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Before Abdul Hayee Kureshi, C. J. and K. A. Ghani, J
BASHIR AHMED‑Appellant
versus
MUHAMMAD HUSSAIN AND ANOTHER‑Respondents
Criminal Miscellaneous No. 59 of 1980 and Criminal Acquittal Appeal No. 34 of 1981, decided on 7th September 1981.
(a) Criminal Procedure Code (V of 1898)‑
‑ ‑ S. 417‑Appeal against acquittal‑Leave to appeal once granted Deemed to have been granted with reference to merits of case‑Placing case for katcha peshi once given in such event tantamounts to duplica tion of work besides taking risk of having a different decision from another Bench‑ Leave having been granted to private complainant, matter, held, to be proceeded with as an acquittal appeal.‑[Appeal against acquittal].
(b) Criminal Procedure Code (V of 1898)‑
S. 417 (2)‑Appeal against acquittal‑Words and phrases‑Expres sion "grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court"‑Words "the complainant may present such an appeal to the High Court"‑To be always construed in a liberal manner so as to avoid any in convenience to parties and duplication of work‑Leave to appeal having been granted, a fresh memo. of appeal, held, need not be submitted. [Interpretation of statutes‑Appeal against acquittal].
(c) Criminal Procedure Code (V of 1898)‑
‑ S. 417‑Appeal against acquittal‑Scheme of S. 417, Criminal Procedure Code, 1898‑Does not seem to envisage any difference between an acquittal appeal preferred by State and acquittal appeal preferred by complainant where leave rented‑Acquittal appeals at instances of private complainant directed to be heard by Division Bench.‑[Appeal against acquittal].
Muhammad Ali Shaikh for Appellant.
Hassan Inamullah for Respondent No. 1.
Sayeed A. Shaikh, A: G. for the State.
ABDUL HAYEE KURESHI, C J.‑Advocate agree that, once leave is granted it should be deemed to have been granted with reference to the merits o the case. In such event, placing a case for katchi peshi once again would only amount to duplication of work, besides taking a risk of having a different decision from another Bench. In such circumstances, the only plausible interpretation is that, after leave is granted to the private complainant, the matter should be proceeded with as an acquittal appeal.
The next point that arises, is, whether, after the grant of leave, a fresh memo of appeal should be submitted. Subsection (2) of section 417, Cr. P. C. reads as follows :‑
"417.‑(1) .
(2) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court."
The words "grants special leave to appeal from the order of acquittal the complainant may present such an appeal to the High Court "would call for interpretation. The interpretation that appears to us to be reasonable is that the words "the complainant may present such an appeal to the High Court "are a merely directory, and not mandatory. What its more that, even if a fresh acquittal appeal is filed, it will only incorporate such averments as have already been raised in the application made by the complainant to set aside an acquittal. Even otherwise, the word "may" would always be construed in a liberal manner, so as to avoid any inconvenience to the parties and duplication of work.
We have also been reminded that, even in the Supreme Court, the practice is that, once, leave is granted on a petition for special leave to appeal then the very memo, whereby special leave is sought, is treated as an appeal. Such view could be imported in the circumstances of this and identical cases.
The next question that arises is, whether such acquittal appeals have to be heard by a Single Judge, or, by a D. B. The scheme of section 417, Cr. P. C. as it stands today, does not seem to envisage any difference between an acquittal appeal preferred by the State, and an acquittal appeal preferred by the complainant, in which leave is granted. In any case, on an acquittal appeal at the instance of a private complainant, an acquittal could be converted into a conviction. That being so, there is hardly any reason why such acquittal appeal should not be treated at par with other acquittal appeals by the State.
We, therefore, take the view that a fresh memo of acquittal appeal nee
not be filed after the grant of leave, and such earlier memo may be treated as
the memo of acquittal appeal. We further hold that acquittal appeals at the
instance of a private complainant shall be heard by a D. B.
s. A. H. Appal dismissed.
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