P L D 2007 Karachi 99 (PLP)

AZIZULLAH M. MEMON, J.

Memo. of this criminal acquittal appeal was presented in the office of this Court on 26-2-2005, whereby the order of acquittal under section 265-K, Cr.P.C. dated 7-2-2005, passed by II Additional Sessions Judge, Karachi East, in Sessions Case No.148/01 (State v. Begum Fatima Imtiaz and others) under sections 408, 467, 468, 471, 477-A/109, P.P.C. of Police Station Tipu Sultan was challenged and the accused/respondents Nos.1 to 3 thereby stood acquitted. The acquittal appeal was still at the stage of Katcha Peshi when on 31st October, 2005, the learned counsel for the appellant intimated the Court that appellant/complainant, Fazalullah Khan, stood expired after filing of this appeal, hence hearing was set down to see if under section 431, Cr.P.C. the acquittal appeal stood abated. Heard Mr. Raza Hashmi, Advocate for the appellant, Mr. Javaid Ahmed Siddiqui, Advocate for the private respondents, and Ms. Cookie Rawat, Advocate for the State. The question as to whether an acquittal appeal stood abated on the death of the complainant/appellant was dealt with by the Indian Supreme Court in Khedu Mohton and others v. State of Bihar AIR 1971 SC 66 wherein the relevant observations were recorded in paras. 7 and 8, which read as under: "

7. In view of our above conclusions, it is unnecessary for us to consider the question of law canvassed by Mr. E.C. Agarwal, learned counsel for the appellant. But as the same has been argued we shall go into it. The appeal before the High Court was brought after obtaining special leave under subsection (3) of section 147, Criminal Procedure Code. It appears that during the pendency of the appeal, the appellant died. It was contended before the High Court and that contention was repeated before us that the appeal abated in view of the death of the appellant. This contention was rejected by the High Court. In support of that contention, counsel for the appellant relied on two decisions, one of Allahabad High Court in Hafiz Nehal Ahmed v. Ramjio Das AIR 1925 All. 620 and the other of Madras High Court in Thothan v. Murugan AIR 195S Mad.

624. The first decision has no application to the facts of the present case. That was an appeal under S.476-B of the Criminal P.C. It is true that the Masdras decision was rendered in an appeal under section 417(3) of the Criminal P.C. in our opinion, the learned single Judge of the Madras High Court erred in thinking that that the decision of he Allahabd High Court lent any support to his conclusion that an appeal filed under section 417(3), Criminal P.C. abates on the death of the appellant. The question of abatement of criminal appeals is dealt with by section 431 of Criminal Procedure Code. That section reads: `Every appeal under section 411-A, subsection (1) of 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 abate on the death of the appellant.'

8. From this section it is clear that an appeal under section 417 can only abate on the death of the accused and not otherwise. Once an appeal against an acquittal is entertained by the High Court, it becomes the duty of the High Court to decide the same irrespective of the fact the appellant either does not choose to prosecute it or is unable to prosecute it for one reason or the other. The argument that while introducing subsection (3) to section 417, Criminal P.C., the Parliament overlooked the provisions contained in section 431, does not deserve consideration. The language of section 431 is plain and unambiguous. Therefore, no question of interpretation of that provision arises." As such, the present acquittal appeal cannot be taken to have abated on the death of the complainant/appellant. Once an appeal against acquittal is entertained by this Court, it is to be decided on its own merits irrespective of the fact of death of the complainant/appellant and, therefore, it is hereby directed that the appeal shall be heard and decided on its own merits. H .B.T. /F-22/K Order accordingly.