2000 PLP 2377 (YLR)

1. Special Criminal Miscellaneous No.2 of 1995 This Special Cr.Misc. was filed by the State. as applicant and the same was signed by Mr. Farrukh Zia Sheikh, Advocate for the Applicant. In this appeal order of Special Judge (Customs and Taxation) Karachi, was challenged whereby the accused Bashir Ahmad Chaudhry and Muhammad Ali were granted bail vide order dated 10‑8‑1994.

2. Special Criminal Acquittal Appeal No. 13 of 1996 This appeal was filed by the Federal Government through Collector of Customs and the same was signed by some one for Collector of Customs. It bears signature of Mr. Fariduddin, Advocate. Through this appeal the appellant impugned order passed by the learned Special. Judge (Customs and Taxation), Karachi, while hearing Case No.213/89. During pendency of the case application under section 265‑K, Cr.P.C. was filed which was allowed and the accused Dawood alias Dawood Jat was acquitted. 3, Special Criminal Acquittal Appeal No.25 of 1996 This appeal was filed by the State through Collector of Customs (Preventive), Karachi. The appeal was signed by Mr. Muhammad Ismail Menion, Advocate, for the appellant. Through this appeal Judgment of Special Judge (Customs and Taxation), Karachi was challenged whereby the accused Syed Aftab Abbas Zaidi was acquitted by the trial Court vide judgment, dated 9‑9‑1996.

4. Special Criminal Acquittal Appeal No.31 of 1996 This appeal was filed by the Federal Government of Pakistan as appellant which bears signature of Dy. Superintendent Rangers for Commandant, Headquarters Than Rangers, Hyderabad and of Mr. Sayed Jehanigir Hussain Shah, Special Prosecutor for Appellant. Through this appeal the judgment of Special Judge (Customs and Taxation) Karachi, was agitated whereby accused Chiragh Din, Muhammad Tahir alias Babu Nohri and Lakhano were acquitted vide judgment dated 3‑10‑1996. 5 Special Criminal Acquittal Appeal No.7 of 1997 This appeal was filed by Collector of Customs, Karachi as appellant which bears signature of Assistant Collector of P. Head Quarter II, Customs House, Karachi as appellant. Through this appeal the appellant agitated the judgment of Special Judge (Customs and Taxation), Karachi passed in Case No.23/91 whereby the accused Abdul Qadir, Muhammad Ibrahim Abdul Ghani and Haji Muhammad were acquitted vide judgment dated 6‑10‑1996.

6. Special Criminal Acquittal Appeal No. 14 of 1997 This appeal was filed by the State through Commandant Thar Rangers which bears signature of Ahmad Ali Memon, Special Prosecutor of the appellant. Through this appeal the appellant challenged the judgment dated 13‑8‑1996 of Special Judge (Customs and, Taxation), Karachi passed in Case No.70 of 1991 whereby the accused Mehar Din, Muhammad Ibrahim and Sakhi Muhammad were acquitted.

7. Special Criminal Acquitfal Appeal No. 15 of 1997 This appeal was filed by Collector of Customs, Preventive, Karachi which bears signature of Assistant Collector (P) Head Qrts. II, Customs House, Karachi for Collector of Customs, as appellant. Through this appeal the appellant challenged the judgment dated 11‑12‑1996 passed by Special Judge (Customs and Taxation) Karachi, while hearing Case No.8 of 1987 whereby the accused Muhammad Anwar was acquitted.

8. Special Criminal Acquittal Appeal No.21 of 1997 This appeal was filed by Deputy Collector of Customs, Appraisement, Customs House, Karachi, which bears signature of Jawed Wais Agha, Deputy Collector of Customs, Appraising, Intelligence Branch and Noor Elahi Khan, Investigating Officer, Appraising, Intelligence Branch as appellants and Mr. Fariduddin, Special Prosecutor Customs. Through this appeal the appellants challenged the judgment dated 12‑1‑1997 passed by the Special Judge (Customs and Taxation) Karachi, while hearing Case No.86 of 1995 whereby accused Shaikh , Muhammad Iqbal was acquitted. 9, Special Criminal Acquittal Appeal No.23 of 1997 The appeal was filed by Federal Government of Pakistan which bears signature of Deputy Superintendent for Commandant Headquarters, Thar Rangers, Hyderabad as appellant and Mr. Sayed Jehangir Hussain Shah as Special Prosecutor for, appellant. Through this appeal the appellant challenged the judgment, dated 17‑9‑1996 passed by the Special Judge (Customs and Taxation), Karachi in Case No.47 of 1990 whereby the accused Darya Khan, Umer Nawab, Ramzan and Juma were acquitted. 10 Special Criminal Acquittal Appeal No.43 of 1997 This appeal was filed by the State which bears signature of Mr. Ashiq Ali Anwar Rana as Advocate for the appellant. Through this appeal the appellant challenged the judgment dated 20‑3‑1997 passed by the Special Judge (Customs and Taxation), Karachi, while hearing Case No.382 of 1984 whereby the accused Muhammad Hanif, Aftab Ahmad, Shamim Khan and Shamim Ahmad were acquitted. These appeals are pending since long and at the very outset of the arguments learned counsel for the respondents M/s. Syed Sami Ahmad, Mir Nawaz Khan Merwat, Abdul Ghafoor Mangi, Sohail Muzaffar, Parvez Mustafa, Sardaruddin W. Qureshi, Muhammad Arif Latif and S.M. Iqbal, Advocates, point out that main arguments will be advanced by one of them Mr. Syed Sami Ahmad, Advocate, and they adopt his arguments who pointed out that in view of the provision of section 4‑A of the Central Law Officers Ordinance (Amendment) Act XVII of 1985 the Central Law Officers have been defined whereby all Additional Attorneys‑General, Deputy Attoneys‑General and Standing Counsel shall be deemed to be public prosecutors and shall be competent to institute, file and conduct any proceedings, including appeal and revision for and on behalf of the Federal Government before any Court or Tribunal, including a Special Court constituted under any law. These appeals are incompetently filed and are not maintainable. In support of this contention he relied upon the following case‑law: Liaquat Ali and II others v. The State 1992 SCMR 372; The State through Public Prosecutor v. Shaukat ‑Ali 1998 PCr.LJ 1503; Christopher Rollins Kelly and 2 others v. State 1997 PCr.LJ 51 and State through Advocate‑General, Sindh v. Hanif Ahmad and others 1994 SCMR

