MUHAMMAD KARIM KHAN AGHA, J.--The brief facts of the case are that the Respondents were tried .By Special Court II CNS Karachi pursuant to F.I.R 1564/2011 dated 15-9-2011 and challan which was treated as final on 22-12-2011 on account of committing offenses under Sections 6, 7 and 8 Control of Narcotic Substances Act 1997 (CNSA) punishable under section 9(c) of that Act for transporting and possessing prohibited narcotic substances (poppy seeds) of foreign origin. After trial and through Judgment dated 28-08-13 they were acquitted by the Special Court of the charges which had been brought against them,
2. On 7-1-2014 the State through the Director, Directorate General of Intelligence and Investigation (Customs and Excise) (the Appellant) filed a Special Criminal Acquittal Appeal 30/2014 (the Appeal) under Section 48 of the CNSA read with Section 417, Cr.PC against the Acquittal of Haji Nabi Bux and Abdullah (the Respondents) through impugned judgment dated 28-08-2013 passed by the learned Judge Special Court II (CNS) Karachi.
3. The Appeal was signed by Director, Intelligence and Investigation- FBR through Mr.Ghulam Haider Shaikh Advocate.
4. On 26-3-15 learned counsel for the Respondents submitted that pursuant to Section 417 Cr.P.C.
The Appeal filed by the Appellant was not maintainable as the Director who had signed the Appeal, in his capacity as a "person aggrieved" by order of acquittal of the Respondents was neither authorized nor competent to file the appeal.
5. That in order to assist the Court as to the maintainability of the Appeal the Court issued notice to Mr.Habib Ahmed, Special Prosecutor ANF and appointed Mr. Mehmud A. Qureshi, Advocate as amicus curiae.
6. Mr.Habib Ahmed whilst assisting the Court submitted that since the case was registered by the subordinate of the Director he being an aggrieved person could file the Appeal without obtaining sanction from the competent authority. However if the appeal is filed by the Government then the sanction from the concerned quarter is a condition precedent. -
7. Learned Counsel for the Appellant submitted that the Appeal had been properly and rightly filed by Director, Intelligence and Investigation FBR and was maintainable. He stressed that it was essentially a Customs case which was triable under the CNSA and that the Appeal had been filed in accordance with the applicable law. In this respect he placed reliance on Haji Mohammed Aslam v. Director General Pakistan Coast Guards 2012 PTD 629 and F.A.Corporation v. Director General Customs Intelligence and Investigation 2008 PTD 1365.
8. Learned Amicus Curiae was also of the view that the Appeal was maintainable. In this respect he placed reliance on Section 72 CNSA, Section 185 (F) of the Customs Act 1969 and Notification (Customs) SRO 4861(1)/2007 issued in pursuance to Section 3 (E) and 4 of the Customs Act which in essence allowed the Director to file the Appeal.
9. On the other hand learned counsel for the Respondents submitted that the Appeal was not maintainable as it had neither been signed nor authorized in accordance with the relevant provisions of law and in particular Section 417 Cr.P.C.
10. In support of his submissions he placed reliance on Haji Abdullah Jan v. The State (2003 SCM R P.1063), The State v. Mundwar ud-Din (1985 PCr.LJ 1431) and The State v. Bashir Ahmed (2003 YLR 2229) which made it clear that such appeals could not be filed by Directors of various Institutions on behalf of the State and made specific reference to the Central Law Officers Ordinance 1970 in this respect.
11. We have carefully examined the documents on file, considered the relevant law and submissions of learned counsel for the Appellant, Respondents and Amicus Curiae and the authorities cited by them at the bar.
12. In order to assist us in determining the question of maintainability it needs to be determined whether this is a Customs case or not. This is the view of the Appellant which has not been seriously challenged by the Respondents.
