DOST MUHAMMAD KHAN, J.---Hon'ble the Chief Justice has made reference to the Bench to set at rest the controversy arising out of the conflict judgments of three different Hon'ble Benches. The two Benches earlier have held that right of appeal/revision in a case of acquittal or conviction recorded for offence under section 3 of the Illegal Dispossession Act, 2005 was not available while the third Bench differed with the earlier view and held, that such right is available to the aggrieved person/party because under section 09 of the Act ibid the Criminal Procedure Code has been made applicable to the proceedings under the Act, thus, the provisions relating to right of appeal under the Code can be pressed into service against the judgment of the trial Court.
2. The terms of reference have not been drawn, therefore, in view of the guiding principle laid down by the Hon'ble Apex Court, we are constrained to formulate the following points:--
(I) Whether any person, aggrieved from the judgment of acquittal, conviction or any other order, passed by the trial Court under the provisions of Illegal Dispossession Act 2005, has a right of appeal/revision?
(II) Whether application of the Criminal Procedure Code to the proceedings under the Act, as provided in Section 09 thereof would ipso facto invest the aggrieved person with a right of appeal?
(III) What should be the remedial course, if such right of appeal is held, not available to the aggrieved person?
3. Arguments of the learned counsel for the parties heard in considerable details and all the relevant provisions of the different enactments were considered.
4. Learned counsel appearing in support of the view of the subsequent Bench, held in Criminal Miscellaneous No, 77 of 2007 dated 15-10-2008, raised the following questions of law:-
(i) that under the provisions of section 9 of the Illegal Dispossession Act, 2005, Criminal Procedure Code has been made applicable to the proceedings conducted thereunder, which, shall include the right of appeal envisaged by the provisions thereof
(ii) that under subsection (2) of section 5 of the Criminal Procedure Code, trial of all offences against other laws shall be investigated, enquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment, for the time being in force, regulating the manner or otherwise dealing with such offences, thus, the inference would be that right of appeal, available under the provisions of Criminal Procedure Code, can be pressed into service when the Special Law i,e, the Act of 2005 is silent to that effect.
(iii) that the trial/enquiry under the provisions of the Illegal Dispossession Act, 2005 are held/conducted by the Sessions Judges or/and Additional Sessions Judges, they, being subordinate to the High Court, therefore, the incident of appeal or revision shall be construed to be inherent on the basis of subordination concept.
5. Learned counsel, opposing the above view, vehemently argued that right of appeal, revision and review are substantive rights, therefore, unless and until these are expressly conferred upon an aggrieved person, the same could not be construed to have been inherently vested on a party/aggrieved person.
6. To understand the true intention of the legislature, the preamble of the Act of 2005 needs to be attended first, the same is reproduced below:-- "An Act to curb the activities of the property Grabbers. WHEREAS it is expedient to protect the lawful owners and occupiers of immovable properties from their illegal or forcible dispossession therefrom by the property grabbers. It is hereby enacted as follows."
7. As was held in the case of "Zahoor Ahmad and 5 others v. The State and 3 others" (PLD 2007 Lahore 231) the Special Law was enacted by the legislature to curb the illegal/unlawful activities of property grabbers and land "MAFIA" particularly, in big towns, where, market value of Commercial, Industrial and Residential property has gone sky high and hunt for grabbing property at the hands of unscrupulous persons/"MAFIA" had assumed alarming proportion rather a monster status. The right of appeal was also not acknowledged in the cited case.
8. The scheme of the New Law would show that to effectively curb such detestable and illegal activities of formidable "MAFIA" and also of individuals, disturbing peace and tranquillity of the society at large scale, very stringent provisions were inserted in the Act of 2005 and the entire procedure for enquiring into and trial of such cases has been made summary in nature. In addition thereto, keeping in view the potential threat associated therewith, higher forums, Chief Criminal Courts of the District (Sessions Judges and Additional Sessions Judges) were conferred upon exclusive jurisdiction 'to try such cases. The role of the police has been also restricted in these cases because of the prevailing circumstances as it was invariably complained against the police department of being in league with such "MAFIA" instead of bringing to book the law breakers. In some cases the police was found protecting these elements. It was in this background that the legislature deemed it appropriate to exclude its role and the trial Courts have been empowered to take cognizance directly on the complaint of the aggrieved person.
9. To provide quick justice/relief, right of appeal and revision was deliberately omitted from the provisions of the Act of 2005, so that, this grave mischief is suppressed without any delay. Probably for that reason the law breakers were deprived of the remedy/right of appeal before the High Court and finality was given to the decision of the trial Courts to accomplish the desired objectives.
10. For centuries, the Courts of law, while interpreting Statutes, have laid down certain guiding principles which have undergone no radical change. These golden principles have been followed consistently with slight variation according to changed circumstances, in a particular situation.
Some of these principles may be stated below:--
(a) the Court is not concerned with the anomalies-save at least in those cases in which it will tend to favour an interpretation of a doubtful matter of law or an obscure language in an Act of Parliament or other instrument which will avoid anomalies. The duty of the Court is to discover the true intent of the legislature in the course of interpretation.
