WAQAR HASSAN MIR, J.---Both the above titled appeals have been directed against the judgment dated 7-3-2007 passed by Mr. Bashir Ahmad Bhatti, Learned Special Judge Anti-Corruption, Punjab, Lahore whereby both the accused persons/respondents Nos. 1 and 2 namely Abdul Qayyum and Muhammad Hanif Patwari, have been acquitted of the charge under sections 420, 468, 471, 218/34, P.P.C. And section 5(2) of the Prevention of Corruption Act, 1947 in case F.I.R. No.78 of 1995, registered at Police Station DACE, Punjab, Lahore.
2. Precise facts of the case as narrated in the F.I.R. Exh-PF on the application of Ch. Muhammad Aslam dated 21-3-1995 submitted before the Director, ACE, Lahore against Abdul Qayyum (Junior Clerk in ACE, Lahore), Muhammad Hanif Patwari Halqa Shah lnayat, Rao Ijaz, the then Tehsildar alleging therein that he purchased the landed property measuring 1218 kanals and 6 marlas (Banjar Qadeem) falling in Khatta Nos 12 to 19 situated in the Revenue Estate of Village Shah Inayat, Tehsil and District Kasur. He purchased the said land from Muhammad Younas etc. The owners of the said land in 1989 through agreement and paid the whole consideration to said owners in the year 1990 and the land owners alienated the said land in his favour by way of Mutations Nos.255 to 258 and 260 through Haji Muhammad Yousaf (as their attorney). The complainant brought the said land under cultivation through his private servants, Tractors and other agriculture appliances/implements. However, accused Abdul Qayyum, who is working as Junior Clerk in the ACE Lahore, with the connivance of Patwari Halqa and Tehsildar deleted the name of complainant from the said mutations and inserted his own name as vendee and tried to take possession of the said land. On appeal having been preferred by the complainant, the said mutations were reviewed by the then Assistant Commissioner, Kasur and vide his order dated 22-4-1993, he passed an order for correction of the same. The accused (Abdul Qayyum) preferred an appeal before Hameed Ahmad Saithi, Addl. Commissioner, Lahore, who set aside the said order passed by the Assistant Commissioner, Kasur. Abdul Qayyum accused making use of his official position, in connivance with the Local Police got the complainant involved in a false murder case and during the period of his arrest he tried to get the signatures and thumb-impressions of the complainant on various papers and during the period when the complainant was under arrest in connection with the said murder case Abdul Qayyum accused with the help of his brother and father and some hired scoundrels committed a dacoity upon the said land and removed the building material placed there by the complainant and caused a loss to two tractors which were working there and also kept the tenants of the complainant into illegal detention for two days.
3. On the said complaint made by the complainant a preliminary inquiry was got conducted by the Anti-Corruption Authorities. However, the then Commissioner, Lahore Division, Lahore vide his Sanction order dated Nil Exh.PZ granted permission only to proceed against Abdul Qayyum and Muhammad Hanif accused and resultantly the instant case was registered against both the said accused vide F.I.R. Exh.PF/1 on 7-6-1995.
4. After completion of investigation and necessary formalities the challan was submitted before the Court. They were summoned by the Court and were formally charged sheeted under sections 420, 468, 471, 218/34, P.P.C. And section 5(2) of the Prevention of Corruption Act, 1947 to which they pleaded not guilty and claimed to be tried, therefore, the prosecution was directed to produce its evidence. The prosecution examined as many as seventeen P.Ws. In its oral evidence and produced the documents Exh. PA to Exh.PZ in documentary evidence. Muhammad Yousaf, Muhammad Boota, Allah Ditta and Mst. Hanifan Bibi P.Ws. Have been given up as having been won over by the accused whereas Mst. Nehmat Bibi wife of Muhammad Yousaf, Malik Abdul Razzaq were given up by treating them as unnecessary witnesses and Rashid Ahmad, Muhammad Rafiq and Din Muhammad P.Ws. Were given up as having already died.
5. After completion of prosecution evidence the statements of accused under section 342, Cr.P.C.
Were recorded and all the incriminating evidence was put to them but they denied the charge levelled against them. The accused in their defence, produced Muhammad Yousaf son of Jamal Din as D.W.1 who was admittedly the General Attorney of all the vendors of the disputed land. Rao Riaz Ejaz DDOO who was posted as Tehsildar in Tehsil Kasur in the year 1992 as D.W.2 and Allah Ditta was produced as D.W.3. The accused Abdul Qayyum tendered the documents Exh.DA to Exh.DN in his documentary defence evidence.
