1999 P Cr (PLP)

(4) ...

2. Office of this Court raised a preliminary objection to the maintainability of this criminal acquittal appeal on the ground of delay. Admittedly order of acquittal was passed by the Special Judge (Central), Hyderabad on 20-12-1994 and the instant appeal was filed on 28-11-1995 after lapse of more than eleven months. Appellant had applied for certified copy of judgment on 20-12-1994; cost was paid on the same day, copy was made ready on 23-1-1995 and was delivered on the same day. Therefore, the appellant is entitled for exclusion of this period which comes to about one month and three days. Instant appeal was filed after a delay of eleven months eight days and if the period of one month and three days are excluded, the appellant is still required to explain the delay caused in filing this criminal acquittal appeal after a lapse of nearly ten months and five days. It is regretted to note that this appeal is pending at the stage of Katcha Peshi for nearly three years but the appellant is not in position either to argue this appeal or to engage a lawyer. He was asked to explain his status and authority to file this appeal, to which he replied that he was instructed by the Director (F.I.A.), Karachi to file appeal against the order of acquittal. On 15-7-1998 following order was passed by this Court:-- "... Inspector F.I.A. named above has moved an application for adjournment on the ground that appointment of an Advocate has been requested but so far the Federal Government has not appointed any law officer to conduct this matter as such adjournment is sought. This criminal acquittal appeal was filed on 28-11-1995 and still it is pending for Katcha Peshi hearing as time and again adjournments have been sought by the appellant. Let the copy of this order be forwarded to the Director-General, F.I.A., Islamabad as well as to Secretary, Ministry of Law, Justice and Human Rights at Islamabad. Notice of this appeal may also be sent to Deputy Attorney-General-I, Government of Pakistan at Karachi. In view of the adjournment application, this case is adjourned to a date in office.

3. On the last date of hearing, notice was directly issued to the Director F.I.A., Crime Circle, Karachi, under whose instructions this criminal acquittal appeal was filed, to come and argue this acquittal appeal, but nobody has come forward either from the office of F.I.A. nor the Federal Government has engaged any law officer to look after their cases at Hyderabad Circuit Bench of the Sindh High Court. In such circumstances, I have proceeded to examine the case. The point which I intend to deal first is about the authority of the appellant This question was recently considered by a Division Bench of this Court in The State v. Shoukat Ah 1998 PCr.LJ 1503 where, after reference to section 4-A of the Central Law Officers Ordinance (VII of 1197(;), it was held inter alia, as follows:-- "By virtue of insertion of new section 4-A in the Central Law Officers Ordinance, 1970, Additional Attorneys-General, Deputy Attorneys-General and Standing Counsel have been notified to be Public Prosecutors who have been authorised to institute, file and conduct any proceedings including appeal, revision for and on behalf of Federal Government before any Court or Tribunal including a Special Court constituted under any law. In the instant case, Syed Tariq Ali has rightly conceded that memo of this appeal has not been filed by any of the Law Officers notified in the abovesaid Act No.XVII of 1985. On " perusal of the memo, of this appeal, it would appear that same is not signed by any one of mentioned Law Officers for or on behalf of appellant/Federal Government but has been signed by some one as `State' through Public Prosecutor F.I.A. Karachi Zone. Karachi, but no notification has been filed that the person who has filed and signed appeal was Law Officer within the meaning of newly-inserted section 4-A of Central Law Officers, Ordinance VII of 1970. As this appeal has not been filed and signed by any of the Law Officers authorised under the law, therefore, the appeal cannot be said to have been legally filed hence the appeal is held to be not maintainable in law The plea raised is answered in the affirmative holding that the appeal is not maintainable in law . .... "

