1. ' MIAN MUHAMMAD NAJAM-UZ-ZAMAN, J.--Respondent Ch. Muhammad Saleem son of Ch. Asmat Ullah Chief Engineer (North) Highway Department, Punjab, Lahore was tried by Senior Special Judge, Anti-Corruption, Punjab, Lahore, in case F.I.R. No,26/98 dated 11-4-1998 for the offence under sections 409/161 P.P.C. Read with section 5 (2) of Prevention of Corruption Act, 1947 registered at Police Station DACE, Lahore, who vide judgment dated 24-3-2004 while entertaining application under section 265-K, Cr.P.C. Acquitted respondent from the charges. Through this appeal against acquittal under section 417(2-A), Cr.P.C. Legality of the said order has been challenged by the appellant, (complainant), in his private capacity.
2. Special Judges are appointed under section 3 of Pakistan Criminal Law (Amendment) Act, 1958 to take cognizance of the offence punishable under the Anti-Corruption Act, 1947 and other penal offences, mentioned in the schedule of the ibid Act. Appeal against the judgment of conviction by the Special Court/Judge is filed under section 10(1) of the said Act be before the higher forum whereas under section 10(2) only Public Prosecutor under the direction of the Central Government is competent to present an appeal against the order of acquittal before the Appellate Court (High Court). This subsection reads as under:-- "10.Appeal, revision and transfer of cases.
(2) Notwithstanding the provisions of section 417 of the Code of Criminal Procedure, 1898, in any case tried by a Special Judge appointed by Central Government under section 3, in which such Special Judge has passed an order of acquittal, the Central Government may direct the Public Prosecutor to present an appeal to such Court as aforesaid.
2. ' In order to cross the hurdle qua maintainability of the this appeal against acquittal filed by the appellant (complainant in his private capacity), learned counsel while relying on case titled Federal Government of Pakistan through Director, Intelligence and Investigation, Customs and Excise v. Akhtar Javed (2002 YLR 2444 (Lahore)) and case titled State v. Bashir Ahmed and 6 others 2000 YLR 1634 argued that under section 417(2-A), Cr.P.C., an aggrieved person (in his private capacity) is competent to file appeal against the order of acquittal passed by a special Court. It is submitted that though the Pakistan Criminal Law Amendment Act, 1958 is silent about the filing of appeal against the order of acquittal by an aggrieved person but by implication the provisions of section 417(2A), Cr.P.C. Which is a general law shall apply and that the appeal against acquittal filed by Mian Khalid Rauf (complainant of this case) is maintainable.
3. ' Learned counsel has also relied on cases titled Muhammad Anwar v. Amanullah and others 2002 YLR 494, Ms. Rachel Joseph v. Aftab Qureshi and 2 others (2000 PCr.L.J 1715 (Karachi)), Abdul Jalil v.
4. Zulfiqar Ali and another (1998 PCr.LJ 697 (Karachi)) and Aftabuddin Qureshi and another v. Ms. Rachel Joseph and another (PLD 200t Supreme Court 482) but these authorities are not relevant for the decision of the law point involved in this case.
3. It is well-settled that where the special law is silent with regard to the right of filing an appeal, the said right cannot be inferred by way of implication on the basis of general law. 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 right by implication.
5. ' In case titled Habib Bank Ltd. v. The State and others {1993 SCMR 1853}, while, discussing about the right of appeal their Lordships observed.
6. "The right of appeal is a creature of statute and it must be specified in clear terms that the appeal against an order is competent. This right cannot be supplemented by implications".
7. ' Similar views were expressed by the Division Bench of the Peshawar High Court in case titled Faiz Muhammad and others v. Mehrab Shah and others (PLD 1997 Peshawar 166) while taking into consideration the matters pertaining to the filing of appeal against acquittal by a private person under Suppression of Terrorist Activities (Special Courts) Act, 1975, it was observed: "Right of appeal is a creation of statute. It is clearly granted in one place and clearly denied in the other. It cannot be read into one where it is not provided. Since the time of promulgation of laws and up to the enactment of subsection (2-A), of section 417, Cr.P.C. No right of appeal stood ever granted to a private complainant and if it stands not granted in a certain law even today, it should never be made a point of confusion or mischief".
