P L D 2009 Peshawar 70 (PLP)

SYED YAHYA ZAHID GILLANI, J.

Criminal Revisions Nos.84, 101, 111, 119 as well as Criminal Appeals Nos. 357 & 384 of 2008 at motion stage,, Criminal Appeal No.405/2007, Cr.Rs. No.144 and 145 of 2007 and Cr.R.No.89/2008 at pre-admission stage and Cr.R.No.198/2007, Cr. R.No.33/2008 as well as Cr. Appeals Nos.104 and '108 of 2008 and C.R.No.302/2008 at notice stage, all arising out of proceedings under the Illegal Dispossession Act, 2005 (hereinafter referred to as "the I.D. Act"), have been clubbed together because common question of law pertaining to their maintainability, needs determination. I have availed the opportunity of listening arguments of the learned counsel for the parties in all the above mentioned cases, including Mr. Ziaur Rehman Khan, the learned Advocate-General, A N.-W.F.P., representing the State, on the following question:-- "Whether section 9 of the -Illegal Dispossession Act, 2005 accommodates the right of appeal and revision of an aggrieved party?" Mr. Abdul Sattar Khan, Advocate, opposing the proposition, argued that it is well-settled law that rights of appeal, revision and PLD review are creation of statute and they do not exist when a statute does not clearly create them. He added that section 9 of the I.D. Act is silent about creation of such rights. Hence, right of appeal and revision being not available under the I.D. Act, the aggrieved party may invoke constitutional 'jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. To augment this plea, he placed reliance on Karam Dad and another v. Emperor AIR 1941 Lah. 414; Hari Meah v. The State PLD 1958 Dacca 333; Hari Meah v. The State PLD 1959 SC (Pak.) 307; The State v. Hamtho 1971 SCMR 686; Habib Bank Ltd. v. The State and others 1993 SCMR 1853; Faiz Muhammad and others v. Mehrab Shah and others PLD 1997 Pesh. 166 and Faizur Rehman v. The State and others PLD 2002 Pesh.

