1. ' ABDUL QADEER CHAUDHRY, J---This judgment will dispose of both these appeals as common question of law is involved.
2. ' The facts of the case are that the Manager, Habib. Bank Ltd., Chochinwala Market Branch, Karachi complained against respondent Haroon Lakhani and six others that they had misappropriated Rs.12,900,000. The said respondents were charged under section 365/34, P.P.C. By the. Special Court under the "Offences in Respect of Banks (Special Courts Ordinance, 1984) hereinafter referred to the 'Ordinance'. They were acquitted of the charge by the Special Court. The Habib Bank Ltd. Filed Criminal Revision against the order of acquittal in the High Court of Sindh. This revision petition was dismissed by the judgment dated 23rd September, 1987 by the learned High Court on the ground that the appeal as well as the Criminal Revision against the acquittal of the accused were not maintainable. The State through Advocate-General Sindh also filed an appeal against the acquittal of the accused against the same judgment. This appeal was dismissed on 1-2-1988 in view of the judgment passed by the High Court in criminal revision filed by the Habib Bank. The State as well as the Habib Bank Ltd. Have challenged the two orders of the High Court in these appeals.
3. ' We have heard the learned counsel for the parties. The learned counsel for the appellant has submitted that the appeal/revision against the order of acquittal is maintainable as there is no bar in the Ordinance itself for filing appeal against, the order of acquittal. He submitted that inherent jurisdiction to correct the error of Special Court remains intact. As stated above, the High Court has observed that both, the appeal and revision are not competent against the order of acquittal. 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. The Ordinance does not expressly give any right of appeal against the order of acquittal. Section 10 (1) of the Ordinance provides appeal against the order of Special Court to the High Court against the sentence passed by such Court. No inference can be drawn from this provision that an appeal against the order of acquittal is competent. There is no other provision in the Ordinance empowering the State or the complainant to file an appeal against the order of acquittal. The right to review the judgment of acquittal must be conferred by statute. In the absence of such right in the statute there does not exist any right. In Halsbury's Laws of England, para. 611, at page 363, it has been observed that: "There is no right of appeal from a decision dismissing a criminal charge unless clearly given by statute."
4. ' This view is supported by Hari Meah v. The State (PLD 1958 Dacca 333) and this decision was confirmed by this Court in Hari Meah The State (PLD 1959 SC 307). Here we may point out that in this case the convict Hari Meah had filed appeal against his conviction but his appeal was dismissed as no right of appeal was provided in the statute itself. In Hussain Bakhsh v. Settlement Commissioner, Rawalpindi (PLD 1970 SC 1) it has been held that the right to claim review of any such decision of a Court of law like the right of appeal is a substantive right and not a mere matter of procedure. An appeal does not exist in the nature of things; a right to appeal from any decision must be given by express enactment. This Court in Civil Petition for Leave to Appeal No.430-K of 1988 and others has observed as under:-- "The provisions of the Ordinance, as already observed, clearly indicate that the scheme established by it is not to permit an appeal against acquittal. Therefore, no substitutive proceedings can be undertaken which may make up for the denial of such a remedy. The Constitutional jurisdiction with its usual characteristics and limitations will certainly be available in appropriate cases, for examining the jurisdictional aspect of the trial and for ensuring the correct application of law."
5. Section 10 of the Ordinance provides for appeal from sentence passed by the Special Court but there is no provision made for appeal at the instance of the complainant or any other authority in case of acquittal of the accused. Hence the appellant who was complainant should have invoked the Constitutional jurisdiction for relief against the order of acquittal". We, therefore, hold that no appeal against the acquittal is competent.
