25. Appeal.--(1) An appeal against the final
judgment of an [Anti-Terrorism Court] shall lie to [a High Court].
(2) Copies of the Judgment of [Anti-Terrorism
Court] shall be supplied to the accused and the Public Prosecutor free of cost
on the day the judgment is pronounced and the record of the trial shall be
transmitted to the [a High Court] within three days of the decision.
(3) An appeal under sub-section (1) may be
preferred by a person sentenced by an [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 High Court
or Supreme Court of Pakistan appointed as Public Prosecutor, Additional Public
Prosecutor or a Special Public Prosecutor] may, on being directed by the
Federal or a Provincial Government, file an appeal against an order of
acquittal or a sentence passed by (An Anti-Terrorism Court) within fifteen days
of such order.
[(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 thirty 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, grant special
leave to appeal from the order of acquittal, the complainant may within thirty
days present such an appeal to the High Court.]
(5) An appeal under this section shall be heard
and decided by "a High Court" within seven working days.
[(6) Omitted by Ordi. IV of 1999 and XIII of 1999
w.e.f. 27.4.1999].
(7) Omitted by Ordi. IV of 1999 and XIII of 1999
w.e.f. 27.4.1999].
(8) Pending the appeal "a High Court"
shall not release the accused on bail.
[(9) For the purposes of hearing appeals under
this section each High Court shall establish a Special Bench of Benches
consisting of not less than two Judges.
(10) While hearing an appeal, the Bench shall not
grant more than two consecutive adjournments.]
COMMENTARY
High Court could hear
appeals not only filed by the prosecutors, but also filed by victims, legal
heirs and by private aggrieved persons. High Court having control and
superintendence over the Courts below, it could also exercise visitorial
jurisdiction in respect of matters which did not fall under ambit of appeals.
High Court could exercise visitorial power and could exercise revisional
jurisdiction in respect of Courts below in cases where appeal or leave to
appeal, were not to be filed. Petition for leave to appeal could be filed by an
aggrieved person against an order of acquittal passed by Anti-Terrorism Court
before High Court within the timeframe as prescribed and "aggrieved
person" would include the victim, his legal heirs or private complainant.
High Court had the visitorial powers over Anti-Terrorist Courts and could
entertain petitions in the nature of those as covered by S.439, Cr.P.C. Law was
so declared and constitutional petition was disposed of accordingly. (PLD 2006
Lahore 290)
Petitioner in her
petition under S.491, Cr.P.C. had challenged arrest and detention of her
husband caused by District Police Officer under orders of Home Secretary to
Government under S.11-EEE of Anti-Terrorism Act, 1997. Police Officer concerned
had not produced any record showing involvement of alleged detenu in any case
and he also could not produce Notification containing name of alleged detenu in
a list in Fourth Schedule as envisaged under S.11-EEE of Anti-Terrorism Act,
1997, whereunder detention of a person could only be made if his name was
included in the list referred to in the said section. Deputy Superintendent of
Police (Legal) and Assistant Advocate-General both having failed to produce
that list, detention order passed by Home Secretary, was illegal and without
lawful authority. Detenu was ordered to be released, in circumstances. (2006
P.Cr.L.J. 33)
Accused persons were
charged for abducting and receiving ransom. Natural and true account with
regard to the act of abduction and payment of ransom was furnished by
prosecution witnesses and such evidence was proved beyond any doubt. Recovery
of empty shells of Kalashnikov from the place of occurrence further
strengthened the factum of abduction at gun point. Accused persons could not
prove their innocence after the prosecution had discharged its burden as the
same was required u/S. 8, Anti-Terrorism Act, 1997. Sentence and conviction of
imprisonment for life awarded by trial Court was maintained. (2000 P.Cr.L.J.
299)
Anti-Terrorism Court
could directly take cognizance of case, once file was sent to it and it was of
the opinion that offence committed by accused fell within purview of Section 6,
Anti-Terrorism Act, 1997 and the moment such opinion was formulated, offence
would become one falling within jurisdiction of Anti-Terrorism Court on the
basis of Section 12 of the said Act. As offences for which accused were charged
under Suppression of Terrorist Activities (Special Courts) Act, 1975, were not
scheduled offences, but by virtue of definition as contained in Section 6 of
Anti-Terrorism Act, 1997 such acts had become act of "terrorism", it
was incumbent upon Anti-Terrorism Court to have reframe charge under Sections 6
and 7 of Anti-Terrorism Act, 1997.
