' This appeal is directed against the judgment passed by the Special Judge, Anti-Corruption Provincial Rawalpindi Division, Rawalpindi; whereby respondent Aziz-ur-Rehman Shah has been acquitted from the charge by receiving Rs, 3,000 as illegal gratification from the complainant for correction of date of birth of his friend in the relevant record in case registered against him vide F.I.R. No,5 dated 24-6-1999 under section 161, P.P.C. Read with section 5/2/47 PCA at Police Station, Anti Corruption, Rawalpindi.
2. At the outset learned counsel for the respondent contends that the appeal has not been filed by the State against the acquittal of the respondent, therefore, the appeal is not maintainable.
3. Confronted with this position, learned counsel for the appellant relies on section 417 (2-A), Cr.P.C.
And contends that the appeal could be filed by aggrieved person and the appellant being the complainant is aggrieved from the judgment of acquittal passed by the Special Judge, Anti- Corruption, therefore, the appeal is maintainable. He relies on the following case-law:--- ' Rasool Khan and 9 others v. Haji Banaras Khan and 5 others 2002 PCr.LJ 286, Hazoor Bakhsh v. Riaz Ali Abbassi and another PLD 2003 Kar. 340, Utility Store Corporation, Government of Pakistan through Regional Manager, Utility Store Corporation, Rawalpindi Region, Model Town, Islamabad v.
Muhammad Nazir Khan 2003 PCr.LJ 185.
4. Meeting the arguments of the learned counsel for appellant, learned counsel for the respondent contends that the respondent was Secretary, Union Council, and was tired by the Special Judge.
Section 10(2) of the Pakistan Criminal Law Amendment Act, 1958 (XL of 1958) provides no right of appeal to the aggrieved person against the order passed by Special Judge, right of appeal is statutory right and unless statute provides for, there will be no right of appeal. He states that Criminal Procedure Code is not applicable to the proceeding under Pakistan Criminal Law Amendment Act, 1958 (XL of 1958) because the Act ibid is by itself statutory law which shall prevail upon general law i,e, Criminal Procedure Code. Reliance has been placed on case Ashiq Muhammad and another v. Khuda Bakhsh and others PLD 1998 Pesh.
68.
5. I have considered the submissions made by both the learned counsel for parties and perused the record with their assistance.
6. There is force in the contention of the learned counsel for respondent. Relative provision of law is reproduced as follow:--- Section 10 (1) and (2) "Notwithstanding the provision of section 417 of Code of Criminal Procedure (V of 1898), in any case tried by Special Judge appointed by the Central Government under section 3 in which such Special Judge has passed an order of acquittal, the Central Government may direct the Public Prosecutor to present an appeal to such Court as aforesaid." Appropriate Government has been defined in section 2(a) of the Act (ibid) means in relation- to a person serving in connection with the affairs of the Centre and any other person employed by the Central Government or by a Corporation or other body or organization set up, controlled or administered by, or under the authority of the Central Government, and in other cases, the Provincial Government concerned."
7. From the examination of the provision of law reproduced above. It is very much obvious that for filing an appeal against acquittal passed by the Special Judge, direction by the Federal Government to the Public Prosecutor to present appeal before the High Court was a condition precedent and unless appeal was filed by the Public Prosecutor on the direction of the Federal Government the same could not have been entertained. Union Council was under the control of Provincial Government and accused was tried by the Special Judge.
8. The question of the maintainability of the appeal against the acquittal under the Special Act came before the Hon'ble Supreme Court in case of the Superintendent and Remembrance of Legal Affairs, Government of East Pakistan v. Syed Bazlur Rahman and others PLD 1960 Dacca 200 and it was held that, "reading of the provision of Act (X of 1956) as there are alongwith the provision for the appeal under the Cr.P.C. We cannot hold that, "in the absence of an express provision for appeal in a Special Act, the provision of section 417 by themselves entitled the Provincial Government to maintain appeal against the order of acquittal." Provision of section 10(2) Pakistan Criminal Law Amendment Act (Punjab 1958) read with section 417(2-A), Cr.P.C. Came up for interpretation before the Peshawar High Court in case of Ashiq Muhammad and another v. Khuda Bakhsh and others PLD 1998 Pesh.
68. By relying on the case of the Superintendent and Remembrancer of Legal Affairs, Government of East Pakistan v. Syed Bazlur Rahman and others PLD 1960 Dacca 200 (supra) and the State v.
Muhammad Hussain PLD 1968 SC 265 it was ruled that provision of Pakistan Criminal Law Amendment Act shall prevail upon tne general law i,e, Cr.P.C. And the appeal by the complainant against acquittal was dismissed being not maintainable.
9. On the touchstone of section 10 read with section 417(2), Cr.P.C. And the case-law cited above, I am of the considered opinion that this appeal is not maintainable. The cases of Rasool Khan and 9 others v. Haji Banaras Khan and 5 others 2002 PCr.LJ 286 and Hazoor Bakhsh v. Riaz Ali Abbassi and another PLD 2003 Kar. 340 relied upon by the learned counsel for the appellant are not applicable to the facts and circumstances of the present case on the ground that the provision of section 10(2) of Pakistan Criminal Law Amendment Act, 1958 (XL of 1958) read with the definition of appropriate Government under section 3 of the Act alongwith the- above stated case-law was not brought to the notice of the Courts.
10. For what has been discussed above, this appeal has no force and is dismissed being not maintainable.