6. ' Another point which requires examination is whether the revision petition against the order of acquittal is maintainable or not. This Court in Allied Bank of Pakistan Ltd v. Khalid Farooq (1991 SCMR 599) has left this question open for consideration. We may quote the relevant part of the judgment as under..-- "The supervisory powers of the High Court under sections 435 and 439 of the Code also require examination, in respect of cases under the Ordinance. These powers are available for the purpose of examining proceedings of inferior Criminal Court. As held in para. 16 above, the Special Court is a Court inferior to the High Court. The power of the High Court to check the correctness, legality or propriety of any sentence recorded or passed by the Special Court stands excluded, by virtue of subsection (1) of section 10 of the Ordinance. However, the powers under sections 435 and 439 of the Code to check the correctness, legality or propriety of any other, finding or order recorded or passed and as to the regularity of any proceedings of the Special Court, would not stand excluded.
7. In Shahzad Hussain v. The State (PLD 1980 Lahore 54) the Lahore High Court held that its powers under section 439, other than to revise sentences, were intact in respect of cases under the Ordinance. In Habib Bank Ltd.'s case (supra) the Karachi High Court held that neither an appeal against an acquittal nor a revision petition was competent against a judgment of acquittal passed by the Special Court under the Ordinance. Strictly, a sentence follows a finding of conviction. Where an acquittal is recorded, there is no question of any sentence. An acquittal is a finding and not a sentence. Section 10(1) of the Ordinance provides an appeal against a sentence recorded by a Special Court and bars a revision against the same. Where an appeal against an acquittal is not provided, the question still arises whether a revision is not incompetent. Just because an appeal against the finding of acquittal is not provided by section 10 of the Ordinance, the question whether a revision against such a finding is barred, cannot be foreclosed. However, I would also leave this question open for examination for an appropriate occasion."
8. ' The learned counsel for the appellant has submitted that the competency of revision petition against an order of acquittal before the High Court is under consideration in the Sindh High Court.
9. Be that as it may, we now propose to consider the competency of the revision petition against order of acquittal before the High Court. In order to appreciate the respective contentions of the learned counsel for the parties we may refer to certain provisions of the Ordinance. Section 2(b)' defines "Code" as Code of Criminal Procedure. Section 6(1) contemplates that the Court shall have all the powers conferred by the Code on a Court of Session exercising original jurisdiction. Section 5(8) provides that a Special Court shall in all matters with respect to which no procedure has been prescribed by this Ordinance, follow the procedure prescribed by the Code for the trial of the cases by Magistrates. According to section 12 the provisions of this Ordinance shall have effect notwithstanding anything contained in the Code or in any other law for the time being in force.
10. These provisions show that where the Ordinance is silent about conduct of the proceedings of a trial, the provisions of Code of Criminal Procedure would apply otherwise overriding provisions contained in the Ordinance will apply for the trial of the case. Ordinance has regulated the procedure for the trial of the scheduled cases of which Special Court has exclusive jurisdiction. No doubt, the Ordinance does not specifically mention that the High Court can exercise its revisional jurisdiction. The learned counsel for the respondent therefore argued that by analogy it can be deduced that the High Court has no revisional jurisdiction as contained in sections 435 and 439 of the Code of Criminal Procedure. Support has been sought from section 10 of the Ordinance which provides an appeal on behalf of convict and no other Court has the power to revise a sentence. In order to appreciate the contention of appellant's counsel, we may refer to section 6 of the Code of Criminal Procedure which is reproduced below: "6. Classes of Criminal Courts. --Besides the High Courts and the Courts constituted under any law other than this Code for the time being in force, there shall be five classes of Criminal Courts in Pakistan namely:-- I. Courts of Session; II. (Omitted by the A.O., 1949); III. Magistrates of the First Class; IV. Magistrates of the Second Class; V. Magistrates of the Third Class."
