' ALLAH BAKHSH, J.-Since common questions are involved we propose to dispose of Criminal Appeals Nos. 151, 152 and 153 of 1979 by this judgment.
2. F.
1. R. No, 16 was recorded, on 25-1-1975 against Muhammad Irshad Salik Lodhi and Shafi Ahmad and on its strength both of them faced their trial under sections 468, 471 and 420, P. P. C. Read with section 5 (2), Prevention of Corruption Act in Cases Nos. 20 and 23 whereas in. Case No, 22 Muhammad Irshad Salik Lodhi alone was tried for offences under the aforesaid sections, besides section 409, P. P. C. The learned Special Judge (Central), Anti-Corruption, Peshawar per his orders, dated 17-7-1977 discharged the accused on the sole ground that he had no jurisdiction to try them.
Aggrieved from his orders the State has preferred these appeals under section 417, Cr. P. C.
3. Muhammad Irshad Salik Lodhi, respondent. 1, was employed as AsMstant/Regional Manager, Utility Stores Corporation of Pakistan, Peshawar and the accusation against him was that be in- collaboration with Shafi Ahmad, respondent 2, bad during the tenure of his employment committed certain acts and omissions involving considerable amounts. It was pleaded on his behalf before the learned trial Judge that the Utility Corporation of Pakistan was a limited company registered under the Companies Act, and as such, he could not be deemed to be a public servant.
The plea prevailed and the trial ended in the discharge of both the accused.
4. The learned counsel for the respondents raised preliminary objections with regard to the appeals before us and emphatically urged that these appeals were not in the proper form inasmuch as the impugned orders being orders of discharge and not of acquittal could not be appealed against and, secondly, these appeals were to be filed under section 10 of the Criminal Law Amendment Act (hereinafter called the Act) and not under section 417, Cr. P. C. It escaped his notice that all the scheduled offences are to be tried by the Special Judge as summons cases and with the change of law the question of passing an order of discharge did not arise. It can, therefore, be said that The learned Special Judge could not discharge the accused but could acquit them on the ground that he had no jurisdiction to try them. The impugned orders of discharge can, in the circumstances, be treated as orders of acquittal.
4-A. It is contemplated by section 417, Cr. P. C, that the Provincial Government may 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 learned Special Judge had conducted the trials under the provisions of the Act and it is envisaged by section 10 (2) of the Act that notwithstanding the provisions of section 417 of the Code of Criminal Procedure where in any case an order of acquittal has been passed by the Special Judge, the Central Government may direct the Public Prosecutor to present an appeal to the highest Court having appellate jurisdiction. The words "notwithstanding the provisions of section 417 of the Code of Criminal Procedure" are significant and an appeal against an order of acquittal is to be filed under section 10 (2) of the Act and not under section 417 of the Code of Criminal Procedure. It appear, that the instant appeals have been erroneously filed under section 417, Cr. P. C. Instead of section 10(2) of the Act. The erroneous citation of the provision of law would( not materially affect the form of the appeals as-the provisions of special law shall to the exclusion of the general Jaw govern them. The appeals are against the orders of acquittal and the wrong description of law under which these are filed would not render them incompetent on this account.
5. The learned counsel for the respondents strenuously contended that these appeals had been filed by the Additional Advocate-General who was not competent in law to do so inasmuch as it was the Public Prosecutor who could be directed by the Central Government to present an appeal to this Court under section 10 (2) of the Act. He in this context referred us to The State through the Additional Advocate-General, West Pakistan, Peshawar v. S. A. Sadiq and another (1). In this case an appeal against the order of acquittal had been filed by the Advocate-General of our Province and it was urged that the Public Prosecutor of the Central Government appointed under the Criminal Law Amendment Act should have filed the appeal. Referring to the provision of section 10 (2) 'bid the following observation was made :- ' Now the provisions of Chapter XXXVIII, Cr. P. C., which deal with the Public Prosecutors, do not apply to trial of cases under the Act according to subsection (1) of section 6 of the Act and Public Prosecutors for the conduct of cases against the Central Government employees before Central Special Judge are appointed by the Central Government under section 6, subsection (6).
