ORDER ZIA PERWEZ, J. - The applicant/complainant has preferred this Criminal Revision Application impugning the judgment dated 25.6.2005 passed by learned Judge Anti- Terrorism Court No. Ill, Karachi, whereby he acquitted the accused Mushtaq Ali Jatoi, after giving certain observations against the applicant/complainant and others.
2. Brief facts of the case are that on 18.9.2004 the complainant Aijaz Ahmed lodged F.I.R. No. 393/2004 at PS Shahra-e-Faisal Town, Karachi, the basis of information- received by his sister that his brother-in-law Abdul Ghafoor Bhutto, who is also Director of Mary Land Builders & Developers, while on way to his house was kidnapped at gunpoint between' 9:30 to 10.30 p.m. By armed men in two cars near Railway, Housing Society, Gulshan e 'o''o Karachi, on 17.9.2004.
3. After completion of the investigation, the challan was submitted before the Court against accused Mushtaq AM Jatoi and Hassamuddin Langah showing arrested, while Asghar and Jabbar Meer Jatt were shown as absconders who were subsequently declared proclaimed offenders, after completing all the formalities by the learned Trial Court while Hassamuddin was released by this Court,
4. On plea of non-guilty to the charge framed for committing an offence under Section i.e) of A.T.A., 1997 read with - Section 365-A, P.P.C., the trial commenced. During the trial prosecution examined^ the following witnesses:-
(i) PW-1 Dr. Abdul Ghafoor. Bhutto (Ex.23), who produced true copy of his 164, Cr.P.C. Statement (Ex.24), his confession in Crime No. 272/2004 under Sections 365-A/34, P.P.C. Of Police Station Defence (Ex.25).
(ii) PW-2 Aijaz Ahmed (Ex.26), who produced copy of F.I.R. (Ex.27). Inspection memo, of place of recovery of the car of the abductee (Ex.28).
(iii) PW-3 Huzoor Bux (Ex.29).
(iv) PW-4 Afzal Hameed (Ex.30).
(v) PW-5 Dr. Zeba Bhutto (Ex.31).
(vi) PW-6 Ali Akber (Ex.32).
(vii) PW-7 Tanveer Ahmed (Ex.33), .Who produced the paid bills of telephone, two letters k)f the abductee, transcription of the audio and video cassettes, the criminal record, of PW Dr. Aijaz and others, mashirnama of recovery of letters of the abductee and audio cassette etc., copy of F.I.R.
Against one Colonel Maqsood (Ex.34 to 48). He also produced the audio cassette containing the voice of the abductee as well as three other audio cassettes (Article P/1 to P/4) and video cassette (Article P/5) and its DVD (Article P/6).
(viii) - PW.8 Bedar Din (49).
(ix) PW.9 Mahboob Ali Dayo, Judicial Magistrate (Ex.50) who produced the application, Vakalatnama, statement under Section 164, Cr.P.C. Notices, production order etc. (Ex.51 to- 61). ; .
(x) PW.10 Tahir Naseer ASIP (Ex.62) who produced mashirnama of arrest of accused (Ex.63), pointation memo, of place of release of abductee (Ex.64).
(xi) PW.11 SIP Faraz Gul Abbasi (Ex.65).
(xii) PW.12 SIP Muhammad Aslam Jatt (Ex.66) who produced the application, advertisement, , finger prints report etc. (Ex.67 to Ex.70).
(xiii) PW.13 SIP Ch. Manzoor Ahmed I/O (Ex.71) who produced the order regarding transfer of investigation to him (Ex,72).
5. In his statement recorded under Section 342(1), Cr.P.C. The applicant denied the allegations in evidence and claimed to be innocent.
6. The learned trial Court after going through the material and hearing the learned counsel appearing for the parties acquitted the accused vide impugned judgment, the operative part of which is reproduced hereunder: After appraisal of whole evidence available on record as well as each and every aspect of the matter, I am of the firm opinion that there was no kidnapping of PW Dr. Abdul Ghafoor Bhutto and he himself went in self-concealment for accomplishment of his illegal act and designs and the complainant and other private witnesses except PW-4 Afzal Hameed and PW-7 Ch. Tanveer Ahmed, all the prosecution witnesses completely shared the attempt and stands torgery, cheating are uncalled for and cognizance of offence cannot be taken. That there are no evidence which may lead to the adverse observations and the same are merely on presumptions and assumptions. That the learned Trial Court has riot taken into consideration the fact that in such circumstances the PW ought to have been declared hostile, which has not been done in this case.
