P L D 1955 Federal Court 79 (PLP)

It is well recognised that a statutory provision enabling an appeal from an acquittal is of a very exceptional character. Indeed, it has been doubted whether such a provision exists in any country of the world except Pakistan and, of course, India, where the law in force namely the Criminal Procedure Code, 1898, is believed still to be the same as in Pakistan. It is clear that such a provision possesses, in relation to accused persons who have been tried under proper forms of law and have gained an order of acquittal from the original Court, a character of great severity. The appreciation of a criminal case formed by the original Court, before which the case was duly unfolded in all its aspects, and which had the advantage of seeing and hearing, with few exceptions, all the principal participants in the transaction out of which the crime arises, and has also seen and heard the witnesses, is entitled to the greatest weight. Where such an appreciation has led to the conviction of the accused persons, an appeal by statute is ordinarily allowed, which amounts to a re‑hearing of the case, for the elimination of error. But where the trial ends in acquittal, it is only in a very few countries of the world that an appeal is allowed, of the same nature as is conceded to a convicted accused person. It is therefore appropriate to apply to such appeals the rule that tile enactment regulating the procedure of the Courts should be held to be imperative, and not merely directory. Even in the case of ordinary appeals, where statutory provisions require the fulfilment of certain condi tions, such as the giving of notice or the transmission of documents, etc., it has been held consistently that strict compliance is imperative, 'and non‑compliance would be fatal to the appeal (Maxwell's Interpretation of Statutes, 9th Edn., p 377). But an appeal against acquittal involves a question relating to the right to liberty and perhaps even to life, of a subject who has after due trial gained an acquittal by the trial Court upon the charge levied against him. In such a case the rule of strict construction is the only proper rule to be applied. The Crown, if it wishes to move the Court against such an acquittal, must do so in strict compliance with the express requirements of law ; non‑compliance must necessarily be fatal. Section 417 Cr. P. C. reads as follows: "The Provincial Government may direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court." Reading this provision with the first subsection of section 492, it is abundantly clear that the legal requirement is that the appeal should be presented to the High Court by a Public Prosecutor, namely, a person appointed by the Provincial Government to be called a Public Prosecutor, and that for the purpose of presenting such an appeal, the Public Prosecutor should be armed with a direction from the Provincial Govern ment relating to the particular case. The instructions upon which the Advocate‑General, Sind, purported to act were expressed, in the appeal itself, to have been received from the "Legal Department, Government of Sind and the question may well be asked whether the "Legal Department, Government of Sind" means the same thing as the "Provincial Government". A Provincial Government is composed, in one aspect, of a great many departments, of varying importance, and it would indeed be a remarkable claim to advance that each of these departments is to be regarded as constituting it itself, the Provincial Government. It appears, however, that this question was not raised before the Chief Court. It is conceivable that the reference to the "Legal Department, Government of Sind" indicates only the authority by which the direction was communicated, and that the direction itself was in fact given by the Provincial Government of Sind. But no answer was attempted on behalf of the respondent in the present appeal, to the contention that in tact, the Advocate‑General of Sind had never been appointed a Public Prosecutor, either by name or by office. Indeed, it was stated before us by counsel appearing for the respondent that the Government of Sind now propose to appoint their Advocate General as Public Prosecutor for the Province, and to do so with retrospective effect. Whether such an effect can be produced by any form of words may be doubted, but the admission certainly does nothing to complicate the task of counsel appearing for the appellants. The other argument which was advanced for the respon dent was that the definition of "Public Prosecutor" in the Criminal Procedure Code was not exhaustive and a person must in law be regarded as a Public Prosecutor if "he answered to the description." The argument was concluded by the statement that any person who was asked by the Provincial Government to perform any legal duties pertaining to the office of Public Prosecutor, becomes pro tanto a Public Prosecutor. The terms in which sections 492 and 417 Cr. P. C. are expressed leave no room for a relaxed interpretation of the kind suggested on behalf of the respondent. It is quite clear that, having regard to the subject‑matter to which section 417 Cr. P. C. relates, as well as to the wording of section 417 Cr. P. C. itself, a person presenting an appeal under that section must act as a Public Prosecutor, eo nomine. He may occupy one or more other offices, but the only one of his functions which is relevant for the purpose of filing an appeal against an acquittal is