' AHMED KHAN LASHARI, J.--- This appeal has been preferred against the judgment, dated 13-3- 2000, passed by learned Special Judge for Suppression of Terrorist Activities, Jaffarabad at Dera Allah Yar whereby the appellants were convicted and sentenced under section 302(c), P.P.C., to suffer R.I. For 20 years each; under section 324, P.P.C. To undergo R.I. For 7 years each, under section 148, P.P.C,. To undergo R.I. For 3 years each, and under section 544-A, Cr.P.C. An amount of Rs,15,000 each appellant was ordered to pay as compensation to the heirs of the deceased Haji Jalan alias Jalo and Rs,2,000 each to injured Mondost and Sultan Ahmed. The convictions and sentences were ordered to run concurrently. The benefit of section 382-B, Cr.P.C. Was extended in favour of convict/appellant.
2. The concise facts of the case are that complainant Muhammad Pariah alias Wapari son of All Khan Gajani, lodged a report bearing Crime No,9 of 1999 with Police Station Sanhari, District Jaffarabad on 27-4-1999, at about 5-30 p.m., under sections 302/324/147/148/149, P.P.C. It is alleged in the report that-the complainant alongwith his other relatives is residing and used to cultivate their lands in Deh Hamid Pur while he was sitting in his Otak/waiting room alongwith his relatives, Sultan Ahmed driver was ploughing the land by means of tractor. At about 5 p.m. (1) Sona Khan, (2)
Gohram, (3) Behram, (4) Abdul Ghani, (5) Qaim Din, (6) Taj Muhammad alias Tajo, (7) Kehro, (8)
Haji Sabir, (9) Moria, (10) Abdul Ghafoor, (11) Sargan, (12) Rehan, (13) Raman, (14) Raza Muhammad
(15) Abdul Nabi and (16) Zairak, all by caste Kanranies residents of Deh Hamid Pur duly armed with Kalashnikovs, shotguns, rifles and pistols, came over there and started indiscriminate firing due to which tractor driver Sultan Ahmed, Mandost and Haji Jalan alias Jalo were seriously injured. Later on Haji Jalan succumbed to his injuries. It is further alleged the complainant and his relatives also made firing in response to the firing of accused persons. Thereafter, the accused persons went towards their houses. The motive behind the incident is that 5/6 days back Tajo and Sona Khan met with complainant and told him on their evidence they had been convicted by the Court in theft case so they will not allow him to irrigate the lands here. After registration of the case the investigation was started by Khalid Zaman Mari P.W.9, who alongwith complainant Muhammad Panah and other police officials went to the place of incident and prepared site inspection note and site sketch. Blood-stained earth of deceased Jalan was also taken into possession from the place of incident and recovered 50 empties of Kalashnikoves, 25 empties of .12 bore shotgun, and inquest report was too prepared. The convict/appellants were got arrested on the same day and 3 Kalashnikoves and a shotgun was recovered. During investigation of the case two accused persons Abdul Nabi and Raza Muhammad were discharged on 13-6-1999 by the Investigating Officer under section 169, Cr.P.C. After submission of challan learned Special Judge, S.T.A.
Jaffarabad at Dera Allah Yar, framed the -charge against the appellants on 18-6-1999 under sections 302/324/147/148/149, P.P.C. The appellants did not plead guilty. And claimed trial. The prosecution in order to establish its case examined 9 witnesses. P.W.1 Muhammad Pannah alias Wapari, who is complainant stated to be eye-witness of the incident. F.I.R. Was brought on record through this witness as Exh.P./1-A, where he identified his thumb-impression on the said document.
