1. Criminal Anneal No. 41-T of 2002.
2. BASHIR A. MUJAHID, J.- This judgment will dispose of Cri. Appeals No. 41-T/2002, No. 433-T/2002 and Crl. Revision No. 131/99 as the same question of law is involved in all the matters.
3. In Crl. Appeal No. 41-T/2002, briefly the facts e.f the case are that Tahir Hussain, appellant got L.R.
4. No. 48 lodged on 22.3.2001 under Sections 302/394/353/224/412/392, PPC with P.S. Chontra, District Rawalpindi with the allegation that he along with Muhammad Azad, AS1 and Muhammad Ikram, FC, Tariq Aziz, FC had produced Nazir Ahmad accused before the Trial Court at Chakwal and thereafter, they proceeded to Adiyala Jail, along with under-trial prisoners in Police Van No. CH/388 driven by Muhammad Aslam, Constable. When the vehicle arrived at the bridge of Sawan River at about 3 pun., Nazir Ahmad, under-trial prisoner and Niaz Ahmad alias Chacha and Khaliq Dad accused pulled pistols 30-bore from their loin cloth and started firing on the police officials which resulted into murder of Muhammad Aslam, Constable and Nazir Ahmad, accused/under-trial prisoner at the spot. Niaz Ahmad, Khalid Dad, Intizar Hussain and Munir Irfan accused after snatching the official weapons of the complainant party fled away from the spot. Tahir Hussain, complainant and Muhammad Azad, AS1 were also Injured in the occurrence.
5. After investigation, challan of the case was submitted in the Court of Special Judge, ATA, Rawalpindi; charge was framed and after recording of the prosecution evidence, the statements of the accused under Section 342, Cr.P.C, were recorded and the trial culminated into acquittal of the accused vide the impugned judgment dated 12.10.2001 which has been assailed by Tahir Hussain, complainant of the case.
6. In Crl. Revision No. 131/99, Ameer Zaman got F.I.R. No. 68, dated 29.6.1999 registered under Section 365, PPC with P.S. Tumman, District Chakwal against Syed Ameer Abbas, Ahmad Khan and Muhammad Asiam Khan, respondents Nos. 1 to 3. The investigation was completed in the case and the challan was submitted and charge was framed under Sections 365-A, 341, 342/34, PPC by the learned judge, Special ATA, Rawalpindi. After recording prosecution evidence the statements of the accused under Section 342, Cr.P.C, were recorded and the accused were awarded sentence as under, vide the impugned judgment dated 11.11.1999:-- Aamer Abbas , Under Section 341, PPC punished with a i.e of Rs. 500/-; Under Section 342, PPC punished with a i.e of Rs, 1,000/-, in case of default for each the undergo one month's S.I.
7. Ahmad Khan and Muhammad Asiam Khan Under Section 13 of Arms Ordinance, XX of 1965 to undergo seven years' R.1, each with a i.e of Rs.
8. 5,000/- each, in default thereof to suffer two years' S.I. Each.
9. All the sentences were ordered to Kin concurrently. Benefit of Section 382-B, Cr.P.C, was also extended in favour of each of the accused.
10. The complainant of the case has filed Instant Crl. Revision for enhancement of sentence of the accused/respondents.
11. In Crl. Appeal No. 433-T/2002 the brief facts are that Akhtar Mehmood Janjua had filed a private complaint against Rab Nawaz and Abdul Rashid Janjua under Sections 365, 365-A, 324, 34, PPC and the same was dismissed for non- prosecution vide order dated 4.9.2001, which has been assailed through the instant appeal.
12. As the objection was raised by the office for maintainability and competency of the appeals/revision filed by the complainant, therefore, all the matters are being decided by this consolidated judgment.
