2000 P Cr (PLP)

Laws Cited

Representation

• THE STATE through Additional Advocate-General, Sindh/Public Prosecutor---Appellant
• ----Ss. 25, 7 & 32---Criminal Procedure Code (V of 1898), S.417 --- Penat Code (XLV of 1860), S.302/353/427/435/34/109---Appeal against acquittal---Maintainability---Appeal, against acquittal by Special Court of Anti-Terrorism was filed by counsel in his capacity as Additional Advocate General---Maintainability---Only "Attorney-General" or "Advocate-General" were competent to file appeal against acquittal on directives of Government under S.25 of Anti-Terrorism Act, 1997 and no third category by way of "Additional Advocate=General" or "Public Prosecutor" had been empowered to file appeal against acquittal under S.25 of the said Act---Contention of Additional Advocate-General - that he being a Public Prosecutor was competent to file the appeal was misconceived---Anti-Terrorism Act, 1997 being a special statute would override general law as provided under S.32 of said Act=--Code of. Criminal Procedure; 1898 was applicable to Special Court only to the extent that its provisions were not inconsistent with provisions of Anti-Terrorism Act, 1997 and in case of inconsistency, provisions of Code of Criminal Procedure, 1898, would be struck down-- Appeal against acquittal incompetently filed otherwise also being time barred, was not maintainable and was liable to be dismissed on that ground.
• Mian Khan Malik, Addl. A.-G. for the State. Allah Bachayo Soomro for Respondents Nos.2 and 3.
• The State being aggrieved by the judgment of the acquittal passed by the trial Court preferred the present appeal under section 25(4) of Anti Terrorism Act, 1997 read with section 417, P.P.C. The present appeal was filed and signed by Mr. Mian Khan Malik in capacity as Additional Advocate-General, Sindh at Hyderabad as well as Public Prosecutor.
• We have heard Mr. Mian Khan Malik learned Additional Advocate/ General/Public Prosecutor on behalf of the State and Mr. Allah Bachayo Soomro, learned counsel for the respondents.
• (4) The Attorney-General of an Advocate-General may, on being directed by the Federal or a Provincial Government, file an appeal against an order of acquittal or a sentence passed by a Special Court within fifteen days of such order.
• The bare reading of the above provisions of section 25 of the Anti -Terrorism Act, 1997, shows that only Attorney-General or Advocate-General was, on being directed as such by the Federal Government or Provincial Government, was competent to file an appeal against the order of acquittal or sentence passed by the Special Court within 15' days of such order. .
• Mr. Mian Khan Malik learned Additional Advocate-General invited the attention of the Court to the Notification No.SLR/14-25-1995(V)-II-1016 Karachi, dated 8-11-1999, issued and signed by the learned Deputy Solicitor whereby the Advocate-General, Sindh at Karachi was directed by the Home Department to present appeal against the acquittal. He also relied on section 417-2(a), Cr.P.C. and urged that the appeal is maintainable under law.
• The section 417, Cr.P.C. lays down that only "Public Prosecutor" is competent to file the appeal, whereas under the Anti-Terrorism Act only "Attorney-General" or "Advocate-General" are competent to file the appeal on the directives of respective Governments. No, third category by way of "Additional Advocate-General" or "Public Prosecutor" has been empowered to file such appeal under section 25 of the. Anti-Terrorism -Act. Thus, the contention of the learned Additional Advocate-General that being a Public Prosecutor he was competent to file the above appeal is misconceived.
• The learned Additional Advocate-General/Public Prosecutor filed application under section 5 of the Limitation Act for condonation of delay. The reason for the delay was shown that the Government sanction is a lengthy administrative process, which requires time. In support of application under section 5 of Limitation Act, filed by the learned Additional Advocate-General, affidavit of one Muhammad Yousif who was working as Assistant in the office of Additional Advocate-General, 'Hyderabad was filed. The contents of the affidavit are reproduced herein below:--
• (1) That I am working as Assistant in the office of Additional Advocate General, Hyderabad, as such am well-conversent with the facts of the case.
• It is well-settled that delay creates valuable right in favour of parties. The State is also to be treated at par with a citizen , subject. Moreover, the delay of each day is to be explained. In the present matter we find that delay was not properly explained by the appellant. Apart from that the period of limitation prescribed in Special or Local Law is to prevail over that of Limitation Act, particularly where the period of limitation is prescribed by a Special or Local Law and it is different one from the Limitation Act. Thus, the period prescribed in Special or Local Law will prevail over the Limitation Act. The section 5 of the Limitation Act would not, thus, be applicable to the appeal under Anti-Terrorism Act, 1997 in view of the bar contained under section 29(2)(a) and (b) of the Limitation Act. In this context I am fortified by the decision of this Court in case of Haji Muhammad Ashraf v: The State and 3 others reported in 1999 MLD 330. The contention of the learned Additional Advocate-General is, therefore, not tenable under law. Consequently, the appeal stands dismissed.

Headnotes / Summary

Judgment & Decree