Appeals were accepted and conviction or sentence recorded on basis of
charge framed by Special Court and conviction and sentence recorded for such
offences which were not specifically mentioned in schedule to Anti-Terrorism
Act, 1997, were set aside and case was remanded to decide afresh after
reframing of charge and affording parties opportunity of hearing. (2003
P.Cr.L.J. 1086)
Considerations for
appeal against conviction and appeal against acquittal were much different.
While dealing with appeal against acquittal impugned judgment has to be looked
into to see whether it was perverse and on perusal of evidence no other
conclusion could be made except that accused was guilty or there had been
complete misreading of evidence leading to miscarriage of justice. High Court
was slow to set aside judgment of acquittal. Acquittal of accused attaches
double presumption of innocence in his favour. (2000 P.Cr.L.J. 1729)
Appeal to High Court
against dismissal of complaint for non-prosecution would not be competent.
Complainant in such a case could avail alternate remedy by way of filing a
fresh private complaint or an application before trial Court for restoration of
his complaint. (2003 MLD 1401)
Appeal u/S. 25 of the
Anti-Terrorism Act, 1997, lies only against the final judgement and not against
the other orders. (2004 YLR 1106)
Interim or interlocutory
orders of Anti-Terrorism Court are not appeal-able u/S. 25 which provides
appeal only against final judgment of Anti-Terrorism Court. (NLR 2002 Criminal
449)
Accused had been tried
in absentia and convicted by the trial Court and they had filed appeal either
through their relatives or through counsel. Appeal filed by counsel or a
relative on behalf of a person who has fugitive from law was not competent, nor
the same could be treated as having been competently filed. (PLD 2004 Quetta
16)
Appeal was time barred
by one day which day was consumed in obtaining copy of the judgment. Section
12(2), Limitation Act excluded the period of time consumed in obtaining copy of
the judgement and the day on which impugned judgment was pronounced. Operation
of Section 12(2), Limitation Act was ousted only if there was any provision of
law contained in a special or local law to this effect as per Section 29(2)(a),
Limitation Act, 1908. Anti-Terrorism Act, 1997 being a special law had not
ousted the operation of Section 12, Limitation Act, 1908, therefore one day
which was genuinely spent in obtaining copy of the impugned judgment had to be
excluded from the limitation period of 15 days. Appeal filed against acquittal
was within time in circumstances. (2002 P.Cr.L.J. 2041)
Only the state could
file appeal against acquittal and complainant being not included in the
category of officers mentioned in subsection 4 of Section 25 of Anti-Terrorism
Act, 1997, could not file appeal against acquittal of accused. (2004 P.Cr.L.J.
121)
Advocate General had
been authorised and directed by the Provincial Government by necessary
Notification and letters to file appeals against acquittal and for enhancement
of sentence of accused in accordance with the provisions of Section 25(4) of
the Anti-Terrorism Act, 1997. To prosecute or enforce a matter judicially
included as of necessity the power or the right to file the required appeals by
the person, who had been authorised to pursue the appeals. Any act on the part
of the Advocate General would give the suggestion or lead to the presumption
that he had been duly authorised and directed to do so. Letter issued by
Provincial Government; addressed to the Advocate General conveying necessary
sanction to prefer appeal against the impugned judgment, had been legally
brought on record in accordance with the procedure. Accused had not been able
to establish beyond any reasonable doubt that the requirement of Section 25(4)
of the Anti-Terrorism Act, 1997 had not been complied with. Petitions seeking
the appeals to be dismissed in limine were dismissed in circumstances. (PLD
2002 Karachi 8)
Appeal in absentia is
not maintainable without surrendering. PLJ 2004 Cr.C. (Quetta) 1033 (DB).
Confessional statement
got recorded by appellant was after his prolonged custody of 17 days. Ocular
account of occurrence was worth nothing in present case as the same does not
tend to incriminate any of the appellants, besides the fact that such account was
bristling with paralytic
doubts and infirmities.
Conviction and sentence awarded to appellant was set aside
as his guilt was not proved beyond any shadow of doubt. PLJ 2004 Cr.C.
(Peshawar) 401 (DB).
Identification of
appellant during identification parade would in no way improve case of
prosecution when admittedly prosecution witnesses had opportunity of seeing
appellant before the same was held. Story as to ransom appears to be no better
than a cock and bull story when there was no mention of the same in earlier
statement and thus, such part of story was addition to and improvement on
original version set forth in F.I.R.. Very tenor of story on the face of it
shows that the same was contrived by complainant and his cohorts for some
ulterior motive best known to them. PLJ 2004 Cr.C. (Peshawar) 401 (DB).
