' IKRAMULLAH KHAN .J.---Through the instant criminal revision, the petitioners have questioned the impugned judgment dated 29-5-2000, passed by District Magistrate, Swabi, whereby the appeal against conviction preferred thereof, by the respondents was accepted and the judgment of conviction passed by the Special Magistrate (Canal) Swabi was set aside.
2. Being aggrieved by the impugned judgment, the petitioners have invoked the jurisdiction of this Court, thereunder the provisions contained in section 439, Cr.P.C., 1898.
3. In essence, the petitioners filed a' complaint thereunder the provisions of section 70 of the Canal and Drainage Act, 1873 (hereinafter as Act, 1873) against the respondents, before the Court of Canal Magistrate, Swabi, complained thereof that respondents had illegally damaged the water course, which had been under use by the petitioners for irrigation of their agriculture land. The learned Canal Magistrate, especially empowered in that behalf, proceeded against the respondents and were put under regular trial, on allegations for commission of the offence, under section 70 of the Act, 1873.
4. Evidence was led by the petitioners and on close of their evidence statements of the respondent-accused were recorded thereunder the provisions of section 342, Cr.P.C.
1898.
5. On conclusion of trial, the learned trial Court found the respondents guilty and convicted them and sentenced them to pay a fine of Rs,200 each and also ordered that the water course shall be restored.
6. Being aggrieved by the impugned judgment passed by the learned trial Court, the respondents went in appeal against the said impugned judgment before the Court of learned District Magistrate, Swabi, which was accepted and the afore-stated order of conviction was set aside.
Hence, the petitioners have preferred the instant criminal revision.
7. The learned counsel for the petitioners, contended that the impugned judgment is against law and facts on record; that the, impugned judgment is non-speaking one; that the impugned judgment is based on surmises and conjectures, perverse and is result of misreading and non- reading of evidence.
8. It was also argued, that being appellate Court, the learned Court of District Magistrate was under its obligation to discuss each and every piece of evidence, brought on record and non-doing so, the impugned judgment is illegal and has been passed without jurisdiction, as no right of appeal is provided thereunder the provision of section 70, Act, 1873.
9. On the other hand, the learned counsel for the respondents supported the impugned judgment and contended that the impugned judgment has been passed by a competent Court of law thereafter proper appreciation of evidence on record, and is just and fair; the learned counsel also vehemently raised the objection to the maintainability of the instant criminal revision.
10. I heard the learned counsel for the parties and anxiously considered their arguments in view of the material available on record.
11. Adverting to the objections raised by the learned counsel for the respondents, that no criminal revision is competent, under section 439, Cr.P.C., 1898 against any order of acquittal, passed by a competent Court of law, while case instituted by filing a private complaint, no appeal against acquittal would be competent without first fulfilling the requirement of law as envisaged thereunder subsection (2) of section 417, Cr.P.C., 1898.
12. The objection, agitated by the learned counsel is well founded insofar as the revision against acquittal is concerned. No revision would be maintainable, in case, when right of appeal is provided against an order passed by any inferior Court.
13. The provisions contained in section 417, Cr.P.C., 1898, conferred upon an aggrieved person, the right of appeal against any order of acquittal rendered either by the trial Court or an appellate Court subject to condition, in case of a complaint case, to obtain sanction for the purpose. Section 417 reads as:- ' Section 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.
(2-A) A person aggrieved by the order of acquittal passed by any Court other than a High Court, may, within 30- days, file an appeal against such order.
(3) No application under sub-section (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 an order of acquittal is refused, no appeal from that order of acquittal shall lie under subsection (1).
14. But, in present case, the respondents were not acquitted of the charges for which they were tried by the Canal Magistrate, only the sentence of fine was set aside by the learned erstwhile District Magistrate, Swabi.