(b) that whenever the Court finds that what the legislature has said is clear and unambiguous and the provision of law leads to only one construction and to no other, the mere circumstance that giving the section its proper meaning and effect is likely to lead to certain anomalies or curious results is absolutely not a consideration for the Court to reject that construction.
(c) when the words of Statute are clear, it is not within the Province of a Court, simply with a view to avoid' apparent anomalies to put such an interpretation on the words as they are incapable of bearing and it is for the legislature to step in and to remove the anomalies.
(d) the provisions of the Statute must be construed according to its plain meaning, neither anything can be added to it nor something can be subtracted therefrom.
(e) it is not the Province of the Court to legislate but interpret the law because the former is the exclusive domain of the legislature.
(f) a Judge is not at liberty in favour of a supposed intention, to disregard the express letter of the Statute, where, for any thing that appears, the wordings may correspond with the actual design of the legislature-the maxim, in cases of this description is "verbes legis non recedendum est".
(g) it is also not open for the Court to supply omission which appears deliberate on the part of the legislature, simply on the ground that without supplying such omission, the Statute would create or cause hardship to any one.
(h) that while legislating, the legislature cannot be attributed ignorance about the previous law and the remedies available under that law because of the established practice.
(i) the "Casus Omissus" is another maxim in the field which provides that when a given state of affairs does not come within the obvious meaning of the words of the Statute i,e, when certain contingencies are not provided for, or when the words do not embrace the particular question in hand, this maxim covers the situation. the intention of the legislature must not be probed into by the Judges, as grammarians of the written law and while proceedings to discover such intention of the legislature, the express words of the Statute must be looked into, the deficiencies which are left there, the intention essentially would be that the legislature did not intend to provide it and the Judges are not supposed to invent something to make the deficiencies good.
(k) the Courts, by supplying the omission in an Act of legislature, would certainly travel to a field, not allotted to it by the law, unless the omission is obvious and is to defeat the object of the Statute.
(I) that omission to provide for any remedy in a certain Statute could not be provided or ,filled up by borrowing a provision from another enactment injecting it into the new one from which "" it was deliberately omitted.
11. The Courts shall not undertake the process of straining the meaning of the Statute by extending its meaning beyond the permissible and legitimate field, as has been held, that such an approach would be dangerous, providing scope to make a construction in any case when the express words of the Statute does not lead to the meaning which the Court is to adopt. It is not the function of the Court to act on the theory of hardship and to change the meaning of the plain words of the Statute by providing additional or new remedies, not intended by the Statute itself.
12. It has also been the consistent practice of the legislature that while enacting Special Criminal Law, it does apply the Criminal Procedure Code with a view to channelise the proceedings before the Court or Tribunal instead of reproducing its various provisions in the new law, the object behind the same is to attain brevity and convenience. Adopting this methodology, the legislature enacted section 9 of the Illegal Dispossession Act, 2005. Simply because under the said provisions, the Code has been made applicable to all proceedings under the Act does not convey the intent of the law maker conferring right of appeal on the aggrieved person. If the intention of the legislature was to confer such right, it would have, thus, added express words "Including proceedings before the Court of appeal".
13. The mere assumption that because the complaint under section 3 of the Act has been made triable by the Court of Sessions, subordinate to the High Court, therefore, on that analogy alone the right of appeal is vested in the aggrieved party. Subordination of Courts and its classification, given in the Criminal Procedure Code, simply define the area of their allotted jurisdiction. The High Court because of its constitutional status, under Article 203 of the Constitution, is supposed to superintend and supervise all the Subordinate Courts. The hierarchy setup under the Criminal Justice System is with object to streamline and channelise the process of justice through check and balance system, however, mere subordination of a Court to the High Court by itself would not at all make its decision appealable to the High Court unless, the Jurisdiction is expressly conferred on the High Court. The High Court in its constitutional jurisdiction under Article 199 has to guard against and check the illegalities, jurisdictional or legal errors committed H by the subordinate Courts or Tribunals, however, such jurisdiction and the subordination of the District Judiciary to the High Court must be considered in that context alone.
14. The purpose and object behind the provision of section 9 of the Illegal Dispossession Act, 2005 making the provisions of the Code applicable to the proceedings conducted is/are confined to the trial stage. The restricted applicability of the Code could not be given extended meaning and scope by incorporating the right of appeal thereunder, as such right being substantive in nature is always conferred and taken away through express words. To satisfy itself, the High Court may examine the correctness, legality or propriety of any finding/order recorded, sentence passed and the regularity of any proceedings of the subordinate Criminal Courts and may pass any appropriate order it deems fit provided that an order of acquittal cannot be converted into finding of conviction. These powers are invested in the High Court with object to put criminal justice into correct channels. This jurisdiction, in real purpose, is to correct manifest miscarriage of justice but party/parties to these proceedings have no locus-standi or any vested right.
