2004 PLP 1446 (YLR)

5. Certain preliminary objections were raised by Mr. Abdul Rashid Abbasi, the learned counsel for the respondent, which may usefully be reproduced below:‑‑ (i) that the instant appeal filed by the Ehtesab Bureau in this Court against the impugned judgment of the High Court is incompetent and not maintainable as the appeal could have been filed on behalf of the State with the prior sanction of the Government; (ii) that the Ehtesab Bureau of Azad Jammu and Kashmir is an attached department of Law, Justice and Parliamentary Affairs Department of Azad Government of the State of Jammu and Kashmir. Therefore, an appeal on behalf of the Ehtesab Bureau could not be filed without the prior approval/sanction of the Government; (iii) that an acquittal appeal could have been filed with the prior sanction of the Government only by a person who is appointed/notified as a Public Prosecutor; (iv) that in the Ehtesab Bureau Act, 2001, there is no provision of filing acquittal appeal or any other appeal in the Supreme Court except by leave of the Court but the acquittal appeal has been filed under section 417, Cr.P.C. by the Chief Prosecutor Ehtesab Bureau who is not notified as a Public Prosecutor; and (v) that the Ehtesab Bureau is neither a natural nor a juristic person, hence not competent to maintain any sort of legal proceedings including the present appeal which is incompetent on this count as well.

6. Mr. S.A. Mehmood Saddozai, the learned Chief Prosecutor Ehtesab Bureau, has placed on record a Government Notification of 10th November, 2003 and contended that he has been notified as a Public Prosecutor, therefore, he had all the powers to file the present appeal. The appeal thus filed by him shall be construed to be the appeal filed by the State. The learned Chief Prosecutor also contended that instead of going into the technicalities, the appeal should be heard on merits because the accused respondents have committed heinous crimes for which they are to be punished severely. The basic spirit of law is that technicalities should not hinder the process of justice and fair play.

7. After hearing the respective contentions of the learned counsel for the parties, it may be stated that the preliminary objections raised by Mr. Abdul Rashid Abbasi, the learned counsel for the respondents, have lot of force and we are of the opinion that the instant appeal is liable to be dismissed on the following grounds as being filed incompetently and we order accordingly: ‑‑ (i) that the present appeal filed by the Ehtesab Bureau in this Court against the impugned judgment of the High Court is incompetent and not maintainable as the appeal could have been filed on behalf of the State with the prior sanction of the Government because the Executive Authority of the State A (by virtue of the provisions of section 12 of the AJ&K Interim Constitution Act, 1974) can only be exercised by the Government. Furthermore in accordance with the provisions of the AJ&K Law Department Manual, 1984, an appeal or revision in the cases of acquittal can only be filed with the prior sanction of the Government; (ii) that the Ehtesab Bureau of AJ&K in accordance with rule 2(1) and rule 47 of the AJ&K Rules of Business, 1985 read with Schedule I of the said Rules, is an attached Department of the Law, Justice and Parliamentary Affairs Department of Azad Government of the State of Jammu and Kashmir. An appeal on behalf of the Ehtesab Bureau could not be filed without the prior approval/sanction of the Government. The instant appeal was, therefore, not maintainable; (iii) that an acquittal appeal could have been filed with the prior sanction of the Government only by a person who is appointed/notified as a Public Prosecutor; (iv) that in the Ehtesab Bureau Act, 2001, there is no provision of filing acquittal appeal or any other appeal in the Supreme Court except by leave of the Court but the acquittal appeal has been filed under section 417, Cr.P.C. by the Chief Prosecutor Ehtesab Bureau who is not notified as a Public Prosecutor; and (v) that the Ehtesab Bureau is neither a natural nor a juristic person, hence not competent to maintain any sort of legal proceedings including the present appeal which is incompetent on this count as well.

8. In a case reported as Azad Jammu and Kashmir Government v. Habibullah Lone PLD 1984 SC (AJK) 13, while elaborating the point of authority not given by the Government to Sardar Rafique Mehmood Khan, Advocate, it was observed as follows:‑‑ "Besides, rule 19 of Order IV of the Azad Jammu and Kashmir Supreme Court Rules, 1978, regulates the procedure in this behalf which lays down the conditions that are necessary for investing an Advocate with the authority to act on behalf of a person. The relevant provision is:‑‑ "Every Advocate‑on‑Record shall before acting on behalf of any person or party file in the Registry a power‑of‑attorney in the prescribed form authorizing him to act. " This provision would clearly show that before an Advocate could act for a party, he must firstly have an authority by him to do so and secondly the authority must be in writing by the party. Unless these two conditions are complied with, an action taken by an Advocate on behalf of a person would not be deemed to be a valid performance of his function. In the absence of a duly executed power‑of‑attorney, it would be said that such an Advocate had no authority to act on behalf of that person. A pleader who filed a petition for leave to appeal cannot do so except when he is authorized in writing by such a person. Therefore, filing of a petition on behalf of Government by Sardar Rafique Mehmood who had not been duly appointed by the Government in writing, as required under rules, is not only an irregularity which may be cured at a subsequent stage, but it is also completely devoid of validity." (Underlining is ours) Thus in the instant case no sanction was given by the Government to the Ehtesab Bureau or its Chief Prosecutor to lodge an appeal by way of leave in this Court and secondly the appeal could have been filed under section 417, Cr.P.C. by the Public Prosecutor and the learned Chief Prosecutor Ehtesab Bureau, having not been appointed as a Public Prosecutor, could rot file the appeal.

