P L D 1997 Peshawar 166 (PLP)

Sanaullah Khan Gandapur, S.Zafar Abbas Zaidi and Dost Muhammad Khan for Appellants. S.Saeed Hassan Sherazi, Asstt. A.‑G. for the State. SARDAR MUHAMMAD RAZA, J.‑‑‑Twenty‑three appeals fixed in motion and three appeals fixed in notice given in the title are all appeals filed by complainants against the orders of acquittal passed by the Special Courts under Suppression of Terrorist Activities Act, 1975.

2. The question of law that is taken up for consideration is, if a complainant in cases tried by a Special Court under the aforesaid Act has a right to file an appeal against acquittal, in para meteria with section 417(2‑A) of the Code of Criminal Procedure.

3. We had the privilege of listening to arguments at length of Mr.Sanaullah Khan Gandapur, S. Zafar Abbas Zaidi and Mr. Dost Muhammad Khan, Advocate on behalf of the complainant while S. Saeed Hassan Sherazi, Assistant Advocate‑General argued on behalf of the State.

4. For facility of reference, section 7 of the Suppression of Terrorist Activities Act is reproduced below:‑‑ "

7. Appeals from sentences imposed by Special Courts etc.‑‑(1) A person sentenced by a Special Court shall have a right of appeal to the High Court within whose jurisdiction the sentence has been passed, (1) (And the Provincial Government may direct any person appointed by it for the purpose to present an appeal to the High Court from an order of acquittal passed by a Special Court) but save as aforesaid and notwithstanding the provision of the Code or any other law for the time being in force or of any thing having the force of law by whatsoever authority made or done, no Court shall have authority to revise such sentence, or to transfer any case from a Special Court or to make any order under section 426 or section 491 or section 498 of the Code, or have any jurisdiction of any kind in respect of any proceedings of a Special Court. (2) An appeal under subsection (1) shall be preferred to the High Court within thirty days of the passing of the sentence (or order of acquittal, as the case may be), and shall be heard and decided by a Bench of not less than two Judges of the High Court (within three months). (3) Chapter XXIX of the Code shall apply to the suspension, remission and commutation of sentences passed by a Special Court. "

5. From the plain perusal of the aforesaid section of the Act, it is t abundantly clear that right of appeal against the judgment of a Special Court is granted to either the convict or the State. No right of appeal is granted to the private complainant as envisaged by section 417(2‑A) of the Cr.P.C, which subsection was inserted by Code of' Criminal Procedure (Second Amendment) Act (XX of 1994) passed on 6‑11‑1994, much after the promulgation of Suppression of Terrorist Activities Act, 1975. What we have gathered from such amendments in the Code of Criminal Procedure, is, that wherever the Legislature wanted to extend the right of appeal, it extended the same by positive legislation and wherever it did not want to extend the right, it did not make the legislation.

6. Another important aspect of section 7 of the Act is that at the time of its initial enactment no right of appeal was at all provided to any one except the convict. It was later on realised that there was no provisions in the law to check the acquittals and hence right to appeal was granted to the Provincial Government by special amendment through Suppression of Terrorist Activities (Special Courts Amendment) Act, 1975. Had the Legislature intended to grant such right to the complainant, it could have, with the same convenience, granted the same by way of amendment which, till this date, has not been made.

7. It is altogether a different argument that, in line with the provisions of section 417(2‑A), Cr.P.C., such right should have been granted to a complainant under Suppression of Terrorist Activities Act, 1975, as well. Certainly, the aforesaid right under the Code was extended to the complainant in order to bring the laws in conformity with the principles of Islam but the curious point to be noted is that such right despite all said and done, was never extended to a complainant unless specifically legislated by the insertion of subsection (2‑A) to section 417, Cr.P.C. The same right ought to have been extended to a complainant under the Act of 1975 but so long as it is not granted by the Legislature, the Courts cannot read the same into an enactment and cannot grant the same accordingly. We would propose that the same right be extended under section 7 of the Suppression of Terrorist Activities Act, 1975 to a private complainant as well by positive legislation. This would avoid discrimination and would further be in line with the spirit of the Act of 1975.

8. It was argued by the learned counsel for the complainant that the words "passed by any Court" appearing in subsection (2‑A) of section 417 Cr.P.C. be deemed to have included the Special Courts as well. Having gone through the aforesaid newly inserted section (2‑A), we are of the considered view that the I words "passed by any Court" in the said subsection refer to all the Courts created, existing and working under the Code of Criminal Procedure whereas the Special Courts under the Act of 1975 are not created under the Code of Criminal Procedure irrespective of the fact that such Courts exercise certain powers and hold a procedure laid down in the Code of Criminal Procedure, specially allowed by section 5(9) of Suppression of Terrorist Activities Act, 1975. The aforesaid permission under section 5(9) of the Act is only with regard to the procedure to be adopted while holding a trial and does not at all concern with a right of appeal which is substantial in nature, granted by the Legislature in specific and is never to be equated with a fundamental right.