11. Section 6 clearly mentions that any Court constituted under any law other than the Code of Criminal Procedure shall be a Criminal Court. Section 435, Cr.P.C. Empowers the High Court to examine the record of any proceedings before any inferior Court. This Court in Allied Bank's case has held that the Special Court is a Court inferior to the High Court. It further held that powers under sections 435 and 439 of the Code to check the correctness, legality or propriety of any other finding or order recorded or passed would not stand excluded. The power of High Court is excluded to examine the propriety of any sentence under its revisional powers. However, in my view the power to examine the correctness of an "order of acquittal" is not barred by the provisions of the Ordinance. The powers of the High Court remain intact and such powers cannot be taken away by any jurisprudential analogy. The ouster of power of High Court in its revisional jurisdiction cannot be accepted simply because the Ordinance is silent about an appeal against acquittal. We may refer to cases in Emperor v. Benoari Lall Sarma and others (AIR 1943 Federal Court 36), Shahzad Hussain v. State (PLD 1980 Lahore 54). Altaf Hussain v. The State (PLD 1985 Lahore 10). In the case of State v. Qaim Ali Shah (1992 SCMR 2192) at page 2223, the following observations have been made:-- "My conclusions are that none of the remedial powers enjoyed by the High Courts under the Criminal Procedure Code are curtailed or superseded by the Suppression of Terrorist Activities (Special Courts) Act, 1975 (hereinafter referred to as the Act). The only modification made in the exercise of its powers is that it has been made exercisable by a Bench of not less than two Judges, with all its consequences. My reasons for this view are as hereunder:-- ' Firstly, all the statutory provisions have to be interpreted' harmoniously and consistently with the Constitutional provisions, the paramount law, already occupying the field. The Constitution by its Article 203 entrusts to the High Court the power of superintendence and control over all Courts subordinate to it. If in section 7 of the Act in the expression 'no Court' we include the High Court then it can't `have any jurisdiction of any kind in respect of any proceedings of a Special Court' except that appeals against sentence and acquittal will be lodged with it. Such a subversive interpretation cannot be countenanced, not even on express language of the statute as pointed out in Mst.
12. Ameer Khatoon v. Faiz Muhammad PLD 1991 SC 787 at page 797."
13. ' In the case of Abdul Hafeez v. The State (PLD 1981 Supreme Court 352), while interpreting a similar provision of the Drugs Act this Court held that sections 435 and 439, Criminal Procedure Code are fully attracted to Drugs Act. Relevant provisions of section 31 of the Drugs Act, 1976 are reproduced hereinbelow:- "31. Drug Courts.--(1) The Federal Government may, by notification in the official Gazette; establish as many Drug Courts as it considers necessary and where it establishes more than one Drug Court, shall specify in the notification the territorial limits within which, or the class of cases in respect of which, each one of them shall exercise jurisdiction under this Act.
(2) A Drug Court shall consist of a person who is, or has been, or is qualified for appointment as a Judge of a High Court, who shall be the Chairman, and two members being persons who, in the opinion of the Federal Government, are experts in the medical or pharmeceutical fields.
14. (3)....................................
(4) A Drug Court shall have all the powers conferred by the Code of Criminal Procedure, 1898 (Act V of 1898), on a Court of Session exercising original jurisdiction.
15. (5)...........................
(6) A Drug Court shall, in all matters with respect to which no procedure has been prescribed by this Act, follow the procedure prescribed by the Code of Criminal Procedure, 1898 ( Act V of 1898), for the trial of summons cases by Magistrates.
(7) A person sentenced by a Drug Court may prefer an appeal to a Bench of the High Court consisting of not less than two Judges within thirty days of the judgment."
16. Section 38 of this Act is the indemnity clause which reads as under:- "Except as otherwise expressly provided in this Act, no suit, prosecution or other legal proceeding shall lie against Government or any other authority or person for anything which is in good faith done or intended to be done under this Act or any rule. Finality of order has been mentioned in section 39 which reads as under:-- ' Finality of orders, etc.--Save as otherwise expressly provided in this Act, every order passed or decision given by any Board, a Drug Court or any other authority under this Act shall be final . And shall not be called in question by or before any Court or other authority'.
