MIAN MUHAMMAD AJMAL, J. -- By this common judgment we propose to dispose of Crl. Appeals Nos. 188 to 191 of 1998 as they have arisen out of common impugned judgment and involve identical question of law and facts.
2. Brief facts are that the Divisional Forest Officer, Kohistan Forest Division, vide his letter dated 26.4.1994 addressed to the Range Forest Officer, Komila Range, sent a copy of an application submitted by the inhabitants of Gabral and the M.D. Pokoora Forest Harvesting Cooperative Society Ltd. Regarding exclusion of Maidan Forest compartment Nos. 3, 4 and 5 from Pakoora Forest Coop.
Society and directed him to physically check the forests personally and report factual position at an early date, who vide his memorandum dated 31.5.1994 submitted the following report:-- "1. The Managing Director of Pakoora Forest Harvesting Cooperative Society have felled all the marked trees from Maidan Forest Comptt. Nos. 3, 4 and 5 without completing the required codal formalities. The detail of which is as under:-- S. No Name of Forests and Comptt. No. Species marked No. Of Trees marked. Standing volume marked.
1. Maidan Forest C. Deodar 338 41233 eft.
No. 3 Kail 121 31624 eft Total: 459 72858 eft.
2. Maidan Forest C. Deodar 186 30250 eft.
No. 4 Kail 85 23040 eft.
Total 271 53290 eft.
3. Maidan Forest C. Deodar 237 41300 eft.
No. 5 Kail 123 32257 eft.
Total: 360 73557
(2) The marked trees have not only been felled but further converted into scants. Most of sawn timber is lying scattered in the Forest in all the comptts: and some of them have been stacked in the Forests of the comptts. Whereas in the upper reaches the converted scants are still blanketed with snow. The harvesting operation is completed, just before snow fall during December, 1993 which is evident from the condition of the sawn timber as well as obvious from the statements of I/C Forester and Forest Guard which is appended herewith for your kind perusal. It is further stated that due to peculiar cultural situation of the tract, the timber so converted can neither be seized nor brought down. The damage reports for the illegal felling and conversion of the trees were issued on spots vide D.R. No. 8/1, dated 27.5.1994, 9/1 and 10/1, dated 28.5.1994. Further action if required to be taken may kindly be directed please.
3. Submitted for further necessary action please."
On 9.6.1994, notice was issued to the respondent for unauthorised felling and conversion of the marked trees by him in Maidan Forest Compartment Nos. 3 to 5, to which, despite reminders, no reply was given. Consequently, on the instructions from the Chief Conservator of Forests, Peshawar, the damage report of the Range Officer, Komela Range 27.5.1994, alongwith complaint was filed in the Court of Forest Magistrate on 27.9.1995. The respondent was, accordingly, charged under Section 9/26 of the N.W.F.P. Hazara Forest Act (III of 1936) (hereinafter to be called the Act). The Trial Magistrate after recording evidence of the parties came to the conclusion that the prosecution has failed to. Prove its case against the respondent, as such, vide his judgment dated 26.8.1996 acquitted him of the charge but by the same judgment held the owners of the jungle guilty for cutting forest trees and were fined Rs. 300/- per cut tree and the respondent was allowed to transport and sell the timber to the extent of 80% and to deposit remaining 20% with the Government. Feeling aggrieved, the State filed appeals under Section 417, Cr.P.C., which were dismissed by the Peshawar High Court, Abbottabad Bench holding as under:- "(4) The accumulative effect of the evidence so produced is that none of the witnesses uttered a single word against the respondent that he was responsible for the cutting of the trees nor any evidence has been led that he has asked/directed the owners of the forest to cut the trees.
(5) The report appears to has been made alongwith the challan under the signatures of Divisional Forest Officer Kohistan Forest Division Dassu but he has not appeared in the witness-box.
(6) The complaint on the basis of which charge was framed is signed by Naseem Hijazi but he has not proved the same when appeared in the witness-box. He has only stated that his report is Ex.PA.
The law on the subject is that no report shall be taken as evidence unless the contents thereof are deposed/reproduced at the trial by a person preparing the same. In this respect a reference is made to 1987 P.Cr.L.J. 23 (Attaullah Vs. State).
(7) Hazara Forest Act, 1936 is special law and an appeal against acquittal can only be filed if so provided in the statute. It was pointed out to the Assistant Advocate General, if he can show any provision of law in the Act itself under which the present appeal is maintainable to which he could not reply.
