CHAUDHARY JAHANDAD KHAN. J.--The captioned criminal appeal has been filed against the order passed by the learned Sessions Judge, Kotli, on 31.08.2012 whereby the accused- respondents were acquitted from charges levelled against them while accepting the application under Section 265-K of Cr.P.C.
2. Synthesized facts forming the scenario of the instant appeal are that on 13.08.2011, complainant, P.I., Kotli, submitted a written report to P.D.S.P., against the accused/ respondents, alleging therein that he was present before the Tehsil Court of Criminal Jurisdiction, Kotli, for prosecution of the cases then Ghazanfar Ali Head Constable/Reader informed him that a Pathan accused who was required in a murder case fled away upon which he tentatively enquired the matter from officer in- charge guard Khalid Hussian S.I., Reserve along with others who were deployed as guard duty, inspected the bathroom of Bakhshi Khana (temporary judicial lockup) and also tentatively investigated from the accused persons who were present there. After enquired the matter, it was found that today i.e, 13-8-2011, Khalid Hussain S.I. Reserve along with Muhammad Anwar No,222, Muhammad Farooq No,365, Muhammad Mahroof No,132, Farooq No,331, Mohammad Nisar No,271, Mir Zaman No,230, Muhammad Azam No,41, Muhammad Amin No,290, Muhammad Ayub No,49, Constables, Rasheeda Bibi Lady Constable was deployed as guard, communication, for production of accused persons namely Muhammad Noor son of Muhammad Aslam, Rehman son of Rehmat Khan, Mohammad Naeem S/o Said Mohammad, Ibrar S/o Amin, Riaz S/o Saleem, Ishaq S/o Puno Khan from Police Line Kotli before the District Court of Criminal Jurisdiction, Kotli, whereas Suriyya wife of Mushtaq, Tahir S/o Afsar, Sabir S/o Amir Ali were to be produced before Tehsil Court of Criminal Jurisdiction, Kotli, from District Jail Kotli and at about 09:15 A.M. All were locked up in Bakhshi Khana (temporary judicial lockup) situated in the premises of Courts while S.I. Along with other personnel was busy for assigning duties of personnel in the Meanwhile accused, Ishaq SA)
Puno Caste Sudhan R/o Panjara shouted from Bakhshi Khana (temporary judicial lockup) that accused-Rehman S/o Rehmat Khan went to attending bathroom who did not open the door whereupon he along-with constables entered into the Bakhshi Khana (temporary judicial lockup) and saw that accused Rehman was not present whereas back side of the bathroom, a fence of ventilator was broken and the accused succeeded to flee away as such due to negligence, the police personnel along-with accused-person committed offence under Sections 221/222, 223/224, 225/B, 109, APC.
3. On this report, a case illat No,279/11 under the above Sections was registered at Police Station Kotli against the alleged accused-respondents. During investigation, the accused- respondents mentioned in column Nos.2 and 3 were challaned whereas accused absconder, Rehman S/o Rehmat Khan, was proceeded under Section 512 of Cr.P.C. While accused-lady constable was discharged from charge under Section 169 of Cr.P.C, due to lack of evidence however, P.P.
Requested that after recording evidence, the accused-respondents may be treated in accordance with law. On 15.12.2011 a challan was submitted under Section 173, Cr.P.C. Before the Court concerned and on 03.01.2012 the accused-absconder was proceeded under Section 512, Cr.P.C.
Whereas on 18.01 2012 the accused-respondents got recorded their statements under Section 242 of Cr.P.C. The accused-respondents pleaded not guilty of the offence levelled against them.
Thereafter, the prosecution was directed to produce evidence, whereupon, the prosecution produced P.Ws. Akhtar Arif P.I., Kotli, Ghazanfar Ali Head Constable deputed reader P.D.S.P. Kotli, Mohammad Naeem S/o Said Mohammad Caste Dali R/o Katani Colony, Mohammad Noor S/o Mohammad Aslam Caste Malik R/o Kalah presently at judicial lockup, Mohammad Sabir S/o Amir Alam Caste Jutt R/o Darliah Jattan, Ibrar S/o Mohammad Amin, Mohammad Riaz S/o Saleem, Caste Sudhan, R/o Panjara Kotalla and their evidence was also recorded. The proceedings were at the stage of recording evidence of the P.Ws. Meanwhile an application was filed by accused- respondents for their acquittal and dismissal of case under Section 265-K, which after hearing was allowed vide impugned order dated 31.08.2012, hence, this appeal.