6. Learned counsel for the petitioner as also learned Additional Prosecutor-General argued that the impugned judgment dated 7-3-2007 is against the law and facts and it suffers from perversity and arbitrariness; that the impugned judgment is outcome of mis-reading and non-reading of evidence and it does not base upon sound reasons as well as legally tenable grounds; that a grave mis-carriage justice has occasioned due to the passage of the impugned judgment; that the prosecution brought on the record the evidence of some of the vendors who deposed that in fact the land was sold to Muhammad Aslam and same was not purchased by Abdul Qayyum accused; that the learned trial Court did not evaluate this convincing evidence in its true perspective. It is worth-mentionion that accused Abdul Qayyum though claimed to have purchased the land but could not examine even a single vendor in his defence having availed the opportunity of producing in his defence; that learned trial court has given undue credence to the statements of D.W.1 but did not take note of the fact that in the power of attorney executed in favour of Muhammad Yousaf D.
W.1 it was specifically stipulated that the land was to be transferred in the name of complainant or his nominee; that execution of said power of attorney in favour of complainant is an admitted fact; that compromise brought on the record by the accused as part of Exh.DH could not be taken into consideration as the contents thereof were not legally proved; that the evidence produced by the prosecution is sufficient to prove the charge but the learned Trial Court has erroneously rejected the same and has given undue credence to the defence evidence; that learned trial Court has recorded its findings in the shape from the declaration of title in favour of Abdul Qayyum respondent which is beyond the domain of a criminal Court; that the learned trial Court has omitted to adjudicate upon the charge framed against the respondents; that the impugned judgment is violative of the principle of natural justice; that the impugned judgment is not legally sustainable. Lastly, it is argued that the prosecution has proved its case beyond the shadow of doubt and the accused are liable to be convicted and awarded severe punishment.
8. On the other hand, learned counsel for the respondent/accused has controverted the above submissions by submitting that as private individual is not competent to file an appeal against acquittal, and a Public Prosecutor can only present an appeal if there is approval in this behalf by the Central Government, therefore, both the appeals are not competent. It is further contended that in the present case claim of Muhammad Aslam complainant is that he executed an agreement to sell with Muhammad Hanif and others for a consideration of Rs. 11,34,000 and paid an earnest money of Rs. 1,50,000 but this agreement was neither finalized nor remaining sale price paid to the owners. The owners have also stated before the learned Special Judge that they have not appeared before the Revenue Authorities for the execution of any mutation in favour of Muhammad Aslam. According to section 56 of the Transfer of Property Act, an agreement to sell does not create or confirm any right in favour of the vendee and no right of any kind was extended in he person of Muhammad Aslant. As per provisions of Land Revenue Act a person who is not equipped with a deed of title cannot get his name entered as owner of the property. In the present case an unauthorized person attempted to get his name inserted as owner of the property in dispute which was never sanctioned by any Revenue Officer. The entries about Muhammad Aslam were never brought on record in accordance with law. Such entries are without the sanction/approval of the Revenue Officer, thus, are void in the eyes of law. Reliance in this respect has been placed on 2007 CLC 1902. In the present case agreement to sell was statedly executed in favour of Muhammad Aslam complainant in the year 1981 whereas the agreement to sell has attained finality because final payment was never made. Thus unless a sale deed is executed in accordance with law and registered with the concerned authorities no title or right was vested in favour of Muhammad Aslam complainant. It is further submitted that in the year 1990, the owners of the property in dispute executed a General Power of Attorney in favour of Muhammad Yousaf.
