1. ' The respondents Anis Bawani, Saeed Ahmed and Fareed Ahmed were sent up to stand trial under sections 302, 24, 353, 435, 427 and 109, P.P.C. Read with section 7 of the Anti-Terrorism Act, 1997 before the Special Court of Anti-Terrorism, Hyderabad Division at Hyderabad. The case arose out of F.I.R. No,28 of 1999 of Police Station City Hyderabad.
2. ' The learned trial Court acquitted the respondents by impugned order, dated 22-10-1999.
3. ' The State being aggrieved by the judgment of the acquittal passed by the trial Court preferred the present appeal under section 25(4) of Anti-Terrorism Act, 1997 read with section 417, P.P.C. The present appeal was filed and signed by Mr. Mian Khan Malik in capacity as Additional Advocate- General, Sindh at Hyderabad as well as Public Prosecutor.
4. ' The learned counsel for the respondent at the very outset challenged the maintainability of the appeal.
5. ' We have heard Mr. Mian Khan Malik learned Additional AdvocateGeneral/Public Prosecutor on behalf of the State and Mr. Allah Bachayo Soomro, learned counsel for the respondents.
6. ' It will be pertinent to reproduce herein under section 25 of the Anti-Terrorism Act, 1997 for ready reference:-- "(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 to an Appellate Tribunal within seven days of the passing of the sentence.
(4) The Attorney-General of 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."
7. ' The bare reading of the above provisions of section 25 of the Anti-Terrorism Act, 1997, shows that only Attorney-General or AavocateGeneral was, on being directed as such by the Federal Government or Provincial Government, was competent to file an appeal against the order of acquittal or sentence passed by the Special Court within 15 days of such order.
8. ' Mr. Mian Khan Malik learned Additional Advocate-General invited the attention of the Court to the Notification No,SLR/14-25-1995(V)-II-1016 Karachi, dated 8-11-1999, issued and signed by the learned Deputy Solicitor whereby the Advocate-General, Sindh at Karachi was directed by the Home Department to present appeal against the acquittal. He also relied on section 417-2(a), Cr.P.C. And urged that the appeal is maintainable under law.
9. The Anti-Terrorism Act, 1997, is a special statute and it overrides general law. The section 32 of the Anti-Terrorism Act, 1997, provides that the Act has overriding effect. For the sake of convenience section 32 of the Anti-Terrorism Act, is reproduced herein under:--
32. Overriding effect of Act.--- (1) The provisions of this Act shall have effect notwithstanding anything contained in the Code or any other law but, save as expressly provided in this Act, the provisions of the Code shall, in so far as they are not inconsistent with the provisions of Act, apply to the proceedings before a Special Court; and for the purpose of the said provisions of the Code, a Special Court shall be deemed to be a Court of Sessions.
(2) In particular and without prejudice to the generality of the provisions contained in subsection (1). The provisions of section 350 of the Code shall as far as may be, apply to the proceedings before a Special Court, and for this purpose any reference in those provisions to a Magistrate shall be construed as a reference to a Special Court."
10. Thus, it is crystal clear that if any provisions of the Anti-Terrorism Act are inconsistent with the provisions of the Code, will be termed as inconsequential.
11. ' The definition of the Code is given under section 2(c) of the Anti-Terrorism Act, 1997, which is also reproduced herein below:-- "2(c) ' Code' means the Code of Criminal Procedure, 1898 Act (V of 1898); "
12. ' The careful perusal of the above provisions shows that the Code of Criminal Procedure, 1898 is only applicable to the extent that its provisions are not inconsistent with the provisions of the Act and in case of inconsistency those are to be struck down.
13. ' The section 417, Cr.P.C. Lays down that only "Public Prosecutor" is competent to file the appeal, whereas under the Anti-Terrorism Act only "Attorney-General" or "Advocate-General" are competent to file the appeal on the directives of respective Governments. No third category by way of "Additional Advocate-General" or "Public Prosecutor" has been empowered to file such appeal under section 25 of the Anti-Terrorism Act. Thus, the contention of the learned Additional Advocate-General that being a Public Prosecutor he was competent to file the above appeal is misconceived.
14. ' The period of limitation for filing appeal against the order of acquittal or conviction by a Special Court prescribed under Anti-Terrorism Act, 1997 is within 15 days of such order.
15. The respondents were acquitted by the learned trial Court on 22-10-1999. The appeal was filed on 17-11-1999. The appeal is, thus, also barred by about 25 days.
16. ' The learned Additional Advocate-General/Public Prosecutor filed application under section 5 of the Limitation Act for condonation of delay. The reason for the delay was shown that the Government sanction is a lengthy administrative process, which requires time. In support of application under section 5 of Limitation Act, filed by the learned Additional Advocate-General, affidavit of one Muhammad Yousif who was working as Assistant in the office of Additional Advocate-General, 'Hyderabad was filed. The contents of the affidavit are reproduced herein below:-- "AFFIDAVIT ' I, Muhammad Yousif son of Abdul Raheem, Muslim, Adult, resident of Hyderabad, do hereby state on oath as under:--
(1) That I am working as Assistant in the office of Additional Advocate-General, Hyderabad, as such am weli-conversenr with the facts of the case.
(2) That the accompanying application under section 5 of Limitation Act has been drafted and prepared under my instructions, I admit the same to be true and correct.
(3) That whatever stated above is true and correct to the best of my knowledge and belief and information.
17. ' Hyderabad, Dated 17-11-1999. (Sd.) Deponent."
18. It is well-settled that delay creates valuable right in favour of parties. The State is also to be treated at par with a citizen subject. Moreover, the delay of each day is to be explained. In the present matter we find that delay was not properly explained by the appellant. Apart from that the period of limitation prescribed in Special or Local Law is to prevail over that of Limitation Act, particularly where the period of limitation is prescribed by a Special or Local Law and it is different one from the Limitation Act. Thus; the period prescribed in Special or Local Law will prevail over the Limitation Act.
19. The section 5 of the Limitation Act would not, thus, be applicable to the appeal under Anti- Terrorism Act, 1997 in view of the bar contained under section 29(2)(a) and (b) of the Limitation Act.
20. In this context I am fortified by the decision of this Court in case of Haji Muhammad Ashraf v. The State and 3 others reported in 1999 M LD 330. The contention of the learned Additional Advocate- General is, therefore, not tenable under law. Consequently, the appeal stands dismissed.