' Petitioners Sajjad Ahmad, Muhammad Ali, Shahbaz and Ameer through the instant revision petition have called in question the order, dated 12-11-2003 recorded by Mian Sajjad Ahmad Chawan, learned Special Judge, Anti-Corruption, Multan, whereby he has turned down their application under section 249-A, Cr.P.C. For acquittal in case F.I.R. No,31 of 2003 registered with Police Station Dalwariaam, District Pakpattan Sharif.
2. Briefly the facts relevant for the disposal of the instant revision petition are that the petitioners along with some officers of the Forest Department have been challaned to Court in the aforementioned case for offence under sections 379/411/ 109/409, P.P.C.
3. The allegation against them is that on the night between 12/13-3-2003, they have committed theft of 60 pieces of Shesham wood from the Dalwariaam Forest with the help of concerned Forest Guard, Block Officer and District Forest Officer.
4. They have moved an application under section 249-A, Cr.P.C. Before the learned trial Court for their acquittal in the case. The learned trial Court declined their such request vide the impugned order.
5. They feeling themselves aggrieved of the same have come to this Court with the instant revision petition.
6. It has been contended on their behalf that the concerned forest officers had ascertained the value of the suspected stolen wood of the Department and they have paid the same and thus they have become the owners of that property and so they cannot be tried for the above mentioned offences and rather deserved acquittal on that basis; that the reasons accorded by the learned trial Court in declining their request for the purpose are not correct as firstly they are not the public servants and rather ordinary citizens and so the offence under section 409, P.P.C. Cannot be attracted against them and secondly the Forest Guard and the Block Officer are competent to compound the offence and it is available from the record that the concerned Block Officer has compounded the offence with them and thereafter, as per provision of the section 68(1)(2) of the Forest Act, 1927, proceedings cannot be taken in respect of such suspected property; and that in such circumstances the continuance of the proceedings against them in fact would amount to nothing but mere abuse of the process of the Court as there is no probability of their being convicted of any offence ultimately.
6-A. Conversely the learned counsel for the respondent/State has supported the impugned order saying that the same is well reasoned.
7. I have carefully considered- the submissions made by both the sides with the help of the available record.
8. The petitioners are not public servants. They are private persons. Petitioner No,1 Sajjad Ahmad is stated to be the contractor of the Department. The remaining three petitioners are alleged to be the carriers of the suspected stolen pieces of the wood. They as per the F.I.R. Were carrying the wood on tractor-trolly.
9. It has been borne out from the annexure 'A' to the petition that DFO on the report of illicit cut of 10 Shesham trees have directed to Muhammad Younas, Block Officer either to recover the fine/ compensation from the delinquents or lodge F.I.R. Against them. The compensation/loss to the Department for cut of those Shesham trees had been assessed at Rs,47,500. The same was paid by the petitioners Nos.2 and 3. The petitioner No,1 Sajjad Ahmad had filed W.P. No,1417/2003 before this Court for quashing of the aforesaid F.I.R. The same was withdrawn by him on 22-7-2003 to avail other remedy under section 249-A, Cr.P.C. For his acquittal in the case and then to come to this Court, if needed. The petitioners had submitted the application for their acquittal under section 249-A, Cr.P.C. In the case. The same was declined by the learned Special Judge vide the impugned order. It may be mentioned here that the petitioner No,2 Muhammad Ali on 1-9-2003 had moved an application for handing over the pieces of wood to him on interim custody (Superdari). The learned trial Court called for report from the S.H.O. Concerned on the same, who submitted his report.
10. The learned Special Judge in turning down the petitioners' request has mentioned that they were neither tried nor convicted or acquitted by any Court of competent jurisdiction and so the principle of Double Jeopardy as envisaged by section 403, P.P.C. Is not attracted in their case, that the offence under section 409, P.P.C. Is not compoundable; and that the Forest Officer was not competent to compound the offence.
