2018 P Cr (PLP)
STATE through Additional Advocate-General, Azad Jammu and Kashmir, Muzaffarabad — Appellant Versus RUSTAM KHAN and 13 others — Respondents
| Citation | 2018 P Cr (PLP) |
| Forum / Court | Supreme Court (AJ&K) |
| Bench Members | Raja Saeed Akram Khan and Ghulam Mustafa Mughal, JJ |
| Parties | STATE through Additional Advocate-General, Azad Jammu and Kashmir, Muzaffarabad — Appellant Versus RUSTAM KHAN and 13 others — Respondents |
| Primary Law | (a) Criminal Procedure Code (V of 1898), (b) Penal Code (XLV of 1860) |
Q1: What are the key laws and sections cited in 2018 P Cr (PLP)?
This judgment primarily cites: (a) Criminal Procedure Code (V of 1898), (b) Penal Code (XLV of 1860) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2018 P Cr (PLP)?
The case was heard and decided by the Supreme Court (AJ&K) bench comprising: Raja Saeed Akram Khan and Ghulam Mustafa Mughal, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2018 P Cr (PLP) (STATE through Additional Advocate-General, Azad Jammu and Kashmir, Muzaffarabad — Appellant Versus RUSTAM KHAN and 13 others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- STATE through Additional Advocate-General, Azad Jammu and Kashmir, Muzaffarabad---Appellant
- ----S. 417---Appeal against acquittal---Appeal by Additional Advocate-General on behalf of the State---Competence---Accused were acquitted by the Trial Court under S. 265-K, Cr.P.C.---Appeal was dismissed on the ground that the same was not filed by the competent person---Validity---Section 417(1), Cr.P.C. was fully applicable to the present case, which clearly manifested that for the purpose of filing appeal against acquittal, Government could only appoint the Public Prosecutor---Additional Advocate-General did not come within the purview of the "Public Prosecutor" within the meaning of S. 417(1), Cr.P.C. to file appeal against acquittal on behalf of the State---Circumstances established that there was no illegality committed by the High Court while passing the impugned judgment---Appeal was dismissed accordingly.
- State through Advocate-General, Sindh v. Hanif Ahmed and others 1994 SCMR 749 and Mst. Aziz Fatima through Advocate-General and another v. The State 1997 PCr.LJ 618 rel.
- Mehmood Hussain Chaudhary, Advocate for the State (in Criminal Appeal No. 26 of 2016).
- Raja Inamullah, Advocate for Respondents (in Criminal Appeal No. 26 of 2016).
- Sh. Masood Iqbal, Advocate for Appellant (in Criminal Appeal No. 46 of 2016).
- Raja Inamullah, Advocate for Respondents (in Criminal Appeal No. 46 of 2016).
- 3. Mr. Mehmood Hussain Chaudhary, Additional Advocate-General, while appearing on behalf of the State, submitted that the dismissal of appeal by the High Court on the ground that same has been incompetently filed as the Additional Advocate-General does not come within the purview of the public prosecutor, is against law. He added that the learned Additional Advocate-General appointed by the State is deemed to be a Public Prosecutor to conduct and file criminal appeal on behalf of the State against the acquittal order. He further added that the learned High Court has not taken into account the argument addressed by the Law Officer who appeared on behalf of the State that the appeal was filed on the instruction of the Law Department of Azad Jammu and Kashmir who accorded approval vide notification bearing No.1644/52 dated 08.02.2013. He contended that the learned High Court wrongly preferred to decide the appeal on technical ground rather to take into consideration that the judgment under challenge before it was perverse, arbitrary and shocking in nature. He lastly argued that the trial Court failed to exercise the vested discretion in a legal manner while accepting the application under section 265-K, Cr.P.C., but this important aspect of the case escaped the notice of the High Court while dismissing the appeal on technical grounds.
- 4. Sh. Masood Iqbal, Advocate, while arguing appeal No.27 of 2016, submitted that the judgment passed by the High Court is against the relevant provision of law i.e. section 417 (2-A), Cr.P.C. which is not sustainable. He added that the learned High Court fell in error of law while dismissing the appeal on the ground of limitation as limitation against the acquittal order passed without recording evidence under section 265-K, Cr.P.C., is not 30 days.