According to subsection (I) of section 6 any person appointed for conducting a case before Special Judge is deemed to be a Public Prosecutor. The Central Government has appointed a Public Prosecutor for conducting cases before Special Judge (Central) against, Central employees and in the circumstances the appeal could only, therefore, be lodged by him and not by the Provincial Advocate-General under section 417, Cr. P. C. The appeal is, therefore, evidently incompetent. In this view of mine 1 am supported by the authority reported in The State v.
Muhammad Hussain (PLD 1968 SC 265).
' It was, therefore, held that the Public Prosecutor appointed for conducting a case before a Special Judge alone was competent to file the appeal and that the Provincial Advocate-General could not file the same under section 417, Cr. P. C. With all respect to the aforesaid observation and the conclusion arrived at we would spotlight another aspect of the matter. The appeals before us, as remarked above, are to be treated to have been filed under section 10 (2) of the Act and not under section 417, Cr. P. C. These are said to have been filed by the Additional Advocate-General under the direction of the Advocate-General. The term Public Prosecutor has not been defined in the Act and finds a place in sections 6 (1) and 10 (2) thereof which are reproduced as under: - "6. Procedure in trial of cases and powers of Special Judge.-(1) The Provisions of the Code of Criminal Procedure, 1898, except those of Chapter XXXVIII of that Code, shall, in so far as they are not inconsistent with this Act, apply to the proceedings of the Court of a Special Judge and for the purposes of the said provisions, the Court of a Special Judge shall be deemed to be a Court of Sessions trying cases without the aid of assessors of jury, and a person conducting prosecution before the Court of a Special Judge shall be deemed to be a Public Prosecutor." {{FOOT NOTE}}
(1) 1973 P Cr. L J 100 {{FOOT NOTE}} "10. Appeal, revision and transfer of cases.-(2) Notwithstanding the provisions of section 417 of the Code of Criminal Procedure, 1898, in any case tried by a Special Judge appointed by the 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."
' A plain reading of these sections shows that a person conducting prosecution before the Court of a Special Judge shall be deemed to be Public Prosecutor but so far as an appeal against an order of acquittal is concerned it is to be presented by the Public Prosecutor under the direction of the Central Government. In the absence of the definition of Public Prosecutor in the Act we may look into the Code of Criminal Procedure. Chapter XXXVIII, dealing with the Public Prosecutors is not applicable to the proceedings before the Special Judge but the other provisions of the Code of Criminal Procedure can in this connection be referred to with advantage. Section 4 (1) (t) of the Code of Criminal Procedure defines Public Prosecutor to mean 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. It is true that a person conducting prosecution before the Court of a Special Judge shall, as envisaged by section 6(1) of the Act be a Public Prosecutor and in this way his functions are restricted to the Court of the Special Judge for conducting prosecution only. It is, however, not in section 10 (2) of the Act that the Central Government may direct the aforesaid Public Prosecutor to present an appeal to the High Court. It can, therefore, be said that the Central Government may direct any other Public Prosecutor to present such an appeal and the direction need not to be c limited to the Public Prosecutor who was authorised to conduct proceedings before the Court of the Special Judge. Now it is to be determined whether the Additional Advocate- General could file these appeals in this Court.
6. The question whether the Advocate-General of our Province was a Public Prosecutor came up for consideration in Nawab Khan v. The State (1) A copy of the Gazette Notification No, 1002-LD, dated 23rd April, 1937 showing that the Government of the N.-W. F. P. Had appointed the Advocate- General to be Public Prosecutor for the whole Province was produced before their Lordships and it was held that the Advocate-General, N.-W. F. P. Who was armed with the requisite authority by virtue of the said notification was Public Prosecutor for the whole Province. In Kadir Bux and others v.
The Crown (2) it was held that the Advocate-General who is not a Public Prosecutor within the meaning of section 492, Cr. P. C. Is not competent to present the appeal from acquittal. In the State v. Muhammad Hussain (3) the appeal filed by the Assistant Advocate-General without any direction of the Central Government as required by section 10 (2) of the Act was held not competently presented. A photostat copy of letter, dated 16th May, 1978 addressed by the Ministry of Law and Parliamentary Affairs (Law Division), Government of Pakistan to the Advocate-General, N.-W. F. P. Peshawar was produced before us and a look at it shows the law Division had nominated the Advocate-General to defend/pursue the above matter (filing and conducting of revision petition against the judgment of Special Judge in case. State v. Muhammad Irshad Salique Lodhi, F.
