In all the above acquittal appeals at the instance of State, under section 185-F of the Customs Act, 1969, a common objection has been raised to the maintainability of the appeals for the reason that the appeals have not been filed by the person competent in law to file the appeals.
2. Before I proceed to consider the contention, it would be appropriate to reproduce the relevant provisions contained in sections 185- and 185-9 of Customs Act, 1969, which read as follows:-- 185-F. Appeal to Special Appellate Court.---(1) 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 (Act V of 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 Court shall exercise all the powers of a High Court under the said Code.
(2) Except as otherwise provided in subsection (1), the provisions of the Limitation Act, 1908 (IX of 1908), shall apply to an appeal or, a revision preferred under subsection (1).
185-G. Persons who may conduct prosecution, etc.---(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), a Special Prosecutor appointed under section 48 of the Prevention of Smuggling Ordinance, 1977, shall be competent to conduct prosecution before a Special Judge for and on 'behalf of the Federal Government and to withdraw prosecution when so required by the Federal Government.
(2) A Law Officer appointed under the Central Law Officers Ordinance, 1970 (VII of 1970), shall or an Advocate authorized by the Board or an officer subordinate to it be competent to conduct proceedings before a Special Appellate Court on behalf of the Federal Government and to withdraw such proceedings when so required by the Federal Government," (The word "or an Advocate authorized by the Board or an officer subordinate to it," were inserted by the Finance Ordinance, 2002, with effect from 15-6-2002).
3. The question as to who is competent in law to file acquittal appeal on behalf of State under sections 185-F and 185-G of the Customs Act, came for consideration for the first time before a learned Single Judge of this Court, in the case of State v. Abdul Qayyum PLD 1980 Karachi 465. In this case the acquittal appeal was filed by the Provincial Government, Zaffar Hussain Mirza. J. (as his Lordship then was) held as follows:-- "Under section 185-F it is Federal Government which has been given the right to appeal against any order passed or decision made by the Special Judge and under section 185-G(2) a Law Officer appointed under Central Law Officers Ordinance, 1970, shall be the competent person to conduct proceedings before a Special Appellate Court on behalf c!. The Federal Government and, to withdraw such proceedings when so required by the Federal Government."
4. A similar question came for consideration before a learned Single Judge of the Lahore High Court in the case of State v. M. Ashraf, 1986 PCr.LJ 137. In this case also a preliminary objection was raised to the effect that there was no proper appeal, as the appeal was presented by an Advocate on behalf of Federal Government. The precise objection was that the learned Advocate was not authorized to prefer appeal as this could be done by a Law Officer appointed by the Central Law Officers Ordinance, 1970 and the learned Advocate was not such a Law Officer.
5. Saad Saood Jan. J. (as his Lordship then was) examined the relevant provisions of law. A letter received by the learned Advocate who preferred appeal from the Central Board of Revenue, directing him to file an appeal was produced. The letter contained the opinion as well as decision of the Law Division of the Federal Government, as follows:-- "We agree with the view of the C.B.R. That the judgment of the Special Judge should be impugned before the Appellate Tribunal Mr. Muhammad Nawaz Abbasi, Advocate, 9-The Mall, Rawalpindi is not on our Panel but he is a Special Prosecutor for customs cases and is nominated for filing the appeal." It was observed by the learned Single Judge, as follows:-- "Under the rules of business of the Federal Government, the Law Division looks .After legal proceedings and litigation concerning the Federal Government. The Law Division was, therefore, competent to nominate Mr.. M. Nawaz Abbasi, to file an appeal on behalf of the Federal Government.It is also to be noticed that unlike the Pakistan Criminal Law Amendment Act, 1958, section 185-F does not specify the person through whom alone the Federal Government can exercise its right of Appeal. Thus it can nominate any member of the Bar for this purpose."
6. With reference to subsection (2) of section 185-G , as it stood at that time, it was contended that only a Law Officer mentioned therein would present an appeal on behalf of the Federal Government. The contention was not accepted and it was held that subsection merely enables the Law Officer appointed under the Central Law Officers Ordinance, to conduct proceedings before the Special Appellate Court, by virtue of his office but it does not create any exclusive right in this regard in his favour. It was further held that there was nothing to preclude the Federal Government from appointing counsel other than Law Officer for conducting proceedings on its behalf before the said Court.
