In our criminal procedure code, appeal against sentence of death or imprisonment is abated on the death of accused, however, it stays and is decided on merit to the extent of sentence of fine.
In this case appellant has been sentenced to death with compensation of Rs.500,000/- u/s 544-A Cr.P.C which in no case can be considered as fine.
The main thrust of learned counsel for the appellant was that accused/appellant now deceased had served the government as civil servant and he would lose his service benefits if his conviction stays because abatement does not exonerate him from the charge on merit. We have attended his contention and feel it appropriate to respond the contention while explaining the legal consequence of an abatement process.
The literature, in that article, on the concept of abatement throws light that the effect of abatement is to throw down, to beat down, destroy, quash, to discontinue all proceedings ab initio, dismiss the appeal as moot, overturn the conviction, and dismiss the indictment. Essentially, the defendant is left as if he or she had never been charged. Abatement was seen as a way to recognize that the courts’ penal role ended with death, rather than as a measure to protect the defendant’s rights. The transformation of abatement into a rights-protective measure has generated the features that today make the doctrine unique, such as its ability to exonerate the defendant, and to block quasi-civil remedies such as restitution. 7. In the above article of Timothy A. Razel, it is mentioned that the justification for using the abatement doctrine, or for not using it, was tied with the goals of criminal law that prevailed. Before the late twentieth century, the major rationale for criminal law was to punish the defendant. The interests of victims were marginalized; combine that with the high importance put on due process and the increased use of the appeals process to safeguard those rights, and the abatement doctrine, as formed, seems very logical. If the defendant is not alive to be punished, and his or her conviction has not been deemed final through review, there is no point to retaining the conviction. The above principle, he referred, is based on following judgment and literature.
In the same article referred above, it has been explained that the restitution-blocking effect of modern-day abatement typically follows logically from its exonerative effect. If abatement leaves the defendant innocent, so the reasoning goes, then surely, he cannot be required to “compensate” his “victims.” The argument that abatement restores innocence, and innocence forecloses compensatory judgments, has been a powerful one. Not only has it been used to cancel orders of restitution, but courts have also deployed it to nullify the issue-preclusive effect of criminal convictions in subsequent lawsuits by crime victims or the government. Such courts’ reasoning is typically the same as that of the court in Rich: the crime never happened in the eyes of the law, so it cannot form a basis for collateral estoppel.
Barring appeals from sentence of fine in our system, it is clear from above judicial pronouncements and literature that accused on his death is destigmatized from all charges in terms that as he has not committed any offence. At this juncture a thought needs clarification usually put forth that only that appeal shall not abate which is against the sentence of fine solely and when there was composite sentence of imprisonment as well as fine, the appeal has to abate both against the sentence of imprisonment as well as fine.
It is now trite that when no conviction remains against the convicted accused, any benefit which otherwise is admissible under the law would be available to him even after his death. Interest of legal heir for service benefits is not a direct interest in the sense that it cannot arise out of the decision of this court even if it is in favour of the appellant. The only interest which the legal heirs have is a contingent one and is not one which could flow directly out of the ultimate decision of this case.
Learned counsel for the appellant has not pointed out that any departmental action has been taken against the appellant/deceased on the basis of his conviction in the case or any proceedings are pending in this respect. If no adverse final action at the departmental level has been taken so far against the appellant/deceased, abatement of criminal appeal cannot provide a ground to initiate it now because death even stops the pending department inquiry. It has been held by this court that any pending inquiry cannot be culminated into dismissal or removal of a civil servant after his death.
Though Section 8 of PEEDA Act, 2006 authorizes imposition of penalty for different situations based on conviction of a civil servant in a criminal case, yet the penalty referred therein for initiation of proceedings requires notice and reply of accused; which situation cannot be met if the civil servant is dead.
Crl. Appeal-Against Conviction-PPC
1164-18
KHUDA BAKHSH VS
STATE ETC
Mr. Justice Muhammad Amjad Rafiq
14-11-2022
2022 LHC 8195
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