Appeal against Conviction

2022 YLRN 2 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 410 & 417(2A)Appeal against convictionScope

Right of appeal against conviction was statutory right of the accused which could not be disturbed at the option of complainant who had no statutory right to challenge the order of conviction

Order of conviction was not an interim order and it was a final order against the accused and not against the complainant

Only the accused who could be aggrieved by final order whereby the court had convicted him and not the complainant on whose FIR the State had prosecuted the accused and criminal court had awarded sentence of imprisonment for life, however, had the final order been an order of acquittal, then the complainant could have exercised a statutory right to challenge it in appeal within thirty (30) days under S.417(2-A), Cr.P.C.

2022 YLRN 2 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 410 & 423Appeal against convictionQuantum of punishmentScope

High Court as Appellate Court had the power under S.423 of the Cr.P.C. to examine quantum of punishment while hearing an appeal filed by the convict under S.410 of Cr.P.C.

Provision of S.439 of the Cr.P.C clearly empowered the High Court to take suo motu cognizance of the issue of quantum of punishment and even enhance the sentence after show cause notice under subsection (2) of S. 439 of the Cr.P.C. to the appellant/convict.

2020 MLD 567 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 410Appeal against convictionDelay in filing appeal, condonation of

Right of appeal was a substantial right which normally should not be denied on technical counts/reasons particularly when it came to administration of criminal justice

Normally condonation of delay would do nothing with merits of the case but would only require the court to decide the lis on merits

Condonation of delay was normally subject to giving a 'reasonable explanation which might have prevented party in approaching the court'

While examining the question of limitation, the circumstances claimed to have prevented one in approaching the court in time, would always be a decisive factor

High Court observed that if the pleaded circumstances appeared to be justified or even likely to be believable though no proof was offered then the delay must be condoned.

2018 MLD 1608 PESHAWAR-HIGH-COURT Judicial Precedent

S. 13Appeal against convictionApplication for condonation of delay in filing appealAccused had served out his sentence of three years awarded under S.13 Pakistan Arms Ordinance, 1965

Appeal was allowed and delay was condoned.

2018 SCMR 536 CONSTITUTIONAL-COURT-OF-SOUTH-AFRICA Judicial Precedent

Fair trialAppeal against convictionIncomplete trial recordComplete record of evidence recorded by Trial Court missing and not sent to the Appellate CourtAppellate Court convicting accused despite missing evidenceQuestion as to whether right of accused to a fair trial was infringedAccused was alleged to have assaulted the deceased which allegedly caused the latter's deathEvidence of the main witness before whom the accused confessed to the assault was critical in the prosecution caseTrial Court acquitted the accused of assault but found him guilty of murderAccused appealed to the High Court against his conviction and sentenceState failed to deliver a full record to the High CourtAttempts to reconstruct the record of Trial Court failed

Part of the evidence missing from the record included the main witness's evidence in the Trial Court before whom the accused allegedly confessed to the assault

High Court held that the absence of the transcript of main witness's evidence in the appeal record was not such that the High Court could not fairly determine the appeal, therefore, it upheld the conviction of murder and rejected the accused's argument that in the absence of the missing evidence he could not have had a fair trial; [Per Zondo, J (Majority view): Main witness's evidence in Court was critical to his conviction by the Trial Court and without the transcript of that evidence, there could be no fair appeal for the accused

Witnesses' account before the police and her evidence before the Trial Court differed vastly

Version narrated by the witness before the police when she was in a romantic relationship with the accused did not implicate him in murder but what she told the Trial Court three years later when they had broken up seriously, implicated him in murder

Trial Court appeared not to have considered such discrepancy in her evidence

In the absence of a transcript of the trial proceedings or any reconstruction of the record of the trial proceedings, an appeal court could not know whether the witness ever explained the discrepancy and how she explained it

Without knowing whether the witness ever explained such conflict between her evidence in court and her statement to the police, an appeal court would never be in a position to determine the appeal fairly

High Court failed to appreciate that witness's evidence was the decisive evidence which led to the Trial Court convicting the accused

Accused's right of appeal was frustrated by the fact that material evidence was missing from the record

