' RAHMAT HUSSAIN JAFFERI, J.--- The present appeal is directed against the order dated 18-12-2003 passed by the Special Judge (S.T.A.) Karachi East in Special Case No,9 of 2001 State v. Khalid Ali Faridi. Under the impugned order the learned Judge acquitted the respondent under section 249- A, Cr.P.C. As there was no probability of the respondent being convicted in the case.
2. The facts giving rise to the present appeal are that on 5-11-1999 the complainant Inspector A.N.F.
Ghulam Abbas along with his subordinate staff intercepted a Jeep bearing No,AAB-404 at Begum Khursheed Road near Malir Tank Bus Stop, Saudabad Karachi, in which the respondent was sitting.
He was holding an official automatic rifle which was given to him by the Government as the respondent was Excise Inspector working in the Excise and Taxation Department Government of Sindh. The complainant also secured some Narcotic Substances from the jeep therefore, he arrested the respondent and such Mashirnama was prepared. The respondent and the property were brought to the police station where the complainant lodged the F.I.R. Under section 13(d) of Pakistan Arms Ordinance, 1965 against the respondent. During the investigation, the Investigation Officer found that the respondent was transferred from the place of his posting and suspended but he did not deposit the official weapon before the Department as such he was challaned in.The Court.
3. On 8-11-2001 the trial Court framed the charge under section 13(d) of Pakistan Arms Ordinance, 1965 but the appellant pleaded not guilty. In support of the case the prosecution examined complainant Inspector Ghulam Abbas; Mashir Shahzad Bhutto, Investigation Officer Aslam Khan and Dawood Kolachi Excise Inspector. The Investigation Officer produced a letter issued by the Excise and Taxation Officer District Malir, Karachi. The trial Court after considering the above evidence did not find it necessary to record the statement of the respondent under section 342, Cr.P.C. As no ease was made out against him particularly by examining the letter issued by the Excise and Taxation Officer prOduced by the Investigation Officer. The learned trial Judge observed that the above referred letter disclosed that the official rifle was available in the Almirah of the respondent lying hi his office. Therefore, the trial Court formed the opinion that the case was concocted and false as such he acquitted the respondent on 10-12-2003. Hence, the. State through- Advocate-General has filed the present appeal on 22-3-2004.
4. We have heard the A.A.-G. Respondent in person, perused the record of this case and relevant provisions of law very carefully.
5. It will be noticed- that the, impugned order was passed on 18-12-2003 but the appeal was filed on 22-3-2003. Under section 7(2) of Suppression of Terrorist Activities Act, 1975 (hereinafter referred to as "the Act, 1975") an appeal is to be preferred within 30 days of the pronouncement of order.
Apparently, the appeal is time-barred, as the same was preferred after three months of-the passing of the impugned order. Therefore, the appellant has filed an application under section 5 of Limitation Act for condoning the delay. As the time provided in the Act, 1975 for filing an 'appeal is different from the time prescribed in the Article 157 of the Limitation Act, therefore, by virtue of section 29 of the Limitation Act, section 5 of the Limitation Act will not be applicable in the present case. Reference is invited to a case of Abdul Kadir v. Atique Ahmed PLD 2004 Kar.
555. Thus, the delay in filing the appeal cannot be condoned. In this view of the matter a vested right has been created in favor of respondent which cannot be curtailed by condoning the delay in the circumstances of the present case. Even otherwise, no cogent ground has- been shown for condoning the delay because the appellant claims that the delay had occurred due to time spent in obtaining instructions from the concerned quarters that cannot be termed as circumstance beyond the control of the appellant. The law favors the vigilant and not the indolent. Thus, the appeal is time-barred hence it is liable to be dismissed.
