' This appeal has been filed by the appellants/private complainants in Anti-Corruption Case No,3 of 1994 decided by Judge, Special Court, D.I. Khan on 6-6-1996 under Criminal Law Amendment Act, 1958.
2. Facts alleged in the complaint discloses that the mother of petitioner No,1, petitioner No,2 and respondent No,5 are real sister and brothers. Their father was owner of sufficient landed property in District D.I. Khan. Three sons of respondent No,5 are serving as Patwari. Respondent No,5 on committing collusion with the Revenue Staff recorded Ameeran Bibi as issueless and entered a gift Mutation No,1911 in favour of his sons which was objected to by the appellants. As result of which with exclusion of the share of the mother of appellant No,1, namely, Mst.Ameeran Bibi was attested.
Respondent No,5 also managed to prepare a Deed No,434 in favour of his mother Mst.Ghulam Zainab Bibi and then got transferred the same land vide mutation No,413 attested on 19-5-1961 in his own name and depriving his sister Mst.Ameeran Bibi and brother Abdul Aziz appellant No,2. He (respondent No,5) also managed to transfer the lands of Ghulam Hassan, his father and Ghulam Hassan in favour of his sons and wife depriving the legal heirs of Ghulam Hussain.
3. On the complaint of appellants an open enquiry was conducted and as a result of which case was registered on 14-2-1993 against the respondents and one Abdur Rehman Tehsildar. After conducting investigation in the matter sanction for prosecution was granted against the present respondents Nos.1 to 4 under section 6(5) read with section 12(2) of the Pakistan Criminal Law Amendment Act, 1958 by the Commissioner/Chairman, Anti-Corruption Committee No,II, D.I. Khan Division, D.I. Khan . However, no sanction was granted for the prosecution of Abdur Rehman, Tehsildar.
4. The learned Judge, Special Court notified under section 3 of the Act-XL of 1958, summoned the accused/respondents, formally charge-sheeted them but they denied charge and claimed trial.
He examined 7 witnesses in all produced by the prosecution in order to bring home guilt of the accused. The accused/respondents who were examined under section 342, Cr.P.C., respondent No,5, the alleged principal accused was put question as question No,3, as follows:-- "It is in evidence that you in connivance with your co-accused recorded the Inheritance Mutation No,751 attested on 14-11-1991 of the aforesaid property situated in Mauza Gara Hayat Korai wherein omitted the name of your sister Mst.Amiran Bibi and, thus, deprived her from her legal share. What do you say about it?"
5. The accused answered the same in the following words:-- "There is neither any connivance nor I could in any way omit my sister because prior to this at my instance another mutation of inheritance was entered on 29-5-1991 vide Mutation No,1910 in which the inheritance of my mother had been transferred in the name of Mst.Amiran Bibi to the extent of her share. In Mutation No,751, as it would appear from the entry made by the Patwari, I only informed about the death of my mother and nothing else or nothing more was either stated by me or was required to be done. The name of Mst.Amiran Bibi was already in the Jamabandies and the entry was made accordingly. The name of Mst.Amiran Bibi appears to have been inadvertently left out and was later on rectified by the Revenue officials. There is a legal provision of Fard Badar for the rectification of such-like mistakes. If I had any intention of depriving Mst.Amiran Bibi from her share, I could not have been instrumental in the attestation of a similar Mutation No,190 on 29-5- 1991 and this fact has been admitted by the P.Ws. In their statements before the Court. The omission has since been rectified."
' To the question as what was his statement and why he was charged, he replied as follows:-- "I am innocent and have been falsely charged. In fact I had my differences with the children of my brothers and sisters over the intermarriages of our sons and daughters and there are also pending civil litigations between us in the Court of learned S.C.J. I produce a copy of judgment in this respect as D/1. The local police in collusion with my nephew and other relations involved me in this case falsely. They have also been trying to implicate my sons because of the traditional interfamily disputes and grievances."
6. The appeal was admitted to full hearing on 19-11-1996 and bailable warrants of arrest in the sum of Rs,20,000 with two sureties each were issued against the accused/respondents. On 17-6-1997 the parties put their appearance through their counsels. The counsel for the respondents raised a preliminary objection with regard to the maintainability of appeal. The learned counsel for the parties addressed their arguments before the Court on the maintainability of appeal at great length.
7. Appeal/revision/transfer of cases under Act XL of 1958 are governed by section 10 of the Act (ibid). Subsection (2) thereof provides for appeal against acquittal which reads as under:-- "Notwithstanding the provision of section 417 of the 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."