The said Muhammad Yousaf contacted the respondents and sold the property in dispute as consequences of the powers conferred upon him through the said, General Power of Attorney. This General Power of Attorney has not been disputed by the complainant. Muhammad Yousaf, General Attorney, has appeared before the trial Court as defence witness and as D.W.2 and that he sold the property in dispute to Abdul Qayyum, respondent. It is also stated that after the statement of Muhammad Yousaf, D.W.2, it is clear that the cheating, if any, has been made by Muhammad Yousaf and Abdul Qayyum is a bona fide purchaser. He has not committed any illegality or irregularity and after the finalization of the transaction and payment of sale price the said Muhammad Yousaf and the original owners of the property appeared before the Tehsildar and admitted that they have received the sale price and also thumb marked the mutation sanctioned in favour of Abdul Qayyum, respondent. In these circumstances the title of Abdul Qayyum, respondent, cannot be said to be defective or he has committed any criminal cheating or forgery, etc. It is lastly submitted that the learned trial Court in its detailed judgment has discussed every nook and corner of the prosecution and the defence case and there is no material available on the record to connect the respondents/accused with the alleged commission of offence, hence they have been rightly acquitted by the learned trial Court.
9. Heard. Record perused.
10. At the very outset, learned counsel for the respondents/accused has raised an objection about the maintainability of the present appeals. Thus instead of touching the merits of the case, I would like to dilate upon the question of maintainability of present appeals, as if ultimately it is held that the said appeals are not maintainable, then there is no need to discuss the merits of the case.
11. Criminal Appeal No.1 of 2009 has been filed by Muhammad Aslam, a private person under section 417 (2-A) read with section 10 of the Pakistan Criminal Law (Amendment) Act, 1958 whereas Criminal Appeal No.1089 of 2007 has been filed by the Additional Prosecutor-General under section 417, Cr.P.C. The provisions of section 417(2-A) provides as under:-- "A person aggrieved by the order of acquittal passed by any Court, other than a High Court, may within thirty days, file an appeal against such order."
Section 10 (1) (2) of Pakistan Criminal Law (Amendments) Act, 1958 (hereinafter be called as Act 1958) reads as under:-- "Notwithstanding provisions of section 417 of the Criminal Procedure Code (V of 1898) in any case tried by a Special Judge appointed by the Central Government under section 35 in which such Special Judge has passed an order of acquittal, the Central Government may direct the Public Prosecutor to file an appeal to such court as aforesaid. Appropriate Government has been defined in section 2 (a) of the Act (ibid) means in relation to a person serving in connection with the affairs of the Center and any other person employed by the Central Government or by a Corporation or other body or organization set up, controller or administered by, or under the authority of the Central Government, and in other cases, the Provincial Government concerned."
Before proceeding further, I would like to cite the following judgments in which law qua the maintainability and right of appeal has been enunciated:-- In the case reported as Syed Masroor Shah and others v. The State (PLD 2005 SC 173), the Hon'ble Supreme Court has held as under:-- "Right of appeal cannot be availed unless it is conferred in a clear manner by some enactment or statute or the rules having the sanctity of some law---Such right is to be specifically provided for and the same cannot arise by implication---Right of appeal is not a mere matter of procedure but is vested right of a party from the commencement of the action in the court of first instance--- Parties by agreement cannot confer jurisdiction upon a Court-Right of appeal depends upon the language as used in the statue and if the words of statute are precise and ordinary meaning--- Order passed by any Court irrespective of the fact whether it is ordinary criminal court or Accountability statute. Right of appeal cannot be assumed unless expressly given by the statute".
The apex Court in the case titled Habib Bank Ltd. v. The State and others (1993 SCM R 1853), has held as under:-- "The Right of appeal is a creature of statute and it must be specified in clear terms that the appeal against an order is competent. This right cannot be supplemented by implications."
In the case reported as Faiz-ur-Rehman v. The State and others (PLD 2002 Peshawar 6), it has been held that:-- "Right of appeal is a creation of statute and it must be specified in clear terms that the appeal against an order is competent. Such right cannot be supplemented by implications. No inference could be drawn from the provisions contained in section 7(1) of the Suppression of Terrorist Activities (Special Courts) Act 1975, that a private complainant can file an appeal against the order of acquittal."
