This appeal by the Government of N. -W. F. P. Is directed under section 417 of the Code of Criminal Procedure against the acquittal of the accused-respondent by the learned Additional Sessions Judge, Peshawar of the charges under section 25/27 of the Antiquities Act, 1976.
2. A preliminary objection has been raised by Zahoor-ul-Haq Khan, the learned counsel for the respondent to the competency of the appeal for the following reasons :-
(i) that it is a case of complaint by virture of section 33 of the Antiquities Act, 1976 (Act VII of 1976) and therefore, the case is not covered by subsection (1) of section 417 of the Code of Criminal Procedure in that an application for leave to appeal should have been filed by the complainant ;
(ii) that in view of the above, the period of limitation would be sixty days from the date of the order of acquittal and not six months as provided under Article 157 of the Limitation Act ; and
(iii) that the offences being created by Act VII of 1976 which is a Special Federal Statute an appeal could only lie when it has been provided in the said statute, as no appeal has been provided by the said Act, provisions of section 417 of the Code of Criminal Procedure would not be attracted.
The above-stated objection arises in the following circumstances :---
3. That on 13th of January, 1977 a complaint was lodged by Mr. I. H. Nadim, an officer authorised by the Federal Government under section 33 of the Antiquities Act, 1976 against the accused- respondent.
The allegations against him are that, on 10-8-1976, at about 1300 hours, in a place known as Mohallah Takia Sangan, in the City of Peshawar, the accused-respondent was found carrying and in possession of the two sculptures of Buddhist origin, the movement of which had been prohibited by the Government of Pakistan vide Notification issued under section 27 of the said Act.
4. The accused-respondent was tried by Qazi Hamid-ud-Din Khan, the then learned Additional Sessions Judge, Peshawar who, on 8-6-1977, acquitted him of the charges.
5. This appeal was lodged on 18-9-1977, i.e. After the lapse of three months and ten days from the date of the order of acquittal.
This order will dispose of the preliminary objection to the competency of the appeal.
6. Section 417 of the Code of Criminal Procedure, as it existed prior to 1972, was replaced by a new section 417, Cr. P. C. By virture of section 144 of the Law Reforms Ordinance, 1972. The new section was enforced w.e.f. 30-12-1975. It reads as under :-- "417. Appeal in case of acquittal.--(1) Subject to the provisions of subsec--tion (4) the Provincial Government may in any case direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court.
(2) If such an order of acquittal is passed 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 present such an appeal to the High Court.
(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 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 contention of the learned counsel for the respondent is that with the new Scheme of law the provision for an appeal against the acquittal has been bifurcated into two types of cases ; one being State cases on which subsection (1) of section 417 of the Code of Criminal Procedure would be applicable and the other being complaint cases which could only be covered by subsection (2) of the said section. He urged that it was on the complaint of the Assistant Superintendent of Archaelogy, Sub-Regional Office, Peshawar, who was duly authorised under section 33 of the said Act to do so ; that the case was registered and the accused was put to trial and, therefore, the said officer or at the most the Federal Government who authorised him was a complainant in the case.
For the appreciation of the arguments of the learned counsel for the respondents it is essential to look into unamended section 417 of the Code of Criminal Procedure, as it existed, till 30-12-1975, it reads :-- "417. Appeal on behalf of the Government in case of acquittal.-The Provincial Government may direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court."
The comparison of this section with subsection (1) of new section 417 of the Code of Criminal Procedure would show that this subsection contains the following changes : -- "This subsection opens with the words "Subject to the provisions of subsection (4)" and proceeds with the addition "in any case" after the words "the Provincial Government may."
The comparison of these two would show that whatever the right of appeal against the acquittal was given to the Provincial Government by the original law it has not been curtailed. Rather it has been enlarged by the addition of the words "in any case". It is now well settled that under the old section 417 of the Code of Criminal Procedure, the Provincial Government was empowered to prefer an appeal against the orders of acquittal in State cases as well as in the cases of private complainants. In Karachi Municipal Corporation v. Thaoo Mall Khushal Dad (AIR 1937 Sind 100), a D.
B. Decision, their Lordships were pleased to state: "The normal procedure for the party aggrieved is to apply to the District Magistrate who will then refer the matter, if he thinks proper, to the Government and the Government if they think proper sanction proceedings under section 417, Cr. P. C."
