RAHMAT HUSSAIN JAFFERI, J.---This Judgment will dispose of above Criminal Acquittal Appeal Nos.133, 134, 135, 169 of 2001 and 38 of 2002 as common questions of facts and law are involved.
2. The State through Advocate General have filed the above mentioned Appeals to challenge the judgments passed by the Drug Court Karachi by which the respondents were acquitted.
3. The facts for the purpose of the present appeals are that the Drug Inspectors had filed the complaints before the Drug Court against the respondents for commission of offences under the Drugs Act. The Court after holding the trial acquitted the respondents from the charges levelled against them. Hence, the present appeals.
4. A following preliminary objection was raised: "Whether the appeals are maintainable against the judgments of acquittal passed by the Drug Court?"
5. On the above point we have heard these Advocates for the appellant and respondents and perused the relevant provisions of law. The learned Advocates for the respondents have stated that under section 31(7-A) of Drugs Act only Federal Inspector or Provincial Inspector are competent to file appeal against the judgment of acquittal but in the present cases the Advocate General has filed the appeals which are not permissible under the law. On the other hand the learned Assistant Advocate General has stated that section 31(7-A) of Drugs Act was incorporated vide Ordinance XXII of 1998 which had lapsed after a period four months therefore the said provision is not applicable, hence the Advocate General was competent to file the appeals against the judgments of acquittal passed by the Drug Court. After going through the Ordinance XXII of 1998 the learned Advocates for the respondents have conceded the above position that after the lapse of four months subsection (7-A) of section 31 of Drugs Act is no more available in the statute book but they further contended that no right of appeal has been provided under the Drugs Act to anybody in respect of the judgment of acquittal passed by the Drug Court therefore the State through Advocate General has no right to challenge the judgments of acquittal passed by the Drug Court. In response to the above arguments the learned Assistant Advocate-General has stated that the provisions of Drugs Act are in additional to, and not in derogation of any other law for the time being in force including the Criminal Procedure Code by virtue of section 2 of Drugs Act therefore the State has a right to file appeals against the judgments of acquittal under section 417, Cr.P.C. As such the appeals are maintainable. The learned advocates for the respondents have stated that the right of appeal is a creation of a statute when no such right is provided to any party under the Drugs Act then the same cannot be exercised by the State through an indirect manner by invoking the provisions of section 417 Criminal Procedure Code when they are debarred from filing such appeals under the Drugs Act.
6. We have given due consideration to the arguments and have examined the various provisions of the Drugs Act and Cr.P.C. Very minutely. We found that under subsection (7) of section 31 of the Drugs Act the right of appeal has been provided to a person who has been convicted by Drug Court. The said subsection reads as under: "(7) A person sentenced by Drug Court may prefer an appeal to the Bench of the High Court consisting of not less than two Judges within 30 days of the judgment".
7. It is clear that right of appeal has been provided to a person who has been convicted. But it appears that no person has been given right to file appeal against the judgment of acquittal passed by the Drug. Court. Hence the judgment of acquittal passed by the Drug Court has been made final. The law makers find it expedient in the interest of justice to provide a right of appeal to aggrieved person or State against the judgment of acquittal, therefore, they promulgated Ordinance XXII of 1998 on 23-12-1998 by inserting subsection 7-A to section 31 of Drugs Act which reads as under:-- "(7-A) A Federal Inspector or a Provincial Inspector may, on being directed by the Federal Government or, as the case may be, by the Provincial Government, prefer appeal against an order of acquittal or inadequacy of sentence passed by the Drug Court within 30 days of such order".
8. Thus by virtue of the Ordinance XXII of 1998 a right of appeal against the judgment of acquittal was provided to a person mentioned in the above subsection. The learned Assistant Advocate- General and the advocates for the respondents have agreed that the said Ordinance was not placed before the Parliament for making it as an Act of Parliament therefore, the life of the Ordinance was four months by virtue of Article 89 of the Constitution of the Islamic Republic of Pakistan. The said period has already expired therefore, the Ordinance XXII of 1998 lapsed and the position remained the same as stood before the promulgation of Ordinance XXII of 1998.
9. From the above position it is clear that the intention of the legislation was manifest from the introduction of Ordinance XXII of 1998 by providing a right of appeal against the judgment of acquittal to the persons mentioned in the repealed subsection (7-A) of section 31 of the Drugs Act but after the repeal of said Ordinance by lapse of time the intention of the Legislature would become clear that the judgment of acquittal passed by the Drug Court is not appealable. Thus, it becomes final by virtue of section 39 of the Drugs Act which reads as under:-- "39. Finality of orders, etc.--Save as otherwise expressly provided in this Act, every order passed or decision given by any Board, a Drug Court or any other authority under this Act shall be final and shall not be called in question by or before any Court or other authority."