P.W.2 Ghulam Fareed, who also claimed to be an eye-witness of the occurrence. P.W.3 Sultan Ahmed, was injured and witnessed the incident. P.W.4 Dad Muhammad Police Constable, who is witness to recovery memo. Of the blood-stained clothes of deceased Jalan, injured Manzoor and Sultan Ahmed taken into possession vide recovery memo. Exh.P./4-A, Exh.P.4-B, and Exh.P./4-C, respectively. He identified his signatures on the said memos. P.W.5 Manik, is stated to be another eyewitness of the incident and also stood witness to the site inspection note Exh.P./5-A, blood- stained earth of injured Sultan Ahmed Exh.P./5-B, blood-stained earth of deceased Haji Jalan Exh.P./5-C, empties of Kalashnikoves Exh.P./5-D, empties of .12 bore shotgun Exh.P./5-E and identified his thumb-impression on the said recovery memos. P.W.6 Mandost also claims to be injured and eye-witness of the incident. P.W.7 Dr. Abdul Jabbar Brahvi, Medical Officer, who examined injured Mandost and issued a Medical Certificate which was brought on record as.
Exh.P./7-A. The post-mortem of Haji Jalan was also conducted by this witness and produced his report as Exh.P./7-B. P.W.8 Gul Hassan, S.-I. In whose presence a Kalashnikov alongwith five live cartridges was recovered from appellant Sona Khan. The recovery memo. Was prepared and attested by this witness and brought on record as Exh.P./8-A, appellant Gohram was also arrested alcngwith a Kalashnikov and recovery memo. Was prepared as Exh.P./8-B and accordingly single- barrel shotgun was also recovered from Abdul Ghafoor alongwith one live cartridge which was too taken into possession vide recovery memo. Exh.P./8-C and a Kalashnikov containing 13 live cartridges was also recovered from Haji Sabir whish was taken into possession through recovery memo. Exh.P./8-D, where P.W.8 identified his signatures on the abovesaid memos. P.W.9 is Khalid Zaman, S.-I./S.H.O., who is Investigating Officer of the case, he prepared and produced recovery memo. Of site inspection note as Exh.P./9-A, Inquest report of deceased Haji Jalan Exh.P.9/B, post- mortem report of deceased Haji Jalan Exh.P./7-B, which was sent to Court vide challan Exh.P./9-C, Medical Certificate of injured Mandost Exh.P./7-A and sent to the Court vide challan Exh.P./9-D, Chemical Report Exh.P./9-E and sent the same to Court vide challan Exh.P./9-F, Ballistic Expert Report Exh.P./9-G which was sent to Court vide challan Exh.P./9-H respectively. After completion of prosecution witnesses the statements of appellants were got recorded under section 342, Cr.P.C., where they denied the allegations and claimed to be innocent. Neither the appellants opted to record their statements as provided under section 340(2), Cr.P.C., nor they led any defence. After conclusion of trial the learned Special Judge for Suppression of Terrorist Activities, Jaffarabad at Dera Allah Yar convicted and sentenced the present appellants as stated hereinabove. Being aggrieved of the judgment the instant appeal was filed.
3. Mr. Amanullah Kanrani, Advocate, counsel for appellant argued that complainant nominated as well as 16 persons in the F.I.R. Almost involving the entire family members of opposite party with mala fides without attributing specific role to each of the convict/appellants. During investigation of the case another statement of complainant was recorded on the basis of which two accused persons were discharged on 13-6-1999 under section 169, Cr.P.C. By the Investigating Officer wherein the complainant admitted that accused Abdul Nabi and Raza Muhammad duly nominated in the F.I.R. Were not present at the place of incident. The case of six appellants namely Behram, Abdul Ghani, Qaim Din, Taj Muhammad, Khairo, and Sargan also stands at par with the case of two discharged accused persons namely Abdul Nabi and Raza Muhammad. It is further argued that there is no evidence available on record that P.W.3 Sultan Ahmed ever remained under treatment of a doctor in order to ascertain that he got injuries and claimed to be the eye-witness of the incident. He further stressed that second eye-witness Mondost in view of the Medical Certificate received simple injuries while he deposed before the trial Court that there was heavy exchange of firing but no bullet injury was received by this witness. The injuries received in view of the Medical Certificate were simple in nature and could be self-inflicted, as per post-mortem report the deceased attributed only two injuries whereas ocular account of the witnesses deposed that deceased got only one injury. There is a contradiction in between the ocular evidence and that of medical evidence. It is also pointed out that the alleged recoveries of Kalashnikoves were effected from Sona, Gohram and Haji Sabair, whereas a shotgun was recovered from Abdul Ghafoor while no recovery was