Similarly in Mul Singh v. The Emperor (AIR 1923 Lah. 163) it was held that:- "So far as the wording of section 417 of the Code of Criminal Procedure are concerned, there is nothing in it to show that it is the District Magistrate alone who can move the Local Government to file an appeal. It is in ordinary cases, a matter of practice that the Local Government is moved by Private applicants or the police through the District Magistrate or the latter, as the Head of Criminal Admin1stration in his District, move the Local Government, but in a case like the present, I think the Government could have been moved otherwise, but that has not been shown."
In view of the above proposition of law, in my opinion, the new section does not curtail the powers of the provincial Government for moving the High Court in appeal against the order of acquittal.
Rather it by addition of the words "in any case" enlarges this power to cover alt types of State case arising out of either provincial Statutes or Federal Statutes or out of private complaints. This power is, of course, subject to the provisions of subsection (4) of the same section reproduced above.
8. This being the only curtailment of the powers of the Provincial Government, the right of the said Government under section 417 of the Code of Criminal Procedure to file an appeal against the order of acquittal passed in a case of private complaint is kept intact. In pre-amendment state of law a complainant had no right to invoke the appellate jurisdiction of a the High Court without invoking the Provincial Government for filing an appeal under section 417, Cr. P. C. The amendment in the form of sub--section (2) of section 417, Cr. P. C. Is nothing but the conferment of the right on a citizen to move the High Court directly for the grant of Special Leave to appeal against the order of acquittal passed in a complaint case.
Subsection (2), therefore, is not a disabling provision of law in respect of subsection (1) rather it is an enabling provision which while not taking away the right of the Provincial Government to move the High Court in an appeal against the order of acquittal, passed in any case, has conferred a right on a citizen to move the High Court for the grant of Special Leave to Appeal in a complaint case.
9. The learned counsel for the respondent next contended that the period of limitation for filing an appeal from the order of acquittal in the complaint cases would not be six months as laid down under Article IS of the Limitation Act, but a period of sixty days under subsection (3) to section 417 of the Code of Criminal Procedure for filing a petition for C Special Leave to Appeal. This contention of the learned counsel has no force as the instant case is not an application for the grant of Special Leave to Appeal by a complainant under subsection (2) of section 417 of the Cod of Criminal Procedure but is an appeal by the Provincial Government under subsection (1) of said section. It has already been held above that this subsection does not debar the provincial Government from filing an appeal in the complaint cases. The period of limitation available to act under section 417
(1) is still six months under Article 157 of the Limitation Act and this appeal having been filed within that period is not hit by the bar of limitation.
10. The third aspect of the attack of the learned counsel for the respondent on the competency of the appeal is that the offences under sections 25 and 27 of the said Act (Act VII of 1976) are the creation of a special Statute enacted by the Federal Government which also provides punishment for the same and as the said Act does not contain any provision of appeal, no appeal would lie under section 417, Cr. P. C. Or in other words the application of the Chapter XXXI of the Code of Criminal Procedure was excluded.
The learned counsel has placed placed reliance on two decisions from the Indian Jurisdiction, namely, State of Mysore v. K. Muhammad Ismail (AIR 1958 Mys. 143), State of Mysore v. Guruppa Appayyappa Kardesai (AIR 1961 Mys. 257) as also on two decisions of Dacca High Court reported as PLD 1960 Dacca 200 and PLD 1958 Dacca 333 in support of his contention.
I am afraid none of these decisions comes to his help, but before d1stinguishing these authorities from the facts of the instant case, I would like to explain the scheme of law as is enacted by Act No. VII of 1976. This Act, as it is apparent from its title, deals with Antiquities which is a subject of the Federal Government. After providing powers for the declaration of certain Antiquities to the relevant Authority and for represen--tation against such declaration by the persons affected thereby, for custody, preservation of certain Antiquities, powers of entry by Authorised Officer, acquisition of land containing Antiquities, right of pre-emption thereto and compulsory acquisition of protected movable or immovable Antiquities and other matters of like nature, it creates certain offences in respect of the Antiquities such as penalty for counterfeiting, etc. Of Antiquities (section 24), dealing in Antiquities (section 25), export of Antiquities (section 26) and traffic m movable Antiquities (section 27) and such other offences as are enumerated therein. The penalty has been provided for the offences under section 32 of the said Act, which reads as follows :- "32. A contravention of any of the provisions of this Act and the rules, shall where no punishment has been specifically provided, be punishable with rigorous imprisonment for a term which may extend to six months or with fine which may extend to five thousands rupees, or with both."
