' WAQAR HASSAN MIR, J.---Through this appeal, which has been filed by the State through Force Commander regional Directorate ANF, Rawalpindi under section 48 of CNSA, 1997, the appellant has assailed the judgment dated 8-7-2003, whereby the learned Judge, Special Court (CNS), Rawalpindi, has acquitted the respondent of the charge in case F.I.R. No,25 dated 17-10-2002, under sections 12, 13, 19 and 39 of CNS Act, 1997 Police Station ANF, Rawalpindi.
2. Briefly stated the prosecution case is that Javed Iqbal Inspector of Assets Investigation Cell Regional Directorate ANF, Rawalpindi got registered the instant case through complaint Exh.PA recorded on 17-10-2002 at 8-30 a.m. While present at Regional Directorate ANF, Rawalpindi on the basis of which F.I.R. Exh.PA/1 was registered at Police Station AFN, Rawalpindi. It is stated in the complaint that Force Commander Regional Directorate ANF, Rawalpindi received spy information that respondent Abdul Jabbar alias Jabbara used to deal with the narcotics and so many cases were registered against him in different police stations, who had acquired huge value of property on the basis of money generated through the narcotics, therefore, in order to verify this information an inquiry was conducted and it transpired that about 23 cases relating to drug trafficking gambling and other offences were registered against the said respondent whereas he had been declared PO in a case F.I.R. No,2 dated 24-5-1997 registered under section 9-C of CNSA 1997 at Police Station ANF, Haripur. During inquiry, the details of certain properties were discovered in the ownership of the respondent, who had no ostensible means to purchase these properties. Hence the F.I.R.
3. At the very outset, learned counsel for the respondent/accused has raised an objection about the maintainability of the present appeal against acquittal on the ground that the same has not been filed by an authorized person as there is no direction in writing by the Federal Government in this behalf, thus in absence thereof, the present appeal having not been properly filed, is barred by time.
3A. Conffonted with this situation, the learned counsel for the appellant contends that under section 50 of Control of Narcotic Substances Act, 1997 (hereinafter be referred as CNSA, 1997) the Special Prosecutor so appointed by the Federal Government is competent to conduct the proceedings on behalf of the CNFA, thus the appeal filed through the special prosecutor is maintainable, he has also relied upon the provisions of sections 46, 47 and 48 of the CNSA 1997; learned counsel for the appellant has also relied upon the provisions of subsection (2-A). Of section 417, Cr.P.C. And contends that the appeal could be filed even by an aggrieved person and the appellant being the complainant, is aggrieved from the judgment of acquittal passed by the learned Judge, Special Court, CNS, Rawalpindi.
4. Learned counsel for the respondent while meeting with the above contention submits that section 10(2) of the Pakistan Criminal Law Amendment Act, 1958 (XL) provides no right of appeal to the aggrieved person against the order passed by the Special Judge (Special Court), right of appeal is statutory right and unless statute provides for, there will be no right of appeal. He lastly submits that Criminal Procedure Code is not applicable to the proceedings under Pakistan Criminal Law Amendment Act, 1958 (XL of 1958) because the Act ibid is by itself statutory law which shall prevail upon general law i,e, Criminal Procedure Code. Reference in this behalf has been placed on the case reported as Ashiq Muhammad and another v. Khuda Bakhsh and others (PLD 1998 Pesh 68) and Abdul Qayyum v. Aziz-urRehman Shah and another (2004 PCr.LJ 422).
' Heard. Record perused.
6. First of all, we would like to reproduce provisions of sections 46, 47, 48 and 50 of CNSA, 1997, section 417 read with newly amended subsection (2-A) of Cr.P.C. And section 10(2) of the Pakistan Criminal Law Amendment Act, 1958 (XL of 1958). Section 46 provides about the establishment of the Special Court which reads as follows:---
46. Establishment of Special Courts:---(1) The Federal Government and if so directed by the Federal Government, the Provincial Government, shall, by notification in the official Gazette, establish as many Special Courts as it considers necessary and appoint a Judge for each of such Courts and where it establishes more than one Special Courts, it shall specify in the notification the place of sitting of each Special Court and the territorial limits within which it shall exercise jurisdiction under this Act.
(2) There shall be two classes of Special Courts to try offences under this Act, namely:---
(i) Special Courts having the power to try all offences, and
(ii) Special Courts having the power to try offences punishable with imprisonment for two years or less.
(3) No person shall be appointed a Judge of a special Court referred to---
(i) in subsections (2)(i) unless he is or has been a Session Judge or an Additional Sessions Judge; and
(ii) in subsections (2) (ii) unless he is a Judicial Magistrate of the First Class.
(4) A person shall be appointed as Judge of a Special Court after consultation with the Chief Justice of the High Court of the Province in which the Special Court is established.
(5) The Federal Government or the Provincial Government may, in , consultation with the Chief Justice of the High Court, confer the powers of Special Court referred to---
(6) (i) in subsections (2) (i), on any Sessions Judge or Additional Sessions Judge; and
(7) (ii) in subsections (2) (ii) on any Judicial Magistrate of the First class. Criminal Procedure, 1898".
Except as otherwise provided in this Act the provisions of the Code of the Criminal Procedure, 1898.
(Act V of 1898), hereinafter referred to as the Code (including provisions relating to confirmation of a death sentence) shall apply to trials and appeals before a Special Court under this Act."
' Section 47 thereof provides as under:--- ' Section 48 eads as below:- "Appeals.---(1) An appeal against the order of a Special Court comprising a Sessions Judge or an Additional Sessions Judge shall lie to the High Court and shall be heard by a bench of not less than two Judges of that Court.