In PLD 1960 Dacca page 200 (Superintendent and Remembrancer of Legal Affairs Govt, of East Pakistan Vs. Syed Bazlur Rehman etc.) it has been held that in absence of an express provision for appeal in a special Act no appeal under section 417 of the Criminal Procedure Code, 1 898 would lie.
Same view has been taken in case AIR 1961 Mysore page 257 (State of Mysore Vs. Gurupadappa Appayyappa Kardesai).
(8) The is yet another glaring illegality in the trial, to the effect that, Naseem Hijazi, Range Officer appeared in one case and stated that his said statement be treated as his statement in all other cases against the respondent. The prosecution has committed illegality by not producing the said witness in each case and hence, his evidence in one case cannot be considered evidence in other case.
(9) On merits as discussed above no case could be made out against the respondent coupled with the technical ground described above. There is no force in this State appeal and the same is dismissed."
Feeling aggrieved the State filed petitions for leave to appeal before this Court, wherein leave was granted on 3.8.1998 as under:-- "Leave to appeal is granted in all the four petitions to consider, inter alia, whether the phraseology "all proceedings relating to offences and criminal liability under the Act shall be governed by the Code of Criminal I Procedure, 1898" employed in Section 46 of the Act is wide enough to include the right of appeal against the acquittal of an accused charged with offences under the provisions of the Act, and, therefore, the High Court has fallen into error to hold that there was no right of appeal against an order of acquittal of an accused."
3. Learned Addl. Advocate Genera?Contended that Section 45 of the Act provides that all proceedings relating to offences and criminal liabilities under the Act are governed by the Code of Criminal Procedure (hereinafter to be referred as the Code), as such the convict or the acquitted person can file an appeal against his conviction or acquittal, as the case may be, under the Code.
He with reference to Section 46 of the Act argued that the language used in it is not synonymous with the style of expression usually used in other Statutes granting right of appeal. He urged that according to Section 46 of the Act all proceedings relating to the offences and criminal liabilities - under the Act are governed by the Code, therefore, "all proceedings" include appeal and as such right of appeal would be available under the Code to both the convict and the acquitted persons.
In support of his arguments, he relied upon Satyahari vs. The State (AIR 1953 Calcutta 661), Ghulam Muhammad and 3 others Vs. The State (PLD 1979 Quetta 1), Muhammad Farash Khan Vs. Nishadar Jan (PLD 1983 S.C. (AJ&K) 43), Muhammad Naseem Khan and another Vs. Government of NWFP and others (1990 CLC 1693), Habib Bank Ltd. Vs. The State (1993 SCMR 1853) and State through Advocate-General, NWFP, Peshawar Vs. Naeemullah Khan (1999 SCMR 143).
4. Opposing the aforesaid argument, Raja Muhammad Anwar, learned Sr. ASC vehemently argued that right of appeal is a substantive right which is created by the statute itself, the same cannot be inferred by implication or by import. Since the right of appeal has not been granted by the special statute, therefore, the State had no right to file an appeal under Section 417 of the Code against the acquittal of the respondent. He also supported the acquittal of the respondent on merits contending that the respondent being the President of the Society could not be held responsible for criminal liability of the members of the Society for cutting the trees, as such on merits, to, the State has no case against the respondent. Learned counsel also relied upon Habib Bank Ltd. Vs. The State (1993 SCMR 1853).
5. We have duly considered the respective submissions of the. Learned counsel for the parties and have gone through the record of the case. For proper appreciation of the proposition, it would be appropriate to reproduce Section 46 of the Act, which runs as under:-- "46. All proceedings relating to offences and criminal liabilities under this Act shall be governed by the Code of Criminal Procedure 1898".
The word 'proceeding' has not been defined in the Act itself, therefore we would advert to its dictionary meaning. According to Chambers English Dictionary, 7th Edition, the word 'proceeding' means:- "a going forward: progress: advancement: a course - of conduct: perh. An advantage; a step: an operation: a transaction: a record of the transactions of a society".
According to Legal Thesaurus, Regular Edition, by William C. Burton, the word 'proceeding' means:- "action, action, action at law, case, cause, conduct of a lawsuit, course of an action at law, dispute, hearing, lawsuit, legal action, legal procedure, litigation, matter, performance, prescribed mode of action, prescribed mode of action, procedure, process prosecution, series of events, steps in the prosecution of an action, suit, suit at law, transaction, trial undertaking."