Section 33 of the Act deals with the jurisdiction of the Courts to try offences and reads :- "33. No Court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by an officer generally or specially empowered in this behalf and no Court inferior to that of a Magistrate of the First Class shall try any such offence."
Apart from these, this Act nowhere lays down any special procedure for the trial of these offences nor does it create special Tribunals or forums for the trial thereof.
11. It is only under these Statutes which create offences, impart finality to the orders passed thereunder, provide special forums for the trial and Jay down provisions of appeal, review or revision or exclude by expression the right of appeal etc ; that provisions of Criminal Procedure Code relating to appeals, etc. ; are excluded. In those cases where Special Statute is silent as regards procedure finality of orders, right of appeal or review, etc; and only confines itself to the creation of offences and prescribes punishment therefor the Code of Criminal Procedure as a whole would be applicable on all procedural matters in the trial and on the right of appeal and revision etc. No doubt the Antiquities Act, 1976 does not contain any provision of appeal therein, but at the same time it does not impart finality to any order or conviction made thereunder. As the said Act does not provide any procedure regulating the manner or place of investigating, enquiring into, trying or otherwise dealing with the offences thereunder, except that no Court inferior to that of the Magistrate 1st Class shall try any offence under the said Act vide section 33, the subsection (2) of section 5 of the Code of Criminal Procedure will be attracted. The said section reads as under :--- ---5.----(1)------------------------------------------------------------------------------- --.
(2) All offences under any other law shall be investigated, enquired into, tried and otherwise dealt with according to the same provisions, 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."
The trial of offences by a Magistrate not inferior to that of the 1st Class would not mean that the Magistrate trying the case would be acting as a Special Forum. It, therefore, follows that the procedure during the trial of the offences under the said Act by virtue of subsection (2) of section 5 of the Code of Criminal Procedure and the incidents of appeal and revision as provided by the said Code would, consequently, be available.
The authorities relied upon by the learned counsel for the respondent deal with cases under special statutes which have either provided special procedure and a special forum for the trial thereof or have, by expression, curtailed the right of appeal. These precedents would, therefore, not be applicable to the instant case.
12. In Mysore case reported as AIR 1961 Mys. 257, the learned Judges were dealing with the Bombay Village Panchayats Act, 1944 and held that in view of sections 78 and 79 of the said Act, section 417, Cr. P. C. Was not applicable. The reasons being that appeal was provided under section 78 of the said Act and the order of appeal was made final under section 79 ibid. The following extracts from this judgment may conveniently be reproduced in support of the above contention :--- "The answer to the second contention on behalf of the State is to be found in the Code of Criminal] Procedure itself. While summarising the relevant provisions of the Bombay Act, we have already pointed out that they really amount to a creation of Special Courts, or conferment of special jurisdiction to be exercised in accordance with the special procedure prescribed by the Act.
According to subsection (2) of the first section of the Code of Criminal Procedure in the absence of any specific provision to the contrary nothing contained in the Code is to affect any power conferred, or any special form of procedure prescribed by any other law.
The Sessions Court while hearing and disposing of an appeal under section 78 of the Bombay Village Panchayat Act is really exercising a special jurisdiction and not the ordinary jurisdiction attributable to it under the provisions of the Code of Criminal Procedure. While exercising that jurisdiction, any order passed by it becomes final under section 79 of the Bombay Act. Hence the general provisions of section 417 of the Code of Criminal Procedure do not and cannot affect the special provisions contained in sections 78 and 79 of the Bombay Village Panchayat Act."
Similarly, the case cited as AIR 1958 Mys. 143 is on the question of Constitutional validity of section 22 of the Mysore Sale Tax Act, 1948. Section 22 of the said Act reads as follows:--- "Save as provided in section 10, no assessment made and no order passed under this Act or the rules made thereunder by any assessing authority shall be called in question in any Court, and save as is provided in sections 14 and 15 no appeal or application for revision shall lie against any such assessm ent or order."