effected from the remaining six appellants and they were arrested from their houses. The report of Forensic Science Laboratory is doubtful as at the time of opening of parcel no seal was intact. The weapon allegedly used at the time of occurrence was sent to Fire- arm Expert with delay of 50 days which remained unexplained. It is next argued that the prosecution witnesses admit that there was exchange of firing in between the parties but neither any empty was taken into possession from the place of occurrence nor weapons of offence were recovered from the possession of complainant party by the Investigating Officer, which has caused serious doubt on the prosecution case. It is next argued that the motive was alleged by the complainant in the F.I.R. Against Tajo and Sona who threatened the complainant for their false involvement in a theft case whereby they were convicted but there is nothing on record against the appellants regarding the alleged motive and they have been involved falsely. The place of occurrence was also disputed the complainant at the time of lodging of F.I.R. Alleged that he alongwith his other relatives were sitting in Otak/waiting room of his house, when firing started deceased and Haji Jalan, Sultan Ahmed and Mandost sustained injuries in Otak but on the contrary as per statement of Investigating Officer the dead body was recovered from the watercourse far away from the Otak and the so-called injured P.W.2 and P.W.3 were later on brought to Otak. It is further argued that no blood-stained earth was found-that of deceased or injured witnesses in the Otak, the facts were suppressed by the complainant party. Even the presence of prosecution witnesses at the place of incident was disputed by the learned counsel. It is further pointed out that prosecution had failed to bring any material on record as appellants gathered with a common object and attacked on the complainant party. In support of his arguments the learned counsel relied on the following case-laws and prayed for acquittal of the appellants:- 2000 SCM R 1038, 1999 SCMR 251, 1997 SCM R 1531, 1992 SCM R 196, PLD 1993 SC 251, PLD 1981 SC 127, 1995 SCM R 599, 1997 SCM R 1076, 1993 SCM R 1966 and 1998 PCr.LJ 1192.
4. Mr. Ikhtiar Khan Marghzani, Assistant Advocate-General appeared on behalf of State and argued that the appellants have been duly nominated in the F.I.R. And specific role has been attributed to each of them. There are six eye-witnesses of the occurrence out of which two are injured, their testimonies could not be ruled out on minor contradictions. The medical certificate brought on record fully supports the case of prosecution which was further corroborated with the recovered fire-arm weapons from the possession of convict/appellants. It is also argued that the motive alleged by the prosecution has duly been proved beyond any shadow of doubt. The convict/appellants have not recorded their statements on oath as required under section 340(2), Cr.P.C. To rebut the allegations levelled against them by the prosecution, in the circumstances of the case the prosecution witnesses are fully supported and established the case against the appellants and they have rightly been convicted by the learned trial Court
5. Mr. Hasnain Iqbal Minhas, Advocate appeared on behalf of complainant and supported the contentions of learned Assistant Advocate-General and additionally argued that though there was a counter-firing but no suggestion was given to the prosecution witnesses that appellants made firing in their defence. The ocular evidence of P.W.1, P.W.2, P.W.3, P.W.5 and P.W.6 supports and corroborates each other on every point. The F.I.R. Has been promptly lodged without any delay the death was confirmed by the doctor caused by fire-arm injuries. It is finally argued that conviction and sentence has rightly been awarded by the learned trial Court to the appellants may be maintained.
' We have carefully considered the respective contentions as agitated on behalf of parties and perused the record minutely. It has come on record that P.W.1 Muhammad Panah alias Wapari is inconsistent by his conduct and tried to involve as much as accused persons as possible. He has nominated 16 persons in the F.I.R. With detail particulars and thereafter, he made a second statement before Investigating Officer on the basis of which Investigating Officer discharged two accused persons namely Abdul Nabi and Raza Muhammad. The discharge of two accused persons was made with the following remarks (Exh.P./4-D):-- {{URDU YEXT}} ' It was the utmost responsibility of the complainant to nominate those accused persons who were actually participated in the commission of offence so we intend to discuss this aspect of the case after assessm ent of the evidence and material brought on record by the prosecution.