15. In case, the order whereby the fine was set aside imposed against the respondents is treated as an acquittal order, in such eventuality, no revision would be considered competent and legal one in view of the provisions of section 439, Cr.P.C., 1898, whereas, subsection (5) of section 439, Cr.P.C., 1898 expressly excluded the filling of revision, in case right of appeal was not availed by an aggrieved person in this regard. Apart from the explicit bar provided therein subsection (5) ibid, any Court exercising jurisdiction, thereunder section 439 or 439-A, Cr.P.C., 1898, could not convert a finding of acquittal into one of conviction as provided thereunder the provisions contained in clause (a) of subsection (4) of section 439, Cr.P.C., 1898.
16. But the bare reading of the impugned order, manifests that the 2nd part of the order dated 22- 11-1999 passed by the learned Canal Magistrate was not set aside and it still exists.
17. The provisions contained thereunder section 70 of the Canal Act, 1873, conferred two fold jurisdiction upon the Court, exercising jurisdiction under the Act, 1873. Subsection (17) of the Act, 1873 envisages as;-- ' Subsection (17). Violates any rules made under this Act, for breach whereof a penalty may be incurred; ' Shall be liable, on conviction before a Magistrate of such class as the Provincial Government directs in this behalf, to a fine not exceeding two hundred rupees to imprisonment not exceeding three months or both.
' While subsection (18) envisages as;-- ' Subsection (18). Whenever any person is convicted under this section the convicting Magistrate may order that the cost as certificate by the Sub-Divisional Canal Officer for removal of the obstruction or repairing the damage in respect of which the conviction is held, shall be payable by him; and if such person neglects or refuses to obey such order within the period to be fixed, the cost of such removal or repair shall be recoverable from such person by the Collector as arrear of land revenue.
18. The respondents, were not only found guilty by the learned Court of Canal Magistrate, thereunder subsection (17) but also direction were passed thereunder subsection (18) too.
19. Though no revision is competent under section 439 of Cr.P.C., 1898, against the impugned judgment in so far as the annulment of sentence of fine is concerned but, in proper cases, revision could be filed, whereas apart from question of acquittal other collateral matter was also in issue.
20. The learned counsel for the petitioners, contended that no appeal was competent before the District Magistrate, against any order passed by a Court exercising the jurisdiction under the Canal Act as rule 81 framed by the Provincial Government; in exercise of its power conferred upon, thereunder section 75 of the Act, 1873, which envisaged as: "81. -- No appeal except when expressly given. No appeal shall lie from any decision or order given or made under any provision of the Act or by the rules made thereunder and from the time being in force."
21. No right of appeal has been provided there either by against an order passed by the Court thereunder section 70 of the Act, 1873 or by the Act itself or by the rules framed thereunder section 75 of the Act, 1873.
22. Even rules 103, restricts the scope of appeal in criminal cases, conducted thereunder any provisions of Act, 1873, which is read as; "103. Scope of rules. -Nothing contained in the foregoing rules applies to the hearing of appeal from any decision or order in the criminal case under the Act."
23. Right of appeal, is purely a creature of a statute and unless a right of appeal is clearly and expressly provided by the statute, it does not exist nor is there any scope for interfering such right by implication. Reliance may be placed on the judgment of the Hon'ble Lahore High Court rendered therein the case of "The State v. Abdul Qayyum" (2011 PCr.LJ 252).
' This Court in its full Court judgment rendered therein the case of "Mian Sharif Shah v. Nawab Khan and 5 others (PLD 2011 Peshawar 86) had held as;- "Right of appeal---Scope---Right of appeal is a substantive right which is expressly conferred by express language of statute and under no circumstances, it can be assumed to have been conferred upon an individual - Such right cannot be imported to special statute from general law on the ground of convenience unless it is clearly spelt out therefrom".
24. The arguments on behalf of the respondents, that any action or omission mentioned in Section 70 of the Canal and Drainage Act, 1873 would be an offence within definition of Section 40 Pakistan Penal Code, 1860 on conviction by Magistrate would appealable within the contemplation of Section 407, Cr.P.C., 1898, before the District Magistrate is misconstrued as the provisions of section 40 of Pakistan Penal Code, 1860 when reproduced would be read as:- ' Section 40. "Offence". Except in the chapters' and sections mentioned in clauses (2) and (3) of this section, the word "offence" denotes a thing made punishable by this Code.
