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PART E -- APPEALS FROM ORDERS OF ACQUITTAL
Appeal to be filed in certain cases.-- Sessions Judge and District Magistrates should bear in mind the following order of the Provincial Government regarding appeals against acquittals under section 417 of the Criminal Procedure Code.
The Provincial Government will not direct an appeal--
(1) where the case is trifling in itself and the acquittal involves no erroneous principles of law, the correction of which is of public importance;
(2) where, however serious or otherwise important the case, the legal guilt of the accused is fairly questionable or the evidence admits of any reasonable doubt, and the Court has considered and weighed it with impartiality, intelligence and care;
(3) merely on account of the production of fresh evidence after the acquittal, or
(4) where there is no distinct probability that the appeal will result in an order of re-trial.
2. Travelling expenses for the accused.-- In cases where it is decided that an appeal ought to be filed, the ***[...] Government considers that the accused should have legal assistance at his trial and with this end in view, the Judges are pleased to direct that the District Magistrate on receipt of a notice for service upon the person acquitted to show cause why he should not be convicted, shall, if he is satisfied that the accused is unable because of poverty to proceed to the High Court at Lahore, provide him with sufficient funds to enable him to do so should he so desire and, in the event of the apprehension of the person concerned and his custody in a lock-up, arrange that the accused (should he so desire and should he not be represented by counsel of his own choice) be conveyed to the High Court at Lahore, for the purpose of attending the hearing of the appeal against his acquittal.
3. Legal assistance to the accused.-- With the same object in view, namely, to give every reasonable protection to the defence, a reasonable fee to enable him to engage counsel, if such is his intention, shall be paid by the Government to the accused in all such cases, whatever may be the result of the appeal and whether he is or is not in attendance when the appeal is heard. He would be at liberty to supplement this himself in order to obtain counsel of superior calibre, should he so desire. The payment of the fee herein referred to shall be arranged and paid by the District Magistrate concerned in consultation with the *[Solicitor] to Government, Punjab, in the form of a letter of credit which the accused person's counsel can cash after actual appearance in the High Court.
4. Legal assistance in cases of enhancement of sentence.-- In the case of an application for enhancement of sentence made by the Provincial Government the same procedure should be followed in the matter of provision of counsel for the accused as is prescribed in paragraph 3 above.
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[5. High Court can alter the conviction from Section 304 to 302 only when Government appeals.-- In this connection it should be noted that ***[...] when a person is tried for an offence under section 302, Pakistan Penal Code, but is convicted under Section *[318] of *[the said Code] and sentenced to a term of imprisonment, the Sessions Judge's order amounts to acquittal under section 302. On application to a High Court for revision of sentence, the High Court has no jurisdiction in view of the provisions contained in clause (4) of section 439 Criminal Procedure Code, to alter the conviction to one under section 302 and sentence the accused to death. In such cases an appeal by the Provincial Government or by an aggrieved person under section 417 of the Code is required to give the High Court jurisdiction, if it is desired to alter the conviction.
6. Requisition for records for scrutiny when appeal for acquittal is contemplated.-- For securing the original records of trial court for scrutiny in cases where an appeal against an acquittal, etc., is under contemplation the following procedure should be observed:-
(a) Where there has been a complete acquittal by the Court of Session of all the accused in a case, the Sessions Judge should, on a certificate furnished by the District Magistrate that an Appeal from acquittal is in contemplation, hand over to the District Magistrate the sessions record of the case and such other connected papers in the custody of the Sessions Court as the District Magistrate may require.
(b) In cases where some of the accused have been convicted and others acquitted by the Sessions Court and no appeals against convictions are pending the procedure laid down in (a) above should be followed, but where appeals from convictions are pending, the records should, on receipt of a certificate from the District Magistrate that an appeal from an acquittal is in contemplation, be forwarded to the High Court.
(c) When sending records to District Magistrates, Sessions Judges should see that the Sessions records of the case are complete in all respects and include the ***[...] Police papers if they are in the possession of the Sessions Court.
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