7. The motive behind the incident as per statement of P.W.1 is "the motive behind this offence is that about 5/6 years before this incident I had given statement before the Court as a witness against the accused party in a theft case. Therefore, they committed this offence". Whereas P.W.2 Ghulam Farid in his statement deposed that one year back accused Abdul Ghani, Sona Khan, Raman and Tajo stole his cow and he registered a case against them on account of that accused persons made firing on us while the other prosecution witnesses remained silent regarding motive as alleged by the P.W.1 and P.W.2. The contention of learned counsel for appellants that motive has not been established is incorrect. The motive was introduced and was brought on record which was not disputed by the appellants, even weakness of motive or its absence is wholly immaterial 'and could not be fatal to the case of prosecution if otherwise it is proved through ocular evidence. The next contention put forth by the learned counsel for appellants that there is a contradiction in between medical evidence and that of injured prosecution witnesses P.W.3 Sultan Muhammad and P.W.6 Mandost. Sultan Muhammad though claimed got injured during course of firing but admittedly as per record he never remained under treatment of a doctor and accordingly no certificate is available on the file of prosecution for contradiction. The other eye-witnesses deposed that deceased Haji Jalan alias Jalo received only one bullet injury but Dr. Abdul Jabbar, P.W.7 who examined the dead body and found two entrance and two exit wounds on the chest of Haji Jalan, this could not be counted as contradiction or confliction between ocular and medical evidence. As per statement of P.W.7 Dr. Abdul Jabbar, eye-witness Mandost appeared as P.W.6 received a fire- arm wound crossing superficially, burning marks present around edges of skin, muscle on the right side of the chest which was corroborated by P.W.1 Muhammad Panah, in his statement before the trial Court that Mandost sustained one injury with Kalashnikov on the right side below the ribs.
Though the nature of injuries was declared as simple suggestion was put to the witness in cross- examination the injuries received to P.W.6 could be of a self-inflicted which was denied by the witness, whether the deceased Haji Jalan alias Jalo was received one bullet injury or two, P.W.7 Dr. Abdul Jabbar after examination of dead body came to conclusion the death was caused due to fire-arm injuries which was remained unchallenged. However, it is noticed that Sultan Ahmed P.W.3 never remained under treatment of any doctor, who claimed to be an injured of the incident so his statement to the extent of causing injury to him is not based on facts. He also stated during cross- examination that his statement under section 161, Cr.P.C. Was not recorded by the Investigating Officer so his statement could not be relied upon for want of corroboration with 161, Cr.P.C.