9. On the same analogy we also do not find ourselves in agreement with the argument that such right of appeal be presumed in the light of section 5(2), Cr.P.C. This section also provides for investigations, inquiries and trials to be conducted under the Code. On the other hand, the Act of 1975 carries its own provisions and the Code of Criminal Procedure too is applicable to the proceedings before a Special Court, only and only when specifically permitted, as it is so permitted under section 5 etc. of the Act.

10. While referring to Maxwell on the Interpretation of Statutes, Edition 1969, Chapter 2, page 40, it was contended that the provisions of section 7 of the Act of 1975 if juxtaposed to the provisions of section 417(2‑A), Cr.P.C., they tend to create a mischief and that in such a state of affairs the Court should come up with an interpretation that sweeps away the mischief. This also is not a true representation of the phenomenon of mischief, seen in the light of the principles of interpretation of statutes.

11. The theory of mischief comes into play only when independent appreciation of two statutes or two provisions of law tend to cause a confusion whereby some one is deprived of aright in one statute which appears to be granted in the other. In the instant case, there is neither confusion nor mischief. Right of appeal is a creation of statute. It is clearly granted in one place and clearly denied in the other. It cannot be read into the one where it is not provided. Since the time of promulgation of laws and up to the enactment of subsection (2‑A) of section 417, Cr.P.C. no right of appeal stood ever granted to a private complainant and if it stands not granted in a certain law even today, it should never be made a point of confusion or mischief.

12. The State v. Syed Qaim Ali Shah (1992 SCMR 2192) was referred before us wherein the provisions of sections 426 and 497 Cr.P.C.. were considered in comparison to the provisions of Suppression of Terrorist Activities Act. Having gone through the aforesaid ruling and also Pervaiz Akhtar v. Muhammad Inayat (1995 SCMR 929) and Mst. Neelam Nawaz v The State (PLD 1991 SC 640), we firmly believe that a dispute over the applicability o` sections 426 and 497, Cr.P.C. to the Suppression of Terrorist Activities Act, 1975 should not be equated with a dispute over a substantial right of appeal. The suspension of a sentence under section 426, Cr.P.C. is quite close to some one's, release on bail as defined by section 497, Cr.P.C. Such provision of bail is not denied in toto by the Suppression of Terrorist Activities Act, 1975 but is rather, specifically provided under section 5‑A(8) of the Act of 1975, with some difference of circumstances that are required to be seen before releasing an accused on bail.

13. When the question of interpretation of the aforesaid two sections of bail in two diffe:‑cent enactments arises, one can put a convenient interpretation to the factum of.bail, sometimes favouring and sometimes disfavouring the accused, as the circumstances would require, but, such force of interpretation cannot be given to a right of appeal which is totally denied in one enactment and granted in another. It may be recalled that it is a bounty of the statute and not the grant of a Court through the force of interpretation. There is no bar in having recourse to the provisions of general law when a special statute is silent on a point but this course cannot be adopted when the provisions of the two statutes are diametrically and expressly opposed to each other.

14. In Ghazi v The State (PLD 1962 (W.P.) Lahore 662) it is explained that a right of appeal is a vested right only if it is granted by the statute and further that an appeal is not a matter of procedure so as to be taken away retrospectively. The aforesaid view only explains the same principle that the right is a matter of grant and becomes vested only when ii stands granted, and further that thereafter it cannot be taken away with retrospective effect. Concerning special procedure under special laws the Supreme Court in The State v. Hamtho (1971 SCMR 686) has gone to the extent that the procedure provided by the special statute is to be followed and not the ordinary procedure under general law. This should not be equated with a right of appeal, which is not a matter of procedure and, therefore, should be adhered to with strict reference to the special law as compared to the general law. An interesting situation was faced by Skemp, J. of the Lahore High Court in Karam Dad v. Emperor (AIR 1941 Lahore 414) when Karam Dad etc. came in revision against their conviction under section 411, P.P.C. recorded by a Magistrate 1st Class who on conviction sentenced them to pay a fine of Rs.45 and thus deprived them of the right of appeal. It was held that right of appeal was not a natural right and it way created by statute and therefore it was inaccurate to say that an accused has beet; deprived of his right of appeal. What we emphatically want to bring home is that from time immemorial a right of appeal is consistently and persistently interpreted to be a creation of the statute and not to be a natural or fundamental right.

15. The upshot of what has been discussed above is that the right of appeal cannot be extended to a private complainant by reading the same into .the provisions of section 7 of the Suppression of Terrorist Activities Act, 1975 when such a right is not specifically provided therein. All the appeals in motion as well as in notice, given in the title are hereby dismissed, the first 23 being in limine.

16. A copy of this judgment be sent to the Secretary to Government of Pakistan, Ministry of Justice and Parliamentary Affairs (Justice Division), Islamabad with strong recommendation that section 7 of Suppression of Terrorist Activities Act, 1975, be amended so as to give right of appeal to a private complainant in order that the provisions are brought in consonance with the Injunctions of Islam, in the background of such requirement felt expedient for the enactment of section (2‑A) of section 417, Cr.P.C. As innumerable persons in the shape of victims are likely to be affected for future, an early action taken in this behalf shall be in the extreme interest of justice. H.B.T./2169/P Appeals dismissed.