Prosecution was bound to
explain circumstances justifying such suspicion even though suspected person
turned out to be actual culprit when charge against accused emanates from no
other source except confessional statement. Where evidence relating to offence
was fully lacking only inference which can reasonably be drawn in circumstances
of case was that Investigating Officer after failing to find actual culprit
found a figure-head in appellant to show his performance and efficiency. PLJ
2004 Cr.C. (Peshawar) 401 (DB).
"Attorney-General"
or "Advocate-General" only are competent to file appeal against
acquittal of accused on the directives of respective Governments. No third
category by way of "Additional Advocate-General" or "Public
Prosecutor" is empowered to file such appeal under S. 25 of the
Anti-Terrorism Act, 1997. 2005 PCr.LJ 1442.
Admitted telephone call
was a fore-runner to occurrence followed by quick arrival of respondent at
house gate of complainant, hurling of abuses to inmates of house, immediate
explosion and his appearance on roof top of Baithak of complainant being
chained circumstances which brought him closer to point of identification,
could not be doubted at all. Prosecution, thus, had succeeded in proving its
case. Judgment of trial Court acquitting respondent was set aside and he was
sentenced to undergo 8 years rigorous imprisonment and to pay specified amount
of fine. PLJ 2002 Cr.C. (Peshawar) 1421.
COMMENTARY
Improper and defective
investigation. Application before Assistant District Administrative Officer,
with regard to the occurrence was marked to accused/Naib Tehsildar on whose
report F.I.R. under Ss.4/5 of Explosive Substances Act, 1908 and S.427, P.P.C.
was registered against unknown persons. Investigation was taken in hand by the
said accused/Naib Tehsildar who arrested six persons against whom no evidence
was available. Not only proper and diligent investigation to trace out and
arrest the real culprits involved in incident was made by the accused, but
innocent persons were arrested and sent up for trial who had suffered a lot
till their acquittal. Investigation in the case by the accused was improper,
defective and was in violation of law. Investigation was carried out by one
accused under supervision of the other. Responsibility of same, in
circumstances, would rest on both the accused. Charge under S.27 of
Anti-Terrorism Act, 1997, in circumstances, stood proved against both the
accused. Conviction awarded to accused by trial Court being in accordance with
law, was upheld. Both the accused being Government Officers and their
conviction would entail consequences which would have effect on their service
as well, sentence of six months R.I. awarded to accused by trial Court was
reduced to two months. Subject to said modification in quantum of sentence of
imprisonment, conviction of accused was maintained. 2003 P.Cr.L.J. 872 = PLJ
2003 Cr.C. (
Allegation against the
accused who happened to be a Police Inspector was that he was guilty of
conducting defective investigation against a person who was involved in
criminal case and that due to said defective inquiries the accused had been
acquitted by the trial Court. Accused had stated that he had only prepared a
memo, of inspection of scene of occurrence and had submitted only charge-sheet
in the case against said person and rest of the investigation had been
conducted by some other Investigating Officer and if any defect had been found
in investigation that could not be attributed to him. Validity. Judgment
against the accused was not passed by a speaking order. Assistant
Advocate-General who did not dispute the factual aspect of the matter, had
stated that judgment passed against the accused be set aside and case be remanded
to the trial Court to pass a speaking judgment in accordance with law. Judgment
passed against the accused was set aside and case was remanded for fresh
decision after providing him a proper opportunity of hearing. (2002 P.Cr.L.J.
655)
Arrest of six innocent
persons by petitioner. Co-accused (superior officer) admitted to have written
letter to Chief Secretary wherein he issued direction to accused to arrest six
persons who were implicated, challaned and subsequently acquitted by trial
Court for absence of evidence against them. Plea of co-accused that he was not
involved in investigation of case was thus of no consequence in as much as,
those accused were arrested on his information and direction. Case under S. 27
Anti-Terrorism Act, 1997, thus, stood proved against both accused. PLJ
2003 Cr.C. (
Petitioners failed to
carry out proper and diligent investigation. Real culprits involved in
incident were not arrested while six innocent persons were arrested and
sent up for trial. Arrest of such persons on instance of superior officer
(appellant) without any evidence cannot be termed to be an act which can be
covered by exception of S. 75 P.P.C.. Arrest of a person without any reasonable
suspicion or grounds being an illegal act cannot be considered to be a mistake
of fact, in as much as, they were also sent up for trial. Offence under S. 27
Anti-Terrorism Act, 1997, thus, stood proved against appellants. PLJ 2003 Cr.C.
(
Plea of accused that he
acted on the orders of co-accused his superior officer and arrested innocent
persons would not entitle him to take benefit of S. 75 P.P.C. which does not
cover illegal acts committed on the direction of superior officer. PLJ 2003
Cr.C. (
Conviction/sentence
recorded against accused by