13. In resolving this controversy Section 72 CNSA is of assistance which for ease of reference is set out below: S.72 CNSA: "72. Application of the Customs Act, 1969- All prohibitions and restrictions imposed by or under this Act on the import into, export from, Pakistan and transshipment of narcotic drugs, psychotropic substances or controlled substances shall be deemed to be prohibitions and restrictions imposed by or under the Customs Act, 1969 (IV of 1969), and the provisions of this Act shall apply accordingly: ' Provided that, notwithstanding anything contained in the. Customs Act, 1969 (IV of 1969) or any other law for the time being in force, all offences . Relating to narcotic drugs, psychotropic substances or controlled substances shall be tried under the provisions of this Act: ' Provided further that where the Officers of Customs apprehend a person involved in any offence relating to narcotic drugs, psychotropic substances or controlled substances shall be empowered to carry out inquiry and investigation in the manner as an officer authorized under this Act". (bold added)
14. This in our view makes it amply clear that this is a customs case although the concerned offenses are those mentioned in the CNSA and are triable under the CNSA.
15. It would now be of assistance to see under what sections of which law the Appeal was filed. As per front sheet of the Appeal the Appeal was filed under Section 48 CNSA read with S.417, Cr.P.C.
16. Section 48 CNSA reads as under: ' Section 48 (1) An appeal against the order of a Special Court comprising a Sessions Judge or an Additional Sessions Judge shall lie to the High Court and shall be heard by Bench of not less than two Judges of the Court. (bold added)
' (2) An appeal against the order of a Special Court comprising a Judicial Magistrate shall lie to a Special Court comprising a Sessions Judge or an Additional Sessions Judge.
17. S.417 Cr.P.C. Reads 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 High Court.
(2) if such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf grants special leave to appeal from the order of acquittal the complainant may present such an appeal to the High Court.
[(2-A) A person aggrieved by the order of acquittal passed by any Court other than a High Court, may, within thirty days, file an appeal against such order]
(3) No application under subsection (2) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order.
(4) if, in any case, the application under subsection (2) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall be lie under subsection (1).
18. As per settled law a special law will prevail over a general law if the special law and general law are in conflict.
19. In our view as already found above this case is essentially a Customs case and the Customs Act 1969 is a special law although it is being tried under the provisions of the CNSA which is also a special law. The FIR was lodged by a member of the FBR and the challan was filed by the FBR and prosecuted by the FBR in the Special Court II CNS Karachi in connection with offenses under the CNSA.
20. Since the Customs Act and CNSA are special laws and the Cr.PC. Is a general law in terms of who may file an appeal the provisions set out in the special law will initially take preference over of those set out in the general law i,e, Cr.PC.
21. The question which then emerges is what provisions have been made in the Customs Act and CNSA for filing an appeal against Acquittal from a Judgment passed by Special Court II CNS Karachi.
22. Section 48 CNSA as mentioned earlier envisions an appeal against the order of a Special Court comprising a Sessions Judge or an Additional Sessions Judge to the High Court as in the instant case. The Appeal has therefore in our view been filed under the correct provision of law i,e, Section 48 CNSA.
23. Section 48 CNSA., the CNSA and the Rules framed thereunder are however silent in respect of who is authorized to file such an appeal. The next question which emerges therefore is who may file the Appeal.
24. Since this is a Customs Case Section 185(F) of the Customs Act 1969 may be applicable as contended by the Appellant and amicus curiae which provides as under in this respect: [185-F Appeal to Special Appellate Court.-(1) Any person, including the Federal Government [the [Board], the Collector Customs [or Director of Intelligence and Investigation] or any other Officer authorized in this behalf by the Board], 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 1989), 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 appeal or a revision preferred under subsection (1).]
25. Section 185 (F) makes it clear that the Director of Intelligence and Investigations aggrieved by any order passed or decision made by a Special Judge under this Act (i,e, Customs Act) or under the Cr.PC. May prefer an appeal to the Special Appellate Court.
