ANJUM JILLANI vs Mst. FEROZA JILLANI and another
This matter arises from criminal applications seeking bail and subsequent acquittal based on a compromise between the parties in a case under the Illegal Dispossession Act, 2005. The convict-petitioner, Anjum Jillani, was convicted under section 3/4 of the Illegal Dispossession Act, 2005 and sentenced to one year rigorous imprisonment. The core legal question was whether a convict sentenced to one year imprisonment could be granted bail under section 381-A of the Code of Criminal Procedure, 1898 to file an appeal before the Supreme Court of Pakistan, and subsequently whether the conviction could be set aside on the basis of a compromise between the mother and her stepson. The Peshawar High Court held that section 381-A applies where a convict has a right of appeal, whereas a petition for leave to appeal does not constitute a right of appeal. However, upon a compromise being effected between the parties, the court set aside the previous order and acquitted the petitioner. The key principle laid down is that section 381-A of the Code of Criminal Procedure, 1898 is inapplicable where a party requires leave to appeal rather than possessing a direct right of appeal.
- Whether a convict sentenced to one year imprisonment is entitled to bail under section 381-A of the Code of Criminal Procedure, 1898 to approach the Supreme Court when seeking leave to appeal?
- Does a petition for special leave to appeal constitute a right of appeal for the purposes of section 381-A of the Code of Criminal Procedure, 1898?
- Can criminal proceedings under the Illegal Dispossession Act, 2005 be resolved and a conviction set aside on the basis of a compromise between the parties?
- Section 3, Illegal Dispossession Act, 2005
- Section 4, Illegal Dispossession Act, 2005
- Section 381-A, Code of Criminal Procedure 1898
- Section 561-A, Code of Criminal Procedure 1898
ORDER
' MUHAMMAD ALAM KHAN, J.---This order will dispose of two applications i.e, Criminal Miscellaneous No,117 of 2008 and Cr. MQ No,43 of 2008 as both arise out of the same matter and involve a common question of law and facts.
2. Briefly narrated, the facts of the case are that Mst. Feroza Jillani filed a complaint under section 3/4 of the Illegal Dispossession Act, 2005. After the trial the convict-petitioner Anjum Jillani was sentenced to one years rigorous imprisonment and a fine of Rs,3000 or hi default of payment of fine, to further three months simple imprisonment. He was however, placed at the disposal of the Prohibition Officer and this Court vide order dated 10-6-2008 dismissed Criminal Appeal No,29 of 2007 and set aside the probation order. Later on, the convict-petitioner submitted an application bearing Criminal Miscellaneous No,117 of 2008 which came up for hearing before this Court on 17-6- 2008. In that application it was argued that as the convict was on probation, so, he had completed the probation period and had deposited the fine and so, this Court, in view of those submissions, passed an order that as the convict has completed the probation period, he be released forthwith from Jail. The warrant of release sent by this Court, was returned with an endorsement dated 18-6- 2008 that neither the convict has surrendered before the Probation Officer nor he has undergone even one day sentence in Jail, so, the Superintendent Jail sought the clarification of the release order from the office.
3. The learned counsel for the petitioner submitted that in view of the provisions of section 381-A, Cr.P.C. When a person is convicted to imprisonment less than on year and he had a right of appeal in the Supreme Court of Pakistan, this Court, even after dismissal of appeal, can release him on bail. When asked, that whether the convict had a right of appeal in the Supreme Court or he will have to file a criminal petition for leave to appeal before the Supreme Court, the learned counsel could not convince this Court.
4. It is true that under section 381-A, Cr.P.C. When a person is convicted and sentenced to less than one year imprisonment, the convict can be extended the concession of bail in order to enable him to file an appeal in the apex Court.
5. In this case the sentence awarded to the appellant is one year and he has no vested right of appeal in the apex Court. However, he will have to seek the leave of the apex Court by filing criminal petition for special leave to appeal, which does not include the right of appeal as used in section 381-A, Cr.P.C. In view of the dictum rendered in the case of Muhammad Bashir and 3 others. v. The State and another (1994 PCr.LJ 1552) and thus the convict cannot be released on bail.
6. Confronted with this situation, the parties requested for effecting compromise. Resultantly, as the matter was between the mother and son, Mst. Feroza Jillani being mother and Anjum Jillani being her step son. Mst. Feroza Jillani along with Mst. Zeenat Tabassum appeared before this Court and submitted a compromise. The joint statement was recorded and placed file. Mst. Feroza Jillani has forkiven convict in the name of Allah Almighty subject to the terms and conditions neither the convict nor his wife Mst. Zee Tabassum or her brothers, nor Malik ; Zulfiqar, uncle of the convict- appellant will have any concern with Mst. Feroza Jillani. They will not interfere in possession and she will have a right of free access to her house and living peacefully there. Similar statement of Anjum Jillani was recorded on 27-6-2008, after his release from Jail.
7. Thus, in view of compromise, I accept Cr.MQ No,43 of 2008 and set-aside the order of this Court dated 10-6-2008 in Criminal Appeal No,29 of 2007 under section 561-A, Cr.P.C. And acquit the convict-petitioner namely Anjum Jillani son of Malik Ghulam Jillani, resident of Galli Bagh Wali, Anjum House, outside Leghari Gate, Dera Ismail Khan. He has been presently lodged in Central Jail, Dera Ismail Khan. The office is directed to issue warrant of his release and Superintendent, Central Prison, Dera Ismail Khan is directed to release the convict forthwith if not required in any other case.
8. Above are the reasons of my short order of even date.
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