10. Thus by virtue of section 39 of Drugs. Act, the judgment of acquittal has become final and it cannot be called in question in any Court unless otherwise provided under the Drugs Act. In order to take out the finality of judgment of the acquittal from the ambit of section 39 the Legislatures had inserted subsection (7-A) in section 31 of the Drugs Act to provide a right of appeal against the judgment of acquittal but Subsequently that Ordinance was lapsed. Consequently the judgment of acquittal passed by the Drug Court is final within the meaning of section 39 of the Drugs Act.
11. As regards section 2 of Drugs Act, it will be advantageous to reproduce the said section, which reads as under: "2. Application of other laws not barred.-The provisions of this Act, shall be in addition to, and not in derogation of, the Dangerous Drugs Act, 1930 (II of 1930), and any other law for the time being in force."
12. From the above provision it is clear that the provisions of the Drugs Act are in addition to Cr.P.C.And not in derogation of the other Laws.
13. Chapter XXXI of Cr.P.C. Deals with the appeal. Its opening section is 404, which reads as under: "404. Unless otherwise provided, no appeal to lie.--No appeal shall lie from any judgment or order of a Criminal Court except as provided by this Code or by any other law for the time being in force."
14. From the bare reading of the above provision of law, it is clear that ordinarily no appeal lies, except as otherwise provided by the Cr.P.C. Or by any other law or a special law. Thus, a right of appeal is not a natural right. It is created by statute and it must be governed by the statute in conformity with which offender is tried. The right of appeal in Criminal matters is statutory one and is governed by the section 404, Cr.P.C. That forms the commencement of Chapter XXXI of Cr.P.C. Dealing with the appeals. It is further pointed out that a right of appeal has to be specifically provided for in the statute, as it cannot arise by implication. It may further be noticed that aright of appeal is not a mere matter of procedure but is a vested right, which inheres in a party from the commencement of the action in the Court of first instance. Thus when there is no right of appeal in a Special Act then the finding of acquittal or conviction passed thereunder becomes final.
15. It is not out of place to mention here that in the cases of Offences in Respect of Banks (Special Courts) Ordinance, acquittal under section 10 of the Ordinance bars the filing of appeal other than an appeal to the High Court against sentence and it was held in the case of Habib Bank Ltd. v. State PLD 1988 Karachi page 49 that when we cannot import the provisions of Chapter XXXI of the Code which provides, inter alia, appeal against an acquittal judgment. Therefore, an acquittal appeal is barred by section 10 of the Ordinance.
16. Now it is to be seen whether under Drugs Act a right of appeal has been provided to a party to challenge the judgment of acquittal. If such right is available then the provisions of Code of Criminal Procedure would be applicable and if no such right is provided under the Drugs Act then the provisions of Cr.P.C. Relating to the filing of appeal are not applicable and the same cannot be invoked by any party.
17. In the present case we have already examined the various provisions of Drugs Act and have come to the conclusion that the judgment of acquittal passed by the Drug Court is final by virtue of section 39 of Drugs Act which cannot be challenged except as otherwise provided under the Drugs Act. Under the said Act no right of appeal has been provided for challenging the judgment of acquittal passed by the Drug Court therefore the State has no right to file appeals against the judgments of acquittal passed by the Drug Court.
18. Alternatively the learned Assistant Advocate-General has stated that the appeals may be converted into revisions. In this connection, it is pointed out that appellate jurisdiction and revisional jurisdiction are two different subjects. Under appellate jurisdiction entire case including factual and legal aspects of the case are to be reopened whereas under revisional jurisdiction a limited scope is provided to the Court to examine the judgment passed by the lower Court. In the present case, the State has filed appeals by challenging the factual as well as legal aspects of the cases. For treating the Appeals into revisions drastic changes have to be made in the memo. Of Appeals, therefore, we find it expedient in the interest of justice that instead of allowing the State to make extensive and major changes in the memo. Of appeals and thereafter treat these appeals as revisions, the State may file fresh revisions against the judgments of acquittal passed by the Drug Court, if so advised and subject to all just exceptions of law.
19. In the light of what has been stated above the appeals are dismissed being not maintainable.