749. Mr. Ch. Muhammad Iqbal, Standing Counsel, alongwith Mr. Fariduddin, Advocate, pointed out that section 185F(1) of the Customs Act, 1969 provides that any person, including the Federal Government, aggrieved by any order passed or decision made by a Special Judge under this Act or under the Code of Criminal Procedure, 1898, may, subject to the provisions of Chapters XXXI and XXXII of the Code, within (sixty days) from the date of the order or decision, prefer an appeal or revision to the Special Appellate Court and in hearing and disposing of such appeal or revision, such shall exercise all the powers of a High Court under the said Code by virtue of this section referred hereinabove they have filed these appeals competently. I have gone through the material placed with all these appeals and also considered the arguments of learned counsel for the parties. I have also perused the Central Law Officers (Amendment) Ordinance and subsequent case‑law relied by the learned counsel for the respondents viz.:

1. Liaquat Ali and 11 others v. The State 1992 SCMR 372: In this case their lordships of the Supreme Court have observed as follows: "The above contention of Mr. Abdul Aziz Qureshi would have prevailed if we would not have ourselves discovered the fact that the Central Law Officers (Amendment) Act, 1985 (Act XV11 of 1985) incorporated section 4A in the Central Law Officers Ordinance, 1970 (VII of 1970) providing as follows: Central Law Officers to be deemed to be public prosecutors etc. Notwithstanding anything contained in any other law for the time being in force, all Additional Attorneys-General, Deputy Attorneys‑General and Standing Counsel shall be deemed to be public prosecutors and shall be competent to institute, tile and conduct any proceedings, including appeal and revision, for and on behalf of the Federal Government before any Court or Tribunal, including a Special Court constituted under any law." 2 The State through Public Prosecutor v. Shaukat Ali 1998 PCr.LJ 1503: I this case learned D.B. of this Court also observed that appeal against acquittal had not been filed and signed by any of the Law Officers authorised under law. Such appeal could not be said to have been legally tiled. Appeal otherwise also being time‑barred, was dismissed being not maintainable.

3. Christopher Rollins Kelly and 2 others v. The State 1997 PCr.LJ 51: In this case also I have held that Central ‑ Law Officers (Amendment) Ordinance, 1985 authorises only Additional Attorney‑General, Deputy Attorneys‑General and Standing Counsel to file appeal and revision for and on behalf of the Federal Government before any Court or Tribunal including Special Courts. As such, the notification authorising Mr. Faridduddin to tile the revision as an Advocate on Penal on behalf of the Federal Government did not legally entitle him to do so and the revision tiled by such Advocate was held not maintainable. The State against this order did not tile any appeal before any proper appellate forum which attained finality.

4. State through Advocate‑General, Sindh v. Hanif Ahmad and others 1994 SCMR 749: In this matter the State through Advocate‑General, Sindh, filed appeals against Hanif Ahmad and others. In the above appeals the question before their lordships of the Supreme Court was that whether the Assistant Advocate‑General can file an acquittal appeal or not. Their' lordships considered the entire material and came to the conclusion that the appeals against acquittal of accused filed by the Assistant Advocate -General on behalf of the State were not competent as Additional Advocate‑General had not delegated his authority to him, nor Additional Advocate‑General could have done so in view of the maxim delegatus non protest delegare and dismissal of acquittal appeals by High Court was upheld in the circumstances. After going through the provisions of Central Law Officers (Amendment) Act, 1985 (Act XVII of 1985 and section 4A incorporated, decisions of their lordships of Supreme Court and judgment of the learned D.B. with due respect to the provision of section 185F(1) of the Customs Act, 1969 I am unable to agree with the contention of the learned Standing Counsel that any person can file acquittal appeal before the High Court. On the facts, circumstances and the case‑law discussed and mentioned hereinabove, I am of the considered opinion that the preliminary objection raised by the learned counsel for the respondents that these appeals are not competently filed by authorised Law Officers of the Federal Government has considerable force and as such are liable to be dismissed. Consequently all these appeals order are hereby dismissed as not maintainable. Q.M.H./M.A.K./F-9/K Appeal dismissed