2003 PLP 2891 (YLR)

Sardar Abdul Razzik Khan, Additional Advocate‑General for the State. Date of hearing: 26th May, 2003. CHAUDHARY MUHAMMAD TAJ, J.‑‑‑This appeal has been filed against the order of the Shariat Court dated 31‑10‑2002, whereby the revision petition was held abated.

2. The facts necessary for the disposal of this appeal are that a case under section 15, I.P.L. read with sections 147, 148 and 149, A.P.C. was registered against the accused‑respondents at Police Station Sehnsa and after investigation was challaned before the Tehsil Court of Criminal Jurisdiction, Sehnsa. The trial Court after conclusion of the trial acquitted the accused persons except Najeeb who was proceeded under section 512, Cr.P.C. The acquittal order was challenged through a revision petition before the Shariat Court of Azad Jammu and Kashmir filed on behalf of Muhammad Ellahi, the complainant. During the pendency of the revision petition the complainant‑petitioner died. The Shariat Court dismissed the appeal as abated on the ground that the complainant‑petitioner had died. The aforesaid order has been challenged through this appeal.

3. Mr. Muhammad Yunus Tahir, the learned counsel for the appellants, contended that the revision has illegally been dismissed by the Shariat Court. The learned counsel argued that no law provides for dismissal of an appeal or revision on the ground of death of the petitioner or appellant. It was further argued that section 417, Cr.P.C. provides that any aggrieved person can file appeal against the acquittal order therefore the same could not be held abated on account of death of the petitioner or the appellant.

4. Raja Saadat Ali Kayani, who appeared on behalf of the respondents, did not dispute the legal position and, frankly stated before the Court that in view of the amended law the appeal could not be dismissed and was required to be disposed of on merits.

4. We have heard the learned counsel for the parties and also gone through the record. This appeal was filed to challenge the order passed by the Shariat Court of Azad Jammu and Kashmir in a revision petition filed against the acquittal recorded by the trial Court which was dismissed as having abated, on account of death of the complainant on whose behalf the same was filed. Though the learned counsel representing the respondents did not dispute the legal position and also raised no objection in remanding the case to the Shariat Court for a decision on merits but we would like to deal with the proposition to avoid any confusion in this regard.

5. It may be mentioned that the learned Judge in the Shariat Court while quoting section 431, Cr.P.C. under a mistake misread the section and thus quoted word "appellant" for "accused". The relevant section is usefully reproduced:‑‑ "

431. Abatement of appeals.‑‑‑Every appeal under [section 411‑A, subsection (2), or section 417] shall finally abate on the death of the accused, and every other appeal under this chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant. "

6. A perusal of the aforesaid provision of law shows that an appeal filed on behalf of the accused‑appellant in respect of his conviction shall abate on his death or an appeal filed against his acquittal shall abate on death of the accused‑respondent. However, an appeal from a sentence of fine as it affects the estate and if the conviction stands the fine may be realized from his property in the hands of his legal representatives and if the conviction is quashed the fine may be recovered, does not abate. The principle is that the representatives of a deceased convicted person can be allowed to appeal on showing the legal interest. It follows that the appeal against fine may be permitted to be continued by the legal representatives of the deceased‑appellant. In case of imprisonment, the sentence does not affect the property of the deceased‑accused and so the appeal abates upon his death. It may also be observed that criminal appeals do not abate with the death of the complainant or a person injured. Therefore, the plain reading of the section would show that on death of the complainant‑appellant the appeal would not be abated.

7. It may also be stated that section 417, Cr.P.C. has been amended by adding subsection (2A) whereby it is provided that any person aggrieved by the order of acquittal may file an appeal against the acquittal order. The phraseology used in the amending section shows that any aggrieved person can file and prosecute the, matter therefore on the aforesaid analogy after the death of the complainant‑petitioner the legal representatives can continue proceedings. The relevant provision 2A is also reproduced:‑‑ "(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."

8. In view of the above, the appeal is accepted and the order passed by the Shariat Court is set aside. The case is remanded to the Shariat Court which shall decide the matter on merits after hearing the parties. H.B.T./367/SC(AJ&K) Appeal accepted.