11. These reasons recorded by him are not correct as regards the case of the petitioners. It is firstly for the reason that they are not public servants as observed above. It may be in the case of the officers of the Forest Department. The provision of section 409 reads as follows:-- "(409) . Criminal breach of trust by public servant, or by banker, merchant or agent.--- ' Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fme."
'This makes it clear that the said provision of law is not attracted against them as admittedly they neither are public servants nor banker, merchant, or agent of the department nor were in any way entrusted with the suspected property or dominion over the same. Hence, the ingredients of the said offence are not present in their case. The same, therefore, can't be attracted against them.
12. There is no denying the fact that the DFO had directed for the recovery of compensation/fine from them or to lodge F.I.R. Against them. The compensation/loss to the department was assessed at Rs,47,500 as mentioned above. The same stood paid by the petitioners Nos.2 and 3 as is evident from the receipt annexure-C and D to the petition. The rule 2.7 of the West Pakistan Forest Manual Volume II (Relating to Establishment, Accounts and Budget) is as follows:-- "2.7. Duties of Forest and Block Officers.
' Forester's post requires a technical knowledge of Forest operations. He is required to carry out the following works:--
(i) to (ix)----------------------
(x) Strictly to observe the rules for detecting and for compounding forest offences in his jurisdiction.
' A Block Officer may be a Forester or a Forest Guard will be classed as a technical man with the following qualifications :
(a) Minimum service 5 years.
(b) A certificate that he is expert to carry out operations required of a Forester in addition to item
(x) above. His duties will be the same as that of a Forester."
' The above rule shows that a Forester and Block Officer are competent to compound the Forest offence within the area of their jurisdiction.
13. On the application of the petitioner No,2 Muhammad Ali for delivery of the case property to him on interim custody the District Forest Officer on 22-4-2004 had reported that Block Officer is competent to compound forest offence and to recover compensation/fine in respect of loss to the forest. The provision of section 68 of the Forest Act, 1927 is as follows:-- "(68) Power to compound offences.
' The Provincial Government may, by notification in the official Gazette, empower a Forest-officer-
(a) to accept from any person against whom a reasonable suspicion exists that he has committed any forest-offence, other than an offence specified in section 62 or 63, a sum of money by way of compensation for the offence which such person is suspected to have committed; and
(b) when any property has been seized as liable to confiscation, to release the same on payment of the value thereof as estimated by such officer.
(2) On the payment of such sum of money, or such value, or both, as the case may be, to such officer, the suspected person, if in custody, shall be discharged, the property, if any, seized shall be released, and no, further proceedings shall be taken against such person or property.
(3) A Forest-officer shall not be empowered under this section unless he is a Forest-officer of a rank not inferior to that of a Ranger and is in receipt of a monthly salary amounting to at least one hundred rupees, and the sum of money accepted as compensation under clause (a) of subsection
(1) shall in no case exceed the sum of fifty rupees."
' The above provision shows that on payment of value of suspected stolen property the persons concerned shall be discharged and the property to be released and no proceedings shall be taken against such person in respect of that property.
14. It is, thus clear that when a person, who may be suspected for theft of the Forest wood makes payment of compensation/fine of the value thereof, then no proceedings shall be taken against him in respect of that property. Hence, I have not the least hesitation in saying that further proceedings in the case against the petitioners/accused are hardly called for. The same ultimately would end into nothing except mere abuse of process of the Court. The same ultimately end into their conviction. They, therefore, were liable to be acquitted under section 265-K , Cr.P.C. It may be mentioned here that where word has occurred in relation to the proceedings, the same would be taken as section 265-K, Cr.P.C. The learned Special Judge is in fact Sessions Judge, who has been vested with the powers of the Special Judge under the prevention of the Corruption Act No,11 of 1947. The impugned order, thus is not sustainable in law. The instant revision petition, therefore, is accepted and the impugned order set aside and the petitioners are acquitted of the charge against them. They are on bail. They are discharged of their bail/surety bonds.
Revision .