7.' Again this question came for consideration before a learned Single Judge of this Court, in the case of Christopher Rollins Kelly v. The State 1997 PCr.L.J 51. In this case objection was raised to the maintainability of revision filed by the Federal Government through the Collector of Customs, for enhancement of the sentence. It was contended that by virtue of amendment inserted by Act
(XVII) of 1985, in Central Law Officers Ordinance (VII) of 1970, the revision filed through an Advocate on approved panel of Central Board of Revenue was not legally maintainable. Mr. Deedar Hussain Shah, J. (as his Lordship then was) referred to the provisions contained in section 4-A, inserted by Central Law Officers Act, 1985 in the Central Law Officers Ordinance, 1970, which reads as follows:-- "4-A. 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 Attorney-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." The Notification issued by the Central Board of Revenue, Government of Pakistan, which contained name of Mr. Fariduddin, Advocate, as an Advocate on the Panel of Central Board of Revenue, was also examined. It was held as follows:-- "The revision filed by the Federal Government is not signed by the Collector of Customs himself but someone else whose name and designation is not ascertainable. Furthermore Central Law Officers (Amendment) Ordinance, 1985 authorizes only Additional Attorney-General and Deputy Attorney- 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 or such, the Notification appointing Mr. Fariduddin, to file any revision as an Advocate on Panel on behalf of the Federal Government does not legally entitle him to to so. Under these circumstances, I am of the firm opinion that this revision is not maintainable."
8. Similar question was again agitated before a Single Bench of this Court in the case of State v.
Bashir Ahmed Choudhry PLD 2000 Karachi 198. It was reiterated that in view of the provisions contained in section 4-A of the Central Law Officers Act of 1970, the Additional Attorneys-General, Deputy Attorneys-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. It was submitted that the acquittal appeals were not filed by the Law Officers specified above therefore, the appeals were incompetently filed and were not maintainable. Reliance in support of the contention was placed on the following judgments:--
(1) Liaqat Ali and 11 others v. The State (1992 SCMR 372).;
(2) The State through Public Prosecutor v. Shoukat Ali (1998 P. Cr. L.J. 1503);
(3) Chirstopher Rollins Kelly and 2 others v. State (1997 P. Cr. L.J 51); and
(4) State through Advocate-General, Sindh v. Hanif Ahmad and others (1994 SCMR 749).
9. On behalf of the State it was contended that under section 185-F(1) of the Customs Act, 1969, any person, including the Federal Government, aggrieved by airy order passed or decision made by Special Judge under this Act or under Code of Criminal Procedure, 1898, may, subject to the provisions of Chapters XXXI and XXXII of the Code, prefer an appeal or revision to the Special Appellate Court. By virture of this provision the acquittal appeals were competently filed. After referring the judgments cited above, Syed Deedar Hussain Shah, C.J (as his Lordship then was) and by reference to the provisions contained in section 4-A of the Central Law Officers Act, 1970, as well as section 185-F(I) of the Customs Act, 1969, the contention that any person can file acquittal appeal before the High Court was repelled. It was held that the acquittal appeals were not competent as they were not filed by authorized Law Officers of the Federal Government. The appeals were dismissed accordingly.
10. This judgment was followed by a learned Singh Judge of the Lahore High Court in the case of Director Intelligence and Investigation (Customs and Excise) v. Ahmed Fazil, 2005 MLD 241. The acquittal appeal was filed by Director Intelligence which was dismissed as not maintainable.
11. Before coming to the contentions raised on behalf of learned Advocates for the State in this case, I would like to examine the judgments which have been referred in the case of State v. Bashir Ahmed Choudhry (supra)
12. In the case of Liaquat Ali v. The State 1992 SCMR 372, a question about the maintainability of acquittal appeal under section 13 Special Courts for Speedy Trials Ordinance, 1991 was raised with reference to the provisions contained in section 13(5) thereof, which reads as follows:-- "(5) The Attorney-General or Advocate-General may, or on being directed by the Government, shall present to the Supreme Appellate Court an appeal against the order of acquittal or a sentence passed by a Special Court within thirty days of such order."
13. The appeal was filed by the Deputy Attorney-General and objection to the competence of appeal was raised that it could be filed by the Attorney-General or Advocate-General or at the direction of the Government as contemplated under subsection (5) above. The Hon'ble Supreme Court observed that with the insertion of section 4-A, in, the Central Law Officers Ordinance, 1970 by the Central Law Officers (Amendment) Act 1985, an acquittal appeal filed by Additional Attorney- General, Deputy Attorney-General or Standing Counsel, are competent in law when both the provisions are read together.
14. In the case of State v. Shoukat Ali, 1998,PCLLJ 1503 (Kar), an objection was raised to the maintainability of an acquittal appeal on the ground that the appeal was not filed by Public Prosecutor or by the Standing Counsel for the Federal Government or by a person notified to be a Public Prosecutor within the meaning of section 492 Cr. P.C. The provision contained in subsection
(2) of section 10 of Pakistan Criminal. Law Amendment Act, 1958, was referred, which reads, as follows:-- "Notwithstanding the provisions of section 417 of 'the Code of Criminal Procedure, 1898 in a case tried by a Special Judge appointed by Central Government under section 3 in which such Special Judge has passed an order of acquittal the Central Government may direct the Public Prosecutor to present an appeal to such Court as aforesaid."
