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Law and Justice Commission of Pakistan |
Right
of Appeal Against Acquittal
to
Private Complainant under the
Anti
Terrorism Act 1997
Report 43
Right
of Appeal Against Acquittal
The
Commission received a reference from Messrs Kifayatullah and Bukhari Shah,
residents of District Charsadda, NWFP, for providing right of appeal to the
private complainant or a person aggrieved against the judgement/order of
acquittal, passed by Special Court established under Section 7 of the
Suppression of Terrorist Activities (Special Courts) Act (XV) 1975. While the
proposal was under consideration of the Commission another law namely, the
Anti-Terrorism Act 1997 was enacted providing for establishment of
Anti-terrorism Courts. Later by
Anti-terrorism (Amendment) Ordinance 2001 a new Section 39-B was added to the
Anti-Terrorism Act 1997 which repealed the Suppression of Terrorist Activities
(Special Courts) Act 1975.
Section 25 of the Anti-Terrorism Act 1997 provides for the right of appeal against the final judgement of an Anti-Terrorism Court, as follows: -
1) An appeal against final judgement of Anti-terrorism Court, shall lie to a High Court.
2) Copies of the Judgement of Anti-terrorism Court shall be supplied to the accused and the Public Prosecutor free of cost on the day the Judgement is pronounced and the record of the trial shall be transmitted to the High Court within three days of the decision.
3) An appeal under Sub-section (1) may be preferred by a person sentenced by Anti-terrorism Court to a High Court within Seven days of the passing of the sentence.
4)
The Attorney General, Deputy Attorney General, Standing Counsel or an
Advocate General or an Advocate of the High Court or the Supreme Court of
Pakistan appointed as Public Prosecutor, Additional Public Prosecutor or Special
Public Prosecutor may, on being directed by the Federal or Provincial
Government, file an appeal against an order of acquittal or a sentence passed by
an Anti-terrorism Court with in fifteen days of such order.
5) An appeal under this Section shall be heard and decided by a High Court within seven working days.
In
an ordinary criminal offence tried by a court of general criminal jurisdiction,
a right of appeal is provided to a private complainant against an order of
acquittal passed by such court under Sub-section (2) of Section 417 of the Code
of Criminal Procedure 1898. Further
any person aggrieved by such order of acquittal is made entitled to appeal
through amendment in Sub-section (2A) of Section 417 of the said Code by Act XX
of 1994 reading as follows -
Section. 417 –
(1) Subject to the provisions of Sub-section (4) the Provincial Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or an appellate order of acquittal passed by any Court other than a High Court.
(2) if such an order of acquittal is passed in any case instituted upon complainant and the High Court, on an application made to it, by the complainant in this behalf, grant special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
(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.
(3)
No application under Sub-section (2) for the grant of special leave to
appeal from the order of acquittal shall be entertained by the High Court after
the expiry of sixty days from the date of that order.
(4) --------------------------------
This
right of appeal against an order of acquittal by a court having general criminal
jurisdiction provided by Sub-sections (2) and (2A) of the Code of Criminal
Procedure 1898 was not provided to the complainant or an aggrieved person
against an order of acquittal passed by the Special Court under the repealed
Suppression of Terrorist Activities (Special Courts) Act XV 1975 and under
Section 7 ibid only a person sentenced by a Special Court can file an appeal
which reads as under:
Section 7(1). Appeals from
sentences imposed by Special Courts etc:
A
person sentenced by a Special Court shall have a right of appeal to the High
Court within whose jurisdiction the sentence has been passed, but save as
aforesaid notwithstanding the provisions of the Code or any other law for the
time being in force or of any thing having the force of law by whatsoever
authority made or done, no Court shall have authority to revise such sentence,
or to transfer any case from a special Court or to make any order under Section
426, or Section 491 or Section 498 of the Code or have any jurisdiction of any
kind in respect of any proceeding of a Special Court.
The
Peshawar High Court in a judgment (Faiz Muhammad v/s Mehrab Shah, PLD 1997
Peshawar–166) recommended to the Federal Government for making amendment in
law for the provision of appeal to private complainant against an acquittal
order of the Special Court. The
relevant extract reads:
Para
7. It is altogether a different argument
that in line with the provisions Section 417(2-A) of Cr. P.C such right should
have been granted to the complainant under Suppression of Terrorist Activities
Act 1975 as well. Certainly the aforesaid right under the Code was extended to
the complainant inorder to bring the laws in conformity with principles of
Islam… The same right ought to have been extended to a private complainant
under the Act 1975, but so long as it is not granted by the legislature, the
court cannot read the same into an enactment and cannot grant the same
accordingly. We would propose that the same right be extended under Section 7 of
the Suppression of Terrorist Activities Act 1975 to private complainant as well
by positive legislation. This would avoid discrimination and would further be in
line with the spirit of the Act.
Again,
a full bench of the Peshawar High Court in a recent judgement dated 27-07-2001 (Fazlur-Rehman
v the State on page 25, para 26) placed reliance on the following Quranic verse
(Sura Bani Israel Ayat 32) for upholding the right of appeal to private
complainant.