8. ' The Division Bench of the same High Court in case titled QuaidE-Azam v. The State (2000 PCr.LJ 216 (Peshawar)), while refusing to entertain appeal against acquittal by a private person against the judgment of Special Judge where the special law (i,e, Suppression of Terrorist Activities (Special Courts) Act, 1975) is silent about the right of a private person to file appeal against acquittal observed: "Right of appeal given to the aggrieved person against the order of acquittal under S.417(2-A), Cr.P.C., could not be extended to private person in cases decided by the Special Court regarding a scheduled offence".
9. ' In case titled Haji Khan Kharo v. Muhammad Sharif and 2 others (2001 PCr.LJ 568), a Division Bench of the Sindh High Court while considering the maintainability of appeal by a private person under section 417(2-A), Cr.P.C. Against the order of acquittal passed by Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975 observed as under: "Accused had been acquitted by the Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, which being a special law had overridden the general law--- Appeal against acquittal of accused could be filed under S.7 of the said Act by a person appointed by the Provincial Government and not by a person under S.417(2-A), Cr.P.C. Which could not be equated with S.7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975--".
10. ' In case titled Faizur Rehman v. The State and others (PLD 2002 Peshawar 6), once again the Peshawar High Court with regard to the maintainability of the appeal against acquittal by a private person against the order passed by Special Court while upholding the previous view observed as under:-- "Right of appeal is a creation of statute and it must be specified in clear terms that the appeal against an order is competent--- ' Such right cannot be supplemented by implications---No inference could be drawn from the provisions contained in S.7(1) of the Suppression of Terrorist Activities (Special Courts) Act, 1975 that a private complainant can file an appeal against the order of acquittal".
11. ' It was further observed that even under section 561-A, Cr.P.C., such relief cannot be granted to the appellant. The relevant portion of the judgment reads as follows:- "So far as second question as to whether the appeal of a private complainant, which is otherwise barred, can be converted into a petition under section 561-A, Cr.P.C. Is concerned, the answer to this question is also in negative, simply because where law itself had not given right of appeal against certain orders/judgments then same could not be challenged in any form to gain similar object which had been denied by the Statute itself. Remedy which was not directly available could not be sought indirectly through indirect means. Legislature having itself not provided right of appeal to private person, the same could not be brought under attack through any other device or disguised manner before the High Court, therefore, appeal which is otherwise barred, cannot be converted into petition under section 561-A, Cr.P.C. And private complainant cannot be allowed to achieve the object which he could have achieved by filing appeal."
12. ' In a recent judgment by the apex Court of this country titled Syed Masroor Shah and others v. The State (PLD 2005 Supreme Court 173), their Lordships once again while reiterating the settled proposition qua the right of appeal observed:-- "---Right of appeal cannot be availed unless it is conferred in a clear manner by some enactment or statute or the rules having the sanctity of some law---Such right is to be specially provided for and the same cannot arise by implication---Right of appeal is not a mere matter of procedure but is vested right of a party from the commencement of the action in the Court of first instance--- Parties by agreement cannot confer jurisdiction upon a Court---Right of appeal depends upon the language as used in the statute and if the words of statute are precise and unambiguous, they must be held to have their natural and ordinary meaning---Order passed by any Court irrespective of the fact whether it is ordinary criminal Court or Accountability Court, there would be no appeal unless it is provided for by the statute---Right of appeal cannot be assumed unless expressly given by the statute".
13. Pakistan Criminal Law (Amendment) Act, 1958 is a special law and Special Judges are appointed under section 3 of this Act by the appropriate Government through proper notification in the Gazette. The said Judges are competent to take cognizance of the offices mentioned in the schedule of the Act. Under section 10(2) of this Act an appeal against the order of acquittal passed by the Special Judges can only be filed by the Public Prosecutor with the prior permission/direction of the Central Government and not by a private person. The bare perusal of section 1(2), Cr.P.C.