15. The provision contained in section 4-A of the Central Law' Officers Ordinance, 1970 was also considered. It has observed, that by virtue of insertion of section 4-A in the Central law officers Ordinance, 1979, Additional Attorneys-General, Deputy attorneys-General sand Standing Counsel were notified to be Public convectors and were authorized to institute, file and conduct any proceedings including appeal/revision for and on behalf of Federal Government before any Court or Tribunal in-eluding a Special Court constituted under any law. It was, conceded by the Standing Counsel that the appeal was not filed by any of the Law Officers notified in section 4-A of the Central Law Officers Ordinance, 1970. The memo. Of appeal was signed by someone and was filed by State through Public Prosecutor F.I.A. Zone Karachi. It was not known as to who was the officer signing the memo. Of appeal. It was held that since the appeal was not signed and filed by any of the law officers authorized under the law therefore the appeal was not maintainable.
16.. In the case of State v. Hanif Ahmed, the acquittal appeal was filed by Assistant Advocate- General and it was held that the Assistant Advocate-General was not competent in law to file an appeal and therefore. The appeal was not maintainable.
17. Now I proceed to consider the contentions raised by the learned Advocates for the State. Mr. Raja Muhammad lqbal, has contended that under section 185-F of the Customs Act, any person aggrieved including the Federal Government may file an appeal and any person includes Collector of Customs. This contention has already been repelled in the case of Bashir Ahmed Choudhry, (supra) with which I agree.
18. He has next contended that the litigation on behalf of Government is controlled under the Rules of Business, 1973 framed by the Federal Government. He has submitted that under Rule 3(1), the Federal Secretariat shall comprise the Ministries and Divisions shown in Schedule-1, while under Rule 3(3), the Government business is distributed among the Divisions in the manner indicated in Schedule-II. He has pointed out that the Ministry of Finance and Revenue consists of Finance Division and Revenue Division. Under Schedule-II, the business distributed to Ministry of Law and Justice, inter alia, included "Legal proceedings and litigation concerning the Federal Government"
With effect from May 24, 1994 the words, "except the litigation concerning Revenue Division" were added. Subsequently the Revenue Division was substituted by Finance Division. Again the 'Finance Division' was substituted by "Revenue Division" with effect from December 1, 1998.
19. It was provided in rule 14(1)(e) that, the law and Justice Division shall be consulted before instituting criminal or civil proceeding in a Court of law in which the Government is involved,
20. In the light of law .As it stood in the year 1984, Customs General Order No,1 of 1984, dated 22nd January, 1984 was issued which reads as follows: "CUSTOM GENERAL ORDER NO.1 OF 1984, DATED 22ND JANUARY, 1984. SUB: FILING OF APPEAL AGAINST THE ORDERS OF SPECIAL JUDGE (CUSTOMS) PASSED UNDER THE CUSTOMS ACT, 1969. According to clause 14(1)(e) of the Rules of Business, Law Division is to be consulted before instituting criminal or civil proceedings in all Courts of law in which the Government is involved.
However, cases involving prosecution of accused persons before the Special Judge (Customs) under the provisions of the Customs Act, 1969 are not referred to Law Division. Instead a challan is submitted against the arrested persons in the said Court.
(2) A question raised whether an appeal against the orders of Special Judge (Customs) would be filed by the Department without consulting the Law Division or otherwise. Accordingly a reference was made to Law Division, who has advised as under:-- According to the requirements of the Rules of Business and Secretariat Instructions it is the ultimate responsibility of the Law Division to decide to file or defend a case in the Court of law.
Accordingly, in the normal course each and every case, before it is defended or filed in the Court of law, the Law Division has to be consulted. But, however, in the cases in which adequate punishment has been awarded to the accused persons by the Court of the Special Judge and the Department is satisfied with the punishment, the Law Division would not insist for reference to examine the filing of appeal for enhancement of the sentence but in the cases in which the Court has acquitted the accused persons, the Law Division will have to be consulted to decide whether an appeal against the acquittal order would lie in such a case'.
(3) The above advice of the Law Division is circulated for strict compliance in future."
21. The Revenue Division was initially created in the year 1994. Subsequently it was abolished and again created under Notification No,4-14/98. Min-I, the Gazette of Pakistan Extraordinary, Part. III, dated December 1, 1998. Serial No,27-A was assigned to the Revenue Division. Entry-No,5, reads as follows:-- "5. Legal proceedings and litigation. The prosecution and defence of legal proceedings concerning the Revenue Division shall be subject to the following conditions, namely:--
(i) in a case in which Central Board of Revenue or the Revenue Division is a party, the counsel to conduct the case shall be appointed out of the panel of Advocates approved by the Law, Justice and Human Rights Division;
(ii) in a case where the counsel is to be appointed from outside the approved panel, such appointment should be made with the prior approval of the Law, Justice and Human Rights Division;
(iii) in a case where a fee to be paid to an Advocate is one million rupees or more, the fee shall be fixed in consultation with the Law, Justice and Human Rights Division; and
(iv) the panel of Advocates referred to in clause (I) shall be reviewed every year in consultation with the Law, Justice and Human Rights Division."