26. This would, in our view, indicate that the Director could file the Appeal especially when read with Notification (Customs) S.R.O. 486(1)/2007 effective from 1st July 2007 which provides in material part as under (the SRO): "In exercise of the powers conferred by sections 3E and 4 of the Customs Act, 1969 (IV of 1969), and in suppression of its Notification No,S.R.O 39(1)/2005, dated the 6th January, 2005 the Central Board of Revenue is pleased to authorize the officers of the Directorate General, Intelligence and Investigation, Central Board of Revenue, specified in column (2) of the table below, to exercise the powers and discharge the duties of the officers of customs under the provisions of the said Act specified in column (3) of the table and to invoke all the relevant provisions of the said Act and rules made thereunder if so warranted, within the area of their respective jurisdiction, namely;-"
Sr. No Officers Provision of the Customs Act, 1969
(1) (2) (3)
1. Director General of Intelligence and InvestigationSections 17, 26, 48, 60, 62, 91, 92, 1 11, 139, 157(2), 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168(1), (3) and (4), 169, 171, 174, 175, 185-F , 186, 193, 194-A, 196, 197, 198, 199
2. Director of Intelligence and InvestigationSections 17, 26, 48, 60, 62, 91, 92, 1 11, 139, 157(2), 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168(1), (3) and (4), 169, 171, 174, 175, 185-F , 186, 193, 194-A, 196, 197, 198, 199, 201
27. In this respect reliance of the Appellant as to the maintainability of the Petition on F.A.
Corporation v. Director General Customs Intelligence and Investigation (2008 PTD 1365) which held as under may be of some assistance to him in this matter although the powers given to customs officers appear to relate to appeals under Section 194(A) of the Customs Act.: "Director of Intelligence is an officer of Customs Department so appointed by law for which specific Notification S.R.O.486(I)/2007 assign powers.--In subsection. (g) of section 3, the appointment of the officers of customs has been granted to Board and for the purpose procedure has been prescribed.
Section 3-A deals with the appointment of the Director-General of Intelligence and Investigation for Customs and Central Excise. This section is also a part of the Chapter-II which deals with the appointment of officers of customs and their powers under section 3 above. The section clearly says that the Director-General Intelligence of Customs and Central Excise shall consist of a Director-General and as many Directors, Additional Directors inter alia other officers mentioned therein as the Board may by a notification in the official Gazette so appoint. The Director of Intelligence, therefore, by all means and by any standard is an officer of Customs department so appointed by law for which the specific notification, that assigns powers is S.R.O No,486 (I) of 2007, dated 9th June 2007.
Director of Intelligence as well as other officers of the said department have been appointed by the Board under law under section 3-A which is a part of Chapter-II which deals with the appointment and powers of officers of the Customs Department.
This Court has already held that the Director of Intelligence is an officer of Customs Department.
Since it is within the jurisdiction of the "Board" to appoint various authorities and for that matter be the Assistant Collector or Collector of Customs, Director of Intelligence or Investigation or Audit, the authority being with the Board not only can be appointed by the Board but can also be replaced by one another.