The question about the right of appeal by a private person against the order of acquittal by the Special Judge appointed under the said Act came into consideration before a Single Bench of Peshawar High Court in the case titled Ashiq Muhammad and others v. Khuda Bakhsh and others (PLD 1998 Peshawar 68) and the Hon'ble Court has dismissed the appeal being not maintainable in view of section 10(2) of the Act 1958 and it was further held that even revision petition against the said order by a complainant in his private capacity is not maintainable under sections 435/439, Cr.P.C. Because Act 1958 is by itself a procedural law, it shall prevail upon general law i.e., Criminal Procedure Code. It is further held in the said judgment as under:-- "Maintainability of appeal against acquittal was objected to on the ground that acquittal order having been passed by Special Judge appointed by Central Government under section 3 of Pakistan Criminal Law Amendment Act, 1958, appeal filed by aggrieved private person against such order was not maintainable under section 10(2) of Pakistan Criminal Law Amendment Act, 1958. Provisions of section 10(2) of Pakistan Criminal Law Amendment Act, 1958 had provided a right to appeal to the Central Government through Public Prosecutor against an order of acquittal passed by Special Judge appointed by Central Government. Even revision petition by complainant against an acquittal order under Pakistan Criminal Law Amendment Act, 1958 was not maintainable because that Act was by itself a procedural law which would prevail upon general law i.e., Criminal Procedure Code---Appeal filed by complainant/appellant against acquittal order passed by Special Judge, Anti-Corruption was dismissed being not maintainable."
In the case reported as Abdul Qayum v. The Aziz-ur-Rehman Shah (2004 PCr.LJ 422), this Court (Lahore High Court) while dismissing the appeal against acquittal filed by a private person in his private capacity has observed as under:-- "For filing an appeal against acquittal passed by the Special Judge, direction by the Federal Government to the Public Prosecutor to present appeal before the High Court was condition precedent and unless the appeal was filed by the Public Prosecutor on the direction of the Federal Government, the same was not entertainable. Provisions of Pakistan Criminal Law Amendment Act 1958, were to prevail upon the provisions of Criminal Procedure Code, 1898, which was a general law."
In case reported as Abdul Qayyum v. Aziz-ur-Rehman Shah (2004 PCr.LJ 422) it has been held that for filing of an appeal against acquittal passed by the learned Special Judge, the direction by the Federal Government to the Public Prosecutor to present appeal before the High Court was a condition precedent and unless the appeal was filed by the Public Prosecutor on the direction of the Federal Government the same was not entertainable and thus the provisions of Pakistan Criminal Law Amendment Act 1958 were to prevail upon the provisions of Criminal Procedure Code 1898, which was a general law.
12. The present case was registered against the respondents/accused under the provisions of Anti- Corruption Act, 1958 and under section 3 of the said Act, special Judges are appointed to take cognizance of the offence punishable under the Act ibid and other penal offences, mentioned in the schedule of the Act. Appeal against the conviction by the Special Judge is filed under section 10(1) of the said Act before the higher forum whereas under section 10(2) only Public Prosecutor under the direction of the Central Government is competent to present an appeal against the order of acquittal before the Appellate Court (High Court). Pakistan Criminal Law (Amendment) Act 1958 is a Special Law and Special Judges are appointed thereunder. It is settled law that where the special law is silent with regard to the right of filing an appeal, such {3825C14D-F702-403F-B453- 3B88A7AA9685}right cannot be inferred by way of implication on the basis of general law. Appeal is purely a creature of Statute and unless a right of appeal is clearly and expressly given by the Statute, it does not exist nor is there any scope for inferring such right by implication. The appeal against the order of acquittal passed by the learned Special Judge could not be filed by the Public Prosecutor under section 10(2) of the said Act with the prior permission of the Central Government and not by a private person. The provisions of section 10(2) had minimized the scope of section 417, Cr.P.C. By ousting the right of appeal by a private person/aggrieved person to file appeal against the order of the acquittal passed by the Special Judge. The right of Appeal against acquittal under section 417(2-A), CrI.P.C. Is not extended to cases decided by Special Courts and thus the right of Appeal given to aggrieved person against the order of acquittal under section 417(2-A), Crl.P.C.
Cannot be extended to private persons. Once the Legislature itself has not provided right of appeal to the private person, then how the same cannot be brought under attack through any other device or disguised manner before this court. According to section 10(1)(2), the Central Government may direct the Public Prosecutor to present an appeal but in the present case, there is no material available on the record to establish that the Additional Prosecutor-General, who has filed Criminal Appeal No. 1089 of 2007 has been authorized by the Federal Government or a specific direction in writing has been issued to file/present an appeal against the acquittal of the respondents.
In the light of what has been discussed, without touching the merits of the case, in view of section 10(2) of Act 1958 read with section 417(2-A) and the case law cited above, the present appeals against acquittal are not maintainable and thus the same are hereby dismissed.