1997 P Cr (PLP)

Laws Cited

Representation

• ----Ss. 417 & 492---Appeal against acquittal ---Assistant Advocate-General not being covered by S.492, Cr.P.C. is not competent to file an appeal against acquittal of accused by Trial Court---Office of Public Prosecutor is distinct and its functions and duties are different from the duties of the Assistant Advocate -General or of the Advocate-General.
• ----S. 417---Penal Code (XLV of 1860), S.302/34---West Pakistan Arms Ordinance (XX of 1965), S.13-D---Appeals against acquittal---Appeals against acquittal of accused by Trial Court had been filed by the Assistant Advocate- General who was not competent to file the same---Appeals having been incompetently filed were dismissed accordingly.
• State through Advocate-General Sindh v. Hanif Ahmad and others 1994 SCMR 749 rel.
• A.Q. Halepota for Respondent.
• MUHAMMAD ASLAM ARAIN; J.--- In Criminal Acquittal Appeal No.219 of 1991 the respondent Javed Iqbal was tried for an offence under section 13-D of Arms Ordinance and by judgment, dated 18-2-1991 he was acquitted. In Criminal Acquittal Appeal No.220 of 1991 the respondent Salim and two others were tried for offence under sections 302, 34, P.P.C. and section 13-D of Arms Ordinance. By judgment, dated 18-2-1991 the said respondents were acquitted. In Criminal Acquittal Appeal No. 221 of 1991 the respondent Salim was tried for an offence under section 13-D of Arms Ordinance and by judgment, dated 18-2-1991 he was acquitted. In Criminal Acquittal Appeal No.222 of 1991 the respondent Manzoor alias Manzoor Ali was tried for an offence under section 13-D of Arms Ordinance and by judgment, dated 18-2-1991 he was acquitted. All the four judgments of acquittal have been challenged through these Criminal Acquittal Appeals. Since a common question of law is involved, whether an Assistant Advocate-General can file an acquittal appeal, in all these matters, we propose to dispose of these appeals by a single judgment.
• We have heard the learned Assistant Advocate-General, for the State, and Mr. A.Q. Halepota, for the respondents. It has been contended by the learned A.A.-G. that the practice in the office of the Advocate-General, Sindh has throughout been that appeal was signed by Advocate-General himself and no Public Prosecutor in terms of section 492 of Cr.P.C. was appointed for that purpose and, therefore, the Advocate-General as also the Additional Advocate -General and Assistant Advocate-General filed the appeals on behalf of the State. He referred to the definition of word "Public Prosecutor" as appearing in section 4(1)(a) of Cr.P.C. which reads as under:--
• " '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. "
• He then referred to section 265-L of Cr.P.C., which defines powers of Advocate -General to stay prosecution. Learned A.A.-G. also referred to Article 140(2) of the Constitution of Islamic Republic of Pakistan, which provides that -it shall be the duty of the Advocate-General to give advice to the Provincial Government upon such legal matter and to perform such other duties of a legal character, as may be referred or assigned to him by the Provincial Government.
• By referring to all these provisions, the learned A.A.-G. argued that the word "Public Prosecutor" used in section 417 of Cr.P.C. may not be restricted to a person appointed as "Public Prosecutor" to present an appeal against acquittal from an original or appellate order of acquittal passed by any Court, but a wider interpretation of the word "Public Prosecutor" be given so as to include Advocate-General, Additional Advocate-General and Assistant Advocate-General.
• It is next argued that under a Notification, dated 4-11-1960 the Governor of the then West Pakistan appointed Advocate-General to be the Public Prosecutor generally for each Province and that such Notification holds field even after the dissolution of West Pakistan and the restoration of the four provinces. He also referred to another Notification, dated 29-7-1993 issued by the Government of Sindh, Law Department, whereby in modification of the defunct West Pakistan, Law Department Notification No. Genl:l-9/60, dated 5th October, 1960 the Government of Sindh was pleased to appoint the Advocate- General, Sindh, Karachi, to be the Public Prosecutor generally for Sindh. Learned A.A.-G. referred the case of Government of Mysore v. Ghulam Muhammad and others AIR 1953 Mysore 42 where it was observed that the Advocate-General is entitled to file an appeal in the High Court against an acquittal by virtue of Article 165 of the Constitution of India read with Mysore Government's Notification, dated 13-4-1950, which authorises him to perform all acts necessary in or for a case without restriction. It was also observed that non-mention of Advocate-General in section 417 of Cr.P.C. is of no effect. The sum total of the contentions of learned A.A.-G. is that the appeals against the acquittal of the respondents, filed by the State under the signatures of the Assistant Advocate-General, Sindh, were competently filed and could not be disposed of on the technical ground that the same were not filed by Public Prosecutor.
• Mr. A.Q. Halepota, learned counsel for the respondents in all the appeals, has referred us to recent judgment of the Supreme Court, reported in State through Advocate-General, Sindh v. Hanif Ahmad and-others 1994 SCMR 749 arising out of the judgments of the High Court of Sindh, Circuit Bench, Hyderabad, in a number of criminal acquittal appeals. In the reported judgment, leave to appeal was granted to consider whether Assistant Advocate-General was covered by section 492, Cr.P.C. and who could competently file an appeal against acquittal. It may be observed that all the acquittal appeals, filed by the Assistant Advocate-General, were dismissed by a Bench of this Court and the State filed appeals before the Supreme Court. In the reported judgment of the Supreme Court, it is observed that the office of Public Prosecutor is distinct and its functions and duties are different from the duties of the Assistant Advocate-General or of the Advocate-General. Even the Notification dated 25-10-1960, issued by the Governor of West Pakistan appointing Additional Advocate- General, West Pakistan as the Public Prosecutor generally for West Pakistan, to which a reference was made by the A.A. -G., was taken into consideration by the Honourable Supreme Court. All appeals filed by the State were dismissed -by the Supreme Court:
• We, therefore, follow the rule laid down in the referred judgment of the Supreme Court of Pakistan and hold that the criminal acquittal appeals against the respondents were incompetently filed by the Assistant Advocate-General, Sindh. In the result all appeals are dismissed. These are the reasons for our short order, dated 18-1-1995. ,

Headnotes / Summary

Judgment & Decree