P L D 1988 Karachi 49 (PLP)

(i) That section 10 of the Ordinance expressly bars the jurisdiction of all Courts to revise sentence or to transfer any case from a Special Court or to make any order under section 426 or section 491 or section 498 or to have any jurisdiction of any kind in respect of any proceedings of a Special Court, except that a person sentenced by a Special Court is given the right to file an appeal to the High Court against the sentence, this Court cannot import either Chapter XXXI of the Code or section 435 or 439 of the Code. Mr. Rasheed Akhund in addition to the adopting of the above arguments of Mr. Azizullah K. Shaikh submitted that a Special Court does not become a Court of Magistrate because of subsection (8) of Section 5 of the Ordinance but is required to follow the procedure of a Magisterial Court in the matters not provided for in the Ordinance. His further submission was that general provisions of the Code will not abrogate or negative the special provisions of the ordinance. Mr. Abdul Rahim Kazi learned Additional Advocate‑General, besides adopting the arguments of Mr. ' Azizullah K. Shaikh and Mr. Rasheed Akhund has submitted that the word 'Court' used in section 417 of the Code means a Court under the Code and not a Special Court created under the Ordinance. Mr. Khatri also supported the office objection and in addition to the above submissions has urged that a Special Court is not an inferior Court in terms of section 435 of the Code. Syed Ansar Hussain also supported the office objection and pointed out that in section 10 of the Ordinance the emphasis on the exclusion of the jurisdiction of all Courts is manifest as it has been provided so thrice.

3. Adverting to the first submission of Mr. Syed Sami Ahmad, learned counsel for the petitioner that by virtue of subsection (2) of section 5 of the Code, the Provisions of Chapter XXXT of the Code are attracted to and, therefore, an acquittal appeal will be competent, it may be observed that he has referred to section 5 of the Code which reads as follows:

5. Trial of offences under Penal Code.‑ (1) All offences, under the Pakistan Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained. (2) Trial of offences against other laws.‑‑ All offences, under any other law shall be investigate inquired into, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offence." A perusal of the above section indicates that all the offences under the Pakistan Penal Code are to be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code. It may further be noticed that all offences under any other law are also to be investigated, inquired into and otherwise dealt with according to the same provisions but subject to any enactment for the time being in force regulating the manner and place of investigating, inquiring into, trying or otherwise dealing with such offences. The above‑quoted subsection (2) of section 5 of the Code clearly indicates that the provisions of the Code are subject to the provisions of the special enactment and in case of any inconsistency between the provisions of the Code and of a special relevant enactment, the latter is to prevail. ??????????? If we were to hold that section 10 of the Ordinance bars the filing of an appeal or revision other than an appeal to the High Court against the sentence it must follow, that we cannot import the provisions of Chapter XXXI of the Code which provides, inter alia, appeal against an acquittal judgment. We are inclined to hold that factually an acquittal appeal and a revision are barred by section 10, of the Ordinance for the reasons stated hereinbelow. This being so, the above contention is untenable.

4. Reverting to Mr. Syed Samils contention that section 10 of the Ordinance provides an appeal against a sentence but does not expressly bar the filing of an acquittal appeal and, therefore, the latter is competent, it may be observed that reproduction of section 10 of the Ordinance at this stage may be pertinent. The above section reads as follows: 10 Appeals from sentences passed by Special Court, etc.‑ (1) A persion sentenced by a special Court shall have a right of ????????? appeal to High Court within whose jurisdiction the sentence has been passed, but save as aforesaid and notwithstanding the provisions of the Code or of any other law for the time being in force or of anything having the force of law by whatsoever authority made or done, no Court shall have authority to revise such sentences, 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 and shall be heard and decided by a Bench of not less than two Judges of the High Court. (3)??? Chapter XXIX of the Code shall apply to the suspension, remission and commutation of sentences passed by a Special Court." A plain reading of the above‑quoted subsection (1) of section 10 indicates that the right of appeal is conferred on a person sentenced by a Special Court, which is to be filed in the High Court within whose jurisdiction the sentence has been passed. It further manifests that save as provided and notwithstanding the provisions of the Code or of any other law for the time being in force or of anything 1988 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, nor any Court will have jurisdiction of any kind in respect of any proceedings of Special Court. It may be pointed out that section 426 of the Code pertains to the release of a convicted person during pendency of an appeal, section 491 confers jurisdiction on the High Court to issue directions of the nature of habeas corpus; whereas section 498 pertains about the fixation of the bond amount and the release on bail in any case by the High Court or Sessions Court where there be an appeal on conviction or not. The express mentioning of the above provisions of the Code and the emphasis that no Court will have any jurisdiction,( to pass any order to revise the sentence etc. clearly demonstrates' that the legislature intended to provide the right of an appeal to al person sentenced and no other type of appeal or revision. However, Mr. Sami Ahmed has referred to the following cases: (i)??????? S.M.K. Alvi v. The Crown, PLD 1953 Federal Court 189, in which the Hon'ble Federal Court of Pakistan held that the Provisions of Chapter XXXI of the Code are fully applicable to the judgments delivered by the Special Judge under the provisions of the Pakistan Criminal Law Amendment Act, 1948. The contention of the learned counsel for the appellant accused that the Provincial Government was not competent to prefer an acquittal appeal under section 417 of the Code as section 9 of the Pakistan Criminal Law Amendment Act, 1948 lays down that an appeal from the judgment of a Special Court shall lie to the highest Court having appellate jurisdiction in the territorial limits in which the offence is tried by the Special Judge and the same Court shall also have powers of revision, was repelled and it was held that subsection (2) of section 5 of the Code lays down that all offences under any law other than the P.P.C. shall be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Cr.P.C. but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences and that the provisions of Chapter XXXI of the Cr.P.C. relating to appeals are fully applicable to judgments delivered by the Special Judge under the provisions of the Pakistan Criminal Law Amendment Act. (ii)Bashir Hussain v. The State, PLD 1961 (W.P.) Lahore

