This judgment will dispose of Criminal Appeal No.1127 of 2001 tiled by State through Mr. Muhammad Mazhar Ullah, Public Prosecutor/F.I.A. Crime Circle, Lahore against Bashir Ahmad, respondent whereby the learned Special Judge (Central), Lahore has acquitted the respondent vide order 30- 11-2000.
2. In brief, case of the prosecution against respondent Bashir Ahmad was that he while working as Patwari in National Highway Authority at the relevant time was caught red-handed while receiving the, tainted amount of Rs.7,500. After completion of the formal investigation, report under section 173, Cr.P.C. Was submitted and at the stage of framing of the charge, the learned trial Court acquitted the accused respondent.
3. In support of this appeal, learned Deputy Attorney-General submits that trial Court was wrong in acquitting the respondent without recording evidence when there was sufficient evidence on record in the shape of F.I.R. Statements of the witnesses under section 161, Cr.P.C. And recovery of tainted amount. He submits that his request is that case may be remanded for retrial and then if after recording of evidence the trial Court comes to the conclusion that no case is made out against the respondent, he can pass an appropriate order. As the technical objection raised by learned counsel for respondent as to not filing of the appeal by an officer authorized in this behalf in writing by the Federal Government, learned Deputy Attorney-General submits that Court should not be caught up in technicalities rather should do substantial justice. To support his this argument, learned Deputy Attorney---General has relied upon 2003 SCM R 83. Elaborating his argument, learned Deputy Attorney-General submits that he had the oral instructions to pursue the instant appeal and in that regard he has placed on record a letter No.F.2 (290) 2001, S.I. II, dated 2nd June, 2001 issued by Mr. Meher Khan, Section Officer, Government of Pakistan, Law, Justice and Human Rights Division, Islamabad.
4. On the other hand, learned counsel for respondent submits that it is a condition precedent that there should be a written permission/sanction from the Federal Government to file an appeal against the order/judgment of acquittal passed by Special Judge (Central). Further submits that Mr. Muhammad Mazhar Ullah, Inspector, F.I.A. Was neither a Public Prosecutor nor could have filed the appeal. In support of this submissions, learned counsel for respondent has relied upon 1985 PCr.LJ 1431.
5. We have heard learned counsel for the parties and have gone through the precedents cited at bar by learned counsel from both the sides. So far as enunciation of law declared by the Hon'ble Supreme Court that Court should not be caught up in technicalities rather should do substantial justice, there is and can be no cavil with it but the settled law is that when an Act provides a thing to be done in a particular manner, that has to be done in that manner and not otherwise, otherwise there would have been no need for any legislation. The letter produced by the learned Deputy Attorney-General is a stereotype letter. There is no such written specific permission granted to him to file the appeal against the order of acquittal, impugned herein, passed by Special Judge (Central), Lahore. In the case of The State v. Munawar ud Din and another (1985 PCr.LJ 1431), after scanning section 10 of Pakistan Criminal Law Amendment Act relating to filing of appeal, revision and transfer of cases, it was held as under:-- "From the examination of provisions of law reproduced above, it is very much obvious that for filing appeal against acquittal by the Special Judge, the direction of the Federal Government to the Public Prosecutor to present an appeal before the High Court, was a condition precedent and unless the appeal was filed by the Public Prosecutor on the direction of the Federal Government, the same could not have been entertained. From the language of section 4 of Central Law Officers Ordinance, 1970, Notification dated 10-7-1973 and the letter, dated 30-3-1978, it is crystal clear that the learned Deputy Attorney---General had the right of audience in all Courts in Pakistan; that it was his duty to appear on behalf of Federal Government in which the Federal Government was concerned and that through letter referred to above he was only asked to conduct appeal on behalf of Federal Government or its officer but this would not tantamount to direction by the Federal Government to Public Prosecutor to present appeal against acquittal."
As to merits of this case, no direction, in writing was given to the learned Deputy Attorney-General in this case to file appeal against the order of acquittal passed by the trial Court. The letter produced by the learned Deputy Attorney-General only speaks of to contest/pursue the matter but there is no such instruction directing or granting permission to the learned Deputy Attorney--- General to file appeal. More, so letter of such type has been taken note of in Munawar ud Din case, supra when it was ruled that this would not amount to direction by the Federal Government to Public Prosecutor to present appeal against acquittal.
After having heard learned counsel for the parties and going through the precedents cited by learned counsel for both the sides, I am of the considered opinion that this appeal has not been competently filed as there was no such written direction/permission to the learned Deputy Attorney---General to present the instant appeal against the impugned order of acquittal.
Resultantly, the appeal is dismissed.
Rs.30,000 representing the surety amount shall be returned to the respondent against a proper receipt.