1. R. No, 16/75) in {{FOOT NOTE}}
(1) PLD 1959 SC (Pak.) 4 (2) PLD 1955 FC 79
(3) P L. D 1968 SC 265 {{FOOT NOTE}} ' the Peshawar High Court, Peshawar. It is evident that the Advocate-General as Public Prosecutor was directed by the Central Government to present these appeals. It was on the brief of the learned Additional Advocate-General that he had been directed by the Advocate-General "to do the needful" and the direction bears the signature of Mr. M. Sardar Khan, the then Advocate- General. Such a direction could- be made by the Advocate General to the Additional Advocate- General under section 4 (I) (t) of the Code of Criminal Procedure. We for this view of the matter find support from Additional Advocate General v. Muhammad Bashir Khan and another (1). It follows that the learned Additional Advocate-General was competent in law to file these appeals D under the directions of the Public Prosecutor/Advocate General as the latter had been instructed by the Central Government to do so.
7. The other objection raised by the learned counsel for the respondents was with regard to limitation. No period of limitation for an appeal against an order of acquittal has been prescribed by the Act. In the commentary of section 29 Limitation Act by Rustamji (1977 Edition) it is remarked at page 563 that "if a Special or local law does not prescribe any period of limitation or a period of limitation differs from that prescribed under the Limitation Act, all the provisions of the Limitation Act, except those that may have been expressly excluded by such a law, will apply." In the Province of Bengal v. Amulya Dhon Addy and others (2) it was observed that when the local or special law is silent on the matter of limitation in respect of suits, appeals or applications contemplated or authorised by it, and some Articles of Schedule I of Limitation Act would cover them the whole of section 3 of the latter would be applicable. The Criminal Law Amendment Act is a Code in itself and is a special law. The point of limitation, for an appeal under the Act was vehemently urged in the State v. Abdul Fateh (3) and it was remaked that no period for an appeal or revision had been fixed under section 10 of the Act and the question of limitation would not, arise. The leered counsel for the respondents referred to Azmat Khan v. The State (4) wherein the question of limitation vis-a-vis an appeal to the Federal Shariat Court: was dealt with. It was observed that no statutory period of limitation for an appeal under section 20 of Ordinance VII of 1979 or under any of Hadood Laws nor the Federal Shariat Court (Procedure Rules) 1981 had been made. It was desirable that statutory law in this respect be framed and in the meanwhile a period of 60 days provided in Article 155 of Limitation Act was adopted. This authority is of little assistance to the learned counsel for the respondents inasmuch as if Article 157 of the Limitation Act is relied upon for a period of 6 months for appeal against an order of acquittal these appeals being within 6 months shall be well within time. Thus done of the technical objections raised by the learned counsel for the respondents would prevail.
8. Now reverting to the impugned orders on merit we may point out that the only ground on which these orders were passed was that the Utility Stores Corporation of Pakistan was a private limited company registered under the Companies Act, was not a Corporation set up by the Central Government and its employees could not be deemed as public servants. Section 2 (b) of the Criminal Law Amendment Act pertains to the definition of the term public servant and is as under :- "public servant" means a public servant as de-fined in section 21 {{FOOT NOTE}}
(1) PLD 1958 Kar, 312 (2) AIR 1950 Cal. 356
(3) 1968 P Cr. L .1 874 (4) PLD 1982T SC4 {{FOOT NOTE}} ' of the Pakistan Penal Code, an-employee of any Corporation or other body or organisation set up by Central Government."
' This definition was amended by Prevention of Corruption Laws (Amendment) Act, 1977 (Act XIII of 1977) published in the Gazette of Pakistan, Extraordinary, dated 9th May, 1977 and the amendment was that for the words "set up by" the words and commas "set up, controlled or administered by, or under the authority of," shall be substituted. Similarly in section 2 of the Prevention of Corruption Act the word "by" was substituted by the words "controlled, or administered by, or under the authority of". Section 161 of the Pakistan Penal Code, besides sections 612 to 619 and 409, was amended and "public servant" was to include an employee of any corporation or other body or organisation set up, controlled, or administered by, or under the authority of the Federal Government".