According to Law Lexicon Volume-II, the word 'proceeding" means:-- "Proceeding in a general sense means "the form and manner of conducting judicial business before a Court of judicial officer". It can include within itself suit, appeal and second appeal: Ram Narain Vs. Urmila, 1980 All 344-6. The legal pursuit of a remedy, suit, appeal and second appeal are really but steps in the series of all connected by intrinsic unity and are to be regarded as one legal".
The meaning of the word 'proceeding' according to American Publication "Words and Phrases" at.
Page 83, are as under:-- "The term 'proceedings' is a very comprehensive term, and, generally speaking, means a prescribed course of action for enforcing a legal right, and hence it necessarily embraces the requisite steps by which judicial action is invoked. A 'proceeding' would include every step taken towards the further progress of a cause in Court or before a Tribunal, where it may be pending. It is the step towards the objective to be achieved, say for instance the judgment in a pending suit. The proceeding commences with the first step by which the machinery of the law is put into motion in order to take cognizance of the case. It is indeed a comprehensive expression and includes all possible steps in the action under the law, from its commencement to the execution of the judgment."
The word 'proceeding' also came under consideration in the following cases, wherein it has ben interpreted as follows:-- In Satyahari Vs. The State (AIR 1953 Calcutta 661), it was held:- "It is true that S. 496, Criminal P.C. To which reference has been made by Mr. Dutta the words 'proceedings before a Court' are used in wider sense and not in the restricted sense of judicial proceedings alone. But in S. 12 of Act, 21 of 1949 it would appear that the word 'proceedings' must have been used in a restricted sense of 'judicial proceedings'. In S. 12 there is reference to proceedings pending in a Special Court. Now proceedings pending a Special Court could be only judicial proceedings because proceedings before a Special Court would be started only on complaint or on receipt of a charge-sheet. Since the term 'any proceedings in other Court' is used in the same context in S. 12 of Act, 21 of 1949 it would be logical to hold that the proceedings pending in other Court also would mean judicial proceedings and not proceedings in the wider sense such as is used in S. 496, Criminal P.C."
In the above case, it was further observed:-- " Before that stage is reached the accused must be produced before an ordinary Magistrate and it cannot be argued that since the accused is produced before the ordinary Magistrate and question of bail is considered there is a proceedings before the Court and therefore S. 12 of Act, 21 of 1949 bars the jurisdiction of the Special Court. We must 'agree, therefore, with the learned Special Judge in holding that the words 'proceedings pending before a Court' in S. 12 of Act 21 of 1949 would mean judicial proceedings which started with the submission of a charge-sheet or a complaint or taking cognizance thereon. In this case there were no proceedings pending on 9.4.1952, when the Ordinance came into force and therefore, S. 12 of the Act does not bar the jurisdiction of the Special Court."
In Jan Muhammad and another Vs. Home Secretary, Government of West Pakistan and others (PLD 1968 Lahore 1455), a Full Bench of the Lahore High Court while answering the question "On a true interpretation of section 25 of the West Pakistan Criminal Law (Amendment) Act (VII of 1 963), has the accused person a right to be represented before the Commissioner at the time he is going to refer the case to the Tribunal in the exercise of the powers vested in him under section 3 of the Act", held as under:-- "Therefore, taking everything into consideration, in our opinion the expression "proceedings under this Act" within the meaning of section 25, is quite comprehensive so as to include the very first step taken by the Commissioner to put the machinery of the law under Section 3 in motion and all the proceedings taken in pursuance thereto in which the parties are entitled to be represented by a legal practitioner of their choice as allowed by section 25 of the Act. It, therefore, follows, that the accused has a right of hearing before the Commissioner in the course of the proceedings taken by him under section 3 of the Act."
In R. Darbarilal Vs. Rajendra Kumar (AIR 1970 Madhya Pradesh 1), a Full Bench construed the words 'suit or proceeding' as under:-- "The problem of construction, which. This Full Bench has to face, could have been easily avoided if instead of using the words 'suit or proceeding1 in the opening portions of sub-sections (1) and (2) the words 'suit or appeal' were used. However, the careless drafting has not made the section so ambiguous that its meaning cannot be gathered. As we have already pointed out, the key to the solution is in the use of the words 'suit or appeal' in the concluding portion of sub-section (2) for the same subject-matter, which is described as 'suit or proceedings' in the opening portions of sub- sections (1) and (2) which clearly shows that the word proceeding is used to mean an appeal."