28. In this respect however reliance on the Appellant as to the maintainability of the Petition on Haft Mohammed Aslam v. Director General Pakistan Coast Guards (2012 PTD 629 which tends to relate to appeals under Section 193 and entrustment of functions of customs officers to certain other officers under Section 6 Customs Act respectively and which held as under is in our view unlikely to be of much assistance to him in this matter as it primarily seems to relate to Section 6 of the Customs Act: ---Ss. 2(o), 3,3A 3B, 3C, 3D, 3DD, 4, 6, 193 & 196--- Pakistan Coast Guards Act (XVIII of 1973), Ss. 2 (9), 3,.4 & 14--- Seizure of gold by Pakistan Coast Guards---Release of seized goods to its owner ordered by Adjudicating Officer---Appeal against such order to Appellate Authority filed by Director General Pakistan Coast Guards---Dismissal of appeal for its filing by an incompetent officer---Order of Appellate Tribunal remanding case to Appellate Authority for its decision on merits---Validity--- Appeal under S.193 of Custom Act, 1969 could not be filed by officers of Customs against an order passed by officer of Customs not below the rank of Assistant Collector---Officer of Customs appointed under S. 3 of Customs Act, 1969 would exercise such powers and discharge such duties as conferred or imposed on him by or under Act, 1969 or rules made thereunder---Board of Revenue through notification under S.6 of the Customs Act, 1969 could entrust conditionally or unconditionally any function of an officer of customs under Customs Act. 1969 to an officer of Federal/Provincial Government, State Bank of Pakistan or scheduled Bank---Provision of S.6 of Customs Act, 1969 related only to delegation of powers to facilitate performance of functions and duties under the Act but did not provide for appointment of Customs Officer---Such powers could be delegated not necessary by reference to designation of rank of customs Officer, but by numeration, definition or description of power itself---Functions of Pakistan Coast Guards would include prevention of smuggling as officers of Customs, if entrusted to them under the Customs Act, 1969---Officers of Pakistan Coast Guards had not been defined as officer of Customs either in the Customs Act, 1969 or Pakistan Coast Guards Act, 1973---Director General, Coast Guards being not an officer of Customs, appeal filed by him before the Collector of Customs, (Appeals) under S.193, Customs Act, 1969 was competent in law---High Court dismissed the reference, in circumstances.
29. In our view the upshot of the discussion would appear to be that the Director Intelligence and Investigation had authority to file an appeal under Section 185(F) of the Customs Act read with the SRO in the name of the Director of Intelligence and Investigations, FBR. The next question to consider, therefore, is whether he could have filed the Appeal through or on behalf of the State as in this case.
30. The next issue to consider therefore is whether in this respect Section 417 Cr.P.C. In terms of Section 417 (1) or 2(A) are of any assistance to the Appellant which are reproduced as under for ease of reference:
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 High Court.
(2)............
[(2-A) A person aggrieved by the order of acquittal passed by any Court other than a High Court, may, within thirty days, file an appeal against such order]
31. In the instant case there is nothing on record to show that the Provincial Government has directed the public prosecutor to present the Appeal as such Section 417 (1) is not attracted to this case. Since this was a Federal Statute it is unlikely that the Provincial Government could in any event have filed the appeal. Furthermore the Appeal has not been filed by a public prosecutor, for example, a Deputy Attorney General (DAG) under the Central Law Officers Ordinance 1970 rather it has been filed by the Director Intelligence and Investigation FBR.
32. The question which therefore arises is that if the Director can be regarded as a person aggrieved under Section 417(2A) Cr.P.C. Did this entitle him to file an appeal through or on behalf of the State.
33. The case of the Respondents relied heavily on the fact that Section 417 Cr.P.C. Did not entitle and Appellant to file an appeal either through or on behalf of the State. In this respect they relied on the following cases in support of their contention the hub of which was that only a law officer appointed under the Central Law Officers Ordinance 1970 could file the appeal through or on behalf of the State and only then on specific instructions from the Federal Government.
