1. Appellant Dr. Shaukat Zaman Khan has preferred this criminal acquittal appeal under section 417, Part II, Cr.P.C. Being aggrieved with the order dated 18-4-2000, passed by XIth Judicial Magistrate, Karachi (East) in Case No,90 of 2000; on the complaint filed by the then Director, Health Services, K.M.C. Shaukat Zaman Khan on behalf of K.M.C. Against respondent/accused.
2. ' Brief facts of the case are that on 3-11-1998 Muhammad Afzal, Food Inspector, K.M.C., Karachi visited the restaurant in the name and style of Cafe-D-Khan owned by accused named above, situated at Plot No,C-333, Block No,2, P.E.C.H.S., Karachi and identified himself as Food Inspector and on inquiry said accused person disclosed his name to be Muhammad Naeem son of Muhammad Ameen and further disclosed that he is the owner of that business. Inspector tried to appoint the persons available in Cafe to be witnesses but no one was ready to act as witness, hence he said to his subordinates (employees of K.M.C.) namely Muhammad Ayoob and Shahzor Khan to act as Mashirs/witnesses. Thereafter, he purchased salt edible and Banaspati Ghee from him and obtained receipt for the price of Rs,40/50. The said samples were divided into three equal portions and each sample was sealed and labelled according to the legal requirements of law in presence of Mashirs and accused and the form of declaration was prepared according to information furnished by accused and the signatures of accused were obtained on each copy of declaration form and all labels. The accused was given one portion of said samples and a copy of declaration form, Form No,V and the Mashirnama was also prepared on the spot. The second portion of the samples alongwith copy of Form V were sent to the Public Analyst K.M.C. Who vide his report, dated 14-12-1999 declared both the samples as non-genuine, hence there was adulterated and were not of the nature, substance or quality which they purported or w/w represented to be in the following respect:
(1) Salt matter insolvable in water 2% W/W Sodium Chloride W/W 96%. The sample contains 2% less sodium chloride due to the presence of impurities.
(2) Banaspati melting point 42C. The sample is high in melting point by 50C.
3. ' That after completion of all the formalities Dr. Shoukat Zaman Khan, Director, Health Service, K.M.C.
4. Filed direct complaint in the Court of Judicial Magistrate, Court No,1, Karachi-East for trial of accused. The same was admitted and registered. The bailable warrants against accused were issued and accused appeared and furnished surety to face the trial. On 22-3-2000 R&Ps were received by the trial Court by way of transfer under the order of Honourable District and Sessions Judge, Karachi, for disposal under the law, on administrative ground.
5. ' On 28-3-2000 the present application under section 249-A, Cr.P.C. Was moved; the trial Court after hearing both the learned counsel for the parties passed the order and allowed the application under section 249-A, Cr.P.C. Hence this appeal.
6. ' Order-sheet of this Court reveals that learned counsel for the appellant has been repeatedly directed to satisfy this Court with regard to maintainability of this criminal acquittal appeal and the competency of the appellant as well as with regard to Limitation Act but learned counsel for the appellant on the one pretext or the other obtained dates; on 23-11-2000 the learned counsel for the appellant was directed to submit the Notification by which Dr. Shaukat Zman or Dr. Tasneem Sikandar were authorized to maintain this appeal. On 13-12-2000 Mr. Manzoor Ahmed learned counsel for the appellant filed the copy of Notification, dated 6-3-2000 issued by Director-General Health Services, Sindh, at Hyderabad and supplied the copy of the same to learned counsel for the other side and State Counsel and the learned State Counsel intends to verify the genuineness of the notification and since then the matter is being adjourned for want of the same.
7. ' Today, this matter has been taken up and when asked as to how this criminal acquittal appeal is maintainable and whether this appeal has been competently filed; the learned counsel for the appellant has submitted that direct complaint was filed against respondent No,1 and the learned trial Court acquitted the respondent No,1 under section 249-A, Cr.P.C. And since the acquittal has taken place in direct complaint. According to learned counsel for the appellant, this criminal acquittal appeal has been filed under section 417(2), Cr.P.C. With contention that the same is to be filed within 60 days from the date of impugned order as envisaged under section 417, subsection
(3) and according to him the appeal has been filed within prescribed time as mentioned in section 417, subsection (3) and has been competently filed by Dr. Shoukat Zaman, who is the appellant in the present appeal. The Notification has been placed on record and copy of the same has been supplied to other side. The Notification dated 6-3-2000 reveals that in exercise of powers conferred upon Director-General, Health Services, Sindh at Hyderabad under 'section 32 of West Pakistan Pure Food Ordinance, 1960 the said Director-General, Health Services, Sindh at Hyderabad is pleased to authorize Dr. Tasneem Sikandar Khan, Director Health Services at Karachi Metropolitan Corporation "to launch the prosecution against Food Offenders, within the jurisdiction of Karachi Metropolitan Corporation, within the jurisdiction of entire K.M.C. Limits. Learned counsel for the appellant, on the query of the Court, cannot answer as to why then the criminal acquittal appeal has not been filed by Dr. Tasneem Sikandar, who was authorized by Director-General to launch prosecution against the offender and since the words are mentioned "to launch prosecution against the offender" the prosecution is to be launched in the name of the State against the offender and thus it became a State case. The learned counsel for the appellant was also confronted that the order dated 18-4- 2000 with regard to the caption of case which reveals, "In the Court of Judicial Magistrate XI, Karachi-East Criminal Case No,20 of 2000, The State v. Muhammad Naeem son of Muhammad Amin". In view of this caption and Notification dated 6-3-2000 the prosecution is to be launched in the name of State and therefore, the criminal acquittal appeal could have been preferred under section 417(2-A), Cr.P.C. Which is reproduced as follows:- "A person aggrieved by the order of acquittal passed by any Court other than a High Court, may within 60 days file the appeal against such order."
8. ' And in the present case, in view of the notification dated 6-3-2000 issued by Director-General, Dr. Tasleem Sikandar becomes aggrieved person by virtue of section 417(2-A), Cr.P.C. And not the present appellant Dr. Shaukat Zaman Khan and the appeal ought to have been filed within 60 days from the date of the acquittal order and accordingly the present criminal acquittal appeal, which has been presented before this Court on 12-7-2000 becomes time-barred and the same has not been competently filed by a competent person in view of the Notification, dated 6-3-2000.
9. ' Mr. Adil Beg learned counsel for the respondent No,1 has also taken the same contention and submitted that the appeal is time-barred and has not been competently filed and is liable to be dismissed in limine .
10. ' Mr. Arshad Lodhi, learned Assistant Advocate-General has also supported the contentions raised by learned counsel for the respondent No,1 and has contended that the appeal is time-barred and has not been competently filed in view of the Notification dated 6-3-2000.
11. ' In view of the afore-mentioned legal position, particularly Notification dated 6-3-2000 I am of the considered view that the instant criminal acquittal appeal is time-barred in view of section 417(2A) and in view of the fact that prosecution is to be launched: against the offender/accused which amounts the prosecution in the name of State of aggrieved person Dr. Tasleem who has not preferred this acquittal appeal. Accordingly I see no merits in the case, which is dismissed alongwith the listed application.
12. Acquittal .