TALUKA MUNICIPAL OFFICER vs Dr. HADI BUX JATOI and another
This matter arises from a criminal appeal filed by the Taluka Municipal Officer against the acquittal of the respondents by the Judicial Magistrate-II, Hyderabad, under section 200 of the Code of Criminal Procedure 1898 read with section 7 of the Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Ordinance, 2000. The core legal question was whether the Taluka Municipal Officer, having been authorized by the Provincial Government to file a complaint, is competent to maintain an appeal against an acquittal under section 417(2) of the Code of Criminal Procedure 1898. The court held that since the Taluka Municipal Officer filed the complaint pursuant to delegated authority under the Ordinance, they qualify as the complainant and are competent to file an appeal against acquittal under subsection (2) of section 417 of the Code of Criminal Procedure 1898, and a wrong mention of a legal provision does not render the appeal incompetent. The court laid down that designated state functionaries empowered to file complaints under special legislation possess the standing of a complainant to challenge an adverse acquittal order under section 417(2) of the Code of Criminal Procedure 1898.
- Is a Taluka Municipal Officer authorized to file an appeal against an acquittal under section 417(2) of the Code of Criminal Procedure 1898 when acting as a complainant under the Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Ordinance, 2000?
- Does the wrong mention of a legal section in an appeal memorandum render the appeal incompetent?
- Whether an appeal against an acquittal in a complaint case can be maintained by a designated state functionary who filed the original complaint.
- Section 200, Code of Criminal Procedure 1898
- Section 7, Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Ordinance 2000
- Section 417, Code of Criminal Procedure 1898
- Section 417(1), Code of Criminal Procedure 1898
- Section 417(2), Code of Criminal Procedure 1898
- Section 417(2-A), Code of Criminal Procedure 1898
ORDER
1. ' MUSHIR ALAM, J.--- Preliminary objection as to the competence against the impugned judgment, dated 24-5-2006, passed by the Judicial Magistrate-II, Hyderabad, on complaint under section 200, Cr.P.C. Read with section 7 of the Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Ordinance, 2000, was dismissed extending benefit of doubt to the accused persons.
2. ' It was contended by the learned counsel for the respondent that the appeal could only be filed by the aggrieved person and not by the T.M.O. Concerned who is neither aggrieved nor a witness to the alleged crime. It was stated that it is only the Public Prosecutor who is competent to file an appeal against the acquittal in terms of subsection (1) to section 417, Cr.P.C.
3. ' As against this learned counsel for the appellant Mr. Unar contends that by virtue of notification issued by the Home Department Government of Sindh, T.M.O. Have been authorized to file complaint in the Court of competent jurisdiction under the Ordinance, 2000.
4. Copy of such Notification dated 19-4-2006 has been placed on record by the Additional Advocate- General Sindh, pursuant to directions of this Court.
5. ' Learned Assistant Advocate-General Sindh appearing for the State is also of the view that the complaint has been competently filed.
6. I have tentatively examined the contention of the learned counsel. It may be observed that an appeal by the State could be filed in terms of subsection (1) of section 417, Cr.P.C. In a. Challan case.
7. It appears that the Legislature has provided a specific provision for filing appeal in a complaint case. Such right is conferred on the complainant in terms of subsection (2) of section 417, Cr.P.C. It may be observed that observance and enforcement of the law is the responsibility of the State functionaries and in terms of section 7 of Ordinance, 2000, the Provincial Government could delegate such authority to any designated officer. In the instant case such delegation has been conferred on the T.M.O. And in case an adverse order is passed T.M.O. In my opinion is being complainant is competent to file appeal against any acquittal in terms of subsection (2) to section 417, Cr.P.C. Contention of the learned counsel for the respondent that appeal has been preferred under subsection (2-A) of section 417, Cr.P.C. Which need to be filed by an aggrieved person. It may be observed that merely wrong mention of section will not make the appeal incompetent. The correct provision of law could always be applied by the Courts. In my humbly opinion the appeal against the impugned judgment has been competently filed by the T.M.O.
8. ' It was contended by the learned counsel that the learned trial Court observed that the accused is visible in the cassette but it does not show that he was not present in the marriage ceremony of his daughter. According to learned counsel it is unbelievable that accused could not attend the marriage of his daughter and in which feast was served against the law. It was further stated that newspaper cutting which reported the event has not been disputed.
9. ' Mr. Hidayatullah Abbassi urged that since newspaper reports were not examined, such evidence could not be relied upon.
10. ' Contention whether such reports when not disputed or challenged in cross-examined could furnish a substantial piece of evidence or otherwise presence of the respondent in the marriage ceremony as visible in the video/C.D. Recording could establish the commission of crime or otherwise its admissibility in evidence requires to be examined. Accordingly the appeal is admitted, however, it may be fixed for regular hearing within six months.
11. ' The respondent is directed to furnish P.R. Bond in the sum of Rs,10,000 to appear in this Court as and when required.