4. At the very outset, the learned counsel for the accused-respondents, Mr. Zaheer Babar Chaughti, raised preliminary objection that the instant appeal is not competent on the ground that the same was filed under Section 417(1) of Cr.P.C. By Additional Advocate General who is not an authorized person in connection with filing of appeal because he is not a "Public Prosecutor", hence, the appeal is bad in law within the meaning of above Section of Cr.P.C., which is liable to be dismissed on this sole ground. The learned counsel argued that the impugned acquittal order passed by Sessions Judge, Kotli, on 31.08.2012 is in accordance with law, therefore, the same needs no legal interference by this Court because evidence recorded by the star witnesses does not disclose any indulgence of the accused-respondents in the charges leveled against them, therefore, the learned Court below has rightly acquitted the accused-respondents. The learned counsel for accused-respondents defended the impugned order on accounts.
5. When M/s Chaudhary Ashraf Ayyaz and Ch. Arif Rant, A.A.Gs. For the State were confronted with regard to legal proposition, i.e,, competency of appeal, raised by the learned counsel for the accused-respondents, they failed to satisfy the Court on this point, however, they emphasized that the same practice is being used up till now for presentation of an appeal against the acquittal order, hence, they are bound to act upon or to do the same as per direction of the Government on behalf of Law Department and on account of which they are competent in such like state of affairs.
6. We have heard pro and contra arguments.
7. A perusal of record shows that the captioned appeal against the acquittal order was preferred by the A.A.Gs. On 26.02.2013 under the instruction of Law Department of Azad Jammu and Kashmir accorded by notification bearing No,1644-52 dated 08.02.2013.
8. So far as the point raised by the learned counsel for the accused-respondents whether the learned Additional Advocate General is competent to file this appeal or not is concerned. A plain reading of Section 417(1) of Cr.P.C. Crystal clearly manifests that an appeal under the above Section of Cr.P.C. The Government could only direct the Public Prosecutor, subject to provisions of Subsection (4), to file an appeal to this Court from an original or appellate order of acquittal passed by any Court other than a High Court. The rhyme and scheme of legislature is that the word "Public Prosecutor" is specifically inserted by which Advocate General, Additional and Assistant Advocate Generals are not authority within the meaning of Section 417(1) of Cr.P.C. To file an acquittal appeal, hence, for proper appreciation of the matter in hand, IA the above Section of Cr.P.C. Is reproduced as under:- "417. Appeal in case of acquittal. (1) Subject to the provision of subsection (4), the Provincial Government may in any case, 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. "
' The above point came under consideration of the High Court of Sindh in a case titled The State v.
Muhammad Nasim Baig [1989 PCr.LJ 18421 in which the following dictum has been laid down:- "Applying the above principles to the present case we find that from the letter produced by Mr. Sarfraz Ahmed quoted above it is quite clear that he was nominated to file appeals in the capacity of an Advocate and not a Public Prosecutor. Unless he is appointed a Public Prosecutor under the Act the fact that he was appointed an advocate to file appeal will be of no effect. Mr. Sarfraz Ahmed has described himself as Ex Officio Public Prosecutor. This expression means that by virtue of holding an office he has become a Public Prosecutor. Even if at the relevant time he was holding the office of Assistant Advocate-General there is nothing to indicate that as such he was a Public Prosecutor under the Act. He has also described himself as Prosecutor Banking (Offences) Court but by virtue of this post he cannot claim to be a Public Prosecutor. "
' Parallel views have been expressed by the Hon'ble Supreme Court of Pakistan in a case titled State through Advocate-General, Sindh V. Hanif Ahmed and others [1994 SCM R 749] wherein caption (b) is reproduced as under:- "Criminal Procedure Code (V of 1898)--- ---Ss. 492 & 417---Rules for the Conduct of the Legal Affairs of Government, 1940, Rr. 22, 22-A, 23 & 25---Public Prosecutor and Assistant Advocate-General---Office of Public Prosecutor is distinct and his functions and duties are different from the duties of the Assistant to the Advocate General or of the Advocate-General. "
9. It is not out of place to mention here that the scheme of Sections 417 and 492, Cr.P.C., is very much clear on the subject matter that a person presenting an appeal must act as a Public Prosecutor, however, he may hold one or more other offices, but the only one of his functions, which needs to file an appeal against an acquittal is the function of being a Public Prosecutor, however, even subsection (2) of Section 492 is also very clear that no construction except the ex-officio nominee construction can be permitted, for the section itself speaks of appointment of person by the Government to be called Public Prosecutor, hence, for proper elaboration of the matter Section 492 of Criminal Procedure Code is reproduced, which reads as under:- "492. Power to appoint Public Prosecutors. (1) The [Provincial Government] may appoint, generally, or in any case, or for any specified class of cases, in any local area, one, or more officers to be called Public Prosecutors.
(2) [officer-in-charge of prosecution in the district] may, in the absence of the Public Prosecutor, or where no Public Prosecutor has been appointed, appoint any other person, not being an officer of police below [such rank as the [Provincial Government] may prescribe in this behalf] to be Public Prosecutor for the purpose of [any case] ."