- 5. On the other hand, Raja Inamullah, Advocate, the learned counsel for the respondents, strongly controverted the arguments advanced by the learned counsel for the appellants in both the appeals. He submitted that both the judgments of the High Court (impugned before this Court) are quite legal and passed in accordance with the statutory provisions of law, hence, not open for interference by this Court. He added that under section 417(1), Cr.P.C., only public prosecutor can file appeal on behalf of the State against the acquittal order, whereas, the Advocate-General, Additional Advocate-General or Assistant Advocate-General are excluded from the definition of the Public Prosecutor for the said purpose.
- 6. We have heard the learned counsel for the parties at some length and perused the record along with the impugned judgments. The controversy involved in appeal No.26 of 2016 is that whether the appeal filed by Additional Advocate-General on behalf of the State before the High Court against the acquittal order, was competent or not. In this regard, it may be stated here that the statutory provision of law referred to by the learned counsel for the appellant i.e. section 417(1), Cr.P.C., is fully applicable which clearly manifests that for the purpose of filing appeal against acquittal order, the Government can only appoint the Public Prosecutor and as per scheme of legislature the Additional Advocate-General or Assistant Advocate-General do not come within purview of the Public Prosecutor within the meaning of section 417(1), Cr.P.C. to file acquittal appeal, therefore, it can safely be said that the learned High Court has committed no illegality while interpreting the provisions of sections 417 and 492, Cr.P.C. in para 9 of the impugned judgment while holding that the appeal on behalf of the State against the acquittal order can only be filed by the Public Prosecutor, whereas, the Additional Advocate-General is excluded from the meaning of Public Prosecutor according to statutory provision (supra). Reliance may be placed on a case reported as State through Advocate-General, Sindh v. Hanif Ahmed and others [1994 SCMR 749], wherein, it has been observed as under:-
- "3. The above contention seems to be not tenable as the office of the Public Prosecutor is distinct and his functions and duties are different from the duties of the Assistant to the Advocate-General or of the Advocate-General under the rules."
- In another case reported as Mst. Aziz Fatima through Advocate-General and another v. The State [1997 PCr.LJ 618], the point has been dealt with in the following manner:-
- "From the body of the memo of appeal it transpires that this appeal was filed by Mr. Abdul Hakeem Bijrani, Assistant Advocate-General, Sindh, on behalf of Advocate-General. Their Lordships of the Supreme Court in the judgment reported in 1994 SCMR 749, have clearly led down that an Assistant Advocate-General is not a Public Prosecutor within the meaning of section 492, Cr.P.C. and any acquittal appeal filed by him on behalf of State is incompetent."
Headnotes / Summary
S. 417
Appeal by Additional Advocate-General on behalf of the State
Accused were acquitted by the Trial Court under S. 265-K, Cr.P.C.
Appeal was dismissed on the ground that the same was not filed by the competent person
Section 417(1), Cr.P.C. was fully applicable to the present case, which clearly manifested that for the purpose of filing appeal against acquittal, Government could only appoint the Public Prosecutor
Additional Advocate-General did not come within the purview of the "Public Prosecutor" within the meaning of S. 417(1), Cr.P.C. to file appeal against acquittal on behalf of the State
Circumstances established that there was no illegality committed by the High Court while passing the impugned judgment
Appeal was dismissed accordingly.
Ss. 221, 222, 223, 225-B & 109
Criminal Procedure Code (V of 1898), S. 417(2-A)
Intentional omission to apprehend on the part of public servant bound to apprehend; intentional omission to apprehend on the part of public servant bound to apprehend person under sentence or lawfully committed; escape from confinement or custody negligently suffered by public servant; resistance or obstruction to lawful apprehension, or escape or rescue in cases not otherwise provided for; abetment
Accused were acquitted by the Trial Court under S. 265-K, Cr.P.C.