9. The contention of Mr. S.A. Mehmood Saddozai, the learned Chief Prosecutor Ehtesab Bureau, that he has been notified as a Public Prosecutor vide Notification dated 10th of November, 2003, cannot validate the appeal which was filed on 2‑8‑2002. For proper appreciation of the contention of the learned Chief Prosecutor Ehtesab Bureau, the relevant Notification is narrated below: ‑‑ "No.LD/E/474‑484/2003. In exercise of the powers conferred by section 492(1) of Code of Criminal Procedure, 1898, the Azad Government of the State of Jammu and Kashmir has been pleased to declare Chief Prosecutor AJK Ehtesab Bureau as Public Prosecutor to the extent of cases filed under the provisions of AJK Ehtesab Bureau Act, 2001. " Therefore, there remains no doubt that by way of this Notification the appeal which was filed on 2‑8‑2002, the same cannot be validated by it. Even the aforesaid Notification itself does not provide for its operation retrospectively.

10. We are also of the confirmed view that even if the sanction of the Government had been obtained later on for filing the appeal, even the same would not have helped the contention of the learned Chief Prosecutor Ehtesab Bureau. In case a reported as Azad Government and another v. Mirza Zaidullah and 8 others 2001 YLR 3257 it was held as follows:‑‑ "The Services Department moved the Law Department to file the appeal on 24‑7‑2000, on which there appears a note of the Deputy Secretary Law that Law Minister being not available at Headquarters, the appeal may be filed subject to approval of the Government vide his note dated 28‑7‑2000. The file was submitted to Additional Secretary Law, Atta Mohi‑ud‑Din Shah, who vide his note dated 29‑7‑2000, also opined that a very short period is left for filing the appeal, therefore, the same may be filed subject to approval by the Government. The approval of Law Minister was thus obtained subsequently on 23‑8‑2000 when the period of limitation for filing the appeal had already expired. Following the dictum laid down in Azad Government and another v. Syed Adnan Ahmed Gilani and others (Civil Appeal No.125 of 2000 decided on 5‑10‑2000), referred to above, we have reached the conclusion that the appeal was filed without the approval of Gover nment and the Government did not give any ex‑post‑facto sanction to validate the Government order dated 29‑7‑2000. Thus, from the above facts, it becomes clear that the Services Department had been negligent enough to move the Law Department at a very late stage. It follows from the foregoing observations that the Government did not authorize the filing of present appeal in this Court. Thus, the appeal was not maintainable."

11. Similarly in an unreported case of this Court titled Azad Government and others v. Abdul Qayyum Durrani and another (Civil Appeal No.202 of 2000 decided on 16‑4‑2001) it was held as follows:‑‑ "In the present case the approval for filing appeal was accorded by Law Minister who had no jurisdictional competence to accord approval the objection thus raised by the learned counsel for respondent No.1 that the appeal filed by the appellants without obtaining the sanction of Government was incompetent, is hereby upheld."

12. It may also be stated that the Ehtesab Bureau of AJ&K in accordance with rule 2(1) and rule 47 of the AJ&K Rules of Business, 1985 read with Serial No. 14 of Schedule I of the said Rules, is an attached department of the Law, Justice and Parliamentary Affairs Department of Azad Government of the State of Jammu and Kashmir. An appeal on behalf of the Ehtesab Bureau could not be filed without the prior approval /sanction of the Government. The instant appeal even on this shore is also not maintainable.

13. Thus without going into merits of the case, the preliminary objections raised by Mr. Abdul Rashid Abbasi, the learned counsel for the respondents, having substantial weight, the appeal filed by the Ehtesab Bureau through its Chief Prosecutor has been filed incompetently I without obtaining any sanction from the Government.

14. These are the detailed reasons for dismissing the appeal in continuation of our short order dated 1‑12‑2003.

15. In the light of what has been stated above, finding no force in this appeal, the same stands dismissed. The acquittal order thus recorded in favour of accused respondents stands upheld, though on altogether different grounds than the grounds made basis of acquittal by the High Court. M.B.A./57/SC(AJK) Appeal dismissed.