That in such situation, the learned Trial Court could have taken action under Sections 476 or 195, Cr.P.C. And such observations, which appear to. Be directions to the TG are against the law On' the point that Revision is not maintainable as the remedy of appeal is available, learned counsel has requested that this Revision may be converted in application under Section 561; A, Cr.P.C. In order to substantiate his argument that no criminal proceedings can be initiated on the basis of the observations/directions, as contained in the impugned judgment, he referred to ordeF dated 2.8.2005 passed by a Division Bench of this Court in Crl. Misc. No. 96 of 2003 moved by Ch. Tanveer Ahmed seeking criminal proceedings against the applicant and others, which was dismissed.
9. On the . Other hand Mr- M.' Sarwar Khan, learned Additional A.G. Appearing for the State,, has supported the judgment. He contended that the remedy of appeal was available with the applicant as contained under Section 4A of Anti-Terrorism Act (Amendment) and thus the revision is not maintainable as contained under. Section. 439(5), Cr.P.C. He further contended that there is sufficient material available on record which led the learned Trial Court to make an observation and the learned Trial Court was justified under the circumstances of this case and acted in accordance with law by sending the copy to the I.G. Police.
10. In order to appreciate the contentions of the learned counsel on the point of maintainability of the Criminal Revision, the relevant sections of the Anti-Terrorism Act called for consideration are Sections 25, 31 and 32 which are reproduced:--
25. Appeal. - (1) An appeal against the final of Dr. Abdul Ghafoor Bhutto which as stated above, is forgery, cheating, false registration of the F.I.R. Etc. However, no convincing evidence is on record to show that the present accused has been implicated by them in the present crime probably for the sole reason that in fact there was no incident of kidnapping of PW Abdul Ghafoor '8hutto. In such state of affairs, the storey of the case of the prosecution appears to be highly doubtful as such by extending the benefit of doubt, the accused Mushtaq Ali Jatoi is acquitted from the charge under Section 265-H, Cr.P.C. He is in- custody, he shall be released forthwith if not required in any other custody case.
Copy of this judgment shall be sent to the Inspector General of Police Sindh for further necessary action.
7. The applicant being aggrieved against the impugned judgment filed this Revision Application with the following prayers:-
(I) Set aside the impugned order.
(II) The case is re-tried after making Ch. Tanveer as accused persons, being the main culprit in the case.
(III) Further be pleased to order expunge of the remarks as contained in para 4 of the impugned judgment and/or any other part of the judgment.
(IV) Any other relief that this Hon'ble Court may deem proper under the circumstances of the case.
8. Mr. M. Ilyas Khan, learned counsel for the applicant, has argued that-forwarding the copy of the impugned judgment is against the principle of natural justice: That ?Inrp thp innroHiont oo mnlainorl I inHnr CnoHAn -^on 366 Cr.C. Key Law Reports Vol. XXVII judgment of Anti-Terrorism Court shall Hie to a High Court.
(2) Copies of the Judgment of 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 sub-section (1) may be preferred by a person sentenced by Anti- Terrorism Court to a High Court within seven days of the passing of the sentence.
(4) The Attorney-Generar, Deputy Attorney * General, Standing Counsel or any Advocate- General or an Advocate of High Court or Supreme Court of Pakistan appointed a Public Prosecqtor, 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) Omitted.
(7) Omitted.
(8) Pending the appeal a High Court shall not release the accused on bail.
(9) Any appeal being before an Appellate Tribunal immediately before the commencement of the Anti-Terrorism (Amendment) Act, 1998, shall be deemed to be pending in the High Court.
2008 ' Dr. Ejaz Ahmad V. The State Cr.C. 363 .. . ' (Zia Perwez, J.) .
(Article P/6).
(viii) . PW.8 Bedar Din (49).
(ix) PW.9 Mahboob Ali Dayo, Judicial Magistrate (Ex.50) who produced the application, Vakalatnama, statement under Section 164, Cr.P.C. Notices, production order etc. (Ex.51 to- 61).