In another case, Ghulam Muhammad Vs. The State (PLD 1979 Quetta 1), while the question, 'From what stage the proceedings would be deemed to have commenced in a case under the Ordinance so as to exclude the operation of the Code of Criminal Procedure" it was held:- "Accordingly in the light of the scheme of the Ordinance the interpretation of the word 'proceeding' given in the case of Emperor vs. Fazlur Rehman and others (AIR 1937 Pesh. 52) above, i.e. "whole bundle of actions taken and recorded by the Court from the moment of taking cognizance of the case untill its disposal" would be most relevant. In order to understand the meaning and scope of this term as used in sections 3 to 28 of the Ordinance with further accuracy, we my better advert to the Preamble of the Ordinance as well which is as under:-- 'An Ordinance to make a special provision for trial of certain offences in certain areas of West Pakistan':-- "From the recital of the Preamble it is manifest that the Ordinance provides for the trial of offences so that proceedings in a case under the Ordinance can only be taken to cover that aspect of the case which deals with trial of case. Hence, all what is done in this regard starting from the commencing point of the Ordinance with the taking of cognizance of offence upto the stage of the execution of the judgment is proceeding. It is thus obvious that the moment cognizance of an offence is taken by the District Magistrate acting under the Ordinance its operation commences to the exclusion of the Code and Evidence Act, by virtue of sections 3 and 28 of the Ordinance."
In Muhammad Farash Khan Vs. Nishadar Jan (PLD 1983 SC (AJ&K) 43), it was held:- "Proceedings" is a comprehensive term and, generally speaking means a prescribed course of action for enforcing a legal right and hence it necessarily embraces the requisite steps by which a judicial action is invoked"........ ......... Therefore, we are of the view that the word proceeding used in section 24 of the Code of Civil Procedure, is wide enough to cover any proceedings of civil nature and is used to include all civil proceedings of any nature and, in fact, is meant to meet eventuality of the nature before us and all eventualities of alike nature."
In Karim Bibi Vs. Hussain Bakhsh (PLD 1984 SC 344), it was held:-- "In the light of the aforesaid definition the proceedings under the Displace Persons (Compensation and Rehabilitation) Act would seem to commence with the application of a person entitled to the transfer of a property in the compensation pool under the Schedule and the Schemes framed thereunder. Normally the application will be disposed of by an order passed by the Deputy Settlement Commissioner which will apparently be the original in the proceedings. Any party aggrieved by such an order may then invoke appellate or revisional jurisdiction conferred under the statute before the higher authorities or officers. In such a case the proceedings remain the same until their conclusion by the order of the final authority as all the intermediary stages are , steps taken towards the further progress of a cause or towards the objective to be achieved, the transfer of a particular property to the person entitled thereto under the relevant provisions of law.
Before the amendment of the Displaced Persons (Compensation and Rehabilitation) Act in 1973 there was a right of appeal provided by section 19. Therefore, no Letters Patent Appeal was then .
Competent(.Against to the order of a Single Judge of the High Court to a larger Bench of the same High Court. Similarly there can be no dispute, that in cases in which the original order was passed after the aforesaid amendment of law such appeal was competent as the right of appeal under the Displaced Persons (Compensation and Rehabilitation) Act was taken away by the amendment."
In Wazir Laiq Vs. The State and others (PLD 1987 SC 35), this Court while interpreting the word 'any proceeding' used in Section 24 of the Provincially Administered Tribal Areas Criminal Laws (Special Provisions) Regulation, 1975, observed as under:-- "Testing the meaning of the word "proceeding", we find from section 24 of the Regulation that each and every proceeding is co-related with its regularity, and the end-product namely, decision, sentence or order. There is no limitation or reservation in the language of this provision so as to give to it a narrow meaning. The nature and the scope of the statute also in no way limits or restricts its meaning. Therefore, we see no justification to hold that the application for bail ending in an order either granting bail or refusing it would not be covered by the words ' any proceedings' in the section. The High Court has read limitation by reference to section 23 where this word has not been used. But there the words used are 'any party aggrieved by any decision given, sentence passed or order made. Obviously the right conferred is the right of appeal against an order, decision or sentence. In this context, a party cannot be aggrieved by a mere proceeding, and, therefore, this word has rightly not been used. Again there is nothing in the text of either section 23 or any other section of the Regulation so as to make proceedings meaningful only upon the cognizance of the scheduled offence by the Deputy Commissioner. Section 24 of the Regulation has given wider jurisdiction to the revisional authority to examine the legality or propriety of any proceeding, decision or order. Eminently, therefore, any matter at an intermediate stage under the Regulation before a final verdict is given could be examined to determine its legality or propriety.