17. ' Sections 5(8), 10, 11 and 12 of the Ordinance are identical to the provisions of the Drugs Act mentioned above. It would be advantageous to re-produce the relevant observation of the Court in Abdul Hafeez's case (PLD 1981 SC 352): "It is to keep the hands of the High Court quite free in dealing with a case in its ultimate stage of revision etc. That expression 'inferior' has been substituted for the word 'subordinate'. In the context, therefore, when in the manner aforesaid, a Drug Court has been made subject to appellate jurisdiction of the High Court and in that sense inferior to the High Court, the latter could exercise revisional jurisdiction against its order and proceedings as laid down in section 435/439, Cr.P.C. In other words once having made the Drug Court, in that manner judicially inferior to the High Court, there was no necessity of duplicating the matter over again by expressly providing for a revisional jurisdiction of the High Court; because, the same already inhered in the status and position in which the Drug Court stood to the High Court. It is well settled that an appeal is a complaint to a superior body of any injustice done or error committed by an inferior one with a view to its reversion or correction etc. From that point of view also the Drug Court is an 'inferior Criminal Court' whose orders and proceedings will be revisable by it under section 435."
18. Section 1 (2) of the Code of Criminal Procedure contemplates "that in the absence of any specific provision 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 form of procedure prescribed, by any other law for the time being in force." It has already been mentioned that where the Ordinance is silent about the procedure the Code will apply. Section 5 (2) of the Code lays down that all offences, under any law shall be investigated, inquired into, tried and otherwise dealt word according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
19. ' In this behalf we may refer to the judgment in Emperor v. Benoari Lal Sarma and others (AIR 1943 Federal Court 36). The Court has observed as under:-- "Sections 28 and 29 of the Code run as follows:
28. Subject to the other provisions of this Code, any offence under the Indian Penal Code may be tried---
(a) by the High Court, or
(b) by the Court of Session, or
(c) by any other Court by which such offence is shown in Col. 8 of Sch. 2 to be triable.
20. 29.--(1) Subject to the other provisions of this Code, any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court.
21. ' So long as these three sections (5, 28 and 29) have not been "altered, repealed or amended by a competent Legislature or other competent authority," they must govern every criminal proceeding both as regards the tribunal by which a crime is to be tried and as to the procedure to be followed (including rights of appeal, revision, etc.). It is contended on behalf of the Crown, (i) that in view of section 1 (2), Criminal P.C., it is not necessary that the Code should be "repealed or amended" before the special jurisdiction and powers conferred by the Ordinance and the special procedure prescribed therein can take effect, and (ii) that, in any case, the necessary repeal or amendment has been effected by the Ordinance itself."
22. ' Another observation of this judgment is re-produced below:-- "Those who are familiar with the pages of the Indian law reports know how this revisional power has justified itself. But as has been frequently pointed out, the existence of this power even in reserve is a potent and wholesome influence, apart from its actual exercise. That its existence is as much called for today as it was in the middle of the last century will appear from three instances which we take random."
23. The revisional authority of the High Court embodied in sections 435 and 439 of the Code has not been taken away by express or clear terms. The High Court has not been stripped off all powers by this Ordinance. The High Court has been enjoying certain powers by the Ordinance and this special enactment has close connection with the High Court. The ouster of jurisdiction must be expressed in clear and unqualified words. The Ordinance has not completely ousted the jurisdiction of the High Court in all respects and section 10 is to be interpreted in limited sense. The provision of section 10 of the Ordinance cannot be so construed so as to take away the normal jurisdiction of the High Court. The words are to be construed in a reasonable and judicious manner. The revisional jurisdiction cannot be curtailed by implications. The rule laid down by this Court in Abdul Hafeez's case (supra) will also apply to the cases under the Ordinance.
24. In the result we hold that the powers of the High Court under sections 435 and 439 remained intact in spite of prohibitory and negative provisions contained in section 10 of the Ordinance.
25. ' In the result Cr1. Appeal No.78-K/90 is dismissed and Crl. Appeal No.77-K/90 is accepted. The case is remanded to the High Court for examining it on merits under its revisional jurisdiction. There would be no order as to costs.