(2) An appeal against the order of a special Court comprising a Judicial Magistrate shall lie to a special Court comprising a Session Judge or an Additional Sessions Judge."
' Section 50 which is relating to the appointment of Special Prosecutor, provides as under:- "50, Special Procedure.---(1) The Federal Government may appoint a person, who is an Advocate of a High Court to be a Special Prosecutor on such terms and conditions as may be determined by it and any person so appointed shall be competent to conduct proceedings under this Act before a Special Court and, if so directed by the Federal Government, to withdraw such proceedings.
(2) When a Special Prosecutor appointed under subsection (1) is, for any reason, temporarily unable to conduct proceedings before the Special Court, the proceedings shall be conducted by such person as may be authorized in this behalf by the Special Court."
' Under section 417(2-A), the right to prefer an appeal was extended to any "person aggrieved by the order of acquittal" which reads as below:- "417. Appeal in case of acquittal.-(1) Subject to the provision of subsection (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 the 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 the order of acquittal is refused, no appeal from the order of acquittal shall lie under subsection (1).
"Section 417(2-A):-~ ' A person aggrieved by the order of acquittal passed by any Court other than a High Court may within thirty days, file an appeal against such order."
' Section 10(1) and (2) of Pakistan Criminal Law (Amendment) Act, 1958 is reproduced as under "Section 10(1)(2) "Notwithstanding the provisions of section 417 of Code of Criminal Procedure (V of 1898), in any case tried by Special Judge appointed by the 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." Appropriate Government has been defined in section 2(a) of the Act (ibid) means in relation to a person serving in connection with the affairs of the Centre and any other person employed by the Central Government or by a Corporation or other body or organization set up, controlled or administered, by, or under the authority of the Central Government, and in other cases, the Provincial Government concerned: (The underlying in the above reproduced sections are mine).
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7. From the above narration of definitions of sections 48 and 50 of the CNSA 1997, it is obvious that no specific provision in this regard has been provided in CNSA 1997 to. Specifically confer a right upon the State to file an appeal against the acquittal. Whole of the Act is silent about the filing of such an appeal. Only in section 50 of CNSA 1997, it has been specified, "any person so appointed shall be competent to conduct proceedings under this Act before a Special Court." The perusal of this section shows that it is qua the proceedings, which are to be conducted by the Special Prosecutor. If the intention of the legislature is as such, as argued by the learned counsel that under section 50, the special prosecutor can file an appeal against acquittal, then there was no legal impediment in the way of the legislature to specifically write down about the filing of an appeal against acquittal, when under section 48 of CSNA 1997, it has been provided that an appeal against the order of a special Court shall lie to the High Court but here again it has not been specified whether the appeal should be against conviction or acquittal. When we look at the provisions of section 417, Cr.P.C., it has been unequivocally provided about the appeal against acquittal, then why under the CSNA 1997, it has not been mentioned by the legislature qua the appeal against acquittal in such like cases. It means that the legislature was well aware of the fact that no right of appeal against acquittal shall be available to the State. Resultantly, we are of the considered view that the State is not competent to file an appeal against acquittal of an accused.
8. Moreover, looking the above from a different angle, we are of the view that while examining the above reproduced section 10(1)(2) of Pakistan Criminal Law Amendment Act, 1958, it is vividly clear 4hat for filing an appeal against the acquittal, direction by the Federal Government to the Public Prosecutor to present an appeal before the High Court was a sine qua non and unless the appeal was filed by the public prosecutor on the direction of the Federal Government, the same could not have been entertained. In the present case, the appeal was filed by the learned Special Prosecutor and there is no material available on the record to show that the said special prosecutor has been authorized by the Federal Government or a specific direction in writing has been issued to file/present an appeal, against the acquittal of the respondent. However, it would be relevant to state here that prior to 1972, only the Government had a right to present an appeal to the High Court through the Public Prosecutor against an order of acquittal. This vividly implied that both in a challan case as well as the complaint case, the Government could prefer such an appeal. Through the amendment in 1972, a right to prefer an appeal in a complaint case, upon grant of special leave, was also conferred upon the complainant. This however, did not affect the right of the Government to do so even in a complaint case. Indeed subsection (4) of section 417, Cr.P.C, clarifies and specifies the position. It provides that only when leave to appeal has been refused to private complainant, Government would also be precluded from preferring an appeal. When no such refusal has been taken place the Government can also prefer any appeal even in a complaint case. It is, therefore, obvious that appeals against acquittal both in challan and complaint case were treated on the same level and in 1972 an additional, though limited right to prefer an appeal was conferred upon a private party by subsection (2) notwithstanding the right of the Government to do so. Section 417(2-A) only provides a right to prefer appeal against an order/judgment of acquittal without in any manner imposing the rights already available under other subsection of section 417 and there is no justification for reading unnecessary restriction in the newly introduced provision. The newly added section 417(2-A) was inserted by Act XX of 1994 on 14-11-1994, whereas the CNSA 1997 has come into existence on 11-7-1997; it means that when the latter Act was promulgated, section 417 (2-A) was already in field but the legislature has not provided a specific provision regarding filing of appeal against the order of acquittal and thus when there is no such provision, then the appeal against acquittal cannot be held to have been validly instituted.
Resultantly, the provisions of section 417(2-A) are not attracted in the present case.
9. In the light of what has been discussed above, the objection raised by the learned counsel for the respondent qua the maintainability of present appeal is sustained with the result that the present appeal is not maintainable and the same is hereby dismissed.