P L D 2006 Lahore 290 (PLP)

Through this constitutional petition the petitioner wishes to enter into the arena of appeal under section 25 of the Anti-Terrorism Act, 1997 as amended up to 1999, which otherwise provides a restrictive remedy. The said section reads as follow:

"Appeal: (1) An appeal against the final judgment of an Anti-Terrorism Court shall lie to a High Court. (2) Copies of the judgment of an Anti-Terrorism Court shall be supplied to the accused and the Public Prosecutor free of cost on the day the judgment is pronounced and the record of the trial shall be transmitted to the High Court within three days of the decision. (3) An appeal under subsection (1) may be preferred by a person sentenced by an Anti-Terrorism Court to a High Court within seven days of passing of the sentence. (4) The Attorney General, Deputy Attorney General, Standing Counsel or an Advocate-General or an Advocate of the High Court or the Supreme Court of Pakistan appointed as Public Prosecutor, Additional Public Prosecutor or a Special Public Prosecutor may on being directed by the Federal or a Provincial Government, file an appeal against an order of acquittal or a sentence passed by an Anti-Terrorism Court within fifteen days of such order. (5) An appeal under this section shall be heard and decided by a High Court within seven working days. (6) Pending the appeal the High Court shall not release the accused on bail."

2. According to the learned counsel for petitioner there was an infirmity in law, itself, inasmuch as it does not allow an appeal to be filed against ,the order of acquittal in the complaint case by the complainant.

3. It is said 'that whereas A.T.A. (Anti-Terrorism Act) permits a private complaint to be filed the complainant is left without any remedy in case the complaint results in acquittal of the person he was accusing. He then is left at the mercy of the Law Officer only for projecting his case while he remains destitute of a locus standi.

4. Likewise, it was the case of the learned counsel for petitioner that Revisional Powers have not been given to the High Court by the A.T.A. Law. Although after the decision of Maharam Ali's case (1998 SCMR 1156) the High Court has taken the place of the Appellate Tribunal and A.T.A. Courts were placed within the supervisory jurisdiction of the High Court.

5. That as a result, whenever there is a necessity the Superior Courts are approached through constitutional jurisdiction for visitorial actions making the exercise cumbersome and difficult even in petty matters.

6. The learned A.A.-G. on notice from this Bench took us through the amended section 417(A), Cr.P.C. which reads as follows:

(2-A) A person aggrieved by the order of acquittal passed by any Court other than a High Court, may, within thirty days, file an appeal against such order. (3) No application under subsection (2) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order. (4) If, in any case, the application under subsection (2) for the grant of special leave to appeal from an order of acquittal is refused no appeal from that order of acquittal shall lie under subsection (1).

7. The learned A.A.-G. then referred to this provision of Cr.P.C. which were amended by Act, XX of 1994 with effect from 14-11-1994 and stated that Cr.P.C. was a general law meant to overcome any ambiguity of jurisdiction with respect to filing of an appeal.

8. A reference may be made to section 32 of the A.T.A. Act which reads as follows:

"

32. Overriding effect of Act.

(1) The provisions of this Act shall have effect notwithstanding anything contained in the Code or any other law but, save as expressly provided in this Act, the provisions of the Code shall, in so far as they are not inconsistent with the provisions of this Act, apply to the proceedings before an Anti Terrorism Court shall be deemed to be a Court of Session. (2) In particular and without prejudice to the generality of the provisions contained in subsection (1), the provisions of section 350 of the Code shall, as far as may be, apply to the proceedings before an Anti-Terrorism Court and for this purpose any reference in those provisions to a Magistrate shall be construed as a reference to an Anti-Terrorism Court."

9. According to this law the Criminal Procedure Code shall equally apply to proceedings before an Anti-Terrorism Court as long as these go in harmony with the rational and provisions of the Anti-Terrorism Act itself.

10. What happens when a special Statute meeting a special situation as is the case of Anti-Terrorism Act is destitute of a provision and which leads to hardship and creates a vacuum and infirmity? In such a situation while keeping in view section 32 of the Anti-Terrorism Act we have to refer to the General Law which in our criminal system is the Criminal Procedure Code and this general and residual law enable Courts to overcome those hardships, remove those infirmities and proceed in granting a fair remedy to an aggrieved.

