' AKHTAR ZAMAN MALGHANI, J.---This appeal is directed against the judgment dated 26-9-2002 passed by AntiTerrorism Court, Turbat Camp at Dera Murad Jamali, whereby; the appellant was convicted under section 344, P.P.C. For 3 years R.I. And under section 21(L) of Anti-Terrorism Act, 1997 to 5 years R.I. As well as against the order dated 28-4-2003 whereby application filed by the appellant within the meaning of section 19(12) of the Anti-Terrorism Act, 1997 was rejected.
2. Briefly stated, facts of the case are that on 30-5-2002 a case under section 302/34, P.P.C. Was registered in Police Station -Cattle Farm, Nasirabad vide F.I.R. No,14 of 2002 on the report of Ghulam Shabbir,, wherein it was alleged that his sister Mst. Shahar Bano was married to Talib Hussain and about 3 years ago they came to know that said Talib Hussain is impotent, therefore they asked him to divorce their sister, whereupon Talib Hussain, Mohib Ali and Sojhra threatened the family of the complainant for dire consequences. It is further alleged that the mother of the complainant filed an application before the Judicial Magistrate for recovery of Mst. Shahar Bano as she apprehended danger to her life at the hands of accused persons, whereupon the Judicial Magistrate, Dera Allah Yar directed S.H.O. Police Station Cattle Farm to recover Mst. Shahar Bano and produce before the Court. The order of the Judicial Magistrate was taken by the complainant to S.H.O. With whom he went to the house of Talib Hussain for compliance of the order. It was further alleged that on reaching there they found dead body of Mst. Shahar Bano lying on the ground in pool of blood, where his mother and relative Mumtaz were also present who told them that at about 9-50 a.m.
Talib Hussain, Mohib Ali and Sojhra committed the murder of Mst. Shahar Bano by firing and thereafter ran away from the spot. After registration of the case P.W. Saifullah, Sub-Inspector took over the investigation, during which he recovered blood-stained earth and two empties of T.T. Pistol from the place of occurrence. He also prepared site inspection note and site-plan as well as inquest report. On 2-6-2002 accused Talib Hussain was arrested and on his pointation crime weapon i.e. T.T. Pistol was recovered and taken into possession. The appellant Mohib Ali and co- accused Sojhra could not be arrested, as such; they were declared proclaimed offenders and challan was submitted before the Anti-Terrorism Court showing them absconders. The learned trial Court after receipt of challan made publication against the appellant and co-accused and tried them in absentia within the meaning of section 19(10) of the Anti-Terrorism Act, 1997. After recording the evidence and the statement of the accused facing trial the learned trial Court on 26- 9-2002 convicted Talib Hussain under section 302(b), P.P.C. Read with section 7(a) of the Anti- Terrorism Act, 1997 and sentenced him to life imprisonment. He was also directed to pay compensation of Rs,1,50,000 to the legal heirs of the deceased as required under section 544-A, Cr.P.C. The appellant Mohib Ali and Sojhra (absconding accused) were found guilty under section 344, P.P.C. And sentenced to 3 years R.I. Each. They were also convicted under section 21(L) of the Anti-Terrorism Act, 1997 and sentenced to 5 years R.I. It was also directed that the sentences against the appellant and Sojhra would commence after their arrest. Perpetual warrants of arrest were also issued against them.
3. It appears from the record that later on the appellant was arrested and he moved an application before the trial Court for setting aside the conviction order passed against him in absentia within the meaning of section 19(12) of the Anti-Terrorism Act, 1997 which was rejected by the learned trial Court vide order dated 22-4-2003.
4. We have heard the learned counsel for the appellant as well as learned. Assistant Advocate- General. During the arguments we asked the learned counsel for the appellant to satisfy us about the maintainability of the appeal against the order dated 28-4-2002 as well as regarding question as to whether appeal against the original conviction order was within time. The learned counsel argued that under section 25 of the Anti-Terrorism Act, 1997 appeal against an order dismissing application filed under section 19(12) of the Anti-Terrorism Act, 1997 was competent and as the appeal has been filed within 7 days of that order same was within time, no matter no appeal within 7 days was filed against the original order dated 26-9-2002.
5. The learned Assistant Advocate-General controverting the arguments of the learned counsel for the appellant submitted that the appeals are provided only against the final judgment as is evident from the wordings of section 25 of the Anti-Terrorism Act, 1997, therefore the appeal against the order dated 28-4-2003 was not maintainable and is liable to be dismissed.
' He further contended that the original judgment was passed on 26-9-2002 and no appeal was filed by the appellant within 7 days as provided under section 25 of the Act, therefore, this appeal against the said judgment is clearly time-barred as the appellant has failed to file any application for condonation of delay or to explain the delay caused in filing of the said appeal.