Appeal against acquittal was filed before the High Court, which was dismissed on the ground of limitation
Prosecution had alleged that High Court fell in error of law while dismissing the appeal on the ground of limitation as limitation against the acquittal order passed without recording evidence under S. 265-K, Cr.P.C., was not thirty days
Section 417(2-A), Cr.P.C. provided limitation for filing appeal against acquittal order of any court other than High Court, which was thirty days
Said provision did not make any difference that the person was acquitted of the charge without recording evidence under S. 265-K, Cr.P.C., or after recording evidence under S. 245, Cr.P.C.; in each case, S. 417(2-A), Cr.P.C., provided limitation for filing appeal against the acquittal order which was thirty days
Record showed that appeal before the High Court was filed beyond the prescribed period of limitation, which was rightly dismissed
No illegality was committed by the High Court while passing the impugned judgment, thus appeal was dismissed in circumstances.
Judgment & Decree
RAJA SAEED AKRAM KHAN, J.
The titled Appeal No.26 of 2016 has been filed against the judgment of the High Court dated 02.02.2016, whereby, the appeal filed on behalf of the State was dismissed on the ground that of being filed by an unauthorized person, whereas, the titled Appeal No.27 of 2017 has been preferred against the judgment of the High Court dated 25.01.2016, whereby, the appeal filed by the appellant, herein, Manzoor Butt, has been dismissed on the ground of limitation. As both the appeals arise out of the same FIR, therefore, we intend to dispose of the same through this single judgment.
2. Shorn out of the facts is that on 13.08.2011, upon the complaint made by the Prosecuting Inspector (P.I.), Kotli, an FIR bearing No.279/11 in the offences under sections 221, 222, 223, 225-B, 109, A.P.C., was registered against the accused-respondents, herein. The allegation levelled against the accused was that due to their facilitation a murderer succeeded to escape the temporary judicial lockup. After investigation, a challan under section 173, Cr.P.C. was presented in the Court of competent jurisdiction on 15.12.2011. The accused pleaded themselves not guilty of the offences levelled against them. Whereupon, the prosecution was directed to lead evidence. Meanwhile, the accused filed an application for their acquittal and dismissal of case under section 265-K, Cr.P.C., in the Court of Sessions Judge Kotli, which after hearing was allowed vide order 31.08.2012. Against the aforesaid order, two separate appeals were preferred; one, by Manzoor Ahmed Butt; and the other, by the State. Both the appeals were dismissed by the High Court as indicated in para 1, hereinabove, hence, these appeals by leave of the Court.
3. Mr. Mehmood Hussain Chaudhary, Additional Advocate-General, while appearing on behalf of the State, submitted that the dismissal of appeal by the High Court on the ground that same has been incompetently filed as the Additional Advocate-General does not come within the purview of the public prosecutor, is against law. He added that the learned Additional Advocate-General appointed by the State is deemed to be a Public Prosecutor to conduct and file criminal appeal on behalf of the State against the acquittal order. He further added that the learned High Court has not taken into account the argument addressed by the Law Officer who appeared on behalf of the State that the appeal was filed on the instruction of the Law Department of Azad Jammu and Kashmir who accorded approval vide notification bearing No.1644/52 dated 08.02.2013. He contended that the learned High Court wrongly preferred to decide the appeal on technical ground rather to take into consideration that the judgment under challenge before it was perverse, arbitrary and shocking in nature. He lastly argued that the trial Court failed to exercise the vested discretion in a legal manner while accepting the application under section 265-K, Cr.P.C., but this important aspect of the case escaped the notice of the High Court while dismissing the appeal on technical grounds.
4. Sh. Masood Iqbal, Advocate, while arguing appeal No.27 of 2016, submitted that the judgment passed by the High Court is against the relevant provision of law i.e. section 417 (2-A), Cr.P.C. which is not sustainable. He added that the learned High Court fell in error of law while dismissing the appeal on the ground of limitation as limitation against the acquittal order passed without recording evidence under section 265-K, Cr.P.C., is not 30 days.