13. Dr. Babar Awan, learned counsel for the appellant in Crl. Appeal No. 41-T/2002 has lead the arguments and has argued that according to the provisions of Section 25 of Anti- Terrorism Act, 1997 the right of appeal has not been provided to the legal heirs of the deceased or the victim of the occurrence when under Section 417(2A), Cr.P.C, right of appeal has been provided to the complainant or any aggrieved person from the judgment of "any Court" means all the Courts subordinate to High Court which also includes Courts established under Anti-Terrorism Act, 1997 as the appeal under Section 25 of Anti-Terrorism Act, 1997 also lies to die High Court; that the appeal is in continuation of the trial and the death awarded to the accused by the Anti-Terrorism Court is also subject to confirmation by the High Court, therefore, vast meaning should be given and the law is to be interpreted in favour of the appellant/private complainant, It has been further argued that according to provisions of Section 345, Cr.P.C, and of schedule attached therewith, , offences under Sections 302 to 322 are compoundable by the legal heirs of the deceased and under Sections 324 to 340, PPC by the victim. Likewise in Section 338-F, PPC and the procedure laid down in Chapter XVI of Cr.P.C, the Sections 299 to 338-H, PPC introduced by second amendment of Act-ll of 1997 wherein the pardon to the accused by way of 'uffiif ( ) to waive the right of Diyat' anisandrous' are the Islamic provisions of law and to compound the offence under Sections 309 and 310, PPC is only the right of the complainant or the legal heirs of the deceased by waiving the right of 'Qisas' and 'diyat' and in case if there is no other 'wali' then Government is to be considered "wali" and can compound the offence and under Section 311, PPC the Court can punish the accused if he offence has been compounded by the legal heirs, on the basis of 'Fisad fil Arz'. It has been further argued that in every law an 'aggrieved persons' is provided remedy and on the maxim of 'Domnum abaqua injure' i.e. 'where there is damage there is remedy' or where is injury there is to be remedy. Under Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, ail the citizens are equal before the law and equal protection is available to each citizen under Article 4 of the Constitutional right of individual is inalienable and any law inconsistent with the fundamental right guaranteed under the Constitution be declared ultra vires and of no legal effect. Reliance has been placed on Civil Petition No. 80/2000 titled Abdul Baqi Vs. Tayyab, wherein the Hon'ble Supreme Court, vide order dated 14.9.2000 has granted leave. NLR 1998 Criminal 329 titled Faiz Muhammad Vs. Mehrab Shah, etc. And unreported order dated 8.10.1998 passed by a Division Bench at Multan.
14. Conversely, the appeals and the revision petition have been opposed by the learned Law Officer on the basis of maintainability by arguing that no right of appeal has been provided by law, therefore, appeals and revision petition are not competent. In Crl. Appeal No. 433-T/2002 (earned counsel representing the respondents has opposed the appeal by arguing that the private complaint was dismissed for non- prosecution and the appellant has remedy by way of filing a fresh complaint or by moving application for restoration of the complaint to be decided on merits. learned Law Officer has placed reliance on PLD 2002 Peshawar 6 (Faizur Rehman Vs. The State and others), Full Bench judgment 2000 P.Cr.LJ. 216 (Quaid-e-Azam Vs. The State) and NLR 1998 Criminal 369.
15. We have given due consideration to the contentions raised at the bar and have examined the record and the case-law referred to.
16. Section 25 of Anti-Terrorism Act, 1997 provides the appeal against the judgment of acquittal but under sub-section (4) only Attorney General, Deputy Attorney General, Standing Counsel or an Advocate General or an Advocate of the High Court or the Supreme Court of Pakistan appointed as Public Prosecutor, Additional Public Prosecutor or a Special Public Prosecutor can i.e an appeal against acquittal within 15 days of the order. The similar provision was in Section 7 of Suppression of Terrorist Activities (Special Courts) Act, 1975 and from perusal of these provisions, we find that the right of appeal has been created by a statute and such right cannot be provided by implication or by inference. The right of appeal was provided to the complainant under Section 417(2A), Cr.P.C, by an amendment in the statute through Second Amendment Act, 1994 and prior to that amendment no such right was available, therefore, we find that had the legislature intend to provide the right of appeal to the complainant and if it has not been given in the statute by express provisions it can be provided/created by making an amendment in the law. In absence of such provision the same cannot be created by the Court even In exercise of inherent jurisdiction. In PLD 2002 Peshawar 6 (Faizur Rehman Vs. The State and 2000 P.Cr.LJ. 216 (Quaid-e-Azam Vs. The State) and NLR 1998 Criminal 329 (Faiz Muhammad Vs. Mehrab Shah) it has been decided that the words used 'any Court' in Section 417(2A), Cr.P.C, is only relevant to the Courts functioning under Criminal Procedure Code and it does not extend or refer to the Special Courts established under Special Laws and the right of appeal cannot be read in statute which does not specifically provided for. The Anti- Terrorism Act, 1997 was enacted for prevention of terrorism, sectarian violence, and for speedy trial of heinous offences and matters connected therewith and incidental thereto. The cases triable by the Courts established under this Act must have nexus with Sections 6, 7 and 8 of the said Act. As it is special law we find that the private complainant or the legal heirs have no right to compound the 'scheduled offence' as those offences are mainly against the State and not only against individuals. Furthermore, the offence cannot be compounded automatically by the legal heirs but it is always through the Court and the Court can decline/withhold the permission to compromise the offence by the legal heirs or the victim. We do not find that by not providing right to appeal to the private complainant any fundamental right has been infringed. Equality of a citizen before law is to be seen under the particular law.
17. For what has been discussed above, in Cri. Appeal No. 41-T/2002, Tahir Hussain was Police Constable and in his official capacity he got the criminal case registered, therefore, it was for the State to i.e the appeal against acquittal and the complainant had not to i.e appeal. Appeal is dismissed being not competent.
18. The Crl. Appeal No. 433-T/2002 is also dismissed being not competent. The appellant may avail alternate remedy by way of filing a fresh private complaint or may i.e an application before the Trial Court for restoration of his complaint, if so advised.
19. For what has been stated above Cri. Revision No. 131/99 is also dismissed.