P L D 1963 (W (PLP)

INAMULLAH, J.‑‑This is an appeal against the judgment of the District Judge, Karachi in a suit under section 92 of the Civil Procedure Code. The dispute in this case relates to a mosque known as Juma Masjid Arambag and the shops attached thereto. It would be sufficient for the disposal of this appeal to state that respondents 1 to 4 filed Suit No. 785/58 in the Court of the District Judge, Karachi under section 92 of the Civil Procedure Code on a number of grounds.

2. In appeal Mr. Shafi, the learned Advocate for the appel lant, has contended that the condition precedent to a suit under section 92 of the Civil Procedure Code is that there should be a consent in writing of the Advocate‑General to institute a suit for the reliefs mentioned in clauses 1 (a) to (h) of section 92 of the Civil Procedure Code, In the present case, the certificate has been granted by the Attorney‑General of Pakistan on 26‑4‑1958. We thought it necessary to issue notice to the learned Attorney‑General of Pakistan to address us if the certificate given by his predecessor in office was a valid one.

3. Mr. Tufailali, the learned Attorney‑General, appeared before us in response to the notice and has candidly conceded, giving reasons for his concession, that the Attorney‑General had no power to issue a certificate as contemplated by section 92 of the Civil Procedure Code.

4. The learned Attorney‑General based his contention on the assumption that at the relevant time when the certificate was issued Karachi was Centrally Administered Area. Karachi being Centrally Administered Area and not forming part of the Pro vince, the Advocate‑General of the Province could not be the Advocate‑General for Karachi. This proposition could not be challenged in law. The learned Attorney‑General argued that `Advocate‑General' in section 92 of the Civil Procedure Code 1908 has a reference only to the Advocate‑General of the Province. He contended that in 1908 there was no Advocate General for the Centre and, therefore, the reference in section 92 of the Civil Procedure Code to Advocate‑General is to the Advocate‑General of the Province. He supported his contention by the provision of section 93 of the Civil Procedure Code. As section 93 stood before 1949, when it was amended, it read as under "The powers conferred by sections 91 and 92 on the Advo cate‑General may, "outside the Presidency towns" be, with the previous "sanction of the Provincial Government exercised also by the Collector or by such officer as the Provincial Government may appoint in this behalf." The words `outside the presidency towns' have been omitted. The object underlying section 93 was that as the Advocate‑General would not be available outside the presidency towns the public may not be put to the inconvenience and with that view the Provincial Government was authorised nominate any other officer to exercise the power under section 92 of the Civil Procedure Code. It was contended on this basis that the reference to Advocate‑General was to the Provincial Advocate‑General, as it was only he who was available in the presidency towns. There is much force in the contention of the learned Attorney‑General.

5. Mr. Sadiq, the learned Advocate for the respondent, raised two‑fold contentions before us. In the first place he con tended that the word `Advocate‑General' as mentioned in section 92 of the Civil Procedure Code is without any qualification. He contended that the Advocate‑General would also have reference to the Advocate‑General of the Central Government. It is true that the word `Advocate‑General' has no qualification, but the fact remains that the intention of the Legislature was to empower the Advocate‑General of the Province to exercise the function mentioned in section 92 of the Civil Procedure Code. It cannot be A extended to the Advocate‑General of the Centre. We would, as, already mentioned, accept the contention of the learned Attorney General that the reference to the Advocate‑General is to the Provincial Advocate‑General.

6. The next contention of Mr. Sadiq, the learned Advocate for the respondent, was that as the Central Government was exercising the power and function in respect of Karachi, the Advocate‑General of the Centre could also exercise the statutory functions mentioned in section 92 of the Civil Procedure Code. There is not much force in this contention. So long as we hold? that the reference to Advocate‑General in section 92 of the Civil Procedure Code is to the Advocate‑General of the Province, the Advocate‑General of the Centre cannot exercise the function under e section 92 of the Civil Procedure Code. If a certain functionary is authorised to do a thing then the mere fact that the other person is higher in status cannot exercise the function of the other person. In this connection a reference may usefully be made to the case of Kadir Bux and others v. The Crown (Pld 1955 F C 79). Their Lordships of the Federal Court in this case where the appeal under section 417 was filed by the Advocate‑General and not by the Public Prosecutor held that the Advocate‑General was not competent to file the appeal. The Advocate‑General may be higher in rank, but as section 417 of the Criminal Procedure Code requires that the appeal should be filed by the Public Pro secutor, it was held to be incompetent being filed by the Advocate General.

7. For the reasons given above, we would allow the appeal, but in the circumstances of the present case we would make no order as to costs. K.B. A. Appeal accepted.