6. The learned Assistant Advocate-General has alternately argued that the appeal may be converted into revision as miscarriage of justice has occurred because the trial Court has misread the letter Exh.7-A of the Excise and Taxation Department in which it has been specifically mentioned that the official weapon of the respondent was missing from the Almirah lying in the office; that the trial Court has read the said, letter in such a manner that the said Court formed the opinion that the letter disclosed that the rifle was available in the Almirah of the office, hence the trial Court has further opined that the respondent was falsely involved in the case as such acquitted him. Learned Assistant Advocate-General has stated that this Court should correct the record in exercise of its revisional powers and rectify the above defect.
7. We have gone through the letter Exh.7-A, and find that the learned trial Judge has misread the said letter. The relevant portion of the said letter reads as under:-- "A.N.F. Team paid the surprise visit on 20-9-1999, at 11-00 a.m. And opened the locked Almirah and found one SMG No,A34881, 13 rounds and one magazine missing. The Director Excise and Taxation (Excise), Karachi was informed, the photocopy of the same is enclosed."
8. From the above letter, it is clear that SMG rifle was missing from the Almirah. However, the learned trial Judge observed that the SMG rifle was found lying in the Almirah which observation is against B the record. As such the trial Court had misread the said letter. The observation of the trial Court with regard to the letter Exh.7-A on the above point is set aside. Consequently, the action proposed to be taken against the Investigation Officer is also set aside.
9. Nevertheless, we have gone through the material available on the record and find that at the time of incident the appellant was serving in the Excise and Taxation Department. The learned Assistant Advocate-General has admitted that by virtue of the appointment of the respondent as Excise and Taxation Officer, the Government authorized him to carry the official weapon. In view of this admission the case of the respondent is covered by section 2 of Pakistan Arms Ordinance, 1965 under which the provisions of the said Ordinance is not applicable to the cases of public servant carrying arms and ammunition authorized by the Government. The learned Assistant Advocate- General has further stated that as the respondent was suspended and transferred from his place of posting, therefore, he was required to deposit the weapon with the Department but he did not do so as such when he was found in possession of official weapon at that time he was not authroised to carry the same hence he has committed an offence punishable under section 13(f) of the Ordinance, 1965.
10. We have given due consideration to the arguments but we are not impressed by the same as the respondent was authorized to carry the weapon by virtue of his appointment. The said authority would continue to operate until the Government withdraws the same or he is removed, or dismissed from the service. However, merely transfer from one place to another or suspension of a public servant would not by itself disentitle him from the privilege that he was enjoying and authorized by law until the same is withdrawn by the competent authority. The Government of Sindh appointed the respondent therefore, only the Government can withdraw such privilege. The prosecution did not produce such order before the trial Court. The learned A.A.-G. Has relied upon Exh.7-A, issued by Excise and Taxation Officer District Malir. The Investigation Officer had produced this letter. He is not the author or signatory of the said letter but it was addressed to the S.H.O. Of P.S. Saudabad as such Investigating Officer can produce the same subject to its proof in accordance with provisions of Qanun-e-Shahadat Order, 1984 as the production of a document and its proof are two different subjects. Under Qanun-e-Shahadat Order, 1984, a document can be proved either by examining the author of the document or its signatory or by examining a person who is well- conversant with the signature of the author of the document. The prosecution did not examine any such person to prove the document in accordance with law. Hence, the same cannot be relied upon. Even otherwise, the Secretary Government of Pakistan Excise and Taxation Department did not issue this letter. Further, the prosecution did not lead any evidence to show the date of transfer of the respondent or his suspension from the service to prove that such date was before the recovery of the official weapon from his possession.
11. In the light of what has been discussed above the case of the respondent is covered by section 2 of Pakistan Arms Ordinance, 1965, therefore, the respondent has committed no offence. Further the respondent has remained in jail for a period little less than five years.
12. In the above circumstances, we do not find it necessary to remand the case, for retrial to the trial Court as no fruitful purpose would be served. Accordingly, by our short order, dated 7-9-2004 we had acquitted the respondent and maintained the order of acquittal. These are the reasons of the said order.
Acquittal maintained.