6. We have carefully considered the contentions put forth by both the learned counsel in the light of available record and the relevant provisions of law. We find it expedient to reproduce hereinbelow section 25 of the Anti-Terrorism Act, 1997:-- "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 the 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 may, on being directed by the Federal or 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) & (7) *
(8) Pending the appeal the High Court shall not release the accused on bail.
' It is crystal clear from the wordings of above reproduced section that the appeal has been provided against the final judgment of the Anti-Terrorism Court and not against the order of interlocutory or other natures. The attention of the Legislature is also manifest from the wording used in subsection (3) of the section 25 of the Anti-Terrorism Act, which provides' that an appeal under section 1 will be preferred by a person sentenced by Anti-Terrorism Court to a High Court within 7 days of the passing of sentence which means that the appeals provided under subsection
(1) are only against the judgment whereby a person has been sentenced or against the acquittal order as provided by subsection (4) of the Act.
7. The Legislatures have used word "Final Judgment" in subsection (1) of section 25 from which it appears that the intention of Legislatures was to give the right of appeal to the aggrieved party only against the final judgments and not against the other orders, otherwise there was no need for assertion of word "final" in the said subsection. The word "judgment" has also come into consideration before the different Courts and it has been held that the word "Judgment" means a decision in a trial which decides a case finally, so far as the Courts trying the case is concerned and terminating in either conviction or acquittal of the accused. In this regard we are fortified by the observation made in the judgment reported in AIR 1949 FC page 1, reproduced hereinbelow:-- "Our attention was called to C1.39, Letters Patent of the High Courts of Calcutta, Bombay and Madras which provides for appeals to His-Majesty-in-Council from "any final judgment, decree or order" and it was urged that in the absence of the qualifying word, "judgment" in section 205(1), Constitution Act, must be held to Include a preliminaryor interlocutory judgment and that the order now under appeal fell under that category. We are unable to accede to this view. In our opinion, the term "judgment" itself indicates a judicial decision given on the merits of the dispute brought before the Court. In a criminal case it cannot cover a preliminary or interlocutory order."
' Likewise in the judgment reported in AIR 1956 Allahabad page 633, it was observed as under:-- "The argument sounds plausible nevertheless I have no hesitation in holding it to be untenable. A study of the provisions of the Code of Criminal Procedure discloses that the expression of the opinion of the Criminal Court on any matter at issue arrived at after due consideration of the evidence and of the arguments (if any) falls into two categories: Judgments and orders.
Nonetheless neither of these terms has been defined either in the Code of Criminal Procedure or the Indian Penal Code.
' There is, however, no controversy as to what a "judgment" is. As held by the Federal Court in Hori Ram Singh v. Emperor, 1939 FC 43 AIR V 26(A) and Kuppuswami Rao v. The King 1949 FC-1 AIR V 36(B), it is used "to indicate the termination of the case by an order of conviction or acquittal of the accused", and to this by virtue of section 367(6), Criminal Procedure Code must be added orders under sections 118 or 123(3), orders which bear the character of a conviction. Chapter 26 of the Code deals exclusively with judgments and on the basis of its exhaustive provisions there can be no difficulty in recognizing a criminal Court's "judgment".
' All other expressions of the opinion of the criminal Court on any matter at issue arrived at after due consideration fall in the category of "orders". Orders too, as the provisions of the Code reveal, fall into two classes, those against which the Code expressly allows an appeal, and those against which no appeal is permitted.
' It is therefore clear that in mentioning the "judgment" section 419 refers to those which are dealt with in Chapter 26 of the Code, i.e., where there is a conviction or acquittal of the accused or an order under section 118 or section 123(3) has been passed, while the term "order" in the section refers to those orders against which an appeal is permitted".
' In the judgment reported in AIR 1948 Madras page 510 their Lordships have held that the preliminary or interlocutory orders passed by the trial Court could not be termed as "judgment".
The relevant observations are reproduce hereinbelow.-- "As there is no definition of the word "judgment" in the Criminal Procedure Code at all it will be proper to adopt the explanation of the word as understood in the English Courts, namely, that by the word "judgment" is meant an order in a trial terminating in the conviction or acquittal of the accused."
8. From the above discussed proposition and case-law, we are of the considered view that the appeal filed against the order dated 28-4-2003 whereby the application of the appellant filed under section 19(12) of the Act, 1997 was dismissed is not maintainable and is liable to be dismissed to that extent.
9. So for appeal against the judgment dated 26-9-2002 is concerned, same is hopelessly barred by time as it has been filed beyond the period of limitation i.e. 7 days as provided under section 25(3) of the Act, 1997. There is no application for condonation explaining the delay of each day.
Even, otherwise, the appellant is brother of co-accused Talib Hussain who was arrested and faced trial, therefore, it is difficult to accept that the appellant had no knowledge of the proceedings pending against him and he was unable to file the appeal within time.
' For the foregoing reasons, we are inclined to dismiss instant appeal being barred by time as well as on the ground that the appeal against the order dated 28-4-2003 is not maintainable.