NOMAN MANSOOR alias NOMI vs State Ss — 2024 PLD 805 SUPREME-COURT

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NOMAN MANSOOR alias NOMI VS State Ss. 417(2a) & 439(2)---Constitution of Pakistan, arts. 10 & 10a---appeal against acquittal filed before the High Court---High Court converting such an appeal into a criminal revision---Notice to the convict, issuance of---Mandatory requirement---Upon filing of a direct Criminal Revision or after conversion of a Criminal appeal into a Criminal Revision, a notice as provided by subsection (2) of section 439, Cr.P.C. has to be issued to the other side---In the present case a Criminal appeal against acquittal was filed through which the High Court considered it appropriate to reappraise the order impugned in light of the material available on the record and while exercising its inherent power, converted the Criminal appeal into a Criminal Revision Petition, at the time of delivering the judgment---It is apparent, rather admitted fact that no notice of the proceedings upon the Criminal Revision was issued to the petitioner/convict---In its revisional jurisdiction, the High Court can enhance the sentence passed by fora below, but before it does so, it must comply with the provisions of subsection (2) of section 439, Cr.P.C., which make it mandatory that no Order under this section shall be made to the prejudice of the accused, unless he has had an opportunity of being heard either personally or through a legal practitioner of his choice, so as to defend himself---Purpose of issuing notice is to give an opportunity to the accused/convict either to pursue his matter personally or through a legal practitioner of his own choice so as to defend himself---Without issuing the mandatory notice the impugned judgment in the present case was contrary to the provisions of section 439(2), Cr.P.C.---This had deprived the petitioner from his legal as well as constitutional right of consulting a legal practitioner of his own choice and fair trial as provided by articles 10 and 10-a of the Constitution, respectively---Contention of the counsel for the complainant that the convict was already before the Court in his own appeal and both the matters were heard together, therefore, he was deemed to be served and no fresh notice was required, was a contention that could not be agreed with for the reason that the appeal filed by the convict and the revision filed by the complainant were altogether different in their nature and outcome---Once the law prescribes a thing to be done in a particular manner, it must be done as such, therefore, a separate notice as required by subsection (2) of section 439, Cr.P.C. was mandatory, without which no order should have been passed, hence, the impugned judgment was not sustainable---Petition was converted into an appeal and partly allowed; impugned judgment was set aside with the directions that appeal filed by the petitioner against his conviction and the acquittal appeal which was converted by the High Court into a Criminal Revision Petition shall be deemed to be pending before the High Court; that the High Court shall issue notice to the convict as required under section 439(2), Cr.P.C., to be served upon him personally; that after service of notice, the High Court should provide opportunity of hearing to all concerned and decide the appeal and the Criminal Revision afresh, in accordance with law, on its own merits and on the basis of the material available on the record. Citation Name: 2024 PLD 805 SUPREME-COURTBookmark this Case NOMAN MANSOOR alias NOMI VS State Ss. 417(2a) & 439---appeal against acquittal filed before the High Court---Power of the High Court to convert such an appeal into a criminal revision---Scope---Under section 439, Cr.P.C., the High Court may in its discretion, exercise any of the powers conferred on a court of appeal, whenever, facts calling its exercise either brought to its notice or otherwise comes to its knowledge---In the present case since the complainant/respondent filed an appeal against acquittal of the petitioner, raising some substantial question of law, therefore, the High Court can consider it as a Criminal Revision Petition and convert it accordingly, for the purpose of satisfying itself to the correctness, legality or proprietary of any findings, sentence or orders---There is no impediment in doing so, therefore, the order of the conversion of the Criminal appeal against acquittal into a Criminal Revision suffers from no illegality or irregularity---Petition was converted into an appeal and partly allowed.

NOMAN MANSOOR alias NOMI vs State Ss — 2024 PLD 805 SUPREME-COURT

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