(x) PW.10 Tahir Naseer ASIP (Ex.62) who produced mashirnama of arrest of accused . (Ex.63), pointation memo, of place of release of abductee (Ex.64).
(xi) PW.11 SIP Faraz Gul Abbasi (Ex.65).
(xii) PW.12 SIP Muhammad Aslam Jatt (Ex.66) who produced the application, advertisement, finger prints report etc. (Ex.67 to Ex.70).
(xiii) PW.13 SIP Ch. Manzoor Ahmed I/O (Ex.71) who produced the order regarding transfer of investigation to him (Ex,72).
5. In his statement recorded under Section 342(1), Cr.P.C. The applicant denied the allegations in evidence and claimed to be innocent.
6. The learned trial Court after going through the material and hearing the learned counsel appearing for the parties acquitted the accused vide impugned judgment, the operative part of which is reproduced hereunder:--- ". .. After appraisal of whole evidence available on record as well as each and every aspect of the matter, I am of the firm opinion that there was no kidnapping of PW Dr. Abdul Ghafoor Bhutto and he himself went in self-concealment for accomplishment of his illegal act and designs and the complainant and other private witnesses except PW-4 Afzal Hameed and PW-7 Ch. Tanveer Ahmed, all the prosecutiqn witnesses completely shared the attempt and stands of Dr. Abdul Ghafoor Bhutto which as stated above, is forgery, cheating, false registration of the F.I.R.
Etc.,1 . However, no convincing evidence is on record to show that the present accused has been implicated by them in the present crime probably for the sole reason that in fact there was no incident of kidnapping of PW Abdul Ghafoor '8hutto. In such state of affairs, the storey of the case of the prosecution appears to be highly doubtful as such by extending the benefit of doubt, the accused Mushtaq Ali Jatoi is acquitted from the charge under Section 265-H, Cr.P.C. He is in- cdstody, he shall be released forthwith if not required in any other custody case.
Copy of this judgment shall be sent to the Inspector General of Police Sindh for further necessary action.
7. The applicant being aggrieved against the impugned judgment filed this Revision Application with the following prayers:-
(I) Set aside the impugned order.
(H) The case is re-tried after making Ch. Tanveer as accused persons, being the main culprit in the case.
(III) Further be pleased to order expunge of the remarks as contained in para 4 of the impugned judgment and/or any other part of the judgment
(IV) Any other relief that this Hon;ble Court may deem proper under the circumstances of the case. '
8. Mr. M. Ilyas Khan, learned counsel for the applicant, has argued that-forwarding the copy of the impugned judgment is against the principle of natural justice; That since the ingredient as contained under Section 420, P.P.C. Are missing, the observation as to commission of: Dr Ejaz Ahrriad V. The State Cr.C. 365 (Zia Perwez, J.} forgery, cheating are uncalled for and cognizance of offence cannot be taken. That there are no evidence which may lead to the adverse observations and the same are merely on presumptions and assumptions. That the learned Trial Court has not taken into consideration the fact that in such circumstances the PW ought to have been declared hostile, which has not been done in this case.
That in such situation, the learned Trial Court could have taken action under Sections 476 or 195, Cr.P.C. And such observations, which appear to.Be directions to the I G are against the law On* the point that Revision is not maintainable as the remedy of appeal is available, learned counsel has requested that this Revision may be converted in application under Section 561; A, Cr.P.C. In order to substantiate his argument that no criminal proceedings can be initiated on the basis of the observations/directions, as contained in the impugned judgment, he referred to order dated 2.8.2005 passed by a Division Bench of this Court in Crl. Misc. No. 96 of 2003 moved by Ch. Tanveer Ahmed seeking criminal proceedings against the applicant and others, which was dismissed.
9. On the . Other hand Mr< M. Sarwar Khan, learned Additional A.G. Appearing for the State,, has supported the judgment. He contended that the remedy of appeal was available with the applicant as contained under Section 4A of Anti-Terrorism Act (Amendment) and thus the revision is not maintainable as contained under. Section. 439(5), Cr.P.C. He further contended that there is sufficient material available on record which led the learned Trial Court to make an observation and the learned Trial Court was justified under the circumstances of this case and acted in accordance with law by sending the copy to the I.G. Police.