It is apparent from the above quotation that section 22 of the Act, by expression, took away the right of appeal or application for revision against any assessment or order made under the Act excepting that what was provided by its sections 14 and 15. This would also not be a precedent in the instant case as we do not find any curtailment of the right of appeal or imparting finality to order of conviction in Act VII of 1976. The decision in citation PLD 1960 Dacca 200, deals with a situation where a Special Statute creates a special Court for the trial of the offences thereunder and at the same time does not contain any provisions for appeal. The learned counsel for the State in that case had contended that the appeal against an offence under East Pakistan Food (Special Courts) Act (Act X of 1956) was maintainable in view of the provisions of section 417, Cr. P. C. Read with section 6 of the Code of Criminal Procedure. While rebutting the contention of the learned counsel, the Division Bench held as under :- "The argument of the learned Advocate, on the face of it, seems plausible, but, in our view, it cannot stand close scrutiny. If this argument is accepted, an anomalous position would inevitably follow.
While an accused convicted by a Court created by a Special Act, if there is no provision for appeal in the said Act, would be deprived of the right of challenging findings of facts, such findings can be challenged by the State in cases of acquittal. In our view, such a position could never have been intended by the Legislature. We are making these remarks conscious of the fact that convictions under Act X of 1956 can be and are being challenged by invoking the writ jurisdiction of this Court.
But, reading the provisions of Act X of 1956, as they are, along with the provisions for appeals under the Code of Criminal Procedure, we cannot hold that, in the absence of a provision for appeal under the said Act, the provisions of section 417 themselves would entitle the Provincial Government to maintain an appeal against an order of acquittal. We, therefore, hold that no appeal lies against an order of acquittal passed by a Special Magistrate under Act X of 1946, or, on appeal by a Sessions Judge."
It may be noted that Act VII of 1976 with which we are dealing in the instant case does not create special Court for the trial of the offences under it. It, therefore, follows that this Authority is also pot of any help to the learned counsel for the respondent.
13. The case of Hari Meah PLD 1958 Dacca 333 also deals with the provisions of East Pakistan Food (Special Courts) Act, 1956, wherein it was held that a Special Magistrate under that Act was not a Court within the meaning of Code of Criminal Procedure and, therefore, the order of Special Magistrate in the absence of a provision to this effect in the Act itself was not appealable under the Code.
The Federal Court of Pakistan in S. M. K. Ali v. The Crown (PLD 1953 FC 189) dealt with the question of the right of appeal of the Provincial Government under section 417, Cr. P. C. Arising out of a case wherein the accused were challaned under sections 409, 420, 380, 411, 201, 120-B, 468, 477-A of the Pakistan Penal Code read with section 5 of the Prevention of Corruption Act (II of 1947). Criminal Law Amendment Act was applicable on the procedure. It was, therefore, a case in which not only a special forum for trial was prescribed but the procedure there for was also laid down. 1n this case the Federal Court of Pakistan held that the Provincial Government in this case was competent to file an appeal against the acquittal under section 417 of Code of Criminal Procedure as the provisions of Chapter XXXI of the Code of Criminal Procedure relating to the appeal were fully applicable. The following extract from that judgment would be relevant to be reproduced :- "The next point taken up by Mr. Brohi was that as the appellant had been acquitted by the trial Court it was not competent to the Provincial Government of the Punjab to prefer an appeal against the acquittal under section 417 of the Code of Criminal Procedure. Section 9 of the Pakistan Criminal Law Amendment Act, 1948 lays down that an appeal from the judgment of a Special Judge 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. It was urged that section 9 confers a right of appeal against a judgment by the Special Judge and also prescribe the Court which is competent to hear the appeal. It does not, however, empower a provincial Government to prefer an appeal. This argument appears to us to be devoid of all force.
Subsection (2) of section 5 of the Cr. P. C. Lays down that all offences under any law other than the P. P. C. Shall be investigated, enquired 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, enquiring into, trying or otherwise dealing with such offences. It is clear, therefore, that the provisions of Chapter XXXI of the Cr. P. C. Relating to appeals are fully applicable to the judgments delivered by the Special Judge under the provisions of the Pakistan Criminal Law Amendment Act. The Provisions of Chapter XXXI authorise the Provincial Government to prefer an appeal against an order of acquittal. Sections 5 and 417 of the Cr. P. C. Read with section 9 of the Criminal Law Amendment Act, 1948, therefore, provide the machinery for the filing of the appeal by the Advocate-General, Punjab, in the High Court under the orders of the Provincial Government. Section 404 of the Cr. P. C. Lays down that no appeal shall lie from any judgment or order of a "Criminal Court" except as provided by that Code or by any other law for the time being in force. The expression "Criminal Court" would, in our opinion, include a Court such as that of the Special Judge. This provision can also be availed of by the Crown in support of the appeal preferred in the present case, and we accordingly find that the appeal was entirely competent."