22. A letter has been produced written by Ministry of Law, Justice and Parliamentary Affairs Division, dated 30th June, 1994, which states that under the Notification of Cabinet Division dated 19-5-1994, the Law and Justice Division, has ceased to be responsible in respect of litigation concerning Revenue Division, and the legal proceedings and litigation concerning the Revenue Division relating to C.B.R., Income Tax, Sales Tax and Custom Duties etc., shall be conducted by counsel appointed by that Division.
23. Mr. Raja M. Iqbal has produced another letter issued by C.B.R. Bearing C .No,1(7)Cus.Jud/2002 dated 7-6-2002, which inter alia contains:-
(i) The Director Generals, Directors and Collectors (hereinafter called the Head of Organization) are competent to decide whether or not an appeal should be filed against the adverse orders of Courts, Tribunals and Adjudication Authorities.
(ii) The Head of Organization will engage counsel for filing appeals from the panel of Revenue Division approved by Ministry of Law, Justice and Human Rights.
(iii) The Head of Organization shall be personally responsible for filing appeals in Appellate Tribunals, High Courts and the Supreme Court of Pakistan:
(xiii) In all cases where the field organization and C.B.R. Are also respondents, the responsibility of filing appeal shall rest with field organization. In a case where C.B.R. Is the sole respondent, the concerned Secretary (Judicial) in consultation with Legal Advisor or Head of field organization, if required, will prepare appeal and get approval of the competent Authority where after the same will be filed in the Court through a Legal Advisor or a Counsel as instructed by .The Board.
24. After resume of the entire statute law, case-law and the administrative instructions issued from time to time, as well as various contentions raised by the learned Advocates for the parties, the legal position emerges as follows:--
(a) By virtue of the decision in the case of State v. Abdul Qayoom (Supra) and Bashir Ahmed Choudhry (Supra), the Federal Government has been given the right to file appeal against any order passed or decision made by the Special Judge.
(b) It has been laid down in the case of State v. A. Qayoom (supra) that a Law Officer appointed under Central Law Officers Ordinance, 1970, shall be competent person to conduct proceedings before a Special Appellate Court on behalf of the Federal Government and to withdraw such proceedings when so required by the Federal Government.
(c) It has been held in the case of State v. M. Ashraf (supra) that, under the Rules of Business of the Federal Government, the Law Division looks after legal proceedings and litigations concerning the Federal Government. The Law Division was competent to nominate an Advocate for filing appeal on behalf of the Federal Government. Unlike, the Pakistan Criminal Law Amendment Act, 1958, section 185-F Customs Act, does not specify the person through whom alone the Federal Government can exercise its right of appeal. Thus it can nominate any member of the Bar for this purpose.
(d) It is further held in the above case that subsection. (2) of section 185-G Customs Act, merely enables the Law Officer appointed under the Central Law Officers Ordinance, to conduct proceedings before the Special Appellate Court, by virtue of his office but it does not create any exclusive right in this regard in his favour. There was nothing to preclude the Federal Government from appointing counsel other than Law Officer for conducting proceedings on its behalf before the Special Appellate Court.
(e) In the case of Christopher Rollins Kelly v. The State, 1997 PCr.L.J 51, a revision was filed by the Federal Government through the Collector of Customs for enhancement of sentence. The memo.
Was signed by some person whose name and designation was not ascertainable. The objection was raised to the maintainability of the Revision Application on the ground that the revision filed through Mr. Fariduddin, Advocate who was on approved panel of Central Board of Revenue, was not legally maintainable, as the Central Law Officers (Amendment) Act 1985, whereby section 4-A was inserted, authorizes only Additional Attorney-General, Deputy Attorney-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. The objection was upheld and it was held that the notification appointing Mr. Fariduddin, Advocate on panel, on behalf of the Federal Government does not legally entitle him to do so. The revision was consequently held to be not maintainable. With due deference to the learned Single Judge of this Court, I am not persuaded to agree with the view taken which I will discuss presently.