Statement, so in our view there is no confliction or contradiction in between the ocular testimony with that of medical evidence. It has come on record that fire-arm recoveries of Kalashnikoves alongwith live cartridge were effected from convict/appellant Sons Khan, Gohram and Haji Sabir whereas a shotgun alongwith one live cartridge was recovered from convict/appellant Abdul Ghafoor and the same were sent to Fire-arm Expert for his opinion alongwith recovered empties of Kalashnikoves and shotgun, from the place of incident. The Fire-arm Expert Report Exh.P./9-E issued by Examiner of the Fire-arm Criminalistic Director, Sindh, Karachi confirmed that the empties were fired from the Kalashnikovs and shotgun duly recovered from the possession of appellants namely Sona Khan, Gohram, Abdul Ghafoor and Haji Sabir. It is contended by learned counsel for convict/appellants that the weapons of offence were sent to the Fire-arm Expert with delay of 50 days and the same has not been explained which caused doubt to the case of prosecution and benefit of the same must be given to the convict/appellants. Since there is no enmity or ill-will alleged against the P.W.9 Khalid Zaman Mari, therefore, mere delay of sending crime weapons to the Expert for examination is of no consequences. Even it is not alleged that the Kalashnikovs and shotgun have been replaced or substituted by the Investigating Officer so in our view mere delay, and not sealing of the parcel after examination and opinion of Fire-arm Expert is not fatal to the case of prosecution and is of no legal consequences. The prosecution witnesses admitted that there was firing in between the parties. It is strange enough neither any empty was taken into possession from the place of occurrence nor any weapon was recovered from the complainant party. This could be a mere omission on the part of Investigating Officer who has not investigated the case properly. Even otherwise the firing in response of the convict/appellants was not disputed but again neither F.I.R. Was lodged by the accused party against complainant nor a defence plea was taken by the convict/appellant. The learned counsel also disputed the place of incident, we have noted that P.W.1 Muhammad Panah in his statement before trial Court deposed that while they were sitting in Otak/waiting room of his house firing was started but it is not possible just after firing they must have to remain there and not to get shelter in order to save their lives. The deceased Haji Jalan must have run to put him in the watercourse in order to save his life and after receiving bullet injuries then and there he fell down in the watercourse. The statement of P.W.9 Khalid Zaman, supports this aspect of the case as the dead body was lying in a watercourse near Otak of P.W.1. It is evident from the record that death of Haji Jalan due to fire-arm has not been disputed by the convict/appellants, so it is not correct that the place of incident has wrongly been shown as Otak by the complainant/P.W.1 Muhammad Panah. However, it has come on record that before firing P.W.1 was sitting alongwith his relatives in the Otak of his house just after firing they were disbursed, so in our view incident has taken place around or near the Otak of P.W.1. In response of arguments as no specific role has been attributed to each of the convict/appellants by the prosecution witnesses and each of the appellants is responsible for his own act, the P.W.1 has generally described in his statement that 16 persons duly armed with fire-arms started firing on them whereas P.W.2 Ghulam Farid also deposed in the same manner that accused persons were duly armed and started indiscriminate firing on them with shotgun pistol, rifles and Kalashnikovs while P.W.3 Sultan Ahmed tried to describe a specific role regarding holding of weapons of offence to each of the appellants but it has not come on record who caused fatal injuries to deceased Haji Jalan and Sultan Ahmed P.W.2, in his statement attributed that Gohram was holding Kalashnikov, Abdul Ghafoor shotgun, Sona Khan rifle and Haji Sabir rifle and accordingly the said convict/appellants were got arrested by the Investigating Officer alongwith weapons holding at the time of occurrence nearby the place of incident and the recovery memos.
Of the alleged weapons were prepared and sent to Firearm Expert alongwith the recovered empties for opinion. The report was received and brought on record with positive report as Exh.P./9-G. Now we intend to discuss the exaggerations made in the F.I.R. By complainant/P.W.1 Muhammad Pariah. On assessm ent of the evidence and other materials brought on record the complainant party tried to support the case of prosecution as per contents of F.I.R. But in our view the F.I.R. Contains 16 persons out of them tWo were discharged by the Investigating Officer and on the second statement of complainant as they were not present at the time of occurrence. It means that their names alongwith other names might be given with mala fide intention so the case of convict/appellants Kahairs, Sarghan, Abdul Ghani, Taj Muhammad, Qaim Din, and Behram stood at par with E those two accused persons, who were discharged under section 169, Cr.P.C., and even no recovery has been effected from these convict/appellants, though they were arrested from their houses. There is nothing incriminating available on record against these appellants except bald statements of P.W.1, P.W.2, and P.W.3, as appellants were present at the place of incident. The statements of prosecution witnesses without further and independent corroboration are of no value.