164. In the above case a Division Bench while dealing with a Writ Petition in respect of a case tried under the West Pakistan Foodstuffs (Control) Act. 1958 observed that as the latter Act does not contain any special provision regarding the investigation, inquiry or trial of offences created under the aforesaid Act, the provisions of Section 408 and of sections 435 to 439 of the Code of Criminal Procedure apply in the case of a conviction recorded by a Magistrate for an offence punishable under the aforesaid Act. (iii) Rongai and others v. The Empress I L R 9 Calcutta 513, in which the facts were that the petitioner was convicted on 9‑12‑1882 under sections 457 and 109 of the Indian Penal Code and sentenced to three years' rigorous imprisonment by a Deputy Magistrate of Assam exercising special powers under section 36 of the Old Code of Criminal Procedure, Act X of 1872. The new Code of Criminal Procedure came into force on the 1st of January, 1883 in which the right of appeal was not provided. The Calcutta High Court held that it wag a fit case for the exercise of High Court's revisional Jurisdiction. On the other hand Mr. Azizullah K. Shaikh, learned counsel for respondent No.2 pointed out that under section 10 of the Criminal Law Amendment Act, 1948 the right of revision was expressly provided and so also in Section 185 of the Customs Act. He has further submitted that subsection (1) of section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 was couched in the same language as subsection (1) of section 10 of the Ordinance and the right of an appeal was provided to a person sentenced by a Special Court to the High Court within whose jurisdiction a sentence had been passed and that there was exclusion of jurisdiction of the other Courts and the exclusion of application of sections 426, 491 and 498 of the Code and no acquittal appeal was provided, but by Act III of 1976, above section 7 was amended and the right of an acquittal appeal in favour of the Provincial Government has been provided. It has been submitted that since the Ordinance and the above Suppression of Terrorist Activities (Special Courts) Act of 1975 have been passed by the same legislature the amendment in section 7 of the latter Act for providing an acquittal appeal clearly demonstrates that unamended section which was couched in the same language as subsection (1) of section 10, as pointed out hereinabove did not include the right to file an acquittal appeal. He has further submitted that right of an appeal is the creature of a statute and the same cannot be claimed in the absence of an express provision. In furtherance of his above submission he has referred to the following cases: (i) Hari Meah v. The State, PLD 1958 Dacca 333, in which a Division Bench of the Dacca High Court held that there is no such thing as an inherent right of appeal, and that an appeal is purely a creature of statute, and unless a right of appeal is clearly and expressly given by the statute, it does not exist, nor is there any scope for inferring such a right by implication. (ii) Hari Meah v. The State, PLD 1959 Supreme Court (Pak),

307. In the above case the Hon'ble Supreme Court upheld the above‑cited judgment of the Dacca High Court and held that an order passed by a Magistrate under the East Pakistan Food (Special Courts) Act (X of 1956) is not an appealable order as no right of appeal can be inferred from section 408 of the Cr.P.C. nor is there any others provision in the Code from which such right may be inferred. (iii) The Superintendent and Remembrancer of Legal Affairs Government of East Pakistan v. Syed Bazlur Rahman and others, PLD 1960 Dacca 200, in which a Division Bench of the Dacca High Court reiterated its view taken in the above 1958 case and held that where there is no provision for appeal in Special Act, no appeal under section 417, Cr.P.C. would lie.

5. In our view the cases cited by Mr. Syed Sami Ahmad have no application. In the above Federal Court case of 1953 it was held that the provisions of Chapter XXXI of the Code were applicable as there was no provision inconsistent contained in the Criminal Law Amendment Act, 1948, whereas in the present case as pointed out section 10 Of the Ordinance clearly negates the importation of the provisions of D Chapter XXXI of the Code. Mr. Rasheed Akhund has pointed out that the language employed in subsection (1) of Section 10 of the Ordinance is of mandatory nature and prohibits the entertainment of any proceedings other than the right of appeal to a person who has been sentenced. Mr. Syed Ansar Hussain has drawn our attention to the factum that under subsection (1) of section 10 the possibility of filing any other appeal or revision other than an appeal provided for has been thrice negatived by the language used in subsection (1) of section 10 of the Ordinance. We are in respectful agreement with the view of the Dacca High Court and of the Hon'ble Supreme Court, which is also binding on us that a right of appeal is the creature of a statute, E it should be expressly provided for, it cannot be claimed either under inherent jurisdiction or by implication. Mr. Rasheed Akhund has also referred to treatise on Statute Law by Craies, Sixth Edition, particularly to the maxim "Generalia spiecialibus non derogant", in respect of which the author observed as follows: "The general rule, that prior statutes are held to be repealed by implication by subsequent statutes if the two are repugnant, is said not to apply if the prior enactment is special and the subsequent enanctment is general, the rule of law being, as stated by Lord Selborne in Seward v. Vera Cruz, (1884) 10 App. Case. 59, 68), that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so., The above principle in our view is not attracted to the present case.