(t) In the case of State v. Bashir Ahmed (supra), the same learned Single. Judge of this Court reiterated that in view of the provisions contained in section 4-A of the Central Law Officers, (Amendment) Act 1985, the Additional Attorney-General, Deputy Attorney-General and Standing Counsel were deemed to be public prosecutors and were 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. The cases which came for consideration were initiated on behalf of the Federal Government. In the first case, the order of Special Judge Customs and Taxation granting bail was assailed and the application was signed by one Advocate. In the second Acquittal Appeal, which was filed on behalf of Federal Government through Collector of Customs and was signed by some unknown person on behalf of Collector of Customs. It was signed by an Advocate but not in the capacity of representing the Federal Government but merely as an Advocate for the appellant. In the third case, the appeal was filed through Collector of Customs. The Memo of Appeal was signed by an Advocate not in the capacity of representing the Federal Government empowered to file the appeal but merely as an Advocate for the appellant. The fourth appeal was filed on behalf of Federal Government, through Deputy Superintendent of Rangers, for Commandant Headquarters, Thar Rangers Hyderabad, and was signed by an Advocate who was Special Prosecutor for the appellant. The Fifth appeal was filed by Collector of Customs, but was signed by an Assistant Collector of Customs. The sixth appeal was filed by State, through Commandant Thar Rangers, which was also signed by an Advocate who, was Special Prosecutor. The Seventh appeal was filed by Collector of Customs (Preventive) but was signed by Assistant Collector of Customs. The Eighth appeal was filed by Deputy Collector of Customs (Appraisement) and was also signed by Special Prosecutor Customs not as appellant but as an Advocate for appellant. The Ninth appeal was filed by Federal Government which was signed by Deputy Superintendent for Commandant Headquarters Thar Rangers Hyderabad and was also signed by a Special Prosecutor but not in the capacity of appellant. The tenth appeal was filed by State which was signed by one Advocate."
25. As already observed the contention that under section 185-F(1) of the Customs Act, 1969, any person including the Federal Government aggrieved by any order passed or decision made by Special Judge may prefer an appeal or revision to the Special Appellate Court was repelled. After narrating the relevant facts of each appeal and referring to the case law the issue under consideration was disposed of by a brief finding holding that the appeals were not competently filed by authorised law officers of the Federal Government. This observation was made with reference to the provisions contained in section 4-A of the Central Law Officers Ordinance, 1970. All the appeals were dismissed.
26. Again with due deference to the learned Single Judge I am not persuaded to agree with the omnibus brief friending, although I, do agree that some of the appeals were not competently filed and were liable to be dismissed as incompetent in law but I am of the humble opinion that all the appeals were not liable to be dismissed with reference to the provisions contained in section 4-A of the Central Law Officers Ordinance 1970, only:--
(g) After insertion of the words, "or an Advocate authorised by the Board or an officer subordinate to it," in subsection (2) of section 185-G Customs Act, with effect from 15-6-2002 an Advocate authorized by the Board or an officer subordinate to it is also competent to file an appeal or revision on behalf of Federal Government before the Special Appellate Court.
(h) In the case of Director Intelligence and Investigation (Customs and Excise) v. Ahmed Fazil, (supra) it was held that the appeal filed by Standing Counsel for Customs authorized under the instructions of Director Intelligence was not competent. Reliance was placed on the single Bench Judgment of this Court in the case of State v. Bashir Ahmed, PLD 2000 Karachi 198. After perusal of the judgment and the facts involved therein, I do agree with the conclusion that the appeal was liable to be dismissed but on account of the facts and circumstances in the cited case and not on the proposition of law which formed basis for the dismissal of appeal. The facts were that the appeal was filed by Standing Counsel for Customs Authorities under the purported authorization of Director Intelligence but the power of attorney filed by learned counsel was signed by a Superintendent of Customs. It was not shown that the Superintendent of Customs was empowered to authorize the Advocate to file appeal and consequently it was liable to be dismissed on this account but not with reference to the provisions contained in section 4-A of the Central Law Officers Ordinance, 1970.
27. Consequent to above discussion, it is held that an appeal under section 185-F Customs Act or a revision before Special Appellate Court can be filed by the Federal Government only, through the following persons:--
(1) The Attorney-General and the Law Officers specified in section 4-A of the Central Law Officers Ordinance, 1970. These officers are, an Additional Attorney-General, Deputy Attorney-General and Standing Counsel.
(2) Advocates appointed by the Federal Government. Prior to the establishment of Revenue Division and the amendments inserted in the Rule of Business discussed above, such Advocates could be appointed by the Law and Justice. Division and after the amendment inserted initially in the year 1994 and subsequently in the year 1998 such appointments can be made through Revenue Division.
(3) Advocate authorized by the Board or by an officer subordinate to it as instructed by the Board, with effect from 16-6-2002.
28. Except the above Law Officers and advocates, no other person is competent to file appeal/revision in criminal case on behalf of Federal Government under the Customs Act. The Director-General, Directors, Collectors and any other officers subordinate to them are not competent to file appeal/revision directly in criminal cases but they can get the appeals filed through the Legal Advisors or a counsel as instructed by the Board.