Failure of the State to furnish an adequate record of the trial proceedings or a record that reflected the witness's full evidence before the Trial Court in circumstances in which the missing evidence could not be reconstructed had the effect of rendering the accused's right to a fair appeal nugatory or illusory

Further on basis of available record the accused could not be convicted of assault (only) as a competent verdict

Assault was a competent verdict for murder only if there was a link between the assault and the charge of murder

Assault must at least have been part of the actus reus on which the charge of murder was based

In the present case, the cause of deceased's death was unknown, and since one did not know the cause of the deceased's death, it could not be known what verdict would be competent to the charge of murder

Proper remedy was to set aside the trial proceedings against the accused in its entirety

Supreme Court directed that the accused should be released immediately and it would be up to the concerned prosecuting authority to decide whether or not to recharge the accused again]

[Per Froneman J, (concurring with Majority view): Missing evidence was crucial to the determination of the accused's guilt or innocence on all the charges

Trial proceedings against the accused should be set-aside and the present matter should be remitted to the High Court for an investigation into whether a retrial should proceed]

[Per Cameron J (Minority view): Murder conviction of accused had to be vacated because the evidence available to the High Court in the record before it did not prove beyond a reasonable doubt that he committed the crime alleged, however, there was sufficient evidence on record from other witnesses (other than the missing evidence) to find him guilty on a competent conviction of assault

Strong circumstantial evidence was available before the High Court which proved beyond reasonable doubt that the accused assaulted the deceased

Competent verdict of assault, therefore, had to be upheld against the accused].

2015 PCrLJ 1767 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

Ss. 9(c) 8, 7, 6 & 48Customs Act (IV of 1969), S. 171Appeal against conviction

Possession of narcotics drugs, import and export of narcotics drugs, trafficking or financing trafficking of narcotics drugs, etc.

Appreciation of evidence

Benefit of doubt

When seizure or arrest is made, reason in writing to be given

Seizure memo of recovered contrabands not prepared at spot

Effect

Non-sealing of samples of contrabands at spot

Effect

Chemical Examiner's report

Evidentiary value

Ownership of vehicle used in transportation of contraband

Requirement of proof

Charas and opium were alleged to have been recovered from accused

Trial court convicted accused under S.9(c) of Control of Narcotic Substances Act, 1997 and sentenced him to undergo imprisonment and pay fine

Accused took plea that he had no knowledge of contrabands concealed in body of vehicle

Witnesses had made dishonest improvements in their dispositions and same were contradictory

Fard-e-bayan or notice of seizure issued under S.171 of Customs Act, 1969 had been typed, whereas prosecution witness stated that he had written the same by hand at the spot, which indicated that case property was not seized at the spot

Prosecution witness had admitted that samples of recovered contrabands had not been prepared at the spot

Neither seizure memo nor samples had been prepared at spot, which was illegal, and for which no explanation was given by complainant

Non-sealing of samples of recovered contrabands soon after its recovery had created serious doubt in prosecution case

No reliance could be placed on Chemical Examiner's report, which, in given circumstances, had lost its evidentiary value

Prosecution had failed to prove ownership of vehicle used in transportation of recovered contrabands, as no registration documents regarding said vehicle had been produced

Nothing was available on record to show whether said vehicle belonged to accused or he was driving the same

Prosecution had failed to connect accused neither with vehicle nor with recovered contrabands

Recovery of recovered contrabands was not effected on pointation of accused

Prosecution failed to prove conscious possession or knowledge of recovered contrabands

Trial court could not properly appreciate defence plea

Entire case of prosecution was defective, doubtful and full of contradictions

Impugned judgment suffered from wrong appreciation, non-reading and misreading of evidence

High Court, extending benefit of doubt, acquitted accused

Appeal was allowed in circumstances.

1987 SCMR 620 SUPREME-COURT Judicial Precedent

S. 302/34Appeal against convictionProsecution case resting on evidence of two eye-witnessesOne declared hostile and presence of other found doubtful

There being no reliable evidence to support conviction, appeal accepted and appellants acquitted of charge against them.