In view of the careful assessm ent of the evidence available on record, i.e, recovery of weapons just after occurrence from Sona Khan, Gohram, Abdul Ghafoor, and Haji Sabir near place of incident and positive report of Fire-arm Expert, the statement of P.W.7 and certificate issued by him apart from deposition of eye-witnesses i.e, P.W.1, P.W.2, P.W.5 and P.W.6, we are of the considered opinion that prosecution has established its case against Haji Sabir, Gohram, Abdul Ghafoor, Sona Khan beyond shadow of doubt, however, there is no trustworthy, confidence inspiring and independent evidence available on record against the convict/appellants namely Khairs, Sarghan, Abdul Ghani, Taj Muhammad alias Tajo, Qaim Din and Behram as they with common object remained associated in the commission of offence, therefore, on the basis of benefit of doubt they are acquitted of the charge and the appeal to the extent of these appellants is accepted. However, the conviction and sentences of the appellants namely Haji Sabir, Gohram, Sona Khan and Abdul Ghafoor awarded by learned Special Judge, for Suppression of Terrorist Activities, Jaffarabad at Dera Allah Yar is hereby maintained. It is necessary to mention here that since we have discarded the testimony of injured Sultan Ahmed (P.W.3), so he is not entitled to any compensation as ordered by the learned trial Court.
' Note. Before pronouncement of judgment we felt necessary to issue notices to the convict/appellants why their sentences awarded by the trial Court i.e, R.I. 20 years, may not be enhanced as imprisonment with death or imprisonment for life as provided under section 302(b), P.P.C.
1. Mr. Amanullah Khan Kanrani, Advocate, learned counsel appeared for convict/appellants and Mr. Ikhtiar Marghazni, learned Assistant Advocate-General for State. The learned counsel for appellant argued that as Code of Criminal Procedure is not applicable in toto in the cases tried under Suppression of Terrorist Activities (Special Courts) Act, 1975 (hereinafter referred to as the Act, 1975), therefore, jurisdiction of the Court is ousted regarding enhancement of the sentence under section 439, Cr.P.C., reliance was made on the following case-laws:-- 1998 PCr.LJ 426 and PLD 1997 Pesh.
166.
2. The learned Assistant Advocate-General while arguing the case incompetently tried to satisfy us that this Court has got powers under section 439, Cr.P.C. To enhance the sentence even in exercise of jurisdiction under section 561-A, Cr.P.C., this Court has got inherent powers to enhance the sentence. He further argued under section 7(a) of the Act, 1975 deals with the filing of appeals against conviction or sentence and scope and power of the appellate Courts are to be determined and borrowed from section 423 of the Cr.P.C. Where the powers of Appellate Court in disposing of appeal have been specified therein. It means that the provisions of Cr.P.C. Are applicable in the cases falling under the jurisdiction of Special Court, Suppression of Terrorist Activities.
3. We have heard counsel for the parties at length. There is no scope of enhancement of the sentence under section 7 of the Act, 1975, which is reproduced hereinbelow for the sake of convenience:-- "7. Appeals from sentences imposed by Special Court, etc.--- (1) A person sentenced by a Special Court shall have a right of appeal to the High Court within whose jurisdiction the sentence has been passed, '(and the Provincial Government may direct any person appointed by it for the purpose to present an appeal td the High Court from an order of acquittal passed by a Special Court), but save as aforesaid and notwithstanding the provisions of the Code or of any other law for the time being in force or of anything having the force of law by whatsoever authority made or done, no Court shall have authority to revise such sentence, (or order of acquittal as the case may be) or to transfer any case from a Special Court or to make any order under section 426 or section 491 or section 498 of the Code, or have any jurisdiction of any kind in respect of any proceedings of a Special Court."