The State v. Munawar-ud-Din (1985 PCr.LJ 1431) which found at P.1431 ---Ss.4 & 10(2)---Penal Code (XLV of 1860), Ss. 420, 468, 471 & 120-B-Prevention of Corruption Act (II of 1947) S. 5(2)--- Central ' Law Officers Ordinance (VII of 1970), S.4--- Notification No,F.23(3)/72-AI, dated 10.07 1973---Appeal against order of acquittal passed by Special Judge---Direction by Federal Government to Public Prosecutor to present appeal, a condition precedent---Direction given to Deputy Attorney-General to conduct appeal, would not tantamount to direction to present appeal---Appeal filed by Deputy Attorney-General who was not a notified Public Prosecutor, held, not properly presented and dismissed. (bold added)
The State v. Bashir Ahmed (2003 YLR 2229) which held as under: "----S. 417---Appeal against acquittal---Competency--- No direction in writing was given to the Deputy Attorney General to file appeal against the order of acquittal passed by the Trial Court--- Letter produced by Deputy Attorney General had only spoken of to contest/pursue the matter, but no instruction directing or granting permission to Deputy Attorney- General to file appeal was on record---Said letter would not amount to direction by Federal Government to public prosecutor to present appeal against acquittal---In absence of written direction/permission to Deputy Attorney- General to present appeal against order of acquittal, appeal filed by Deputy Attorney-General, was dismissed as same was not competently filed." (bold added)
34. The main case which the Respondents relied on however was the Supreme Court case of Haji Abdullah Jan v. The State (2003 SCM R P.1063) Relevant 1066 which was based upon a very similar point of law as in this instant case and which found as under: S.417---Central Law Officers Ordinance (VII of 1970), S.4A--Penal Code (XLV of 1860), S.420/467/468/471/482/483/109---Appeal against acquittal---Competency---No right accrued to the Federal Government under Section 417, Cr.P.C. To file an appeal and consequently no authority was available with the Deputy Attorney-General to file an appeal under the said provisions of law-- -Appeal against acquittal of accused had been filed in the High Court by the State through a Deputy Director of F.I.A., therefore, the submission of the Deputy Attorney-General that this was an appeal filed by the Deputy Director, in his capacity as a person aggrieved of the acquittal was factually incorrect---No authority vested in the Deputy Director of F.I.A. To file the appeal in question on behalf of the State--- Said appeal, therefore, was neither competent in view of S.4A of the Central Law Officers Ordinance, 1970, nor was the same maintainable under subjection (2-A) of S.417, Cr.P.C.--Impugned Judgment of High Court rejecting the preliminary objection of accused regarding the competency of the acquittal appeal, was set aside accordingly.
35. In Particular at paras 6, 7, 8 and 9 it was found that
6. We have perused Central Law Officers Ordinance, 1970. It is true that a Deputy Attorney-General does stand declared as a Public Prosecutor and it is also true that he does stand and authorized to file, appeals and revisions but these appeals and revisions which such a law officer is permitted to file are the ones which are to be filed on behalf of the Federal Government. Needless to say that under section 417 of the Cr.P.C. No right accrues to the Federal Government to file an appeal and consequently no authority was available with the Deputy Attorney-General to file an appeal under the said provisions of law. This submission of the learned Deputy Attorney-General is, therefore, without merit.
7. The next and the alternative submission of the learned Deputy Attorney-General was that the competence of the appeal in question could be defended on the strength of the provisions of subsection (2A) of section 417 of the Cr.P.C. And argued that the said appeal had been filed by a Deputy Director of F.I.A. At Quetta in his capacity as a "person aggrieved by the order of acquittal" and that the said appeal was thus maintainable on the strength of the said provisions of subsection (2A) of section 417 Cr.P.C. (bold added)
8. We have perused the memorandum of appeal in question filed before the Balochistan High Court. A certified copy of this appeal which is available on our record described the appellant as under:- "State Through Deputy Director (FIA) of Pakistan at Quetta".
It may be mentioned here that a copy of this appeal which is available on our file describes the appellant differently and recites the appellant to be:- "State Through Deputy Attorney General of Pakistan at Quetta".
Needless to mention here that we would rather go by the certified copy of the memorandum of appeal and not by the copy which is available on our file and which is uncertified. As would appear from the description of the appellant in this appeal, the same is declared to have been filed by the State through a Deputy Director of F.I.A. Therefore, the submission of the earned Deputy Attorney- General that this was an appeal filed by the Deputy Director in his capacity as a person aggrieved of the acquittal is factually incorrect. Consequently, the question whether above mentioned provisions of subsection (2A) of section, 417 of the Cr.P.C. Were attracted in the present case and if so attracted then 'whether the said provisions would be available when these provisions were added after the judgment of acquittal had been passed, becomes irrelevant. Needless to add that it is nobody's case that any authority vested in the Deputy Director of F.I.A to file the appeal in question on behalf of the State.(bold added)
9. Thus our conclusion is that the said appeal was neither competent in view of the provisions of section 4A of the Central Law Officers Ordinance No,VII of 1970 nor was the same maintainable under subsection (2A) of section 417 of the Cr . P.0 .
