' RANA BHAGWAN DAS, J.--- This appeal is directed against the acquittal of the respondents Nos.2 and 3 who were tried alongwith co-accused Riaz by Special Judge, Anti-Terrorism Court, Hyderabad and Mirpurkhas Divisions, Hyderabad for offences under sections 302, 392 and 397 read with section 34, P.P.C. At the conclusion of the trial while accused Riaz was convicted for all the offences, respondents herein were convicted only for the offences under sections 392 and 397, P.P.C. And acquitted of the charge under section 302, P.P.C. By the present appeal, appellant who was first informant in the said case seeks to challenge their acquittal by the trial Court.
2. Anti-Terrorism Act, 1997 (hereinafter referred to as the Act, 1997) passed by Majlis-e-Shoora (Parliament) received the assent of the President on 16th August, 1997 and was published in the Gazette of Pakistan Extraordinary, dated 20th August, 1997 with a view to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences and for matters connected therewith an incidental thereto. The Act extends to the whole of Pakistan and came into force with immediate effect. While offences triable under the Act by the Special Court constituted under sections 13 and 14 of the Act are mentioned in the schedule attached to the Act, provision for appeal from judgment is prescribed under section 25 of the Act and reads as under:-- "(25)Appeal.--- (1) An appeal against the final judgment of a Special .Court shall lie to an Appellate Tribunal.
(2) Copies of the judgment of a Special Court shall be supplied to the accused and the Public Prosecutor free of cost on the day of judgment is pronounced and the record of the trial shall be transmitted to the Appellate Tribunal within three days of the decision,
(3) An appeal under subsection (1) may be preferred by a person sentenced, by a Special Court on to an Appellate Tribunal within seven days of the passing of the sentence.
(4) The Attorney-General or an Advocate-General may, on being directed by the Federal or a Provincial Government, file an appeal against an order of acquittal or a sentence passed by a Special Court within fifteen days of such order.
(5) An appeal under this section shall be heard and decided by an Appellate Tribunal within seven working days.
(6) An Appellate Tribunal shall sit at such places, and have jurisdiction within such territorial limits, as may be fixed by the Government.
(7) Subject to subsection (8), an Appellate Tribunal shall, in' exercise of its appellate jurisdiction, subject to the provisions of this Act, have all the powers conferred on an Appellate Court under Chapter XXXI of the Code.
(8) Pending the appeal the Appellate Tribunal shall not release the accused on bail."
3. Analysis of the aforesaid provisions tends to show that while an appeal against the final judgment of a Special Court shall lie to an Appellate Tribunal notified by the Government; subsection (3) lays down that an appeal may be preferred by a person sentenced by a Special Court to an Appellate Tribunal within seven days of the passing of the sentence, subsection (4) stipulates that Attorney-General and or an Advocate-General may on being directed by the Federal or Provincial Government file an appeal against an order of acquittal or sentence passed by a Special Court within fifteen days of such order. However, following subsections lay down the period for hearing and decision of appeal by Appellate Tribunal. It further postulates that Appellate Court shall sit at such place and have jurisdiction within such territorial limits as may be fixed by the Government and that such Tribunal in exercise of its appellate jurisdiction shall have all the powers conferred on an Appellate Court under Chapter XXXI of the Code of Criminal Procedure.
Undoubtedly there is an embargo on the powers of the Appellate Tribunal in the matter of release of the accused on bail pending the decision of an appeal. It would appear from the aforesaid postulates contained in the provision of law especially enacted for hearing and deciding appeals arising out of final judgments by a Special Court that there is no provision for an acquittal appeal at the instance of a private party. This right has been conferred only on the Federal and Provincial Governments who may in their discretion and wisdom direct the appropriate Officer to file an appeal against an order of acquittal or a sentence.
4. Confronted with this position, learned counsel for the appellant contended that by virtue of availability of the powers under Chapter XXI of the Code of Criminal Procedure this Tribunal can exercise the powers under section 417, Cr.P.C. Providing for a right of appeal to an aggrieved person against an order of acquittal. Be that as it may, we are not impressed by the submission as section 25(7) of the Act, 1997 only confers such powers on this Tribunal which are available to an Appellate Court under Chapter XXXI of the Criminal Procedure Code and does not lay down or confer any right on an aggrieved person to seek the remedy of an appeal against acquittal which is not otherwise stipulated in special law.
5. It is well-settled that an appeal is creature of statute and must be specifically provided for by law and no party can claim the right of appeal without being conferred with such right. Even in the Code of Criminal Procedure this right was conferred on an aggrieved person by virtue of Code of Criminal Procedure (Second Amendment) Act XX of 1994. Prior to that this right was available only to the Government by directing appropriate Public Prosecutor to present an appeal from an original or appellate order of acquittal. By amended Act subsection (2-A) was inserted in section 417, Cr.P.C. Relating to appeal in case of acquittal as under:-- "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."
6. Provision analogous to section 25 of the Act, 1997 appears in section 7 of Suppression of Terrorist Activities (Special Courts) Act, 1975 which provides for appeals from sentences imposed by Special Courts. In this provision of law right of appeal against the judgment of a Special Court is granted to a convict and the State. No such right was made available to the private complainant as envisaged by section 417(2-A) Code of Criminal Procedure which subsection was inserted subsequently by the aforementioned amendment with effect from 6-11-1994. Logical conclusion that may be drawn and inferred from such circumstances would be that whenever the legislature wanted to extend the right of appeal, it extended the same by positive legislation and wherever it did not want to extend the right, it did not make the legislation.
7. Learned counsel for the appellant was at pains to persuade us as to the forum or remedy available to a private complainant aggrieved by an order of acquittal. His anxiety is understandable but we cannot stretch the provisions of law in his favour in the absence of any specific provision in the Special Law which has the overriding effect notwithstanding anything contained in the Code of Criminal Procedure as would be evident from the language employed in the section 32 of the Act, 1997.
8. As to the right of appeal a similar question in the context of Offences in Respect of Banks (Special Courts) Ordinance, 1984 came up for consideration before their Lordships of the Supreme Court of Pakistan in Habib Bank Limited v. State 1993 SCM R 1853 where the Supreme Court after analysis and review of the law on the subject with particular reference to the special legislation held that the right of appeal is 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 apex Court emphasised.
9. Prior to the above precedent an Civil Petition for Leave to Appeal No,430-K of 1988 Supreme Court of Pakistan 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."
10. Judged in the light of aforesaid facts and circumstances we are of the considered view that this appeal is incompetent. There is, however, a recent decision by a Division Bench of Peshawar High Court in a case arising out of the provisions of Suppression of Terrorist Activities (Special Courts)
Act XV of 1975, reported as Faiz Muhammad v. Mehrab Shah PLD 1997 Pesh. 166 which also fortifies our view
11. We, therefore, hold that the present appeal is completely misconceived and not maintainable at law. It is accordingly dismissed. The appeal was dismissed by a short order at the conclusion of the hearing on 5-1-1998. Aforesaid are the reasons for the short order.