11. It was argued that the amendment as brought by section 417(2-A), Cr.P.C. read with section 25 of the A.T.A. Law remedies the infirmity and, therefore, now a victim, a legal heir, an aggrieved person or a private complainant can take benefit of the amended Criminal Procedure Code and file a petition for leave to appeal against acquittal and once the leave is granted his case surfaces as a full-fledged appeal, no less in status to an appeal under section 25 of the A.T.A.

12. Whereas, we find that section 25 of the A.T.A. Law has also been amended vide Anti-Terrorism Act (X of 2004) with the additions of sections 4-A and 4-B which read as follows:

"(4A) Any person who is a victim or legal heir of a victim and is aggrieved by the order of acquittal passed by a Anti-Terrorism Court, may within thirty days, file an appeal in a High Court against such order. (4B) If an order of acquittal is passed by an Anti-terrorism Court in any case instituted upon complaint and the High Court, on an application made to it by the complainant, in this behalf grants special leave to appeal from the order of acquittal, the complainant may within thirty days present such an appeal to the High Court."

13. The next question will be whether in the absence of any provisions in the A.T.A. itself regarding revisional jurisdiction the High Court can exercise such a revisional powers as are given in section 439, Cr.P.C.

14. In case of Girdhar Lal and another v. State AIR 1952 Allahabad 787 on this question the dictum given was as follows:

"Though the revisional powers of the High Court has been taken away by section 85(5) of the Panchayat Raj Act, 1947, the High Court has the power of superintendence under S.227(i) (of the Constitution of India) and can in exercise of the power, set aside an order passed in complete disregard of first principle of judicial procedure in the proceedings under that Act."

15. If we look at Articles 175 and 203 of the Constitution of the Islamic Republic of Pakistan the subordinate Courts are under the superintendence and control of the High Court who look at their affairs - and control and guide them and remedy legal errors committed by them.

16. Of course, the law was different before Mehram Ali's case. The amendments which were brought about in law after the Mehram Ali's case have changed the situation.

17. Section 439 of the Cr.P.C. reads as follows:

"439, High Court's powers of revision: (1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 423, 426, 427 and 426 or on a Court by section 338, and may enhance the sentence and, when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in manner provided by section 429. (2) No order under this section shall be made to the prejudice to the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Where the sentence dealt with under this section has been passed by a Magistrate the Court shall not inflict a greater punishment for the offence, which in the opinion of such Court, the accused has committed, than might have been inflicted for such offence by a Magistrate of the First Class. (4) Nothing in this section shall be deemed to authorize a High Court

(a) to convert a finding of acquittal into one of conviction; or (b) to entertain any proceedings in revision with respect to an order by the Sessions Judge under section 439-A. (5) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. (6) Notwithstanding anything contained in this section any convicted person to whom an opportunity has been given under section (2) of showing cause why his sentence should not be enhanced shall in showing cause, be entitled also to show cause against his conviction."

18. It is an admitted position that the High Court can hear appeals not only filed by the prosecutors but also filed by victims, legal heirs, and by private aggrieved persons.

19. Obviously when appeals can be filed before the High Courts A under the aforementioned provisions of law and as has been discussed above the High Court has the control and superintendence of the courts below, therefore, it is obvious and natural that the High Court can also exercise visitorial jurisdiction in respect of matters which did not fall under the ambit of appeals.

20. Every day such matters arise and without a formal determination on this question the remedies are sought before this Court under the constitutional jurisdiction which makes the process cumbersome and difficult, whereas, it should be simple and less time consuming otherwise, the very purpose of the Anti-Terrorism Laws for meeting the situations for which the law was enforced would get defeated.

21. This Court is, therefore, also of the view that the High Court can exercise visitorial power and can exercise revisional jurisdiction in respect of Courts below and in cases where appeal or leave to appeals are not to be filed.

22. The conclusions drawn are that a petition for leave to appeal can be filed by an aggrieved person against an order or acquittal passed by 'A.T.A. Court before a High Court within the timeframe as prescribed and the aggrieved person includes the victim, a legal heir or a private complainant. Likewise, the High Court has the visitorial powers over the Anti-Terrorist Courts and, therefore, can entertain petitions in the nature of those as covered by section 439 of the Criminal Procedure Code. The law is now so declared and this constitutional petition is accordingly disposed of. H.B.T./A-51/L Order accordingly.