From bare perusal of the abovesaid section, there is no provision for the appellate Court to review or enhance the quantum of sentence awarded by the trial Court and the right of appeal has been given to the State in case of acquittal. The matter in hand is not a case of acquittal, the only powers for enhancement of the sentence are provided under section 439, Cr.P.C. It is to be seen whether provisions of section 439, Cr.P.C. Are applicable in the instant case or otherwise? We take guidance from the dictum laid down in the case titled State v. Qaim Ali Shah reported in 1992 SCM R 2192 by the Honourable Supreme Court of Pakistan, and the relevant portion of the same is reproduced hereinbelow for ready reference:-- "13. Whereas a plain reading of first part of subsection (1) of section 7 shows that it confers right of appeal to the persons sentenced by a Special Court to the High Court within whose jurisdiction the sentence has been passed. It also by virtue of amendment brought about by the Suppression of Terrorist Activities (Special Courts) Amendment Act, 1975 (Act III of 1976) confers on the Provincial Government the right to file an appeal against the order of acquittal passed by a Special Court. It may further be noticed that the second part of the above subsection (1) lays down that save as aforesaid and notwithstanding the provisions of the Code (i.e, Code of Criminal Procedure) or any other, law for the time being in force or of anything having the force of law by whatsoever authority made or done, no Court shall have the authority to revise such sentence or to transfer any case from a Special Court or to make any order under section 426 or section 491 or section 498 of the Code or have any jurisdiction of any kind in respect of any proceedings of a Special Court."
From the perusal of above-stated findings of the Honourable Supreme Court of Pakistan, it is much clear that this Court ceases the jurisdiction under section 439, Cr.P.C., in order to revise the judgment passed by a Special Courts working under Suppression of Terrorist Activities, Act of 1975, in order to modify or enhance the conviction and sentence passed by said Court. We have also given anxious thought to the case-law reported in 1998 PCr.LJ 426 wherein it was held as under:- ' "At this juncture, it may also be noted that a Criminal Court, constituted under sections 6 and 9 of the Code of Criminal Procedure, if is seized with a case which entails punishment for death, makes reference to the High Court under section 374, Cr.P.C. For purpose of confirmation of death sentence, the Act of 1975, being not subordinate to High Court, is not bound to make reference. This aspect of the case can also be viewed from another angle i.e, if an order has been passed by the Special Court whether that is reviseable by High Court under section 439, Cr.P.C. Or under Article 203 of Constitution of Islamic Republic of Pakistan? Answer to this proposition necessarily would be that as Special Court is not subordinate to High Court, therefore, no order passed by it is reviseable under section 439,. Cr.P.C."
' The principles of Code of Criminal Procedure are though applicable and operative as that of sections 382-B, Cr.P.C., 249-A, Cr.P.C., 265-K, Cr.P.C., etc. Etc. Specially allowed by section 5(9) of the Act, 1975, only with regard to the Procedure to be adopted while holding trial and proceedings before a Special Court. As regard to other procedural and remedial provisions is concerned that of 426 and 497, Cr.P.C., the Act, 1975 should not be equated with the dispute over a substantial right of appeal, the suspension of sentence under section 426, Cr.P.C., is quite close to some one release on bail as defined by section 497, Cr.P.C. such provisions of bail is not denied in toto by the Act, but is rather specifically provided under section 5(a)(8) of the Act, 1975 PLD 1997 Pesh.
166. So, in our view the Code of Criminal Procedure is not applicable in entirety to the appeals filed under section 7 of the Act, 1975 reverting to the arguments of learned Assistant Advocate-General regarding inherent powers under section 561-A, Cr.P.C. Again this Court has got no powers to enhance the sentence of the Special Courts sitting as an Appellate Court. The section 561-A, Cr.P.C.
Is reproduced hereinbelow for ready reference:-- "561-A. Saving of inherent power of High Court.--- Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
From bare perusal of the above reproduced section, we are, of the opinion that the High Court has got inherent power to modify the sentence M awarded to accused in exercise of powers under section 561-A, Cr.P.C. But not to enhance the sentence. (1999 M LD 2450). The inherent IN powers are not supposed to be exercised to override express provisions of law. (1999 M LD 946 and 535). It is held under section 561-A, Cr.P.C. Cannot be invoked and added where there are express provisions dealing with a particular subject or can be used to defeat the express intention of Legislature. In the case in hand revisional powers under section 439, Cr.P.C. In view of section 7(1) Act of 1975 was specifically excluded "no Court shall have authority to revise such sentence or order to acquittal as the case may be" 1992 SCM R 2192.
' The upshot of the above discussion would be, that we have no other option but to discharge the notices issued for enhancement of the sentence.