1987 SCMR 421 SUPREME-COURT Judicial Precedent

S. 302/34Constitution of Pakistan (1973), Art. 185(3)Appeal against conviction

Accused and two others apprehended at spot alongwith blood-stained weapon of crime- -Co-accused acquitted by High Court but accused's conviction and sentence of death upheld

Both acquittals and conviction challenged

Since leave to appeal was granted against acquittal of two accused persons and entire evidence on record was to be considered, leave also granted to convicted accused against his conviction.

1987 SCMR 333 SUPREME-COURT Judicial Precedent

Ss. 302, 323, 324. 325/34 & 447Appeal against convictionInterested witnessesNo independent corroborationConflicting testimony of prosecution witnessProsecution based on interested and discrepant testimony conflicting with medical evidenceNo independent corroboration forthcomingConvictions and sentences found inconsistent with principles of safe administration of criminal justice

Accused-appellants were given benefit of doubt, convictions and 'sentences set aside and were ordered to be released forthwith

Connected appeal against acquittal dismissed.

1987 SCMR 1156 SUPREME-COURT Judicial Precedent

S. 302/34Appreciation of evidenceAppeal against conviction-Prosecution relying on three eye-witnessesOne witness given up as having been- won over by defence and other declared hostile during trialConviction based on testimony of solitary witness, corroborated by recovery of crime weapons, upheld by High Court

On appeal, presence of third witness at spot at relevant time also considered doubtful and stood belied by statement of Investigating Officer-There being no reliable evidence on basis of which convictions could be supported, appeal was allowed, convictions and sentences set aside and appellants acquitted.

1987 SCMR 1052 SUPREME-COURT Judicial Precedent

S. 302/34Constitution of Pakistan (1973), Art. 185(3)Appreciation of evidenceAppeal against acquittal and reduction in sentencePlea that impugned judgment needed correction, not tenable

Petitioner seeking re-appraisal of evidence and to come to a conclusion different from that arrived at by High Court in its well-considered judgment

No misreading of evidence pointed out nor any principle of law was decided wrongly

Mere criticism that evidence had not been properly appreciated, no ground for interference

Leave to appeal refused.

1986 SCMR 628 SUPREME-COURT Judicial Precedent

S. 302/34Appeal against convictionAppreciation of defence evidence

Statement of a truthful independent eye-witness, who was in reality a prosecution witness but given up for insufficient reasons, and produced as defence witness, examined

Discrepancy in statements of independent eye-witnesses about number of accused

Resolved in favour of accused reducing their number from five to three

Conviction of two appellants, one who fired shots and was identified by independent eye-witness, having no animus against him, and other against whom sound corroboratory medical evidence was also available, upheld

No confirmatory evidence worth reliance forthcoming against remaining three appellants, they were allowed benefit of doubt and acquitted

Appeal partly allowed.

1986 SCMR 626 SUPREME-COURT Judicial Precedent

Art. 185(3)Penal Code (XLV of 1860), S. 161Federal Investigation Agency Act (VIII of 1974), S. 3JurisdictionPatwari's conviction under S. 161, P.P.C. challenged

Plea that Inspector Federal Investigation Agency had no jurisdiction to arrange raid in his official capacity and criminal proceedings thus initiated were void ab initio, repelled-Petitioner having been brought for trial before Court of competent jurisdiction, tried and convicted, impugned order was not open to interference

Leave to appeal refused.

1983 SCMR 1155 SUPREME-COURT Judicial Precedent

Art. 185(3) read with Penal Code (XLV of 1860), S. 302/34 and Criminal Procedure Code (V of 1898), S. 417-Murder-Appeal against conviction-Acquittal-Appeal against-Petitions for leave to appeal-Contentions raised on behalf of petitioners having weight and needing further consideration - Leave to appeal granted to determine whether Courts below had appraised evidence in consonance with well-established principles applicable to appraisal of evidence in criminal cases.

1983 SCMR 1019 SUPREME-COURT Judicial Precedent

Art. 185(3) read with Penal Code (XLV of 1860), Ss. 307 & 325Attempt to murder-Appeal against connection-High Court found to have attended to all circumstances considered vital from defence point of view-Appreciation of evidence including question of delay in F. I. R. found in accordance with accepted principles of criminal justice-Leave to Appeal refused.