36. The above case seems to be directly on the point of law in issue i,e, who is authorized and competent to file the Appeal through or on behalf of the State.
37. It may be that the Appellant, being the Director Intelligence and Investigation FBR, in his view is a person aggrieved by the order of acquittal so as to fall within the purview of Section 417 (2 A) Cr.P.C.
This is more so since it was the Appellant body that lodged the F.I.R, filed the challan and prosecuted the case and as such was most concerned with the outcome of the case. Thus, when the acquittal came in he had every right to feel aggrieved and dissatisfied with the acquittal order which related to a Customs case, although triable under the CNSA. This however in our view, would only enable him to file the appeal in his capacity as Director under Section 185(F) of the Customs Act read with the SRO. It would not, as in this case, entitle him to file an appeal through or on behalf of the State which could only have been done by a duly authorized and instructed law officer.##TE#
38. The front sheet which is reproduced for ease of reference below, however, as in the case of Haji Abdullah Jan v. The State (Supra) tends to contradict the appellants stance that the appeal was maintainable as it specifically states that the appeal is filed by the State.
BEFORE THE HONOURABLE HIGH COURT OF SINDH AT KARACHI (SPECIAL APPELLATE JURSIDCITION)
Crl.Acq.Appeal No,30 of 2014 State through, The Director, Directorate General Of Intelligence and Investigation (Customs and Excise)
C-81 Block 6 PECHS Karachi ................................ Appellant VERSUS
1. Haji Nabi Bux, S/o Raham Dil (CNIC 53402-1955112-7)
R/o Saryab Road Gali No,3, Mussa Colony, Kili Perkaliabad, Quetta.
2. Abdullah S/o Asad Ullah Malizai, R/o 20 Shaheen Jinnah Colony, Karachi ...............................................
Respondents SPECIAL CRIMINAL ACQUITTAL APPEAL UNDER SECTION 48 OF THE CONTROL OF NARCOTIC SUBSTANCES ACT, 1997, READ WITH SECTION 417 CR.P.C, AGAINST THE ACQUITTAL OF RESPONDENT NOS. 1 & 2, VIDE IMPUGNED JUDGMENT DATED 28.08.2013, PASSED BY THE LEARNED JUDGE SPECIAL COURT-II, KARACHI. ##TE#
39. In our view it would appear that under Section 417(2A) the Appeal had to be filed in one of two ways either (1) by the Director, Directorate General of Intelligence and Investigation duly authorized by the FBR (being the aggrieved person) without mentioning the word "State" or (2) by the State which would be acting through a Deputy Attorney General who was duly authorized in writing by the Federal Government (aggrieved person) to both file and conduct the Appeal.
40. We are further fortified in our view by the case of the Director, Directorate General of Intelligence and Investigation v. Messrs Al Faiz Industries (Pvt) Limited (2006 SCM R P.129) (where the case was in our view rightly brought by the Director, Directorate General of Intelligence and Investigation and not the State and again concerned who may file appeals. (although this was for the purposes of filing appeals under Section 196 of the Customs Act) P.136 Paras 15 to 17 are relevant in respect of the instant case.
' In the case of Khalid Saeed v. Shamim Rizvan and others 2003 SCM R 1505 this Court while considering the impact of violation or non-observance of the method prescribed by law for doing an act in a particular manner or mode observed that if the law had prescribed method for doing of a thing in a particular manner, such provision of law is to be followed in letter and spirit and achieving or attaining the objective of performing or doing of a thing in manner other than provided by law would not be permitted.
