1999 PLP 143 (SCMR)

MUHAMMAD BASHIR JEHANGIRI, J.

The above four petitions are directed against an identical order of the Peshawar High Court, Peshawar, upholding the acquittal of the same accused-respondent who was out in trial under section 9/26 of the Hazara Forest Act, 1936 (N.-W.F.P. Act, III of 1936) (the Act).

2. Facts of the case briefly stated are that Range Officer, Komela Range, found Naeemullah respondent responsible for cutting of trees in Komela Forest Range in violation of section 9/26 of the Act. The learned trial Court found that none of the prosecution witnesses had uttered a single word against the respondent pointiRg towards his culpability or that he had directed the owners of the forest to cut the trees. In this view of the matter, the accused-respondent was acquitted of the charge under section 9/26 (ibid).

3. The State, feeling aggrieved, filed an appeal before the Peshawar High Court under section 417 of the Criminal Procedure Code, 1898 against the acquittal of the accused-respondent.

4. The learned Judges of the Division Bench, apart from affirming the grounds of acquittal of the accused-respondent recorded by the learned trial Magistrate, also observed that neither the report recorded by nor the challan submitted under the signatures of the D.F.O. were proved as the D.F.O. had failed to appear in the witness-box. Similarly the complaint on the basis of which the charge was levelled against the accused-respondent was signed by the Forest Range Officer but he had omitted to prove it when he had appeared in the witness-box. Relying on the case of Attaullah v. State (1987 PCr.LJ 23), it was held that the statement of the Forest Range Officer with his report Exh.PA was not enough to hold that the contents of the report were proved. It was also held by the teamed Single Judge that as the Act was special law, an appeal against acquittal could not be filed unless it was so provided in the Act itself. It was, therefore, held that no appeal lay either against the acquittal or conviction of the accused who has been charged with the offences under section 9/26 (ibid). Reliance was placed on the judgments reported as Superintendent and Remembrancer of Legal Affairs Government of East Pakistan v. Syed Bazlur Rahman and others (PLD 1960 Dacca page 200) and State of Mysore y. Gurupadeppa Appayyappa Kardesai (AIR 1961 Mysore 257). On the basis of this reasoning, the appeal filed by the State was dismissed.

5. Mr. M. Sardar Khan, learned Advocate-General, N.-W.F.P. appearing in support of this petition, has distinguished the case of Syed Bazlur Rahman (supra) and pointed out that in East Pakistan Food Special Court Act X of 1956, there was no provision identical to the one enacted in section 46 of the Act which reads as under:-- "Procedure. --All proceedings relating to offences and criminal liabilities under this Act shall be governed by the Code of Criminal Procedure, 1898. "

6. Likewise in the case of Gurupadappa Appayyappa Kardesai (supra), it was submitted that section 57 of the Bombay Village Panchayats Act (VI of 1933) provided that in respect of certain matters Nyaya Panchayats were constituted into Courts exercising jurisdiction which, in their absence, would have been exercised by the ordinary Civil or Criminal Courts; that it was special jurisdiction conferred on these specially constituted tribunals in accordance with the provisions of the Act already referred to above and that, therefore, in respect of that special jurisdiction, special procedure has also been prescribed and only one appeal against the orders was allowed under the procedure. (Underlining is ours for providing emphasis).

7. The learned Advocate-General, N.-W.F.P., lastly contended that the phraseology employed in section 56 of the Act "All proceedings relating to offences and criminal liability under the Act shall be governed by the Code of Criminal Procedure, 1898", is wide enough to include the right of appeal not only against conviction of the accused but also against his acquittal. In this context, clause (e) of section 2 of the Act was also invoked and it was argued that the right of appeal against the acquittal is covered by the provisions of section 46 (ibid). In support of this proposition, the learned Advocate-General has placed reliance on a Full Bench case of Firm, Ratanchand Darbarilal, Satna and otners v. Rajendra Kumar Khoobchand and others (AIR 1970 Madhya Pradesh 1), wherein the word 'proceeding' in subsections (1) and (2) of section 13 of the Madhya Pradesh Accommodation Control Act (41 of 1961) has been construed to include an appeal. Again reference was made to Muhammad Farash Khan v. Mst. Nishadar Jan (PLD 1983 SC (AJ&K) 43) wherein the word I proceedings' in section 24 of the Civil Procedure Code was held to be comprehensive enough to include all matters coming up forjudicial adjudication and not to confine it to suits or appeals alone.

8. 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 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. N.H.Q./S-98/S Leave granted