10. In order to appreciate the contentions of the learned counsel on the point of maintainability of the Criminal Revision, the relevant sections of the Anti-Terrorism Act called for consideration are Sections 25, 31 and 32 which are reproduced:- V
25. Appeal. - (1) An appeal against the final judgment of Anti-Terrorism Court shall Hie to a High Court.
(2) Copies of the Judgment of 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 sub-section (1) may be preferred by a person sentenced by Anti- Terrorism Court to a High Court within seven days of the passing of the sentence.
(4) The Attorney-Generar, Deputy Attorney * General, Standing Counsel or any Advocate- General or an Advocate of High Court or Supreme Court of Pakistan appointed a 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) Omitted.
(7) Omitted.
(8) Pending the appeal a High Court shall not relejase the accused on bail.
(9) Any appeal being before an Appellate Tribunal immediately before the commencement of the Anti-Terrorism (Amendment) Act, 1998, shall be deemed to be pending in the High Court.
Dr. Ejaz Ahmad V. The State Cr.C. 367 , (Zia Perwez, J.)
(10) Where any person entitled to file an appeal before an Appellate Tribunal immediately before the commencement of the Anti- Terrorism (Amendment) Ordinance, 1998. Has not done so he may, within seven days of such commencement, file an appeal before the High Court.
(11) , Where an Appellate Tribunal has, at any time before the commencement ..Of the Anti- Terrorism (Amendment) Ordinance, 1998, on appeal reversed an order or judgment passed by Anti-Terrorism Court, an appeal may be filed against such order or judgment in the Supreme Court within thirty days of such, commencement.
11. Considering the above provisions as well as powers conferred under Section 439(5), Cr.P.C.
Which reads as follows: .
I 0
439. High Courts power of revision. - (1) "In the case of .....
(2) ....... *
(3) . ......
(4) ......
(5) Where under thus 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) ...... ,
12. In the above section it has been stated in unambiguous terms that the powers of revision before a High Court are not available in a case where appeal lies. As far as the instant case being under Anti-Terrorism Act, Section 25 of the said Act provides an appeal against the final judgment of the Special Court. In addition to the above position finality is attached to the orders passed or sentence awarded by the Special Court, subject to the result of an appeal in pursuance of Section 31 of the said Act, it further provides that such judgment or order shall not be questioned in any Court. The effect of Section 31 is to attach finality to the order or judgment. The intention of the legislature is thus manifest as enacted under Section 31 of the Anti-Terrorism Act. A special procedure for appeal, together with prescribed period, has been set forth under Section 25 of the Anti- Terrorism Act, which being a special law overrides the provisions of all other enactment. ,
13. The powers available to the Courts thus being regulated within the scope of above-referred Section of the Anti-Terrorism Act, the provisions of Sections 435, 439 and 561-A, Cr.P^C., that are inconsistent with the provisions of the afore-said sections, are not available, therefore, request for converting the present revision into an application under Section 561-A, Cr.P.C., merits no consideration as no such powers are available to this Court on reading the provisions of Section 25, 31 and 32 in conjunction with each other. Similar view has also been taken by a Division Bench, of this Court in case of Muhammad Sabir Roshan v. Tha Stata (2000 P.Cr.L.J. 1195). We are in respectful agreement with the view taken by the Division Bench of this Court and the same has binding effect in view of principle laid down by the apex Court in case of multiline Associates v, Ardeshir Cowasjee and 2 others reported in 1995 SCMR 362 and PLD 1995 SC 423.
14. The upshot of above discussion is that this Revision Application merits no consideration which was dismissed by short order dated 3.3.2006. Above are the reasons for the same.
15. The case was heard by me, alongwith Mr. Justice Ghulam Rabbani, as he then was. However, before the reasons could be recorded, one of us (Ghulam Rabbani, J.) was elevated to the Supreme Court. Consequently, the Hon'ble Chief Justice, in the light of decision of this Court in case of Ghulam Hussain v. The State (PLD 1981 Karachi 711), referred the matter to me for recording the reasons hence the above reasons for our short order are recorded by me. ' ' _ Criminal Revision ,