29. In the light of above findings, I take up each appeal separately to examine whether the appeal has been filed by person competent in law to do so or not.
30. The first appeal is, Special Criminal Acquittal Appeal No,4 of 1991, which has been filed in the name of State through Pakistan Coast Guard, Karachi. The memo. Of appeal is signed by one unknown person as well as by Mr. Naimur Rehman, the then Standing Counsel and there is memo.
Of appearance filed by Mr. Naimur Rehman, stating that he Was appearing in this criminal appeal on behalf of the appellant. The question of maintainability of the appeal was raised by the then Special Appellate Court and on the basis of judgment in the case State v. Abdul Qayoom, PLD 1980 Karachi 465, the appeal was found maintainable and was admitted to regular hearing. Since the appeal has been preferred through the Standing Counsel therefore, it is held that the appeal is maintainable in law.
31. The second appeal is, Special Criminal Acquittal Appeal No,29 of 1991. This appeal has also been filed by Mr. Naimur Rehman, the then Standing Counsel and the memo. Of appeal is signed by him.
The file contains the memo. Of appearance signed by Mr. Naimur Rehman, the Standing Counsel. It is stated that he is authorized to file appeal in the above matter. This appeal is also maintainable having been filed by Standing Counsel, who is competent in law to file the appeal.
32. The third appeal is, Special Criminal Acquittal Appeal No,4 of 1993. This appeal has also been filed through Mr. Naimur Rehman, the then Standing Counsel for the Government of Pakistan. The memo. Of appearance of Mr. Naimur Rehman, stating that he is authorized to file E appeal in the above matter is also available on the record. The appeal is maintainable having been filed through the person conipetent in law to file the appeal.
33. The fourth appeal is, Special Criminal Acquittal Appeal No,1 of 2002. This appeal has been filed in the name of Islamic Republic of Pakistan, through Collector of Customs (Preventive), Karachi. The memo of appeal was initially signed by one unknown person, subsequently it was signed by Additional Collector of Customs (Preventive Headquarter) Customs House, Karachi. The memo. Of appeal is signed by. Mr. Fariduddin, Advocate, who is described as Advocate for the appellant.
Above the signatures of Mr. Fariduddin, Advocate the words "Deputy Attorney-General" are written but it is not known as to how these words have written and in what context, as Mr. Faridudin has never remained D.A.-G. The seal of Deputy Attorney-General of Pakistan is affixed, but it is not signed by the D.A.-G. An undated memo. Of appearance signed by Mr. Fariduddin Advocate is available on record. It is stated in it that he is authorized to assist learned D.A.-G. And to appear on behalf of the appellant in the above appeal. This memo. Of appeal was filed on 24-1-2002 and at that time only two categories of Law Officers/Advocates were competent to file appeal on behalf of. Federal Government. First, the Attorney-General and the Law Officers specified in section 4-A of the Law Officers Ordinance, 1970 and secondly, Advocate appointed by he Federal Government In this appeal neither any. Law Officer specified in Law Officers Ordinance, 1970 has signed the memo.
Of appeal nor there is any authorization on record in favour of Mr. Fariduddin, on behalf of the Federal Government. According to his memo. Of appearance he was merely authorized to assist the D.A.-G. This authorization does not empower him to file appeal on behalf of the Federal Government. The officers of the Customs Department are not competent to file the appeal and consequently this appeal is not maintainable in law, which stands dismissed accordingly.
34. The fifth appeal is, Special, Criminal Appeal No,3 of 2002. This appeal has been filed in the name of Collector of Customs (Preventive) Customs House Karachi and is signed by some person described as "appellant through. Chief Law Officer Collect orate of Preventive." It has been signed by Mr. Arif Motan, Advocate as well. The Vakalatnama of Mr. Arif Motan on record shows that he has been engaged by Chief Law Officer (Preventive). The appeal was filed on 12-11-2001 and on the said date the appeal could be filed by Law Officers specified in Law Officers Ordinance, 1970, or through the Advocate appointed by the. Federal Government. Mr. Arif Motan, Advocate does not fall in any of the above categories. The appeal has not been filed on behalf of the Federal Government as there is no authorization on behalf of the Revenue Division and consequently, the appeal is held to be incompetently filed which is not maintainable and stands dismissed accordingly.
35. The sixth appeal is, Special Criminal Acquittal Appeal No,8 of 2002. It has been filed in the name of State, through the Collector of Customs (Preventive) Customs House Karachi and is signed by Assistant Collector of Customs (Preventive) Headquarter-II, as appellant. It has been signed by Mr. Fariduddin, Advocate for the appellant. His memo. Of appearance contains that he is authorized to appear for the appellant. Mr. Fariduddin, is not a Law Officer appointed under the Law Officers Ordinance, 1970. There is nothing on record to show that he was appointed by the Federal Government and authorized to file the appeal. It also does not show that he is an Advocate authorized by the board or by an officer subordinate to it to file the appeal under the instructions of H CBR. The appeal is therefore, held to be incompetent in law which stands dismissed accordingly.
