2004 PLP 267 (MLD)

Abdul Latif Afridi and Lal Jan Khattak for Respondents. Date of hearing: 17th June, 2003. NASIR UL MULK, J.‑‑‑The State has filed Criminal Appeal No.74 of 1990 under section 417, Cr.P.C. against the judgment and order of the Magistrate Karak whereby the accused‑respondent Sher Bahadur was acquitted on a charge under old section 307, P.P.C. The appeal was filed by the Advocate‑General after due sanction by the Provincial Government. It was admitted to full hearing and when it came up for hearing in the year 2003, the learned counsel representing the accused‑respondent, Mr. Abdul Latif Afridi, Advocate, raised an objection to the competency of the appeal on the ground that the Advocate‑General was not appointed Public Prosecutor under section 492, Cr.P.C. That under section 417, Cr.P.C. only the Public Prosecutor can present an appeal to the High Court against acquittal on the direction of the Provincial Government.

2. Upon the objection being raised, the learned Advocate‑General placed on file Notification No. 1002‑LD dated 23‑4‑1937 which reads as under:- "In supersession of this Government Notification No. 1087‑HA, dated the 29th April, 1932, and in exercise of the powers conferred .by section 492 of the Code of Criminal Procedure, 1898, His Excellency the Governor of the North West Frontier Province is pleased to appoint the Advocate General, North‑West Frontier Province to be Public Prosecutor North‑West Frontier Province, generally for the North‑West Frontier Province, from the date of his appointment.

3. After filing of the notification, the learned counsel for the accused‑respondent still insisted that the Advocate‑General was not authorised to file the appeal. He contended that the said notification had riot been adopted under the West Pakistan (Adaptation of Laws) Ordinance 1956 and the N.‑W.F.P. Adaptation of Laws Order, 1975. He therefore argued that in the absence of adaptation the Notification No.23‑4‑1937 has lost its validity. Reliance on these two statutes is mis conceived Ordinance 3 of 1956 was issued by the Governor of West Pakistan under section 88 of the Government of India Act, 1935 for amending and repealing of some Laws applicable to the Province of West Pakistan. The Ordinance did not "adopt" but "adapted" certain laws by making amendments therein or repealing some laws, which adjustment were necessary to bring the laws in conformity with the provisions of the 1956 Constitution. By no stretch of imagination can this Ordinance be considered as adopting the existing laws and those not included therein shall be treated as no longer in force. Similarly, the N.‑W.F.P. Adaptation of Laws Order 1975 also brought about certain amendments in the existing laws so as to bring them in conformity with the Constitution to the extent it related to the Province of North‑West Frontier: This adaptation was necessitated on the break of One Unit and the Division of West Pakistan into four Provinces when some other change that had taken place. That is why most of he statutes in which amendments were made by the Order, West Pakistan was replaced by the North‑West Frontier Province. The arguments of the learned, counsel for the petitioner that since notification dated 23‑4‑1937 had not been included in the said two statutes it is no longer in force, is unfounded.

4. All laws in force in undivided India were provided continuity by section 292 of Government of India Act, 1935. At the time or Independence of India, and Pakistan both the countries were to be governed by the said Act as provided in subsection (2) of section 8 of the India Independence Act, 1947, which granted independence to the dominions. Section 18(1) of the 1947 Act provided continuity to existing Act of Parliament, Rules, Regulations and other instruments. The 1947 Act read with the 1935. Act governed Pakistan until the year 1956. Article 224 of the 1956 Constitution stated that all laws, including, inter alia, Regulations, Notifications and other legal instruments in force in Pakistan shall so far as applicable and with necessary adaptation continue in force until altered etc. Similar provisions are contained in. Article 225 of the 1962 Constitution and Article 268 of the 1973 Constitution. Thus all Notifications and other legal instruments that have come into force since the coming into force of the Government of India Act, 1935 have been provided continuity until repealed. It is nobody's case that the Notification of 23‑4‑1937 has been repealed or substituted. The same is therefore, still in force in the light of the above Constitutional provisions.

5. The learned counsel for the accused‑respondent has relied upon some case‑law in support of his objection. The authorities cited are all' distinguishable as in none of those cases the appeal was filed by an officer duly notified as a Public Prosecutor under section 492, Cr.P.C. In the case of Qadir Bakhsh v. The Crown (PLD 1955 Federal Court 79) the Court found appeal against acquittal incompetent as the Advocate -General Sindh had by then not been appointed a Public Prosecutor, either by name or by office. That position was conceded by the State. In State v. Hanif Ahmad (1994 SCMR 749) the appeal against acquittal filed by the Assistant Advocate‑General was held incompetent as it was only Advocate‑General who was notified as Public Prosecutor under section 492, Cr.P.C. Again in the State v. Nooro (1998 PCr.LJ 35) the Sind High Court held the appeal against acquittal not maintainable as it was filed by the Advocate‑General who was not appointed as Public Prosecutor. In the case State v. Muhammad Nasim (1998 PCr.LJ 1842) an appeal in a corruption case was filed by the Advocate‑General against the acquittal of the accused and it was held that the same was not competent as under section 10(2) of the Pakistan Criminal Law Amendment Act, 1958, an appeal can be filed only by Public Prosecutor, who is a person conducting prosecution before the Special Judge under the Act. Similarly, in the State v. Muhammad Salim (2001 PCr.LJ page 1465) the Lahore High Court held that the Assistant Advocate‑General could not file an appeal under section 417, Cr.P.C. as he was not notified as a Public Prosecutor.

6. Whereas in all the above cases the appeal against acquittal was filed by an officer not appointed as Public Prosecutor under section 492, Cr.P.C., the present appeal has been filed by the Advocate‑General N.‑W.F.P. who has been duly appointed as such to be Public Prosecutor under Notification No.1002‑LD dated 23‑4‑1937. Thus the objection of the learned counsel for the accused‑respondent regarding the competency of the appeal is overruled. These are, the reasons for the short order of 17‑6‑2003. H.B.T./1001/P Objection to competency of appeal overruled.