1998 P Cr (PLP)

ABDUL HAMEED DOGAR, J.‑

Four respondents Nooro alias Noor Muhammad, Shah Noor, Islam and Imam Bux stand acquitted by learned Second Additional Sessions Judge, Shikarpur vide judgment, dated 29‑11‑1984. The appeal against acquittal was presented before this Court by Assistant Advocate General, Sindh and purported to be filed under the instructions from Advocate General, Sindh who according to Notification NO. U. O. OP:(7)(14)/85/320, dated 26th May, 1985 of Secretary to Government of Sindh Law Department was accorded sanction to prefer an appeal against acquittal whereas by the orders of Governor, dated 26th May, 1985 the Advocate‑General, Sindh was' directed to file an appeal against acquittal in this Court. Mr. Akhtar Ali G. Kazi, the learned counsel for the respondents at the very outset raised a legal question about the competency of filing this appeal by the Assistant Advocate‑General. It was stated that admittedly the present appeal under section 417(1), Cr.P.C. was presented before this Court by Mr. Zawar Hussain Jaferi, Assistant Advocate‑General, Sindh and as such objection was taken to the effect that Assistant Advocate‑General was not competent to file the appeal on the ground that he was not a "Public Prosecutor" within the meaning of Criminal Procedure Code. A reference in this connection was made to sections 417 and 492, Cr.P.C. It was submitted that in the absence of any order appointing the Advocate‑General, Sindh as a Public Prosecutor, appeal filed by the Advocate‑General under section 417, Cr.P.C. was not maintainable and appeal filed by an Assistant Advocate‑General was in any case not at all competent. In support of his submission reliance was placed on the case of State through Advocate‑General, Sindh v. Hanif Ahmed and others 1994 SCMR

749. The reported case fully supports the contention raised by the respondents counsel that the appeal against acquittal of accused filed by Assistant Advocate‑General on behalf of State was not competent. As regards appointment of Public Prosecutor, subsection (1) of section 492, Cr.P.C. empowers the Provincial Government to appoint generally or in any case or for any specified class of cases, in any local area, one or more officers to be called Public Prosecutors. By subsection (2) of the same section powers to appoint a Public Prosecutor for the purpose of any case, where the Public Prosecutor is absent or where no Public Prosecutor has been appointed is conferred on a. District Magistrate or subject to the control of the District Magistrate, Sub‑Divisional Magistrate: The term "Public Prosecutor" is defined in clause (T) of subsection (1) of section 4 of Cr.P.C. as under:‑‑ "(T) 'Public Prosecutor' means any person appointed under section 492, and includes any person acting under the directions of a Public Prosecutor and any person conducting a prosecution on behalf of the State in any High Court in the exercise of its original criminal jurisdiction." It will be appropriate to refer to the definition of the term Advocate‑General to highlight the distinction in the two terms. Advocate‑General is defined the clause (a) of subsection (1) of section 4 as under:‑‑ "(a) Advocate‑General:‑‑ 'Advocate‑General' includes also a Government Advocate or where there is no Advocate‑General or Government Advocate such Officer as the Provincial Government may from time to time appoint in this behalf. " A perusal of both the definitions makes it clear that the purpose and intent of the two is quite distinct from one another. It is nowhere provided in Criminal Procedure Code that an "Advocate‑General" will also be "Public Prosecutor". Had the intention of law‑makers been such there was absolutely no necessity of defining the two terms separately in Criminal Procedure Code. This clearly indicates that one does not include the other. Here a reference may also be made to section 417, Cr.P.C. which reads as follows:‑‑ "

417. Appeal in case of acquittal.‑‑‑ (1) Subject to the provisions of subsection (4), the Provincial Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than High Court." Reading this provision with the first subsection of section 492, Cr.P.C. it is abundantly clear that the legal requirement is that the appeal should be presented to the High Court by a "Public Prosecutor", namely, a person appointed by the Provincial Government to be called a "Public Prosecutor" and that for the purpose of presenting appeal the "Public Prosecutor" should alone be directed to present an appeal in a particular cast. " Mr. A.G. Shaikh, Additional Advocate‑General was unable to satisfy us that the Advocate‑General, Sindh who was accorded sanction to file this appeal was ever appointed a "Public Prosecutor" either by name or by‑office as required under section 492, Cr.P.C. He also could not point out to any document on record to show that Mr. Zawar Hussian Jafri, Assistant Advocate General, Sindh who presented this appeal 'in Court was authorised to do so or was acting as a "Public Prosecutor". Even otherwise merely on the ground that the Advocate‑General had been directed by the Government to present the appeal from the order of acquittal, it cannot be assumed that he had ex officio been appointed as "Public Prosecutor". In fact such direction ought to have been issued to the "Public Prosecutor" as required under section 417, Cr.P.C. rather than to the Advocate‑General. The contention of the Additional Advocate‑General that by virtue of appointment as Advocate‑General he also becomes ex officio "Public Prosecutor" does not find support from any provisions of the Criminal Procedure Code and cannot be accepted. It was lastly argued by the Additional Advocate‑General that under the rules of conduct of legal affairs of the Government the Provincial Government has authorised the Assistant Advocate General to file appeals against acquittal. Firstly, no such rule was produced for our perusal and secondly even it exists rules cannot override stautory provisions. For the reasons aforesaid we are inclined to uphold the objection of the respondents' counsel and accordingly we hold that the present appeal was not presented in Court by a proper and competent person in accordance with the provisions of section 417, Cr.P.C. We, therefore, dismiss this appeal. These are the reasons for our short order dated 21‑5‑1996 whereby we had dismissed the appeal. N.H.Q./S‑92/K Appeal dismissed.