36. The Seventh appeal is, Special Criminal Acquittal Appeal No,9 of 2002. It has been filed in the name of State, through Collector of Customs (Preventive) Karachi. It is signed by some unknown person as well as by Mr. Fariduddin as Advocate for the appellant. The memo. Of appearance filed by Mr. Fariduddin, Advocate contains that he is authorized to appear in the appeal. This appeal is also not maintainable in law having not been filed by the person competent in law to file the appeal. The appeal stands dismissed accordingly.
37. The Eighth appeal is Special Criminal Acquittal Appeal No,10 of 2002. It has been filed in the name of State, through Collector of Customs (Preventive) Karachi. The memo of appeal has been signed by one Assistant Collector of Customs (Preventive) Headquarters-II. The memo. Of appeal is signed by Mr. Fariduddin, as Advocate for the appellant and the memo. Of appearance filed by him merely contains that he is authorized to appear for the appellant. It is not known that by whom he is authorized. The appeal is not maintainable as it has not been filed by a person competent in law.
Consequently, appeal stands dismissed.
38. The Nineth appeal is, Special Criminal Acquittal Appeal No,3 of 2003. This appeal has been filed in the name of State, through Collector of Customs (Preventive) Customs House, Karachi. The memo of appeal is signed by one Ghulam Abbas, the Assistant Collector of Customs, Customs House, Karachi. It bears the signatures of one Advocate also whose name does not appear on the memo. Of appeal. There is Vakalatnama of Mr. Shakeel Ahmed, Advocate, according to which Mr. Shakeel Ahmed, Advocate has been appointed by Mr. Ghulam Abbas Assistant Collector of Customs, Customs House Karachi. Neither the appeal has been filed by the Federal Government nor Mr. Shakeel Ahmed is authorized by the C.B.R. Or by an officer subordinate to it in K accordance with the instructions given by C.B.R. The appeal is therefore, held to be incompetently filed and stands dismissed accordingly.
39. The Tenth appeal is, Special Criminal Acquittal Appeal No,6 of 2003. This appeal has also been filed in the name of State, through Collector of Customs (Preventive) Karachi and has been signed by some unknown person as well as Mr. Fariduddin, Advocate in the capacity of Advocate for the appellant. In this case also Mr. Fariduddin, has been engaged as Advocate by Mr. Ghulam Abbas, Assistant Collector of Customs, Customs House, Karachi. The appeal is incompetent, and stands dismissed accordingly.
40. The Eleventh appeal is, Special Criminal Acquittal Appeal No,9 of 2003. This appeal has also been filed in the name of State, through Collector of Customs Karachi, Memo of appeal is signed by one Assistant Collector of Customs (Preventive). It is signed by Mr. Fariduddin, Advocate also, for the appellant. The memo of appearance states that he is authorized to argue and to appear in the above appeal on behalf of the appellant. Mr. Fariduddin, is described as Advocate for the appellant. Mr. Fariduddin, is neither the Law officer under the Central Law Officers Ordinance, 1970, nor he has produced any appointment/authorization by the Federal Government, Board or by an officer subordinate to Board in accordance with the instructions issued by the Board. The appeal is incompetent, which stands dismissed accordingly.
41. The twelfth appeal is, Special Criminal Acquittal Appeal No,10 of 2003. It has been filed in the name of State, through the Director Directorate General of Intelligence and Investigation, (Customs and Excise) Karachi. It does not bear signature of any Law Officer/Advocate. Vakalatnama of Mr. Arif Motan, is on record. He has been appointed by one Khalid Mehmood, Assistant Director, Intelligence and Investigation (Customs and Excise), Karachi. The appeal filed by the Assistant Director, Intelligence and Investigation is not competent in law, which stands dismissed accordingly.
42. The Thirteenth appeal is, Special Criminal Acquittal Appeal No,2 of 2004. It has been filed in the name of Federal Government, through Collector of Customs (Preventive) Customs House, Karachi.
However, the memo. Of appeal is signed by some Additional Collector of Customs (Preventive Headquarters) Customs House Karachi, whose name is not shown in the memo. Of appeal. It has been signed by Mr. Fariduddin, Advocate as well and the memo. Of appearance filed by Mr. 0 Fariduddin, states that he is authorized to file the appeal and argue the same in High Court. This appeal is also incompetent in law, which stands dismissed accordingly.