In R. M. A. R. A. Adaikappa Chettfar and another v. R. Chandrasekhara Thevar (PLD1947 PC 279), their Lordships of the Board while dealing with a case of a civil nature wherein a question was raised as to whether against the order of a Court under sections 8, 19 and 20 of Madras Agricultur1sts Relief Act, 1938 which Act in itself did not give a right of appeal from such order, the right of appeal existed under the Code of Civil Procedure, their Lordships laid down the following dictum :- "The view taken by the Full Bench was that section 19 of the Act conferred a particular right upon a judgment-debtor and that as the Act conferred no right of appeal from an order of the Court made under the section no appeal was competent. The Court relied to some extent on the decision of this Board in 40 Cal.
21. That case, however, has been explained in later decision of the Board as depending on the fact that the proceedings were from beginning to end ostensibly and actually arbitration proceedings. Their Lordships are not in agreement with the view of the Full Bench of the High Court of Madras. The true rule is that where a legal right is in dispute and the ordinary Courts of the Country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules notwithstanding that the legal right claimed arises under a special Statute which does not in terms confer a right of appeal.
In their Lordships opinion this objection is not well-founded. Their view is that when proceedings of this character reach the District Court, that Court is appealed to as one of the ordinary Courts of the Country, with regard to whose procedure, orders, decrees, the Ordinary Rules of the Civil Procedure Code apply."
14. In view of the above dictum of law a mere perusal of section 6 of the Cr. P. C. Would show that besides the High Court and the Courts constituted under any law other than the Code of Criminal Procedure for the time being in force, there shall be four classes of Criminal Courts in Pakistan, namely, (1) Court of Session, (2) Magistrate of the 1st Class, (3) Magistrate of the second Class and
(4) Magistrate of 3rd Class.
In the instant case, the offence was tried by a Magistrate of the 1st Class as was required under section 33 of the Antiquities Act, 1976 and the procedure applied was that which is laid down by the Code of Criminal Procedure, therefore, the absence of express mention of appeal in Act VII of 1976 would not take away the right of accused person to move the High Court, the Court of Sessions, as the case may be in appeal against his conviction for the offence created by the said Act. Similarly, the Provincial Government will have a right to move the High Court under section 417, Cr. P. C. In case of acquittal of the accused of the charges under said Act. I am fortified in this by a decision of their Lordships of the Judicial Board of the Privy Council in a decision (1913) A C 5460) which was approved by a later decision of their Lordships in Haem Singh and others v. Basant Das and others (AIR 1936 PC 93) wherein it was held that :-- "When a question is said to be referred to an established Court without more, it . . . . . Imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decision likewise attaches."
In the result of the above discussion, the position viz-a-viz the preliminary objection of Mr. Zahoor- ul-Haq, the learned counsel for the respondent emerges as under :-- That subsection (1) of section 417 of the Code of Criminal Procedure confers right of appeal from the order of acquittal on the Provincial Govern--ment in all the State cases whether instituted on the initiation of the police or other Government Agency competent in this respect or by a private citizen as a complainant and that subsection (2) of section 417, Cr. P. C. Is an enabling provision of law which has conferred the right of appeal by Special leave to the High Court on a citizen who was a complainant in the case and who did not have this right before the amendment. Subsection (2) of section 417 of the Code of Criminal Procedure in no way curtails the right of the Provincial Government to appeal from the order of acquittal passed in a complaint case. It would, therefore, follow that the instant case is not barred by the period of limitation as a period of six months was available to the Provincial Government for filing the appeal under Article 157 of the Limitation Act which had not by then expired. It also follows that it is only in case of those special Statutes whereby special forums and procedure for the trial of the offences created therein are provided and the right of appeal is by expression taken away or curtailed that Chapter XXXI of the Code of Criminal Procedure would not be applicable. In all other cases where in the procedure for trial is available under the Code of Criminal Procedure, all the incidents of appeal and revision, etc.; provided under the said Code would also be available.
Consequently, the preliminary objection is overruled and the appeal is held competent. The appeal is to come up for full hearing on a date to be fixed by the office.
M. A. K.Preliminary objection overruled.