Challenging Order Of Acquittal Change Needed In Procedural Law

CHALLENGING ORDER OF ACQUITTAL CHALLENGING ORDER OF ACQUITTAL CHANGE NEEDED IN PROCEDURAL LAW By KHAWAJA SHAUKAT ALI, Advocate, High Court of West Pakistan During the days of British Rule in the Sub‑Continent certain ideas, precedents, principles and notions had developed which this day are being followed and adhered to in quite a faithful and submissive manner as if it is our bounden duty to blindly tread upon the line propounded and formulated by the foreign rulers keeping in view their own special interests and imperialistic policies. NEW TRENDS The procedure relating to matters of law and order in its entirety might have suited the pre‑Independence period quite satisfactorily but it can't be asserted by any keen and careful observer of panorama of life all around us that the procedural laws enacted as far back as 1898 do necessarily serve the purpose of dealing with or disposing of criminal events, incidents or cases, which daily crop up in our fast developing society with unusual new trends, strange ideas and dreadful actions and re‑actions. In this article I propose to deal with only one facet of these procedural laws which relates to acquittal (of the accused) in serious hurt cases or cases of death by intentional murder or through accidents. Section 417 F: Section 417 of the Code of Criminal Procedure reads as follows: "The Provincial Government may 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." It would appear from the wording of this section that only the Public Prosecutor (under the orders of the Government) can file an appeal in the High Court against an order of acquittal of any accused. The limitation for filing such an appeal is six months. GENERAL PRACTICE For illustration sake, let us suppose that A has been tried for the alleged murder of B who is a close relative of C. The trial Court does not find A guilty for the murder of B and consequently A is acquitted. C is not satisfied with this decision of the Sessions Judge. He wants that an appeal should be filed against the order of the Sessions Judge. For this purpose C would have to file an application before the District Magistrate of the District requesting therein that an appeal (in the High Court) may be filed against the acquittal of A. If the District Magistrate, after consultation with the Public Prosecutor rejects the prayer of A, then the matter ends there and then but if the prayer is accepted then the District Magistrate would send his opinion regarding filing of the appeal (against acquittal) to the Chief Law Officer of the Province. Then comes the third stage in this chain of procedural rituals. This office would look at the matter from their own notion of law, equity, fair-play and justice, and decide in favour of or against filing of an appeal. REVISIONAL JURISDICTION Now, if the near relative of the deceased has a desire to challenge the decision of the Sessions Judge then the only course left to him is to file a revision petition in the High Court. The petitioner in his revision petition besides giving the grounds for the exercise of the revisional jurisdiction of the High Court, would also file the copy of the order of the District Magistrate or copy of the memo. of the office of the Advocate-?General refusing to file an appeal against the acquittal of the accused. This revision petition is heard by single bench of the High Court. If the honour?able Judge after hearing the arguments of the counsel for the petitioner admits (for full hearing) the revision petition then at the next date of hearing after hearing the submissions made on behalf of the petitioner as well as the respondent (accused) comes to the conclusion that the order of the Sessions Judge is patently and manifestly wrong and perverse and offends against all the established canons and rules of justice or that the order of the Sessions Judge terribly suffers from unpalatable legal flaws and has entirely flouted the statutory provisions contained in the various enactments then and then alone the Honourable Judge would order the retrial of the accused by a competent Court. DIFFERENCE It would be interesting to reproduce here the different sections from Cr. P. C. to show the great and meaningful difference between filing an appeal and submitting a revision petition against the acquittal of any person. The provisions regarding appeals are contained in Chapter XXXt of the Code of Criminal Procedure. Relevant sections are given below:‑‑ Section 417: "The Provincial Government may 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." Section 418: "An appeal may lie on a matter of fact as well as a matter of law." Section 423: "The Appellate Court shall after perusing the record and hearing the Public Prosecutor and the accused, may, if it (the Court) considers that there is no sufficient ground for interfering dismiss the appeal, or may:‑ (a) in an appeal from an order of acquittal reverse such order and direct that further inquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law." Section 428: (1) In dealing with any appeal under this chapter the Appellate Court if it thinks additional evidence to be necessary, shall record its reasons and may either record such evidence