PLD 2022 Lahore 427
Institution of criminal proceedings is mainly controlled by the provisions of Code of Criminal Procedure 1898; development in stages up to logical conclusion is too regulated through similar law subject to any criteria set through General Clauses Act or a special procedure introduced by any special law. General application of code of criminal procedure on a special law for procedures not ‘specified or prohibited’ is the principle of law embodied in two philosophies under the touch of “express provision and specific prohibition” which leads when the court finds no other way to advance the cause of justice in any given circumstances. It equally carries weight that if the provision of law which rails the proceedings during trial can also be stretched at the level of appellate stage to give effect to the contentions of the respective parties.
A criminal trial though is controlled by the court yet the parties are also authorized to terminate the same at any stage, requesting the court to stop the prosecution. We know criminal trial is concluded/ terminated with three main results; 1st, either the accused earns premature acquittal u/s 249A/265K or acquitted after full dressed trial u/s 245/265H Cr.P.C. or convicted u/s 243/245(2) or 265H (2) Cr.P.C.; 2nd, when parties entered into compromise and the accused is acquitted; because effect of such compromise is of acquittal as embodied in section 345 (6) of Cr.P.C. 3rd, when the public prosecutor opts to withdraw from prosecution which is regulated u/s 494 Cr.P.C. read with section 10(3)(e)&(f) of Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 and such withdrawal during trial amounts to acquittal of accused from the charges.
There is no cavil to the proposition that complaint can be withdrawn during the trial u/s 248 Cr.P.C. but once the accused is convicted and an appeal against conviction is pending, whether the complaint on the basis of compromise or on any other reason could be withdrawn is the query that is to be answered in this case.
From the plain reading of the provisions of 248 CrPC it is reflected that there are two preconditions for permission to withdraw the complaint, which are as follows;
i. Before the final order is passed
ii. Satisfy that there are sufficient grounds
Final order, obviously means an order of acquittal or conviction upon conclusion of trial whereas sufficient grounds may entail out of court settlement for any consideration, or the demise of the parties or the loss is made good or any alternate dispute resolution. Depending upon the circumstance of the case, court can either grant or withhold the permission. Withholding of permission may amount to continuation of prosecution even through any other person.
In section 248 Cr.P.C. word “final order” connotes the culmination of proceedings up to the last remedy available to the parties to over turn the decision of trial court because final order of acquittal or conviction can also be passed on an appeal before the superior courts; therefore, section 248 Cr.P.C. would be available during proceedings before appellate court as well. Even otherwise, it is trite that appeal is considered as continuation of trial;
Section 248 Cr. P.C falls in Chapter XX of Cr. P.C. which relates to trial by Magistrate whereas trial by Court of Session is regulated under Chapter XXII-A Cr.P.C., contention that section 248 Cr. P.C. shall not be available to Court of Session is a question that has its different outcome in the light of provisions of Illegal Dispossession Act, 2005. Section 4 of said Act is necessarily to be read before answering this query: -
4. Cognizance of offence .-
(1) Notwithstanding anything contained in the Code or any law for the time being in force, the contravention of section 3 shall be triable by the Court of Session on a complaint.
(2) The offence under this Act shall be non-cognizable.
(3) The Court at any stage of the proceedings may direct the police to arrest the accused.
Above clarifies that offences under Illegal Dispossession Act shall be tried by Court of Sessions, but it does not specify the application of Chapter XX or XXII-A for the purpose of trial as usually supplied through legislation for courts which work under special laws. In this law even under section-5, mode of inquiry and investigation is entirely different as to one mentioned u/s 202 Cr.P.C. therefore, when there is contrast which principle is to follow, either principle of specific prohibition or principle of express provision, the circumstances always lean toward specific prohibition. As there is no specific prohibition with respect to application of section 248 Cr.P.C. on complaint under Illegal dispossession Act, 2005; therefore, such provision shall be available to the court trying such complaint. The provision of section 9 of this Act also supports what has been discussed above.
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