16. Permitting or authorizing a particular person or officer for filing of an appeal on behalf of the Federal or Provincial Governments against an order adversely affecting the interest either of the Federal Government or Provincial Government is not a new phenomenon. Such provision is contained in Code of Criminal Procedure, 1898, section 417 whereof authorizes the Provincial Government to direct the Public Prosecutor to present appeal before the High Court from an original or appellate order of acquittal passed by a Court other than the High Court. Section 494 of the Code of Criminal Procedure confers power on the Public Prosecutor to withdraw from prosecution of any person with the consent of the Court. For the purpose of section 417, Cr.P.C. The Provincial Government has declared the Additional Advocate-General to be the Public Prosecutor for filing appeals and appeal filed by the Assistant Advocate-General on behalf of the Provincial Government was found to be incompetent by this Court in the case of State through Advocate- General, Sindh v. Hanif Ahmed and others 1994 SCM R 749. In the case of Kadir Bux and others v. The Crown PLD 1995 Federal Court 79 an appeal filed under section 417, Cr.P.C. By the Advocate-General in the absence of any order appointing him as Public Prosecutor within the meaning of section 417, Cr.P.C. Was held to be not competent.
17. With regard to the filing of appeals against acquittal on behalf of the Federal Government only those Law Officers who have been declared as Public Prosecutor can file appeals and an appeal filed by an officer not covered by the words Public Prosecutor would be incompetent. By virtue of the provisions of Central Law Officers Ordinance, 1970 and Central Law Officer (Amendment) Act, 1985 Additional Attorney-General, Deputy Attorney-General, Assistant Attorney-General or Standing Counsel have been declared to be public prosecutors competent to file and institute an appeal or revision for and on behalf of the Federal Government in a Court or a Tribunal. Thus, in view of above only the officers declared as Public Prosecutors are competent to file appeals on behalf of the Federal or Provincial Governments. This question was examined by this Court in Criminal Petition No,158-P of 2003 which was filed through Governor FATA against the judgment of Peshawar High Court in Criminal Appeal No,314 of 2003 filed by the N.W.F.P. Government against the judgment dated 30.4.2003 of the Special Judge (Central) Anti-Corruption, N.W.F.P. Peshawar acquitting the respondents of the charges of corruption leveled against them. This criminal appeal was dismissed in limine by the Peshawar High Court on the ground that it was not filed by a competent person as per requirements of section 4-A of Central Law Officers Ordinance, 1970. The pronouncement made by the Peshawar High Court was upheld by this Court observing that the Office Incharge of FATA Affairs in the N.W.F.P. Governor's Secretariat was not the competent person to file appeal which could only be filed by a Law Officer declared to be Public Prosecutor in accordance with the provisions of Central Law Officers Ordinance, 1970 as amended by Central Law Officers (Amendment) Act, 1985. Similarly when section 196 of the Act requires filing of an appeal by the Collector then it can be filed only by the Collector and none-else. The appeals filed by the Director would be deemed to be absolutely illegal, incompetent and not maintainable. Even the appeals purported to have been filed by the Collector as the nomenclature of the petitioner appear as Collector of Customs but not signed and verified by him and instead were signed or verified either by a Deputy Collector or Assistant Collector of Customs would also be deemed not to have been filed in accordance with law in view of the pronouncement made by this Court in the case of Haji Abduallh Jan and others v. The State 2003 SCM R 1063 and State through Advocate- General, Sindh v. Hanif Ahmed and others (supra). (bold added)
41. Thus, for the above reasons, based on the facts and circumstances of this particular case we find the Appeal not to be maintainable as the Director Intelligence and Investigation had no lawful authority to file the appeal through the State.##TE#
42. Before parting with this Judgment we would like to extend our thanks to all the learned counsel and the amicus curiae that ably assisted us during the course of these proceedings.