1. Sardar Abdul Hameed Khan, J.--This appeal has been filed, against the order of Judge Anti- Corruption Muzaffarabad dated 26.03.2008, whereby the respondents were acquitted of the charge levelled against them.
2. The precise facts giving rise to the instant appeal are that Munawar Hussain Shah son of Miskeen Shah/complainant has moved an application to SSP Muzaffarabad. It is stated in the application that he got Form No, 25 after due course of law, from the Forest Department for transportation of timber from his own land Arlian to Muzaffarabad. It is further averred that when he went to Muzaffarabad for getting the above said permit, the Respondent No, 1, who is concerned Clerk, told him to collect the same after two days, It is also stated thatthe applicant again came to collect the permit, the Respondent No, 1 with collusion of Respondent No, 2, sold the said permit to Respondent No, 6/ Muhammad Arif Mughal and Respondents No, 3, 4 and 7 are also involved, who without permission of the applicant and without fulfilling the requirement of law, by using the above said permit, purchased 40 "Nag' of timber from others and transported the same to Muzaffarabad. The complainant also submitted that the timber for which he got the above said permit, remained in Arlian. The complainant stated that he again approached the respondents for getting permit but they refused to handover the same. The applicant prayed that necessary proceeding may be initiated against the respondents.
3. On this application, an FIR was lodged against the respondents by. SHO Anti-Corruption Muzaffarabad in the offences 471, 109, 419, 420 APC and 2(5) PCA. The Police after completion of investigation, submitted the Challan before the Judge Anti-Corruption Muzaffarabad, who after hearing the parties, acquitted the respondents from the charges levelled against them, hence this appeal.
4. The learned AAG Mr. Shaukat Aziz argued that the impugned order is based on contradictory evidence of the prosecution, whereas there is no contradiction in the evidence of prosecution and the prosecution has produced ample evidence and proved its case beyond any shadow of doubt.
5. It is argued that the evidence of the prosecution has not been appreciated by the Court in a legal fashion, rather the case of the prosecution is one of the non-reading and misreading of the prosecution evidence. It is further agitated by the learned AAG that the case property i,e, timber alongwith Form 25 has been recovered from the possession and on the pointaticn of the accused persons and the recovery witnesses have been produced in the trial Court. It was further argued that the order of acquittal does not come within the definition of a judicial order. The learned AAG has prayed for acceptance of appeal and conviction of the accused respondents under the said offences.
6. The learned counsel for respondents Raja Shujhat Ali Khan and Raja Tariq Bashir Advocates have filed their written arguments. The crux of these arguments is; that the impugned order is a proper judicial order and the acquittal order has been passed by the trial Court keeping in all the legal requirements of appreciation of evidence. It is further argued that a delayed FIR has been lodged without any reasonable explanation and some of the accused persons were also discharged under Section 169, "Cr.P.C.. and nothing incriminating was recovered from the accused persons. It is also argued that the contents of written arguments may very kindly be taken into consideration as integral part of the arguments on behalf of respondents.
7. We have heard the learned counsel for the parties and gone through the contents of the impugned judgment and the record of the case.
8. At the very outset, it is just and necessary to point out that the appeal is hopelessly time barred, though the point of limitation has not been argued at both the ends. It is pertinent to mention that law pertaining to appeal in case of acquittal has since been substituted by Law Reform Ordinance, 1972 in Pakistan. In the State territory, the amendment made in Pakistan in the Code of Criminal Procedure Code were adopted through Code of Criminal Procedure (Amendment) (Adaptation)
9. Act, 2002. (Act No, VII of 2002). For convenience sake, Section 417, Cr.P.C. is reproduced hereunder: [417. Appeal in case of acquittal.--(1) Subject to the provisions of sub-section (4), the Provincial Government may in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court.
10. (2)If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal the complainant may present such an appeal to the High Court.
11. [(2A) 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.] (3)No application under sub-section (2) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order.
12. (4)If, in any case, application under sub-section (2) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1)].
13. While considering the case on merits, it transpires from the record that initially the complainant nominated 6 accused persons and after the investigation of the police, out of these 6 accused persons; Waqar Akhtar the then Range Officer and Abdur Rashid Accountant were discharged under Section 169, Cr.P.C. and one of the accused Mr. Arif Mughal was proceeded under Section 512, Cr.P.C. on 29.08.2003. As far as Muhammad Nazir Driver Accused No, 4 and Muhammad Din Accused No, 7 are concerned,' there is no mentioned in the Challan that what proceedings have been taken against them. The learned trial Court has considered almost all the evidence of the prosecution and opined that according to the statement of complainant Syed Munawar Shah that he got the permit to bring the said timber to Muzaffarabad but the accused Dildar did not handover the Form 25 on the lame excuse for a considerable time and later on, the said timber was smuggled through Muhammad Din Driver and remaining was spoiled, whereas in the cross- examination, he admitted and stated that 53 sleepers (Nags) of timber are stocked at the site which have become unserviceable due to spoiled condition. After discussing all the prosecution witnesses and the recovery witnesses including the recovery memo Exb. PC and PD etc, the trial Court concluded that the issuance of permit was the basic responsibility of the Range Officer and according to the record, the permit was received by Accountant instead of complainant Syed Munawar Shah and these both accused were discharged by the police and the timber allegedly being in the ownership of complainant is still lying at site as it has also been stated by the Investigating Officer.
14. It is pertinent to mention that after the acquittal of the accused persons Syed Munawar Shah the complainant has neither filed any appeal against this acquittal order nor he has been arrayed as party in the instant appeal. As it is evident from the record that the alleged timber is the private property of the said complainant who has also suffered financial loss but has not come to the Court which strengthen the presumption of innocence of the accused persons who after an acquittal order enjoy the double presumption of innocence in the light of dictum of the apex Court.
15. Now it is settled principle of criminal justice that once an acquittal order is recorded in favour of accused persons, it cannot be lightly interfered by this Court.
16. As discussed above, that discharge of some accused persons under Section 169, Cr.P.C. and nothing incriminating against some of the accused person is mentioned in the final Challan is also fatal to the prosecution case. While appreciating the weak and contradictory prosecution evidence which gave rise to many doubts as indicated by the learned trial Judge in the impugned order has been passed in right direction. In my estimation, the prosecution has not succeeded to make out a case against the accused persons even on merit. As discussed above, the appeal is hopelessly time barred as well as without any merit.
17. In the light of above discussion, the appeal against the impugned acquittal order fails, which is hereby dismissed.