' Briefly stated the facts are that Muhammad Younas complainant/appellant lodged F.I.R. No,202 on 29-10-1997 against accused Muhammad Khan, Ameer Muhammad and Raees Ahmad for destroying the village drainage and for misappropriating bricks used therein. After usual investigation, the case was sent up to the Court for trial. During the pendency of this case, the accused/respondents Nos.1 to 3 filed W.P. No,26672 of 1997 for quashment of F.I.R. Referred above which was dismissed on 2-2-1998. The accused/respondents Nos.1 to 3 submitted an application under section 249-A, Cr.P.C. On 26-3-1998 which was contested by the complainant/appellant and consequently it was got dismissed on 27-4-1998. The accused/respondents Nos.1 to 3 again submitted an application under section 249-A, Cr.P.C. On 30-6-1998 which was accepted vide order dated 14-7-1998. Hence the instant appeal.
2. Arguments have been heard and record perused.
3: Learned counsel for the complainant/appellant has reiterated his contention raised in the memo. Of appeal and has asserted that the trial Court could not pass the order under section 249- A, Cr.P.C. Without recording evidence as their W.P. No,26672 of 1997 for the quashment of said F.I.R.
Had been dismissed on 2-2-1998 and their similar petition under section 249-A, Cr.P.C. Had been got dismissed on 27-4-1998, that the stand of trial Court that the very complaint was not maintainable as it had not been instituted by an aggrieved person is legally incorrect, that it is not necessary for the complainant to be an aggrieved person and law can be set into motion by any person and relied upon Emperor v. Ismail Hirji AIR 1930 Bombay 49 and Jagadish Chandra Roy v.
Joynarayan Biswa s and others PLD 1963 Dacca 357, that the trial Court has relied upon the reports of Project Manager as well as Assistant Commissioner, Pasrur without bringing those documents on record in accordance with law and affording an opportunity to cross-examine the authors of the said reports. He, thus, submitted that the learned trial Court hurriedly proceeded to acquit the accused on surmises and conjectures without reference to any admissible evidence on the record, as such the appeal may be accepted and the impugned order, dated 14-7-1998 be set aside.
4. Conversely, the impugned order has been supported by learned counsel for the accused/respondents Nos.1 to 3. He submitted that from the very contents of the F.I.R., it appears that it is based on mala tide as the complainant/appellant is not an aggrieved person and has set the law in motion just to humiliate the accused/respondents Nos.1 to 3, that the matter was inquired into by the Project Manager who also found that neither any theft of Government property had been committed nor any offence under section 431, P.P.C. Had been committed on the part of the accused/respondents Nos. 1 to 3 that later on, inquiry was also conducted by the Assistant Commissioner, Pasrur, who also corroborated the stand taken by the Project Manager, that even during the inquiry conducted by the Assistant Commissioner, Muhammad Khan made a statement on 8-7-1998 that he would reconstruct the drainage within one month which has been destroyed due to construction of his house and complainant/appellant also made a statement on the same day wherein he stated that in the light of statement of Muhammad Khan his grievance stands redressed, that in the light of reports coupled with the statements of Muhammad Younas and Muhammad Khan, the trial Court was justified in passing the impugned order. He further argued that ingredients of offence under section 379, P.P.C. Are not made out from the contents of F.I.R. And relied upon Abdul Shah v. Afsaruddin Mollah PLD 1960 Dacca 64 and it appears that F.I.R. Has been lodged with mala fide intention, that mens rea or a guilty mind is an essential ingredient of a criminal offence which is to be read in the statutory provisions unless the statute expressly or by necessary implication excludes the same and relied upon State Bank of Pakistan through Deputy Director, Banking Inspector Department, Karachi v. Messrs Perfect Enterprises and 5 others 1992 MLD 1484 (Karachi).
5. From the facts stated above, it is clear that law was set into motion by Muhammad Younas when he alleged that accused/respondents Nos.1 to 3 dismantled the drainage and committed theft of bricks and other material. On the basis of F.I.R., the matter was investigated and a report under section 173, Cr.P.C. Was submitted in the Court. There is no doubt that first application under section 249-A, Cr.P.C. Moved by the accused/respondents Nos.1 to 3 was dismissed and later on they also filed instant application, upon which the impugned order was passed. A perusal of the impugned order shows that the same has been passed on the basis of inquiry reports prepared by Project Manager as well as Assistant Commissioner, Pasrur. The report of Assistant Commissioner further reveals that the complainant Muhammad Younas and Muhammad Khan had made statements on 8-7-1997, wherein the former had agreed that he will be satisfied if the drainage is reconstructed by Muhammad Khan accused/respondent.' On the basis of the said report, the trial Court came to the conclusion that the matter is not going to end in conviction of accused/respondents Nos.1 to 3 and as such acquitted them vide impugned order. There is no cavil to this proposition that criminal law can be set into motion by any person who has the knowledge regarding the commission of any cognizable offence. Thus, the stand of the trial Court that the complainant/appellant being not an aggrieved person could not set the law in motion is legally incorrect. In criminal cases, the onus is on the prosecution to prove beyond any reasonable doubt the guilt of the accused. The mens rea of a guilty mind is an essential ingredient of a criminal offence and it is a sound rule of construction to read this element in the statutory provisions unless the statute expressly or by necessary implications excluded it. If any authorities are needed on this subject, the cases reported in PLD 1967 SC 1; PLD 1967 Dacca 70 and PLD 1969 Lahore 908 may be cited with advantage. The report of Assistant Commissioner coupled with their statements referred above clearly prove that mens rea element on the part of accused/respondents Nos.1 to 3 is missing in this case. Thus, judging from any angle, it is proved that the impugned order is based on correct appreciation of law and it does not call for any interference. Accordingly, appeal fails and is hereby dismissed.