43. The Fourteenth appeal is, Special Criminal Acquittal Appeal No,5 of 2004. This appeal has been filed in the name of State, through Collector of Customs (Preventive) Karachi. The memo. Of appeal is signed by Mr. Ghulam Abbas , Deputy Collector of Customs, Customs House Karachi. It bears signatures of some counsel whose name is not shown in the memo. Of appeal. Power of Attorney in favour of Mr. Raja Muhammad Iqbal, Advocate, signed by Ghulam Abbas, Deputy Director of Customs, Customs House Karachi is available on record. Mr.Raja M. Iqbal, has also filed a letter addressed to him by Deputy Collector (Legal Division) Collect orate of Customs (Preventive)
Customs House Karachi. It is contained in the letter that in terms of sub-para. (5) of Para. 27-A of the Schedule-II of the Rules of Business, 1973. The Federal Government has been pleased to authorize Mr. Raja M. Iqbal, to file the Special Criminal Acquittal Appeal against the order of Appellate Tribunal Central Excise and Sales Tax Karachi under section 185-F. It further says that he is appointed to conduct the proceedings of the case under section 185-G of the Customs Act.
Nothing has been produced to show that Federal Government authorized Mr. Raja M. Iqbal to file the appeal and Deputy Collector (Legal) Division has no authority to issue any such authorization letter. The appeal has not been filed by the competent person appointed by the Federal Government or authorized by the Board or any officer subordinate to the Board in accordance with the instructions issued by the Board. The appeal is therefore, incompetent and stands dismissed accordingly.
44. The Fifteenth appeal is, Special Criminal Acquittal Appeal No,7 of 2004. This appeal has been filed in the name of State, through Collector of Customs (Export) Karachi. It bears signatures of Mr. Fariduddin Advocate also. The memo. Of appearance filed by Mr. Fariduddin is available on record which contains that he is authorized to appear in the Court on behalf of the appellant. It is not known as to who has authorized him to file the appeal. The appeal is therefore, held to be incompetent and stands dismissed.
45. The Sixteenth appeal is, Special Criminal Acquittal Appeal No,10 of 2004. It has been filed in the name of State, through Collector of Customs (Preventive) Customs House, Karachi. The memo of appeal is signed by one Mr. Ghulam Abbas, Deputy Collector of Customs, Customs House Karachi.
It bears signature of one Advocate also whose name is not shown in the memo. Of appeal.
Vakalatnama of Mr. Muhammad. Nadeem Qureshi, Advocate is on record. The Vakalatnama is signed by Ghulam Abbas, Deputy Collector of Customs, Customs House. Mr. M. Nadeem Qureshi, is not an Advocate appointed by the Federal Government or authorized by the Board or by an officer subordinate in accordance with the instructions of the Board. The memo of appeal shows that it has been filed under section 417 Cr. P. C. The appeal against the order of Special Judge (Customs & Taxation) Karachi, is competent under section 185-F Customs Act, and not under section 417, Cr.P.C.
The appeal is not competent and has not been filed by the person competent in law, which stands dismissed accordingly.
46. The Seventeenth appeal is, Special Criminal Acquittal Appeal No,Nil of 2004. It has been filed in the name of State, through Collector of Customs (Appraisement) Customs House, Karachi. The memo. Of appeal is signed by Asif Abbas Khan, Deputy Collector of Customs (Appraisement). It bears the signature of Advocate also whose name is not shown in the memo. Of appeal.
Vakalatnama of Mr. Nadeem Qureshi, Advocate is available on record which has been signed by Asif Abbas Khan, Deputy Director of Customs (Appraisement). The appeal is not competent, which stands dismissed accordingly.
47. The Eighteenth appeal is, Special Criminal Acquittal Appeal No, Nil of 2004. It is similar to the appeal discussed earlier. For the same reasons it stands dismissed.
48. The Nineteenth appeal is, Special Criminal Acquittal Appeal No,12 of 2004. It has been filed in the name of State, through Collector of Customs (Preventive) Customs House, Karachi. The memo. Of appeal is signed by Deputy Collector Customs (Legal Division). It is bears signatures of someone else also. It is not shown as to who is the second person signing the memo of appeal. Vakalatnama of Mr. Raja M. Iqbal, Advocate is available on record. He has been appointed by Deputy Collector of Customs (Legal Division) I &P. The appeal has neither been filed by the Federal Government nor by person authorized to file appeal and consequently the appeal is not competent which stands dismissed accordingly.
49. Before parting with this judgment, I would again like to clarify that except Federal Government no other agency or official is empowered to file appeal under section 185-F Customs Act, 1969 and the appeal can be filed through the Law Officers/Advocates as mentioned in the earlier part of this judgment. Any appeal filed by any other person, officer or authority and through any Advocate/Law Officer not V falling within the three categories specified in this judgment shall not be competent in law.