Mohammad Karim Versus State
Order
Johar Ali, J .--- The petitioner/convict has filed the instant petition under Section 439-A read with Section 561-A Cr.P.C. against the impugned order dated 10-10-2024 passed by the respondent No.2/Secretary Forest G.B, whereby, the Secretary Forest G.B/appellate authority by modifying the order. dated 30-09-2024, passed by the Forest Magistrate First Class Gilgit, imposed fine of Rs.40,000/- and treated his remaining conviction period as undergone period while declined the appeal of the petitioner/convict to the extent of release of the vehicle.
2. Brief facts of the case in hand are that on 30-09-2024, at about 02:00 am, the petitioner was caught red-handed by the Naltar Range staff of Forest Department G.B. while transportation of timber wood from Naltar to Sultan Abad in Toyota vehicle bearing No. BLN-1101. Resultantly, case No.558/2024 was registered under Sections 121, 120, 211, 261 of the G.B. Forest Act, 2019 against the petitioner/convict and one other co-accused namely Zeeshan Abdullah before the Forest Magistrate First Class Gilgit. The Forest Magistrate started trial of the case and recorded statements/affidavits of both the petitioner/convict and co-accused on oath. After completion of trial, the Forest Magistrate First Class Gilgit, vide order dated 30-09-2024, sentenced petitioner/convict for one month's imprisonment with fine of Rs.50,000/- and confiscated the vehicle in question along with the illegal timber in favour of the State. The petitioner/convict was further sentenced to fifteen days' imprisonment in case of default of payment of the fine amount. Being aggrieved, the petitioner/convict challenged the same before the Secretary Forest through Forest Appeal No.324/2024. The Secretary Forest vide order dated 10-10-2024 modified the order of the Forest Magistrate First Class Gilgit and imposed fine of Rs. 40,000/-and the remaining conviction period shall be treated as undergone period. However, the Secretary Forest declined the appeal of the petitioner/convict to the extent of release of vehicle in question. Being aggrieved, the petitioner/convict has filed the instant Criminal Revision Petition.
3. The learned counsel for the petitioner/convict contended that the impugned order dated 10.10.2024 passed by Secretary Forest/Appellate Forum is result of misconception, misinterpretation and misapplication of provisions of law as there is gross violation of mandatory provisions of Forest Act committed by the Forest Department in preparing and prosecuting the case and passed the impugned order arbitrarily in a hasty manner. He further argued that the Secretary Forest/Appellate Forum passed the impugned order dated 10.10.2024 in slip shot manner without touching the law and procedure, hence, the impugned order dated 10.10.2024 passed by the Secretary Forest/Appellate Forum is not maintainable in the eyes of law and liable to be set aside. The learned counsel lastly prayed as under:-
"In the light of above submissions, it is therefore humbly prayed that the impugned order dated 10.10.2024 passed by the Secretary Forest/Appellate Forum may kindly be set aside and petitioner may kindly be acquitted from the above charges and vehicle No.BLN-1101, Engine No. 11411-56030, Chassis No. FJ-43-52069, Model-1978 may kindly be handed over to the petitioner, to meet the ends of justice."
4. Conversely, the learned Legal Advisor for the respondents have vehemently opposed the arguments advanced by the learned counsel for the petitioner/convict and contended that the petitioner/convict was caught red-handed on the spot by the Naltar Range staff of Forest Department G.B. while transportation of timber wood from Naltar to Sultan Abad in Toyota vehicle bearing No.BLN-1101, hence, the learned Forest Magistrate First Class Gilgit has rightly sentenced the petitioner/convict for one month's imprisonment with fine of Rs.50,000/- and confiscated the vehicle in question along with the illegal timber in favour of the State. The learned Legal Advisor has further argued that the Secretary Forest vide order dated 10-10-2024 has modified the order of the Forest Magistrate First Class Gilgit on pity basis and imposed fine of Rs.40,000/- and treated his remaining conviction period as undergone period, whereas, the Secretary Forest declined the appeal of the petitioner/convict to the extent of release of vehicle in question. He lastly prayed for dismissal of the instant petition.
5. I have heard the arguments advanced by the learned counsel for the parties and gone through the available record of the case with their able assistance.