' The term "Public Prosecutor" is defined in Clause (T) of Subsection (1) of Section 4 of Cr.P.C. Which reads as under:- "(t) "Public Prosecutor". "Public Prosecutor" means any person appointed under section 492, and includes any person acting under the directions of a Public Prosecutor and any person conducting a prosecution on behalf of [the State] in any High Court in the exercise of its original criminal jurisdiction."
' Whereas, term Advocate-General is defined in clause (a) of Subsection (1) of Section 4, Cr.P.C. As under:- "(a) "Advocate-General".
"Advocate-General" includes also a government Advocate or, where there is no Advocate- General or Government Advocate, such officer as the [Provincial Gaernment] may, from time to time, appoint in this behalf. "
A bare reading of both the definitions obviously postulates that the purpose and intent of both definitions is quite distinct from one another. It is pertinent to mention here that it is nowhere provided in Criminal Procedure Code that an Advocate-General will also be Public Prosecutor whereas Public Prosecutor is appointed under Section 492 of Cr.P.C. And an Advocate-General is appointed under Section 20 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 in the following manner:- "Advocate-General: (I) The President shall appoint a person, being a person qualified to be appointed a Judge of the High Court to be the Advocate-General for Azad Jammu and Kashmir. "
In Rule 2(a) of The AJK Law Department Manual 1984, the term "Advocate-General" is defined as under:- "Advocate General" means Advocate General of Azad Jammu and Kashmir and includes Additional or Assistant Advocate General. "
Likewise, in Rule 5 of the above manual, the mode of appointment of Public Prosecutors has been defined whereas in Rule 8 duties of Advocate-General in criminal cases have been narrated and in Rule 14 it has been described that in order' to render assistance to the Advocate-General and Public Prosecutors in original Criminal cases by P.D.S.P. And other officers, in which it is clearly postulated that Advocate-General does not fall within the meaning of Public Prosecutor as per Codal provisions of Criminal Procedure Code whereof in presence of special law no other law prevails. Our contention also gets support from a case titled The State v. Nooro alias Noor Muhammad and others [1998 PCr.LJ 35] in which it has been held that:- " (a) Criminal Procedure Code (V of 1898)--- ---Ss. 417 & 492---Appeal against acquittal---Competency--Appeal against acquittal of accused by Sessions Court had been filed in High Court by Assistant Advocate-General under the instructions of Advocate-General----Such appeal could be presented to High Court by a Public Prosecutor, namely, a person appointed by the Provincial Government to be called a Public Prosecutor who could alone be directed to file an appeal in a particular case---Advocate- General who had accorded sanction to file the appeal was never appointed a Public Prosecutor either by name or by office as required under Section 492, Cr.P.C., nor the Assistant Advocate- General who had presented the appeal was either authorized to do so or was acting as a Public Prosecutor---Merely because Advocate-General was directed by the Government to present the appeal from the order of acquittal, did not mean that he had been ex officio appointed as Public Prosecutor---Appointment of the Advocate-General as such also could not make him ex-officio Public Prosecutor under the law---Appeal against acquittal of accused, therefore, was not filed by a proper and competent person in accordance with the provisions of S.417, Cr.P.C. And the same was dismissed accordingly. "
10. The contention of the Additional Advocate General that the Government has authorized him to appear or present an appeal in such like state of affairs in light of direction of Law Department issued through notification dated 08-02-2013 whereby it cannot be assumed that against the acquittal order, he had been appointed ex officio as Public Prosecutor, hence, in such like matters, a direction should have been issued to the Public Prosecutor as required under section 417 of Cr.P.C.
Rather than to the Additional Advocate General or Advocate-General.
11. Even otherwise, we have scrutinized the matter on merits, however, the appellant has no case at all on merits because evidence of star P.Ws. Nos. 2 to 7, 10 and 11 of Qalandra challan, being cited as ocular witnesses has already been recorded whereas P.Ws. 8 and 9 are on the responsibility of the prosecution and at this stage even if further evidence is ordered to be produced, even then, no fruitful purpose will be served, hence, we are of the considered view that the learned Sessions Judge, Kotli, committed no illegality or infirmity while accepting the application of accused- respondents for their acquittal and dismissal of case under section 265-K of Cr.P.C. Vide order dated 31-8-2012. As the appeal in hand is being decided on the sole point of competency, hence, there is no need to pass an order against accused-respondents Nos.1 and 2 separately.
12. The nutshell of the above discussion is that the appeal was neither presented before this Court by Public Prosecutor nor by a person wholly authorized with powers for the purpose as enshrined by Section 417 of Cr.P.C. Whereas the legal objection raised by the learned counsel for the accused-respondents cannot be ruled out in the given circumstances, therefore, the appeal being incompetent is hereby dismissed.