6. This leads us to the last submission of Mr. Syed Sami Ahmad that as under subsection (8) of section 5, a Special Court is to follow the procedure prescribed by the Code for the trial of cases by the Magistrates, unless otherwise provided under, the Ordinance and as a right of appeal is provided to a person sentenced, to the High Court under subsection (1) of Section 10 of the Ordinance, the Special Court is an inferior Court in terms of Section 435 and the above revision is competent, it may be observed that in furtherence of his above submission he has referred to rule 1‑A in Chapter 1‑A Volume V of the Rules and Orders of the High Court of Judicature at Lahore which provides with reference to section 439 (5), Cr.P.C. that the Deputy Registrar will not receive any petition for revision of an order of acquittal unless it is accompanied by a copy of an order of the Magistrate of the District refusing to move the Provincial Government to appeal under section 417, Cr.P.C. and has also invited our attention to the aforesaid Deputy Commissioner/ District Magistrate, South Karachi's order dated 27‑6‑1987 declining to seek permission of the Provincial Government for filing of an acquittal appeal. On the basis of the above rule and the rejection order and because of the above provisions of the Ordinance, it has been submitted by Mr. Syed Sami Ahmad that the Revision is competent. Mr. Rasheed Akhund has submitted that mere fact that the Special Court in all matters with respect to which no procedure has been prescribed by the Ordinance is to follow the procedure prescribed by the Code for the trial of cases by Magistrates by virtue of subsection (8) of section 5 of the Ordinance does not make a Special Court a Magistrate. He has referred to the case of Dagdu Govindset Wani v. Plunja Vedu Wani and others A I R 1937 Bombay 55 in order to indicate what is a trial. Whereas Mr. Khatri has referred to the case of Qazi Saleem v. Manager, National Products Company, Karachi and another, PLD 1970 Karachi 33, in which a learned Single Judge of the erstwhile High Court of Sind and Baluchistan held that merely the fact that under section 11 (3) of the Industrial Disputes Ordinance, 1959 an Industrial Court has the power of the First Class Magistrate under the Code of Criminal Procedure does not make it an inferior criminal Court within the meaning of section 435, Cr.P.C. as to attract the above provisions. The latter case is aptly applicable tot the present case. We are inclined to hold that merely the fact that a; Special Court is to follow the procedure prescribed by the Code for the trial of cases by Magistrates in matters with respect to which no procedure has been prescribed by the Ordinance or the fact that the appeal is provided to the High Court in terms of subsection (1) of Section 10 of the Ordinance does not make a Special Court an inferior Court in terms of section 435 or for the purpose of section 439 of the Code. The language used in subsection (1) of section 10 of the Ordinance, as pointed out hereinabove, is so strictly worded in the negative form that it does not admit the application of the above provisions for providing a right of revision. In this regard reference may be made to the following judgments referred to by Mr. Azizullah K. Shaikh: (i) Altaf Hussain v. The State, PLD 1985 Lah. 10, in which a Division Bench of the Lahore High Court while construing section 10 of the Ordinance held that the High Court had jurisdiction to grant bail while the case is pending before a Special Court, but it has no power to grant bail after conviction. (ii) Shahzad Hussain and another v. The State, PLD 1980 Lah. 54, In the above case a learned Single Judge of the Lahore High Court while construing sections 4 and 7 of the Suppression of Terrorist Activities (Special Courts) Act (XV of 1975) held that the power of the High Court under sections 439 and 561‑A, Cr.P.C. had not been taken away against interim or interlocutory orders but the revisional power is not available to the High Court after the judgment of conviction. The above first Lahore case of the Division Bench has been followed in Karachi by a Division Bench in the case of Muhammad Moosa v. The State, 1986 P Cr. L J

578. On the basis of the above Lahore case it was urged by Mr. Azizullah Shaikh that even in cases where the Courts have taken a liberal view in the matter of interpreting the provision of the Ordinance, it has been held that after the judgment the High Court has no jurisdiction to entertain a bail application or a revision. The above judgments in fact lend support to the view which we are inclined to take in the above case. 7.???? The upshot of the above discussions is that the office objection is sustained and it is held that neither an acquittal appeal nor all revision petition is competent against a judgment of acquittal of a Special Court passed under the Ordinance. These are the reasons in pursuance of a short order of even date. ??? M.Y.H./H‑63/K?????????????????????????????????????????????????????? Petition dismissed