8. A bare reading of the aforesaid provision of law provides a right of appeal to the Central Government through Public Prosecutor against an order of acquittal passed by Special Judge appointed by the Central Government. In the instant case, the trial Judge is undisputedly appointed/notified by the appropriate Government under section 3 of the Act XL of 1958. The 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, (the Central Government) and in other cases, the Provincial Government concerned. The respondents are undisputedly employees of the Provincial Government and were tried by the Special Judge notified by the Government of N.-W.F.P. Section 10 or any other section of the Act (ibid) provides no right of appeal to the Provincial Government against the order of acquittal passed by the Special Judge appointed/notified by the Provincial Government.
9. The question of maintainability of appeal against the acquittal under the Special Act came before the Court in "The Superintendent and Remembrance of Legal Affairs, Government of East Pakistan v. Syed Bazlur Rehman and others" reported in PLD 1960 Dacca 200. The issue of maintainability of appeal under section 417 of the Criminal Procedure Code was thoroughly thrashed and it was held in the following words:-- "But, reading the provisions of Act X of 1956. As they are, along with the provisions for appeals under the Code of Criminal Procedure, we cannot hold that, in the absence of a provision for appeal under the said Act, the provisions of section 417 by themselves would entitle the Provincial Government to maintain an appeal against an order of acquittal. We, therefore, hold that no appeal lies against an order of acquittal passed by a Special Magistrate under Act X of 1946 or, on appeal, by a Sessions Judge."
10. The same issue in a case under Prevention of Corruption Act (II of 1947) tried under Pakistan Criminal Law Amendment Act (XL of 1958) and sections 3, 10(2), (4) read with section 6(5) and section 417, Cr.P.C. Was thoroughly discussed by Full Court of the Supreme Court of Pakistan in The State v. Muhammad Hussain PLD 1968 SC 265 and the following conclusion was drawn:-- "The provisions contained in the Pakistan Criminal Law Amendment Act relating to sanctions for the prosecution of persons serving in connection with the affairs of the Centre, the appointment of Special Judges by the Centre for the trial of such persons, the power reserved to the Centre to withdraw prosecutions launched against such persons and finally the power reserved to the Centre to move an appeal against the acquittal of such a person by a Special Judge (Central) combine to create a clear impression that control of prosecutions and of proceeding in Court on behalf of the State against such persons, are matters wholly and exclusively within the power of the Central Government. The general powers of the Provincial Government under the Criminal Procedure Code in these respects are by expression excluded."
11. The question of maintainability of appeal by the private complainant after the insertion of 2-A in section 417, Cr.P.C. In cases where acquittal orders were passed by the Special Judge under the Suppression of Terrorist Activities Act, 1975 was thoroughly discussed by this Court in unreported judgment vide Criminal Appeal No,6 of 1996 (Faiz Muhammad v. Mehrab Shah) and 25 others identical appeals. After a thorough scrutiny it was observed as follows:-- "The upshot of what has been discussed above is that the right of appeal cannot be extended to a private complainant by reading the same into the provisions of section 7 of the Suppression of Terrorist Activities Act, 1975 when such a right is not specifically provided therein. All the appeals in motion as well as in notice, given in the title are hereby dismissed, the first 23 being in limine."
12. The learned counsel for the appellants also referred to the case Federation of Pakistan v. Zafar Awan etc. Reported in PLD 1992 SC 72, wherein subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958 has been declared repugnant to Injunction of Islam with effect from 30- 6-1992. The sanction required for prosecution of a public servant under section is no more existence. To bring the law in conformity with the Injunction of Islam, paragraph "2-A" has been added to section 417, Cr.P.C. Whereby any aggrieved person from the acquittal order has also been empowered to file an appeal. In these circumstances the instant appeal filed by the complainant is maintainable.
13. The contention is not sustainable for the simple reason that by striking down subsection (5) of section 6 of the Criminal Law Amendment Act, 1958, the other provisions more particularly section 10(2) of the Act would not be omitted ipso facto. Section 10(2) is still in the field in unamended form.
As earlier stated right of appeal is a statutory right and unless statute provides for, there will be no right of appeal. There is no provision for appeal even for the Provincial Government what to say of an aggrieved person/complainant. The Criminal Procedure Code, 1898 is not applicable to the proceedings under Criminal Law Amendment Act, 1958. By insertion of 2-A in section 417, Cr.P.C. The legislation could also amend section 10(2) of the Act (ibid), but the same is still in force unamended.
14. Even revision petition by the complainant against an acquittal order under the Act (ibid) is not maintainable under section 435/439, Cr.P.C., because Pakistan Criminal Law Amendment Act, 1958 is by itself a procedural law which shall prevail upon the general law i,e, Cr.P.C.
15. For the reasons stated above, this appeal by the complainant against the acquittal order dated 6-6-1996 of Special Judge, Anti-Corruption, D.I. Khan is dismissed being not maintainable.