the function of being a Public Prosecutor. In relation to section 492 Cr. P. C., it is even more obvious that no construction except the eo nomine construc tion can be permitted, for the section itself speaks of appoint ment of persons by the Provincial Government "to be called Public Prosecutors." It is entirely correct to say that, in relation to the function under section 417 Cr. P. C., the validity of the act of filing the appeal depends, in the first instance, upon the person who files the appeal being called a Public Prose cutor, in consequence of having been appointed as such by the Provincial Government. The argument raised on behalf of the respondent that the acts of a person pretending to be' a Public Prosecutor become the acts of a Public Prosecutor', by the mere performance thereof, is clearly unsustainable. Our attention was drawn on behalf of the appellants to a decision of the Calcutta High Court in the case Deputy Legal Remembrancer, Bengal v. Gaya Prosad (I L R 16 Cal. 425) where an appeal under section 417 Cr. P. C. from the province of Bihar and Orissa had been filed in the Calcutta High Court by the Legal Remembrancer of Bengal, acting under instructions from the Government of Bihar and Orissa. A Division Bench of the Calcutta High Court held that the appeal wits incompetent, on the ground that the mere fact that a person had been directed to present an appeal to the High Court from an order of acquittal did not involve his appointment as Public Prosecutor for the purposes of the case. It was held that the direction by the Local Govern ment must be given to a Public Prosecutor, and the learned Judges went on to observe:‑‑ "In a case of this description, where the liberty of the subject is involved and an appeal is sought to be preferred against an order of acquittal, the statute must be strictly construed and full compliance with its provisions required." It has already been stressed sufficiently in the course of this judgment that the only permissible construction of section 417 Cr. P. C., in relation to the question arising in the present appeal, is a strict construction according to the very words of the statute. The, view taken by the learned Judges of the Sind Chief Court, that by a certain rule (presumably made under subsec tion (2) of section 55 of the Constitution Act) the Advocate General of Sind has been given powers wider than those of a Public Prosecutor, and therefore, on the principle that the greater includes the leas, he must be regarded as a Public Pro secutor, does not satisfy the principle of strict construction E of the statutory provision which is applicable to the case. The rule in question is contained in a set of "Rules for the conduct of the Legal Affairs of Government" and is found in Chapter Il which is headed "The Advocate‑General." This Chapter contains six rules of which the first two, viz., Rules II and 12, define the duties of the Advocate‑General as an adviser of Government and in respect of attendance at meetings of the Sind Legislature and committees thereof. Rule 13 specifies the officers who are entitled to consult the Advocate‑General and rule 14 makes provision regarding legal opinions obtained from the Advocate‑General. Rule 15 prescribes with accuracy, the duties of the Advocate, General as an Advocate and is in the following terms Duties as Advocate‑It is the duty of the Advocate‑General :‑ (1) to appear for the Crown in all Criminal cases on the appellate aide of the Chief Court ; (2) to appear on the appellate side of the Chief Court in every suit or other civil matter to which Government is a party or in which it is interested ; (3) to appear, if required by Government in any criminal case pending before a Magistrate in Karachi ; (4) to undertake. any legal business within the range of an Advocate's functions which Government may desire him to undertake in Karachi. In addition, rule 16 requires the Advocate‑General to perform "the duties imposed on him by any law for the time being in force." Reading these two rules together, it is obvious that they contain nothing which has the effect of a direction that the Advocate‑General shall be called a Public Prosecutor. In Rule 15, sub‑rules (l), (2) and (3), relating as they do to appearances in cases, would seem to have no bearing on a question which is concerned exclusively with the presenta tion of an appeal in proper form. Sub‑rule (4) in the same rule is more largely expressed, but again, although Advocate may be appointed a Public Prosecutor and directed by the Provincial Government to file an appeal. under section 417 Cr. P. C., yet his action in filing the appeal would gain .validity exclusively from the fact of his having been appointed as Public Prosecutor, and the fact of his being at Advocate would, in the context, be without relevance. Therefore, even this sub‑rule is of no avail to support the argument which was accepted by the Chief Court. It unnecessary therefore to consider whether there is any fort in the further argument of the Chief Court, based up comparison with the powers of the Public Prosecutor (under Chapter IV of the same rules) and the principle of "the greater including the less". It is clear that the appeal before the Chief Court was incompetent, by reason of non‑compliance with the provisions of section 417 Cr. P. C., and it follows that the conviction of the appellants is void for lack of jurisdiction. We therefore allow this appeal and quash the convictions. A. H. Appeal allowed.