' SYED ABDUR REHMAN, J.---This is an apeal under section 417, Cr.P.C. Challenging the order passed by the SDM/Asstt. Commissioner (Harbour) Karachi, dated 25-3-1987, acquitting the respondent, Nusratullah under section 249-A, Cr.P.C.
2. The facts forming the background of this appeal are that on 16-1-1986 M/s. National Fisheries (Pakistan) approached the Marine Fisheries Department and requested permission for sailing of fishing trawler Dao Wong-209 (EZP-20) in the Exclusive Economic Zone of Pakistan for the purposes of fishing. The department accordingly granted no objection to the said company with certain terms and conditions, inter alia imposing a restriction to the effect that the fishing will be conducted only beyond 35 miles from Sindh Coast and strictly in accordance with the fishing plan submitted by it. Such an agreement was executed and signed by respondent Nusratullah on behalf of the said company claiming to be its Managing Director. The department deputed its representative Zafarul Hassan, Inspector, to accompany the fishing trawler during its sail period. On 23-2-1986 it was brought to the notice of the department by the Pakistan Navy that the said trawler was found fishing within 35 miles of the Coast in position 2456-N and 6545-E i.e., 28 miles from the Coast, on 18-2-1986. It was further indicated by Pakistan Navy that the trawler had been operating in the same area I for the last three days preceding 18-2-1986. On receipt of complaint the department immediately directed the company to stop fishing operation and call back the said vessel immediately for further investigation. Inspector Zafarul Hassan submitted his cruise report on 1-3-1986 according to which fish weighing 166.3 metric tons was caught by the trawler. Inquiries were made from the local fishermen on board vessel Dao Wong-209 and further information was obtained from Pakistan Navy. The Marine Fisheries Department not being satisfied with the explanation given by the Skipper of vessel, filed a complaint under sections 3, 6, 8 and 9 of the Exclusive Fisheries Zone (Regulation of Fishing) Act, 1975, in the Court of SDM/Asstt. Commissioner (Harbour) Karachi.
3. A charge was framed on 22-3-1986 by the learned SDM against the present respondent Nusratullah and the two co-accused, Y.G. Park, Captain of the vessel and H.P. Lee of M/s. Dae Wong Fisheries Compano. Co-accused Y.G.Park and H.P. Lee pleaded guilty to the charge. Respondent Nusratullah pleaded not guilty and claimed to be tried. The learned SDM accepted the plea of guilty of co-accused Y.G. Park and H.P. Lee and convicted both of them under section 9 of the Exclusive Fisheries Zone (Regulation of Fishing) Act, 1975, and sentenced them to suffer simple imprisonment till the rising of the Court and pay a fine of Rs.5,000 each. In default of payment of fine they were ordered to suffer simple imprisonment for one month each. So far as respondent Nusratullah was concerned it was ordered that the trial shall proceed against him. Prosecution then led the evidence of S.M. Zafar Imam, Asstt. Director of Marine Fisheries, whereafter without examining any other witness the learned SDM on an application under section 249-A Cr.P.C. Filed by the defence advocate, acquitted the respondent as stated above.
4. We have heard Mr. Akmal Waseem, learned counsel for the appellant and Mr.Mazhar Jaferi, learned counsel appearing for respondent Nusratullah.
5. Mr. Akmal Waseem has contended that by above Act special and stringent provisions have been made by the Legislature to safeguard the national wealth in Exclusive Economic Zone, as well as the interests of Pakistani fishermen from atrocities of international poachers and it therefore requires to be jealously guarded. He referred to subsection (3) of Section 9 of the Act, which provides as follows:-- "(3) Where the person contravening any provision of this Act or the rules is a company or other body corporate, every director, manager, secretary or other officer or agent thereof shall, unless he proves that the contravention was committed without his knowledge or that he exercised all due diligence to prevent such contravention, be deemed to be guilty of such contravention."
' Section 3 of the said Act requires that the operation of fishing craft or use of any kind of fishing snare for the purposes of fishing was prohibited until and unless it was in accordance with the licence and within the terms and conditions of such licence. It is, therefore, to be seen whether the impugned order has been passed in consonance with the above law.
6. The learned SDM in his order under section 249-A Cr.P.C. Has neither stated that charge is groundless nor has he held that there is no possibility of the accused being convicted. He has given reasons for which he has acquitted the respondent in the following terms:- "From the examination-in-chief and cross-examination of the complainant Mr. Zafar Imam, he has not attributed anything against the present accused nor does he states that the contravention of fishing by the accused trawler was with the knowledge of this accused. I have also gone through the statements of the fishermen as recorded by the complainant department. The statements also make no mention of the role of the applicant accused, hence even if their examination is recorded it will not effect to establish anything against the present applicant."
7. The learned SDM has not taken into consideration one important aspect of this case. The effect of the plea of guilty and the confessional statements made by the two co-accused in their plea which was accepted by the SDM, who convicted them thereon, was that he believed that offence of fishing in contravention of the provisions of the Act was committed by the company's vessel. Hence the burden to prove that the offence was committed without his knowledge or that he exercised all due diligence to prevent such contravention was on the respondent Nusratullah, who was the Managing Director. The learned SDM did not bring this important aspect to the notice of the respondent and did not obtain his explanation on the same. So long as this plea of guilty and admission was there and the learned SDM had not taken any evidence which could rebut it, he could not have acquitted the respondent. On giving such a finding against the co-accused it was all the more necessary for the trial Court to have asked the respondent to discharge the onus cast upon him by subsection (3) of section 9 of the Act during the course of trial. Apart from that it transpired during investigation that the vessel was within 35 miles on the relevant date and that it was seen dropping its nets and plying winches in that area. There was no denial to this fact either during the investigation or during the trial. Explanation that has been given for it is that this had been done to test the same as to whether these were working properly or not. We feel that the explanation was absurd on the face of it. The dropping of nets and using winches in the sea even for testing would amount to 'fishing and it was a contravention of the Act if it was done within the prohibited zone. The mere fact that it is alleged that no fish was caught in that process could not lead the Court to draw the inference that there was no evidence of fishing in contravention of the Act.
8. An acquittal under Section 249-A, Cr.P.C. Is quite different from acquittal after trial under section 245, Cr.P.C. The benevolent principles which govern appeals against acquittal under section 245; Cr.P.C. Cannot be applied to an appeal against acquittal under section 249-A, Cr.P.C. An acquittal under section 249-A, Cr.P.C. Is to be ordered when a Megistrate comes to the conclusion that the charge is groundless or that there is no possibility of the accused being convicted of any offence whereas it is not so under section 245, Cr.P.C. After going through the evidence collected during the investigation and after taking into consideration the aspects of the case discussed above, we feel that it was not possible for any Court to have stated that the charge was groundless or that there was no possibility of the accused being convicted of an offence specially without recording the evidence of the P.Ws. Tendered by the prosecution and without the proof of the requirements of provision of sub-section (3) of Section 9 of the Act. We, therefore, accept this acquittal appeal and set aside the acquittal of the respondent and direct that he be re-tried according to law. R&P be sent to the District Magistrate (South) Karachi, who shall try the respondent himself or shall transfer the case to an SDM other than the learned SDM, who had passed the impugned order. The observations made in this order are not to be taken as prejudicial.