4. I am also conscious of the rule -laid down by a Division Bench of Earstwhile High Court of West Pakistan in the case of The State v. Raja Khan PLD 1964 (W.P.) Lah. 253, where it was held, inter alia, while following the rule laid down in the case Des Raj v. The Emperor AIR 1934 Lah. 264 that there is no period fixed for filing a revision against an order of acquittal. It was further held that the interests of justice demand that it should be filed within a reasonable time which will of course depend on the circumstances of each case. In another case The State v. Dr. Abdul Fateh 1968 PCr.LJ 874, it was held by a learned Single Judge of this Court that under section 10 of the Pakistan Criminal Law (Amendment) Act, 1958 no period has been fixed, for an appeal or a revision. This leads me to examine Article 157 to the first schedule of the Limitation Act, 1908 which reads as follows:-- "157.-- Under the Code of Criminal Procedure, 1898 (V of 1898) from an order of acquittal. six months. The date of the order appealed from. " Indeed there is no period prescribed for filing a criminal acquittal appeal against the order of acquittal passed by a Special Judge constituted under the Criminal Law (Amendment) Act, 1958. Under Article 157, of the Limitation Act the State is permitted to file appeal within six months. In the case of Shoukat Ali (supra) the period of limitation for filing appeal against the order of acquittal was taken to be six months as provided in Article

157. In the case State v. Zahid Hussain 1990 SCMR 164 the question before the Shariat Appellate Bench of the Supreme Court of Pakistan was whether in an appeal against. acquittal filed against the order of Federal Shariat Court it is Rule 18 of the Federal Shariat Court (Procedure) Rules, 1981 which is attracted or whether it will be controlled by section 417 of the Code of Criminal Procedure read with Article 157 of the Limitation Act. Reference was made to the case State v. Muhammad Akram PLD 1985 FSC 416 whereafter it was held, inter alia, as follows:-- "

9. These provisions of the Limitation Act make it clear that where a Special Law or a local law provides a period of limitation different from that of the-Limitation Act then the period so prescribed prevails over that of the Limitation Act. In case of conflict on the express words, the Limitation Act yields. If there is any inconsistency, as there appears to be, then the Rules framed by the Federal Shariat Court will prevail provided they are found to be intra vires."

5. Article 157 of the Limitation Act provides period of six months for filing an appeal under the Code of Criminal Procedure, 1898 from an order of acquittal within six months. In the instant case, the Trial Court was established by the Criminal Law (Amendment) Act, 1958 and, therefore, for all legal intent and purposes this appeal against acquittal is to be treated an appeal filed under section 10(2) of the Act, 1958. No period has been specified for filing an appeal against order of acquittal. Therefore, in my considered view the reasonable time within which such appeal against an order of acquittal is to be filed must be within six months as provided under Article 157 of the Limitation Act. In delay, as of the instant case which is spread over a period of ten months and five days, the appellant is required to make some plausible and convincing explanation for not filing of this appeal within a reasonable time. Even after filing of this appeal, the conduct of the appellant is very much deplorable in that they have taken more than three years to argue this appeal at the stage of Katcha Peshi.

6. Before parting with this order, I would like to observe that in the entire scheme of the Federal Investigation Agency Act, 1974, nowhere it is provided that the officers of the Agency are competent and authorised to file any appeal. Instant appeal has been filed by an Assistant Director, Legal, F.I.A. and as reported, under the instructions of a Director, F.I.A. This Act was promulgated to constitute F.I.A. for the purpose of investigation of certain offences as mentioned in the Schedule of the Act, 1974 and committed in connection with matters concerning the Federal Government. The powers of the members of F.I.A. have been defined in section 5 of the F.I.A. Act, 1974, which mainly deals with the arrest, seizure, inquiry, investigation and temporary attachment of properties, etc. etc. No role is assigned to the F.I.A. in so far as conducting a trial or filing of an appeal is concerned. This appeal is liable to be dismissed in limine on this ground as well.

7. As a result of above discussion, I am of the view that since this appeal has been filed after substantial delay and in view of the conduct of the appellants that they are not serious in prosecuting the same, I uphold the office objection) and dismiss this appeal on the grounds discussed hereinabove. N.H.Q./S-183/K Appeal dismissed.