15. Under the Suppression of Terrorist Activities (Special Court) Act XV of 1975 (Repealed), right of appeal was expressly conferred on the State against an order of acquittal passed by the Special Court and in the case of conviction upon the convicted person; however, no right of appeal was conferred on a complainant/victim or legal heir of the deceased in case of acquittal.
16. After the insertion of subsection (2-A) in section 417, Cr.P.C., right of appeal was conferred on such class of persons, aggrieved by the order of acquittal passed by any Court other than the High Court.
17. In the legal circle, it was debated upon that this new provision of law may be read and considered engrafted into section 7 of the Suppression of Terrorist Activities Act. The majority view was that the aggrieved person was now having a right of appeal to the High Court against the acquittal order passed by the Special Court constituted under the Suppression of Terrorist Activities Act, 1975. Many cases came up for hearing before the Peshawar High Court Bench at D.I. Khan, this legal aspect was extensively debated upon, however, a Division Bench of the High Court held, that when the Special Law has not provided such right of appeal to private individual then, on the analogy of sub-Section (2-A) of section 417, Cr.P.C, it cannot and shall not be construed that section 7 of the Special Act has undergone any change and the right of appeal conferred under subsection (2-A) of section 417, Cr.P.C, under no circumstances, could be given extended scope to have conferred right of appeal on aggrieved individual against an order of acquittal under the provisions of section 7 of the Act ibid. Reference may be made to "Faiz , Muhammad and others v.
Mehrab Shah and others" (PLD 1997 Peshawar 166).
18. Again, in the case of "The State v. Hamtho" (1971 SCM R 686), the Hon'ble Apex Court, held, that Statute creating a special offence and laying down a special procedure for trial of such offence, then the procedure provided therein, must be followed in its true sense and no departure therefrom is permissible.
19. The Courts, under general principle, are not entitled to widen the scope of the plain and express meaning of the statute through process j of undue straining nor legal fiction therein shall be made ground for giving it extended meaning on the basis of obscure analogy, defeating the clear intent of the law makers. The right of appeal is a substantive right which is expressly conferred by the express language of a Statute and, under no circumstances; it can be assumed to have been conferred upon an individual. It is also cardinal principle of the construction of Statute that such right cannot be imported to a Special Statute from general law on the ground of convenience unless it is clearly spelt out therefrom. Transposition of Statutes would amount to legislation which is not the domain of Judges but that of the Legislatures alone.
20. The elaborate discussion with regard to the case-law, construction of Statutes and statutory law on the subject, would answer the first two (2) terms of reference, formulated by us.
21. Now the question is as to what should be the better course to provide a remedy of an appeal to the aggrieved person from the order of conviction or acquittal, passed by the Court of Session under the Illegal Dispossession Act, 2005. It is well entrenched principle of law that no criminal Court or Tribunal shall be invested with absolute authority particularly, in cases where right to liberty and property of a citizen is involved. If finality is attached to the judgment of the Sessions Court then, in cases of patent injustice committed to anyone either in case of conviction or that of acquittal, the only remedy for the aggrieved person would be to file a constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, however, it is an ironclad principle of law that in writ jurisdiction, the High Court is neither supposed nor it is permissible for it to make reappraisal of M evidence or determine, the controversy of facts and to draw conclusion therefrom like a Court of appeal, hence, such remedy, being of a very restricted scope, is not efficacious in any manner, thus, conviction recorded or order of acquittal passed causing miscarriage of justice would go unchecked at High Court level.' There may be cases where valuable State property is grabbed but the culprits are acquitted, thus, the public exchequer would suffer irreparable loss. In such circumstances, the land "MAFIA" and property grabbers, the most influential devious by manipulating to go scot- free would success fully defeat the objects and purpose of the very law and its efficacy would be brought to naught which may lead to dangerous results.
22. Keeping in view the above dangerous consequences which in all probabilities may ensue in due course of time and because of the centuries old practice. Of legislation on criminal law, that at least one right of appeal is invariably provided against the judgment of trial Court, we feel constrained to advise the Federal Government to make immediate necessary arrangements for suitably amending The Illegal Dispossession Act, 2005 (XI of 2005) through the Parliament by providing one right of appeal to the aggrieved person against the final judgment of the trial Court, of course with a narrow/restricted period of limitation, and also to fix a time limit for the disposal of such appeal by the High Court. As numerous cases are decided on day to day basis and the aggrieved persons are deprived to seek justice in a fair and effective manner by way of filing appeal, therefore, an early action in the matter if taken would be in the interest of justice. This last conclusion of the Bench would adequately meet the third law point.
It is further, held, that till the time the law is amended, the aggrieved persons may avail the remedy by way of filing and maintaining constitutional petitions against the final judgment of the trial Court. All these petitions shall be listed before Division Benches as writ petitions. Copy of this judgment shall be sent to the Ministry of Law, Justice and Human Rights Division, Islamabad for doing the needful.