itself, or direct it to be taken by a Magistrate, or, when the Appellate Court is a High Court, by a Court of Session or by a Magistrate. The provisions regarding filing a revision petition and its scope are contained in Chapter XXXII of. Code of Criminal Procedure which are as under: Section 439: "In the case of any proceedings the record of which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of appeal by sections 423, 426, 427 and 428 or on a Court by, section 338 and may enhance the sentence. Nothing in this section applies to an entry made under section 273, or shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. It is quite evident from the above provision of law regarding, the powers of the High Court while exercising revisional jurisdiction that even if the Honourable Judge is legally satisfied that someone was wrongly acquitted he (the Judge) cannot sentence and convict him. The case is to be sent back for retrial. The trial Court might again acquit the accused. Now, just keep in view the magnitude of the labour, effort and continuous struggle which C had to face and undergo and in spite of High Court's view in his favour A has again been acquitted. Whenever such a revision petition comes for hearing before an Honourable Judge of the High Court, the feeling that even if the respondent's (accused) acquittal is found not proper by him (Honourable Judge) he himself would not be able to award the punishment, in accordance with law, to the respondent. This in most cases makes the revision petition devoid of any ultimate and conclusive force, effective result and final success. SUPREME COURT It would be in the fitness of things to state here the practice followed in this regard by the highest Court of the land. Suppose A was sentenced and convicted by the Sessions Judge for the murder of B. A filed an appeal in the High Court against the sentence and appeal. A's appeal is accepted and his sentence and conviction is set aside and he is acquitted. Now, what is the course open to C who is a near relative of the deceased B? C, in order to file a petition for leave to appeal in the Supreme Court would not have to wait for a certain period whether an appeal against the acquittal of A is filed by the State or not. He need not file application before executive authorities to request them to file an appeal against the order of acquittal of A. Now, it is the established practice of the Supreme Court extending over a period of many years that the near kith and kin of the deceased can file petition for leave to appeal against an order of acquittal. In many such cases the acquittals have been set aside and the respondents punished and sentenced in accordance with the essentials and requirements of law. There is a talk of certain changes being' introduced in the (Criminal) procedural law of the land‑sometime back a conference of eminent lawyers and officers of the Law Departments was proposed to be convened. It is not known whether a change in section 417 of Cr. P. C. is going to be discussed or not but a drastic change in the mode, manner and method of challenging the acquittal of any person by the kith and kin (complainant party) is a need of the hour. Kindly keep in view the above discussion about the difference in appellate and revisional powers of the High Court. Add to it the follow?ing factors as well (i) The number of murders has increased to an alarming extent during the last few years for various reasons the details of which cannot be given in this short article. Begging pardon for a little digres?sion here I would remind the learned readers that often a proposal drops in our ears originating from the advanced countries that capital punishment may be abolished. I am afraid that giving even a thought to this proposal for even a second would and must amount to an attempt to disturb and upset the law and order position of our beloved country. It is only the fear of being hanged by the neck till one is dead that dissuades many a dare?devil from transporting any or many human beings from this world to the next world. (ii) If the accused is sentenced and convicted by the Court then he has the right to appeal against his sentence and conviction: But if someone's son is murdered or somebody's father or brother is butchered and the person against whom the charge of murder was levelled is acquitted (sometimes the Courts find themselves quite helpless in the matter of punishing the accused though they are convinced in their heart of hearts that the accused should meet the ends of justice) then by all canons of justice and equity, it appears, the father or the son or the brother or the mother or as a matter of that any other near relative ought to be given a right to appeal. (iii) It would substantially lessen the work of the already overbur?dened but thinly staffed Law Departments and thus they would be able to devote their precious (public) time to other affairs. USEFULNESS of LAWS The different sets of laws prevailing in our country should be amended, adapted and modified keeping in view the most important function of a welfare State that laws are made and enacted for the welfare of the people. Provision for direct right of appeal to aggrieved persons, in cases of acquittal, is a much‑needed change.