9. The Criminal Law Amendment Act is comprehensive and self-contained Act and lays down both the powers of the Special Judge as well F the procedure under which the cases are to be tried by him. It is observed in R. R. Chart and another v. The State (1) that barring that part of the Criminal Law Amendment Act which amends the Penal Code the rest of the Act is procedural and, therefore, retrospective. The retrospectively of a procedural statute will not, however, affect the substantive right which had already vested in a citizen. One such right is the right to continue the proceedings in the Tribunal before which the same had already G commenced according to the state of law as it stood at the time of the commencement of the proceedings. The Prevention of Corruption Laws (Amendment) Act, 1977 came in force during the pendency of the cases against the respondents in the Court of the Special Judge. Their learned counsel contended that the amendment shall not be applicable to these proceedings as these were not restrospective in character. Notwithstanding this amendment the definition of public servant in section 2 (b) of the Act shows that it meant a public servant as defined in section 21 of the Pakistan Penal Code, an employee of any corporation or other body or organisation set up by the Central Government. It is evident that, besides the definition of public servant as given in section 21 of the Pakistan Penal Code, an employee of any Corporation or other body or organisation set up by the Central Government was also to be treated as a public servant. The amending Act of 1977 did not amend the first portion of section 2
(b) with Fi regard to section 21 of the Pakistan Penal Code but amended the latter portion of it which did not form a part and parcel of section 21 of the Pakistan Penal Code. It can, therefore, be said that the provisions of Pakistan Penal Code stood intact and the latter portion only was amended.
10. The Memorandum and Articles of Association of Utility Stores Corporation of Pakistan Limited are before us. The certificate of incorporation shows that the Utility Stores Corporation of Pakistan Limited had been registered RS a private Company limited by shares. It is in Article 3 that the corporation is to be a private Company and any invitation to the Public to subscribe for any share or debentures or debenture-stock of the Company is prohibited. It is manifest that the Corporation was exclusively financed by the Central Government to the exclusion of the public. It can, therefore, be said that this Corporation was set up by the Central Government. The words set up underlined' by us are significant and we are of the view that its employees shall fall within the ambit of the definition of public servant as contained in section 2 (b) of the Act. The mere fact that {{FOOT NOTE}}
(1) AIR 1959 All. 149 {{FOOT NOTE}} (Here to Italics] ' the Corporation was set up by the Central Government and incorporated under the Companies Act would not take it out of the four corners of section 2 (b). It is pertinent to note that Utility Stores Corporation of Pakistan has been duly incorporated under the Companies Act. According to the Black's Law Distionary the word "incorporate" means to create a Corporation and, according to Wharton's Law Lexicon, it means united in a legal body whereas 'incorporation" means formation of a legal body with the quality of perpetual existence of succession except as limited by the Royal Charter or Act of Parliament affecting the Corporation, Generally there are two kinds of companies, namely, those which are conferred the status and attributes of Corporation on satisfaction of certain pre-requisites and registration under the Companies Act and those which owe their origin and life to a statute or an Act of Legislature. The Utility Stores Corporation of Pakistan falls within the first kind of Companies and not the second as it is not a creature of statute. It follows that the reasons given in the impugned orders are fallacious and the respondent I being an employee of.
The Utility Stores Corporation of Pakistan was a public servant as the same had been set up by the Central Government.
11. The learned counsel for the respondents urged that respondent 1 had ceased to be a Public servant at the time when the Special Judge took cognizance of the offence and, as such, the former had no jurisdiction to conduct the trials. A similar point was urged but repelled in Muhammad Abbas v. The State (1). It was observed that "it is not quite correct to suggest that the jurisdiction of the Special Judge extends only to those persons who were at the time of the alleged commission of crime public servants and continue to be so at the time of the trial." It was concluded that "b) their ceasing to be public servants they or their cases did not go outside the jurisdiction of the Special Judge".
As a result of the foregoing discussion we would accept the appeals, set aside the impugned orders and send back the cases to the learned Special Judge with the direction that he should proceed therewith in accordance with law. Since these are old cases it Shall be appreciated if the trials are concluded expeditiously. The respondents are directed to appear before him on 20th of next month. {{FOOT NOTE}}
(1) PLD 1981 SC 642 {{FOOT NOTE}}