PLD 2020 SC 146
Maintainability of Appeal before Division Bench for enhancement of sentence passed by Single Bench of the High Court
The case put forth before the Court, the question: whether the appeal filed by the State, under section 411-A(2) Cr.P.C., for enhancement of the sentence passed by a Single Bench in its original jurisdiction was competent before the Division Bench of the High Court? The Court decided the question in negative, with the observations: “It is a settled principle of law that a right of appeal is a substantive right, which can only be granted by an express provision of an enactment, and cannot be inferred or implied therefrom. It appears that there was a conscious omission on the part of the legislature not to provide the remedy of enhancement of sentence to a Division Bench of the High Court against one passed by a Single Bench of the High Court in its criminal original jurisdiction. This can be gauged on reviewing the provisions of Appeals, Reference and Revisions (ChapterXXXIX Part-VII) of the Cr.P.C, and more particularly, the specific placement of section 411-A therein. A careful review of the provisions contained in the said chapter suggests that four distinct rights to appeal have expressly been provided therein: first, against the conviction and sentence passed by the Assistant Sessions Judge and by the Judicial Magistrate (section 408); second, against the conviction and sentence passed by the Sessions Judge (section 410); third, against an acquittal order passed by the Trial Court other than the High Court (section 417); and finally, against the conviction and sentence passed by the High Court (section 411-A). Also relevant for resolution of the matter in hand is the separate provision provided in section 411-A Cr.P.C. for appeal against the judgment and sentence passed by the High Court in its original jurisdiction. There is an express right of appeal to a convict against conviction and sentence under sub-section 1 (supra) subject to the conditions mentioned therein, and discussed above. While the Provincial Government has been vested with the right of appeal against an order of acquittal of an accused under sub-section 2 (supra), the omission of providing a right of appeal to the complainant and/or to the State for seeking enhancement of sentence in the said section or chapter of the Cr.P.C. is conspicuously indicative of legislative intent.”
PLD 2020 SC 146
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Present Mr. Justice MushirAlam, Mr. Justice Ijaz Ul Ahsan and Mr. Justice Yahya Afridi
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