14. Reveals that provisions of general law (Cr.P.C.) would not apply where Special laws are made for a specific purpose. Under section 10(2) of Pakistan Criminal Law Amendment Act, 1958 by using the word "Notwithstanding the provisions of section 417 of the Code of Criminal Procedure", the scope of section 417, Cr.P.C. Has been minimized by ousting the right of a private person/aggrieved person to file appeal against the order of acquittal passed by the Special Judge. The question about the right of appeal by a private person against the order of acquittal by the Special Judge appointed under the said Act came under consideration before a single Bench of the Peshawar High Court in case titled Ashiq Muhammad and another v. Khuda Bakhsh and 5 others (PLD 1998 Peshawar 68). The said appeal was dismissed being not maintainable in view of section 10(2) of Pakistan Criminal Law Amendment Act, 1958. While keeping in view the above mentioned settled proposition of law, the learned Judge also observed that even revision petition against the said order by a complainant in his private capacity is not maintainable under sections 435/439, Cr.P.C.
15. Because Pakistan Criminal Law Amendment Act, 1958 is by itself a procedural law, it shall prevail upon general law i,e, Criminal Procedure Code. In another case titled Abdul Qayum v. Aziz ur Rehman Shah (2004 PCr.LJ 422 (Lahore)), the single Judge of the Lahore Court while dismissing the appeal filed by the person in his private capacity against the order of acquittal passed by the Special Judge, gave observations which read as under:-- "For filing an appeal against acquittal passed by the Special Judge, direction by the Federal Government to the Public Prosecutor to present appeal before the High Court was condition precedent and unless the appeal was filed by the Public Prosecutor on the direction of the Federal Government, the same was not entertain able---Provisions of Pakistan Criminal Law Amendment Act, 1958, were to prevail upon the provisions of Criminal Procedure Code, 1898, which was a general law."
4. As far as case-law relied upon by the counsel for the appellant is concerned, both the authorities are not relevant for the purpose of this case. In case titled Federal Government of Pakistan through Director, Intelligence and Investigation, Customs and Excise v. Akhtar Javed (2002 YLR 2444 (Lahore)), appeal against acquittal challenging the order of Customs Judge was filed under section 185-F of the Customs Act, 1969. The said section reads as under:-- "[185-F. Appeal to Special Appellate Court.---(1) Any person, including the Federal Government, the Central Board of Revenue, the Collector of Customs or any other officer authorized in this behalf by the Board, aggrieved by any order passed or decision made by a Special Judge under this Act or under the Code of Criminal Procedure, 1898 (Act V of 1898), may subject to the provision of Chapters XXXI and XXXII of the Code, within [sixty days] from the date of the order of decision, prefer an appeal or revision to the Special Appellate Court, and in hearing and disposing of such Appeal or revision, such Court shall exercise all the powers of a High Court under the said Code.
(2) Except as otherwise provided in subsection (1), the provisions of the Limitation Act, 1908 (IX of 1908), shall apply to an appeal or a revision preferred under subsection (1).1"
16. ' Bare perusal of this section reveals that the scope of the section is very wide. It has extended the right of filing appeal to any person aggrieved of judgment/order passed by Customs Judges including the authorized officer, by the Board, the Federal Government, Central Board of Revenue etc. On the other hand as observed earlier the scope of section 417, Cr.P.C. Has been minimized by section 10(2) of the Pakistan Criminal Law Amendment Act, 1958.
17. ' As far as case titled State v. Bashir Ahmed and 6 others 2000 YLR 1634, is concerned, the appeal was against the order of acquittal passed by Judge Special Court constituted under Anti-Terrorism Act, 1997. The State along with complainant of the case filed two different appeals. Appeal filed by the State was entertained and respondents (accused) were convicted and sentenced. The counsel for the complainant withdrew the appeal which was dismissed as withdrawn. In this view of the matter this case-law is also of no help to the appellant (complainant).
18. In view of section 10(2) of Pakistan Criminal Law Amendment Act, 1958 read with section 417(2-A), Cr.P.C. And the case-law cited above, this appeal against acquittal filed by a private person, challenging the judgment/order of acquittal passed by the Special Court constituted under section 3 of Pakistan Criminal Law Amendment Act, 1958, being not maintainable stands dismissed.