therefore, any endeavour now to do so would be barred by the Statute of Limitation is totally devoid of force.
Subsection (3) of section 417, Cr.P.C., already re-produced, speaks of an application under subsection (2) of section 417, Cr.P.C. For the grant of special leave to appeal to be filed within 60 days and it does not take into account any appeal. Any other interpretations placed on subsection
(3) would be doing violence to the Statute which the law does not permit.
14. We may also at this juncture point out that the practice prevalent in the Supreme Court applicable to the petitions for special leave to appeal is that once leave is granted same is treated as an appeal and no separate memorandum of appeal is required to be filed.
15. The proposition viewed from every angle goes against the points canvassed by the learned counsel for the respondents, therefore, same cannot be sustained in the eyes of law and is accordingly overruled. Leave to appeal having been granted in the matter which ordinarily has to be heard by the learned Single Judge of this Court, office is directed to fix the appeal before a Single Bench after obtaining orders from the Honourable Chief Justice.