The Quranic verse is as follows
Nor
take life which Allah has made sacred except for just cause. And if any one is
slain wrongfully, We have given his heir authority to demand Qisas, or to
forgive. (17-32)
The
Court observed:
When
God Almighty has given powers to the aggrieved person, then how such a power
under the man-made law can be taken away from him. It is a recognized principle
that while interpreting a particular provision of law, the court is competent to
apply well recognized principles of Islamic common law and such interpretation
which is in conformity with the injunctions of Islam be pressed into service.
Keeping in view the above quoted Ayat 32 and while applying the principles of
Islamic Common Law, we hold that the private complainant can invoke the
revisional jurisdiction under Section 7(1) of STA 1975.
The
above verse as interpreted by Maulana Maudoodi in Tafheem Ul Quran (Volume 2 p p
414-415) clearly states that Wali i.e. the legal heir of the deceased has the
first right to claim Qisas or Diyat. The State is only required to help the Wali.
It cannot substitute itself to be the Wali of the deceased in the presence of
the real Wali.
The
Holy Prophet have also declared the right of legal heirs as follows.
The
relative of the killed person has the right to choose one of two compensations
(i.e. to have the killer killed, or to accept blood money.
(Sahih Al-Bukhari (English translation) vol. 9 pp 11-12)
Similarly,
in the case, Makhboor Hussain v/s Tazarab Hussain (2001 P.Cr. L.J. 1046 Shariat
Court AJ&K P-1046), the Shariat Court of Azad Jammu & Kashmir held:
Para
17. …that under Islamic law, the complainant or the injured person and their
counsel are quite competent to file an application or lodge an appeal against
the order of conviction or acquittal without the prior permission of the public
prosecutor.…
It
is obvious that providing no right of appeal as available to a private
complainant against the order of acquittal by a court of general criminal
jurisdiction to a private complainant or a person aggrieved by an order of
acquittal of Anti-Terrorism Court under Section 25 of the Anti-terrorism Act
1997 tantamounts to discrimination to a private complainant or the person
aggrieved by an act of terrorism and also seems contrary to tenet of the Islam
as referred by the Peshawar High Court in its Judgments. Therefore, there existed sufficient reasons to justify a
right of appeal to be provided to a private complainant against an acquittal
order of the Anti-Terrorism Court, established under Anti-terrorism Act 1997 and
thus the Secretariat of the Commission proposed for addition of a new
Sub-section (4 A) in Section 25 of the Anti-terrorism Act 1997, providing for
right of appeal against an order of acquittal by such court for consideration of
the Commission as follows: -
Section
25
(4 A): A person aggrieved by the order of acquittal passed by a Anti-Terrorism Court, may within fifteen days file an appeal against such order.
The
Commission considered the proposal in its meeting held on 18 May 2002 at
Islamabad and approved that a right of appeal may be made available against an
order of acquittal to a private complainant or an aggrieved person under the
Anti terrorism Act 1997 as available in Section 417 of the Code of Criminal
Procedure. The Commission further
desired that the person aggrieved, however, be qualified to include the victim
and/or close relation i.e. legal heir of victim to avoid the abuse of the
process. The Commission approved
the addition of the following Sub-sections of Section 25 of the Anti-terrorism
Act 1997 namely :-
“
(4A) Any person who is a victim or legal heir of a victim and is
aggrieved by the order of acquittal passed by an Anti-terrorism Court, may
within fifteen days, file an appeal in a High Court against such order.
(4B)
If an order of
acquittal is passed by an Anti-terrorism Court 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 within fifteen days present such an appeal to the High
Court.”.
The
Draft Ordinance is at Appendix-I.
Appendix-I
AN
ORDINANCE
further to amend the Anti-terrorism Act 1997
WHEREAS it is expedient further to amend the Anti-terrorism Act1997 (XXVII of 1997),for the purposes hereinafter appearing;
AND WHEREAS the President is satisfied that circumstances exist which render it necessary to take immediate action;
NOW, THEREFORE, in pursuance of the Proclamation of Emergency of the fourteenth day of October, 1999, and the Provisional Constitution Order No. 1 of 1999, read with the Provisional Constitution (Amendment) Order No. 9 of 1999, and in exercise of all powers enabling him in that behalf, the President of the Islamic Republic of Pakistan is pleased to make and promulgate the following Ordinance: -
1.Short title and commencement. --
(I) This Ordinance may be called the Anti-terrorism (Amendment) Ordinance 2002.
(2) It shall come into force at once.
2.Amendment of Section 25, Act XXVII of 1997.- In the Anti-terrorism Act 1997, in Section 25, after Sub-section (4), the following new Sub-sections shall be inserted,
namely:-
“
(4A) Any person who is a victim or legal heir of a victim and is
aggrieved by the order of acquittal passed by an Anti-terrorism Court, may
within fifteen days, file an appeal in a High Court against such order.
(4B)
If an order of
acquittal is passed by an Anti-terrorism Court 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 within fifteen days present such an appeal to the High
Court.”.
President of Pakistan