As against it, the appellate powers do not extend to such an examination. The High Court was, accordingly, in error to hold so while denying jurisdiction to the Additional Secretary exercising powers of the Government.
The power to grant bail is independently conferred under section 126 of the Regulation irrespective of whether the matter is brought under the Regulation or not. It is also significant to mention that by inserting section 15-A to the Regulation, the Deputy Commissioner is given the power to extend the time for completing the investigation. This limited control manifestly shows that even at that stage the Deputy Commissioner does exercise some power even through the case is not ripe for taking cognizance."
In yet another case reported as Muhammad Naseem Vs. Government of NWFP (1990 CLC 1693), it was held:-- "As defined in the case of Mst. Karim Bibi and others Vs. Hussain Bakhsh and another (PLD 1 984 SC 344) "the term 'proceedings' is a very comprehensive term, and generally speaking, means a prescribed course of action for enforcing a legal right and hence it necessarily embraces the requisite steps by which judicial action is invoked." The proceedings are still pending or lying before the Registrar so long as impugned order is holding the field. The jurisdiction conferred under section 64-A is both revisional as well as supervisory and superintending in its nature qua any proceedings or inquiry. Restricted construction cannot be put on the plain phraseology employed in the section itself. The petitioners could therefore impeach the action taken by the Registrar by making a revision petition to the Provincial Government to which he is subordinate. It is an effective and efficacious remedy, especially when no specific mala tides is urged against the Provincial Government."
In Habib Bank Ltd. Vs. The State (1993 SCMR 1853), it was observed:-- "The power of High Court is excluded to examine the propriety of any sentence under its revisional powers. However, in my view the power to examine the correctness of an "order of acquittal" is not barred by the provisions of the Ordinance. The powers of the High Court remain intact and such powers cannot be taken away by any jurisprudential analogy. The ouster of power of High Court in its revisional jurisdiction cannot be accepted simply because the Ordinance is silent about an appeal against acquittal."
Keeping in view the literary meaning and the interpretation of the word 'proceeding' as interpreted in various pronouncements given above, we are of the opinion that the word 'proceedings' is a comprehensive expression which includes every step taken towards further progress of a cause in Court or Tribunal, from its commencement till its disposal. In legal terminology the word "proceedings" means the instituting or carrying on of an action of law. Generally, a 'proceedings' is the form and manner of conducting judicial business before a Court or judicial officer, including all possible steps in an action from its commencement to the execution of a judgment and in a more particular sense it is any application to a Court of justice for aid in enforcement of rights, for relief, for redress of injuries, or damages or for any remedial object. It in its general use comprehends every step taken or measure adopted in prosecution or defence of an action.
6. Section 46 of the Act has to be construed liberally as right of appeal has not been expressly provided by the Act to both the convict and the acquitted persons, in such circumstances, if the right of appeal is negated or excluded from the word 'proceeding' it would be giving it a harsh and narrow meaning/interpretation and would amount to the denial of right of appeal to the convict, which would not only be un-constitutional but also un-Islamic, therefore, we would construe the word 'proceeding' in the wider prospect in view of the nature and scope of the Act and interpret the same to include the right of appeal to both the convict and the acquitted persons, as such construction would be most befitting to the scheme of the enactment. Appeal is a continuation of the trial/judicial proceedings before the higher Court to reconsider the verdict of the lower Court on legal and factual aspects, as such, appeal being a step towards the objective to be achieved, is included in the phrase 'all proceedings relating to offences and criminal liabilities under this Act1 used in Section 46 of the Act, therefore, appeal/revision can be filed against conviction and acquittal as the case may be, as provided by the Code of Criminal Procedure.
7. As far as the merits of the case are concerned, we find the order of acquittal to be self- contradictory as on the one had the Magistrate has acquitted the respondent on the ground that the evidence is not enough to warrant his conviction and on the other had, he has imposed fine of Rs. 300/- per cut tree upon the owners, who were not even heard and provided defence opportunity. Both the learned Courts have also not properly appreciated the evidence on record, hence conclusions drawn are not sustainable in law. In such circumstances, both the judgments/orders of the learned Trial Magistrate and the High Court are set aside and the case is remanded to the Magistrate for retrial in accordance with law.