6. On the other hand, Mr. Abdul Latif Afridi, Advocate, supported by all other advocates appearing in these cases, argued that no cavil can be put to the settled general principle of law that when a statute does not provide right of appeal, revision and review, it can neither be read between the lines nor the Courts can create it. However, he emphasized that the reported cases relied upon by Mr. Abdul Sattar Khan, advocate, refer to different significant situations pertaining to Special Courts constituted under the different laws and those are not attracted to the cases decided under the I.D. Act by the normal Court of Sessions Judge. Discussing section 9 of the I.D. Act, he argued that the plain reading of this section would lead to the conclusion that right of appeal and revision exists because the section itself say that `unless otherwise provided in the I.D. Act, the provisions of the Code shall apply to proceedings under the I.D. Act and there is nothing' in the I.D. Act debarring right of appeal or revision. On the other hand, not only that the word `proceedings' includes the right of appeal too, an appeal is continuation of proceedings of trial and this right is thus available to parties litigating under the I.D. Act. He, in support of his arguments, placed reliance on the case of R.M.A.R.A. Adaikappa Chettiar and another v. R. Chandrasekhara Thevar PLD 1947 PC 279; Abdul Khalique v. The State PLD 1990 Kar. 448(h); Black's Law Dictionary (8th Edn.) by Bryan A. Garner, Maxwell on Interpretation of Statutes (12th Edn. By PSt. J. Langan; The Construction of Statutes by Earl. T. Crawford. Touching the point of maintainability of criminal revisions, Mr. Muzammil Khan, advocate, submitted that the Court exercising powers under the I.D. Act is the normal Court of Session, subordinate to the High Court, and hence, the High Court's revisional jurisdiction against its order is not debarred. He, in this respect placed relaince on the case Habib Bank Ltd. v. State 1993 SCMR 853(c). He also referred to an unreported judgment dated 19-7-2007 of the Apex Court in Cr.PLA No.208/07 titled Muhammad Israr and others v. Muhammad Tahir Khan and others and Cr.PLA No.93-P/07 titled Muhammad Tahir Khan v. Gul Rehman and others arising from the decision of this Court whereby criminal appeal No.369/2007 with Criminal Revision No.96 of 2007, under the I.D. Act were entertained and decided in this court, on merits. He argued that Hon'ble Apex court dismissed both the petitions for leave to appeal on merits and existence of right of appeal and revision under the I.D. Act remained un-objected in the Hon'ble Apex Court, too. He also referred to the case Secretary, Revenue Division and others v. Muhammad Saleem 2008 SCMR at page 948(a) and argued that according to this dictum, section 9 of the Act should be interpreted in its wider sense and narrow approach should be avoided to protect the public remedial rights. Mr. Ziaur Rehman Khan, learned Advocate General N.-W.F.P. also furnished this valuable assistance. In line with the arguments advanced by Mr. Abdul Latif Afridi, advocate, he argued that the question of maintainability of appeal, under the I.D. Act, came up for adjudication before Single Benches of this Court in the cases titled Yafas v. The State and others PLD 2007 Pesh. 123; Aziz Ahmad v. Mumrez and 5 others PLD 2008 Pesh. 104, wherein it was decided that rights of appeal against conviction as well as appeal against acquittal both are available to aggrieved persons, in view of section 9 of the I.D. Act, read with the provisions of the Code of Criminal Procedure. Learned Advocate-General further argued that there is a consistent view that right of appeal and revision, being creation of statute, should be provided in a special law, otherwise it would not exist, but, he added that it is also a principle of law available in leading judgments that when any provision in a special law can be interpreted in favour of existence of such right, the interpretation in favour of existence of right of appeal and revision would not be opposed to the aforesaid settled principle of law. At this juncture, he referred to the judgment of the Hon'ble Apex Court titled The State through Advocate-General N.-W.F.P. v. Naeemullah Khan 2001 SCMR 1461, wherein the word `proceedings' used in Hazara Forest Act, 1936 was construed in wider prospect to include existence of right of appeal to convicts, as well as to complainants, against acquitted accused. He concluded that this dictum of the Hon'ble apex Court provides sufficient guidance and strength to his view point that where a section of law is capable of interpretation in favour of existence of right of appeal and revision, it should be interpreted in wider sense and the aggrieved persons should not be deprived of the valuable rights of appeals and revisions, in which their grievances can be thrashed out and considered in a broad spectrum. The other advocates, namely, M/s. Subhanullah, Hussain Ali, Malik Akhtar Hussain, Muhammad Mujeeb, Malik Muhammad Reman Awan, Ashfaq Ahmad Jhagra, Attaullah Khan, Wasimuddin Khattak, Farmanullah Khattak, Muhammad Ismail Khalil and Astaghfirullah appearing in their cases, , supported the views of learned Advocate General and gravamen of their arguments was that under section 3 of the I.D. Act, an accused can be punished up to ten years imprisonment and effective order regulating rights relating to valuable properties can also be passed. Section 9 of the I.D. Act or any other provision in the I.D. Act is not debarring these rights available in applicable Code of Criminal Procedure. Therefore, the objection against maintainability of appeal and revision under the I.D. Act, has no force. After contemplating over the question of law noted above, in the light of arguments submitted before me, and the cited case law, I would deem it essential to quote the following classic view in para 14 of the judgment delivered in the case Faiz Muhammad and others v. Mehrab Shah and others PLD 1997 Pesh. 166: "What we emphatically want to bring home is that from time immemorial a right of appeal is consistently and persistently interpreted to be a creation of the statute and not to be a natural or fundamental right." The case law cited by Mr. Abdul Sattar Kahn, advocate, right from the case reported in Karam Dad and another v. Emperor AIR 1941 Lah. 414 holds the same view. It is also pertinent to highlight that all learned counsel, who made submissions before me, including the learned Advocate General, did not dispute this settled principle of law. But they differed with Mr. Abdul Sattar Khan, advocate, only on the point that right of appeal against conviction, right of revision and right of appeal against acquittal are available to aggrieved persons under section 9 of the I.D. Act read with the Code of Criminal Procedure and they cannot be deprived of these existing rights. It is true that right of appeal and revision is deemed to be creation of statute since time immemorial, but it is equally true that when ordinary Court are competent to decide the disputed legal rights, then the ordinary rules of procedure are applicable to such Courts and appeal lies, if it is allowed under the prevailing rules of procedure, notwithstanding that legal rights claimed arise under special statute, which does not confer right of appeal. This principle has been clearly referred by the Hon'ble Privy Council in a Full Bench judgment delivered as earlier as in 1947, in the case titled R.M A R. A. Adaikappa Chettiar and another v. R. Chandrasekhara Thevar reported in PLD 1947 PC

279. Relevant extract in citation (a) is quoted below wherein the old cases in which this principle was applied, have also been cited:-- "The true rule is that where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies, if authorized by such rules, notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal. See Secretary of State v. Chelikani Rama Rao. (43 IA 192) and Hem Singh v. Basant Das. (63 IA 180)" This cardinal rule of law is well attracted in the present situation, instead of the cases cited by Mr. Abdl Sattar Khan, advocate, simply because the Court that exercises powers tinder the I.D. Act is not a specially created new court. Actually, the new powers created under the I.D. Act have been bestowed upon existing Sessions Courts. Section 2 is the definition clause of the I.D. Act and it is reproduced below:-- "Section