5. On the other hand, Raja Inamullah, Advocate, the learned counsel for the respondents, strongly controverted the arguments advanced by the learned counsel for the appellants in both the appeals. He submitted that both the judgments of the High Court (impugned before this Court) are quite legal and passed in accordance with the statutory provisions of law, hence, not open for interference by this Court. He added that under section 417(1), Cr.P.C., only public prosecutor can file appeal on behalf of the State against the acquittal order, whereas, the Advocate-General, Additional Advocate-General or Assistant Advocate-General are excluded from the definition of the Public Prosecutor for the said purpose.
6. We have heard the learned counsel for the parties at some length and perused the record along with the impugned judgments. The controversy involved in appeal No.26 of 2016 is that whether the appeal filed by Additional Advocate-General on behalf of the State before the High Court against the acquittal order, was competent or not. In this regard, it may be stated here that the statutory provision of law referred to by the learned counsel for the appellant i.e. section 417(1), Cr.P.C., is fully applicable which clearly manifests that for the purpose of filing appeal against acquittal order, the Government can only appoint the Public Prosecutor and as per scheme of legislature the Additional Advocate-General or Assistant Advocate-General do not come within purview of the Public Prosecutor within the meaning of section 417(1), Cr.P.C. to file acquittal appeal, therefore, it can safely be said that the learned High Court has committed no illegality while interpreting the provisions of sections 417 and 492, Cr.P.C. in para 9 of the impugned judgment while holding that the appeal on behalf of the State against the acquittal order can only be filed by the Public Prosecutor, whereas, the Additional Advocate-General is excluded from the meaning of Public Prosecutor according to statutory provision (supra). Reliance may be placed on a case reported as State through Advocate-General, Sindh v. Hanif Ahmed and others [1994 SCMR 749], wherein, it has been observed as under:- "
3. The above contention seems to be not tenable as the office of the Public Prosecutor is distinct and his functions and duties are different from the duties of the Assistant to the Advocate-General or of the Advocate-General under the rules." In another case reported as Mst. Aziz Fatima through Advocate-General and another v. The State [1997 PCr.LJ 618], the point has been dealt with in the following manner:- "From the body of the memo of appeal it transpires that this appeal was filed by Mr. Abdul Hakeem Bijrani, Assistant Advocate-General, Sindh, on behalf of Advocate-General. Their Lordships of the Supreme Court in the judgment reported in 1994 SCMR 749, have clearly led down that an Assistant Advocate-General is not a Public Prosecutor within the meaning of section 492, Cr.P.C. and any acquittal appeal filed by him on behalf of State is incompetent." While meeting the argument of the learned counsel for the appellant in appeal No.27 of 2016 that limitation provided under section 417(2-A), Cr.P.C., is not applicable in the appeal against the acquittal order passed under section 265-K, Cr.P.C., it may be observed here that only section 417(2-A), Cr.P.C., provides limitation for filing appeal against acquittal order of any Court other than High Court, which is 30 days. It does not make any difference that the person is acquitted of the charge without recording evidence under section 265-K, Cr.P.C., or after recording evidence under section 245, Cr.P.C. In each case, section 417(2-A), Cr.P.C., provides limitation for filing appeal against the acquittal order which is 30 days. In this regard reference may be made to a case reported as Ahmed Din v. Haseeb Ullah and 3 others [2008 PCr.LJ 1067], wherein it has been observed as under:- "6. .....it is crystal clear from the language of section 417(2-A), Cr.P.C. that a person aggrieved by the order of acquittal passed by any Court other than a High Court, may, within thirty days, file an appeal against such order and there is no distinction between acquittal under section 249-A, Cr.P.C. or acquittal after recording of the evidence under section 245, Cr.P.C......" Thus, the argument of the learned counsel for the appellant that the appeal was not hit by the limitation provided in section 417(2-A), Cr.P.C., is ill-founded and not recognised by law, hence, replied. Admittedly, the appeal before the High Court was filed beyond the prescribed period of limitation; therefore, the same was rightly dismissed on the ground of limitation. There is no illegality, infirmity or technical miscarriage of justice in the impugned judgments passed by the High Court which have been passed after due appreciation of relevant statutory provisions of law. On the basis of above discussion of facts and law, these appeals having no force, are hereby dismissed. JK/54/SC(AJ&K) Appeals dismissed.