6. From perusal of record it reveals that the petitioner/accused/convict as well as co-accused/convict was apprehended by the staff of Forest Department G.B. on 30.09.2024 while transporting illegal timber from Naltar to Sultanabad in vehicle No.BLN-1101. The case against the petitioner/accused/convict as well as co-accused/convict was registered under Sections 261, 211, 120 and 121 of the Forest Act, 2019, and both the accused/convicts were brought before the Forest Magistrate Gilgit on 30-09-2024. On the same day, the Forest Magistrate has framed the charge and also recorded the statements/affidavits of both the accused, and sentenced/convicted them. The Forest Magistrate convicted the petitioner/convict and passed sentence of imprisonment for a period of one month, fine of Rs.50,000/-and confiscation of the vehicle bearing registration No.BLN-1101, whereas, the principal accused namely Zeeshan Abdullah son of Abdul Baqi is acquitted from the charges (being juvenile), allegedly illegal transportation of timber, and imposed Rs.25,000/- as penalty. Being aggrieved, the petitioner/convict filed an appeal before the Secretary Forest/Appellate Authority; who, vide the impugned judgment/order dated 10-10-2024, modified the sentence and reduced the fine from Rs.50,000/- to Rs.40,000/-, treating the remaining conviction period as undergone period, while, the confiscation of vehicle was maintained, hence, the instant petition.
7. It is on the record that the petitioner/convict being driver and owner of the Toyota vehicle No.BLN-1101 assisted the principal accused/convict for transportation of the alleged illegal timber from Naltar to Sultanabad just for booking purpose and the Forest Magistrate convicted the petitioner/convict and sentenced him for imprisonment of one month, confiscation of his vehicle and fine of Rs.50,000/-. From perusal of statements of the petitioner/convict as well the principal accused/convict recorded before the Forest Magistrate First Class Gilgit, it reveals that the principal accused/convict namely Zeeshan Abdullah son of Abdul Baqi is real owner of the alleged illegal transportation timber while the petitioner/convict is driver and owner of the Toyota vehicle. The principal accused/convict has already been acquitted from the charges being juvenile while the petitioner/convict has been convicted in the instant case. The contention of the learned counsel for the petitioner/convict is that the impugned order is result of misconception, misinterpretation and misapplication of provisions of law and procedure. However, on careful scrutiny of the record, it reveals that the mandatory provisions of the Gilgit-Baltistan Forest Act, 2019 were not properly complied with during investigation and trial. The seizure proceedings, preparation of recovery memos, and production of independent witnesses have not been proved in accordance with law.
8. It is further evident from the record that the entire proceedings culminating in the conviction of the petitioner/convict and his co-accused were carried out in undue hasty manner by violation of the mandatory provision of Forest Act. The Report of Incharge Forest Raid Squad Gilgit was submitted on 30-09-2024 along with the statements of the petitioner/accused, his co-accused and the Incharge of the Forest Squad Naltar Beat, which were recorded on the same date, i.e., 30-09-2024, and the conviction order was also passed on the same date, ie., 30-09-2024. Such hurried proceedings clearly reflect that the mandatory requirements of fair trial and due process of law were not adhered to in their true letter and spirit.
9. It is a settled principle that justice must not only be done but must also manifestly be seen to have been done. The Forest Magistrate was required to afford adequate opportunity of defence to the petitioner/convict before recording conviction. However, the record shows that the petitioner/convict was deprived of reasonable time to contest the charge, engage proper defence, and cross-examine the witnesses. Such omission has caused serious prejudice to the petitioner's fundamental right of fair trial guaranteed under Article 10-A of the Constitution.
10. Moreover, the vehicle in question has already been released by the Divisional Forest Officer (DFO)/Forest Magistrate First Class Gilgit in pursuance of direction passed by the brother Judge on Vacations Duty in Cr. Misc. No.308/2024 and the sentence has already been completed.
11. In view of the above discussion, I am of the considered view that the conviction and sentence awarded to the petitioner/convict are the result of misapplication of law, violation of due process, and non-observance of fair trial principles. Consequently, the impugned order dated 10-10-2024 passed by the Secretary Forest/Appellant Forum as well as the order dated 30-09-2024 passed by the Forest Magistrate First Class Gilgit are not tenable in the eyes of law and are hereby set aside to the extent of the petitioner/convict. Resultantly, the petitioner/convict is acquitted from the charges levelled against him under Sections 121, 120, 211, 261 and 262 of the G.B Forest Act, 2019. File.
JK/38/GB Order accordingly.