2. Definition.

In this Act, unless there is anything repugnant in the subject or context:-- (a) "Court" means the Court of Sessions; (b) "Code" means the code of Criminal Procedure, 1898 (Act V of 1898). (b)

(c)

(d)

The power to try an accused under section 3 of the I.D. Act and all other new powers created under the I.D. Act are to be exercised by the "Court" and the definition of the word "Court" refers to already existing Sessions Courts established under section 6 of the Code of Criminal Procedure. So, non-creation of a "Special Court" is manifest in the I.D. Act along with scheme of this law, which simply bestows new empowerment on existing Sessions Courts. In this background, now we put a glance on section 9 of the Act which is reproduced below:-- "Section

9. Application of Code.--Unless otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1898 (V of 1898), shall apply to proceedings under this Act." Since the Sessions Court that exercises powers under the Act is a normal Court, created under a general law and there is no manifestation in the I.D. Act that the Court under the I.D. Act shall act as a special Court, the normal rules of general law in the shape of Code of Criminal Procedure would be applicable, including the right of appeals and revisions in consonance with the relevant principle of law referred in Adaikappa's case PLD 1947 PC 279 ibid, but still there is something more to augment the view about the existence of right of appeals and revisions under the I.D. Act. The language of section 9 of the I.D. Act is unambiguous on the point that all the provisions of the Code of Criminal Procedure are applicable to "proceedings" under the I.D. Act, unless barred by any of its own provision. It was argued before me that rights of appeal and revision exist because they are in fact continuation of "proceedings" in the trial Court. Conversely, it was also contended that "proceedings" end, when the trial accomplishes and the right of appeal and revision must be specifically created in a special law. But, before going ahead, let us see what is the meaning of the word "proceedings" in Black's Law Dictionary Eighth Edition by Bryan A. Garner at its page 1241, quoted below for ready reference:- "1.

2.

3.

4. The business conducted by Court or other official body; a hearing. 5.

Proceeding is a word much used to express the business done in courts. A proceeding in court is an act done by the authority or direction of the Court, express or implied. It is more comprehensive than the word `action', including the pleadings and judgment. As applied to actions, the term `proceeding' may include

(1) the institution of the action; (2) the appearance of the defendant; (3) all ancillary or provisional steps, such as arrest, attachment of property, garnishment, injunction, writ of ne exeat; (4) the pleadings; (5) the taking of testimony before trial; (6) all motions made in the action (7) the trial; (8) the judgment; (9) the execution; (10) proceedings supplementary to execution, in code practice; (11) the taking of the appeal or writ of error; (12) the remittitur, or sending back of the record to the lower court from the appellant or reviewing court; (13) the enforcement of the judgment, or a new trial, as may be directed by the court of last resort. "Edwin E. Bryant. The law of pleading under the Codes of Civil Procedure 3-4 (2ded, 1899)." The above mentioned is the dictionary meaning of the word "Proceeding", which includes right of appeal. In legal parlance, Hon'ble Apex Court has interpreted the word "Proceedings" in the case titled "The State through Advocate-General, N.-W.F.P. v. Naeemullah Khan 2001 SCMR 1461 (b) as used in Hazara Forest Act (III of 1936). The relevant extract from this respectful judgment at page 1473 and 1474 is quoted below:

"Keeping in view the literary meaning and the interpretation of the word `proceeding' as interpreted in various pronouncements given above, we are of the opinion that the word `proceedings' is a comprehensive expression which includes every step taken towards further progress of a cause in Court or Tribunal, from its commencement till its disposal. In legal terminology the word `proceedings' means the instituting or carrying on of an action of law. Generally, a `proceeding' is the form and manner of conducting judicial business before a Court or judicial officer, including all possible steps in an action from its commencement to the execution of a judgment and in a more particular sense it is an application to a Court of justice for aid in enforcement of rights, for relief, for redress of injuries, or damages or for any remedial object. It in its general use comprehends every step taken or measure adopted in prosecution or defense of an action.

6. Section 46 of the Act has to be construed liberally as right of appeal has not been expressly provided by the Act to both the convict and the acquitted persons, in such circumstances, if the right of appeal is negated or excluded from the word 'proceeding'. It would be giving it a harsh and narrow meaning/interpretation and would amount to the denial of right of appeal to the convict, which would not only be unconstitutional but also un-Islamic, therefore, we would construe the word 'proceeding' in the wider prospect in view of the nature and scope of the Act and interpret the same to include the right of appeal to both the convict and the acquitted persons, as such construction would be most befitting to the scheme of the enactment. Appeal is a continuation of the trial/judicial proceedings before the higher Court to consider the verdict of the lower Court on legal and factual aspects, as such, appeal being a step towards the objective to be achieved, is included in the phrase 'all proceedings relating to offences and criminal liabilities under this Act' used in section 46 of the Act, therefore, appeal/revision can be filed against conviction and acquittal as the case may be, as provided by the Code of Criminal Procedure." This being the latest view of the Hon'ble Supreme Court, the word "proceeding" used in the I.D. Act cannot be given different and restricted meaning to exclude right of appeals and revisions, specially, when there is no express barring clause in the Act, to which the opening words of its section 9 refers. Chapter 10 of Maxwell on the Interpretation of statutes (Twelfth Edition) by P.St. J. Langan, relied upon by Mr. Abdul Latif Afridi, advocate, is reproduced below for convenience:

"In determining either the general object of the legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles should, in all cases of doubtful significance, be presumed to be the true one. 'An intention to produce an unreasonable result is not to be imputed to a statute if there is some other construction available.' Where to apply words literally would 'defeat the obvius intention of the legislation and produce a wholly unreasonable result,' we must 'do some violence to the words' and so achieve that obvious intention and produce a rational construction. The question of inconvenience or unreasonable ableness must be looked at in the light of the state or affairs at the date of the passing of the statute, not in the light of subsequent events." Re-production of relevant extract from Earl T. Crawford's work 'The Construction of Statutes' based on judicial pronouncements would also be beneficial to understand the latest trends in American Judicial system, on the point under consideration before me. It is given below:-- "S.

336. Appeals.--In some jurisdictions; it is expressly provided that the right of appeal shall be exclusive and supersede all other methods of review. Where this is the situation, no question arises regarding the destruction of other methods of review, but in the absence of such a statute, the authorities disagree. Some hold that other methods may still be used; others that they have been abrogated. And the provisions governing appeals are mandatory, and must be complied with substantially. Moreover, statutes pertaining to the right of appeal should be given a liberal construction in favour of the right, since they are remedial. Accordingly, the right will not be restricted or denied unless such a construction is unavoidable. In a few statutes, however, where the statute pertains to appeals from interlocutory orders, the rule of strict construction has been applied. But, there seems to be no real justification for this departure from the general rule in accordance with which a liberal construction would be given by the Court. Furthermore, because of their remedial nature, statutory provisions relating to appeals may operate retrospectively in a great many instances without valid objection." I am of the view that to hold existence of right of appeals and revisions within the framework provided by section 9 of the I.D. Act is not something to be squeezed or stretched out with difficulty. These rights are palpably existing in the given scheme of I.D. Act to control and regulate the right of litigating parties, and, that is why, not denied by the Single Benches of this Court in the reported cases being of Yafas reported in PLD 2007 Peshawar at page 123, PLD 2008 Peshawar 104, PLD 2008 Peshawar 49 as well as other unreported judgments of this Court in Cr.A. No.369/07 titled Muhammad Israr and others v. Muhammad Tahir Khan and others Cr. R. No.96/2007 titled Muhammad Tahir Khan v. Gul Rehman and others, Cr.R.No.19/08 titled Shahzada v. Fazal Muhammad and others, Cr.R.No.28/08 titled Shafiq Khan and others v. Rashid Khan and Cr.R. No.31/08 titled Haji Jalil Ahmad v. S.H.O. Police Station Chamkani and others. It is important to be noted that the criminal appeal titled Rahim Tahir v. Ahmad Jan decided by the Hon'ble Supreme Court, reported in PLD 2007 SC at page 423,had arisen from the judgment of Hon'ble Sindh High Court under the I.D. Act, delivered in a revision petition arising out of I.D. Act. In our jurisdiction of Peshawar High Court, the above mentioned Cr.A. No.369/2007 and Cr.R. No.96/2007 arising from the judgment of conviction under the I.D. Act were entertained and decided on merits by Hon'ble Mr. Justice Talaat Qayyym Qureshi (late) vide his Lordship's judgment dated 26-6-2007 which was upheld by the Hon'ble apex Court in Cr.PLAs No.208 and 93-P of 2007. All these indicate that rights of aggrieved persons to file appeals and revisions arising out of the I.D. Act are not denied by the superior Courts. I, therefore, safely answer the legal question, involved herein, in the affirmative, with the explanation that the Court, empowered to exercise powers under the I.D. Act is the existing Sessions Court, created under section 6 of the Code of Criminal Procedure and all the provisions of the Code are applicable to its proceedings, generally, under the principle referred in PLD 1947 PC 279 (quoted above) as well as specially, under section 9 of the I.D. Act. Thus, right of appeal against conviction, right of appeal against acquittal and right of revision, are available to the aggrieved persons litigating under the I.D. Act. Consequently, all the criminal revisions, criminal appeals and civil revision petition mentioned in the beginning para. of this order are held maintainable. The appeal be fixed for hearing on merits with notices to the learned counsel for the parties on a short date in office. H.B.T./51/P Order accordingly.