' In Chapter IV, Chapter V A and in the following sections, namely, sections, 64, 65, 66, 67, 71, 109, 110, 112, 114, 115, 116, 117, 187, 194, 95, 203, 211, 213, 214, 221, 222, 223, 224, 225, 327, 328, 329, 330, 331, 347, 348, 388, 389 and 445 the word "offence" denotes a thing punishable under this Code, or under any special or local law as hereinafter defined.
' And in sections 141, 176, 177, 201,202, 212, 216 and 44' the word "offence" has the same meaning when the thing punishable under the special or local law is punishable under such law with imprisonment for a term of six months or upwards, whether with or without fine.
25. No doubt that any persons convicted for an offence, as described thereunder the provisions contained in section 40 of the Pakistan Penal Code, 1860 by a 2nd class Magistrate, was appealable before the District Magistrate as provided thereunder section 407 of Cr.P.C., 1898, which when reproduce would be read as;- ' Section 407. Appeal from sentence of Magistrate of the second or third class.-- (1) Any person convicted on a trial held by any Magistrate of the second or third class, or any person sentenced under section 349... May appeal to the District Magistrate.
26. No doubt, that any order passed by any 2nd class Magistrate has been made appealable before the District Magistrate but when no, such rights were conferred thereupon a convict, by express legislation through an Act of the Parliament no such right of appeal could be exercised thereunder the provision of section 407, Cr.P.C., 1898. Special law always suppressed the General Law. In case, a special law, does not expressly applies the provisions of Cr.P.C., 1898 to the proceeding by the special forum specially established for particular class or classes of cases or offences, no benefit of section 407, Cr.P.C., 1898 could by taken by the accused who had not been conferred with right of appeal.
27. The provisions of the Cr.P.C., 1898 is not expressly applied thereto the proceedings before the Special Canal Magistrate, and as such in view of the provisions of subsection (2) of section 1 of the Cr.P.C., 1898, it could not be impliedly applied thereto. Subsection (2) of the section 1, Cr.P.C., 1898 reads as;-- "It extends to (the whole of Pakistan) but, in the absence of any specific provisions to the , contrary, nothing herein contained shall affect any special or local law now in force, or any special jurisdiction or power conferred, or any special forum of procedure prescribed, by any other law for the time being in force".
28. In view of the reasons given hereinabove, the jurisdiction exercised by the learned erstwhile District Magistrate was without lawful authority and coram non judice.
29. However, the next question would be that whether revision would be competent against an order even passed by a Court having no jurisdiction whereas no right of revision was provided under the special law of Canal and Drainage Act, 1873.
30. Admittedly, when right of revision was not conferred expressly, upon any aggrieved person, it could not be availed thereunder the concept of the general law, through implication.
31. In such view of the matter revision is also not competent but this Court could not shut, its eyes, when an illegal example of exercise of illegal jurisdiction is confronted with. This Court may exercise its inherent power conferred upon it under section 561-A, Cr.P.C., 1898 to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Reliance be placed on case of "Arz Muhammad Umrani v. Atta Muhammad and others" (1993 SCM R 633). No restriction shall be placed on the inherent jurisdiction of the High Court to be exercised in appropriate case. Reliance be placed on case of "Muhammad Abbas v. Mst. Naila Taranum Jamshed" (2001 PCr.LJ 628).
32. Keeping in view the peculiar aspect of this case, the instant revision petition is converted to a petition being filed under section 561-A, Cr.P.C., 1898.
33. As, the impugned judgment was passed and rendered without jurisdiction, therefore, the merit of the case could not be discussed.
34. Keeping in view, the reasons given hereinabove, this petition on conversion to .a petition under section 561-A, Cr.P.C., 1898, is accordingly accepted, whereas the impugned judgment dated 29-5- 2000; rendered by the learned District Magistrate, Swabi is hereby quashed being without jurisdiction and Coram non judice.