' SALEEM AKHTAR, J.-- This judgment will dispose of all the aforementioned Criminal Acquittal Appeals as they arise from judgments passed by the Special Judge Central Karachi acquitting the respondents and in all the appeals common preliminary objection to their maintainability has been raised by the respondent.
2. First we will state facts of each set of appeals.
(i) Criminal Acquittal Appeals Nos. 93 to 101 of 1984. In these appeals Mirza Muhammad Nasim is the respondent who was prosecuted and acquitted by the learned Special Judge. The respondent was charged of offence under section 471, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947 (Act II of 1947). F.I.R. No, 8 of 1978 was lodged on 10-1-1978 through Abdul Qadir Inspector, Hyderabad against the respondent in which it was stated that after conducting investigation against the employees of Divisional Engineer Hyderabad it transpired that the respondent who is a Telephone Operator in the Office of the Divisional Engineer (Phones)
Hyderabad had made false claim by producing fictitious and forged vouchers and cash memos.
Of various medical stores duly attested by Medical Officer amounting to Rs,34,898 for medical reimbursement which was paid to him in the months of June and July, 1977 from his office. This was in violation of the provisions of Central Service Medical Attendance Rules, 1958. After obtaining the sanction nine cases under sections 420, 467, 471 read with section 5(2) of Prevention of Corruption Act, 1947 were registered against the respondent which were based on the same F.I.R. No, 8/78.
Charge against the respondent was framed on 23-10-1980 under section 471, P.P.C. Read with section 5(2) of Act II of 1947 in which inter alia it was stated that he had fraudulently or dishonestly used as genuine medical prescriptions and non-availability certificates purported to have been issued by Dr. Saifuddin Saif and cash memos. Of 'Messrs Ansari Medical Store, Hyderabad which he knew of had reasons to believe at the time he used it to be forged documents. After the prosecution witnesses had been examined in Case No, 145 of 1980 (Criminal cquittal Appeal No, 93 of 1984) it was noted that the cash memos. Produced in his case were not issued by Ansari Medical Store but by Messrs Paradise edical Store Hyderabad. The charge was, therefore, altered on 20-11- 1982 and instead of Ansari Medical Store, 'Paradise Medical Store' was substituted. Hereafter the respondent had applied for recalling the prosecution witnesses for rocs-examination in respect of which summons were issued but none of them ppeared and ultimately the prosecution closed its side. In all other cases against his respondent which are subject-matter of Criminal Acquittal Appeals Nos. 94 f 1984 to 1101 of 1984 the facts are similar and cash memos. From Ansari Medical tore were. Produced. In these cases charge was not amended. The respondent as acquitted in all the cases.
(ii) The second set of cases covers Criminal Acquittal Appeals Nos. 23 of 11985 to 32 of 1985 in which Iqbal Ahmad, respondent had been prosecuted. These cases arise out of F.I.R. No, 7 of 1978 lodged by State through Abdul Qadir Khan, Inspector, F.IA., Hyderabad stating that the respondent who was in Engineering Supervisor in the Office of the Divisional Engineer (Phone), Hyderabad made false and fictitious claim of Rs,40,387 by producing forged vouchers and cash memos. Of Medical Stores for medical reimbursement which was paid to him in June and July, 1977 in violation of the provision of Ceritral Service (Medical Attendance) Rules, 1958. In respect of this F.I.R. 10 cases bearing Nos. 135 of 1980 to 144 of 1980 were registered against the respondent which are subject- matter of the aforestated appeals. In these cases also the learned trial Court did not believe the evidence of Dr. Saifuddin Saif and the Handwriting Expert. The respondent was acquitted.
(iii) The third set of cases is subject-matter of Criminal Acquittal Appeals Nos. 33 to 40 of 1985. Eight cases were registered against Akhlaq Ali on the basis of F.I.R. No, 4 of 1980 in which the respondent was charged of receiving Rs,2,741 by producing fictitious and forged vouchers and cash memos.
The respondent pleaded not guilty. After two prosecution witnesses had been examined the respondent filed application under section 249-K, Criminal Procedure Code praying that as the sanction order was issued by Ministry of Interior and not the Ministry of Communication under which the respondent was working the same is not a proper sanction for prosecution and, therefore, the respondent should be acquitted. The learned trial Court relying on 1980 P Cr. L J 815 by the impugned order acquitted the respondent.
(iv) The fourth set of cases covered Criminal Acquittal Appeals Nos. 41 of 1985 and 42 of 1985 and arise from Cases Nos. 47 of 1979 and 65 of 1979 registered against respondent Saced Ahmad. The F.I.R. Was lodged by Inspector F.I.A. In which the respondent was charged of receiving Rs,29,618 as medical reimbursement by producing false, fictitious and forged vouchers and cash memos. The respondent pleaded not guilty. After the prosecution witnesses had been examined the statement of respondent was recorded under section 342, Cr.P.C. In which he stated that he had received Rs,29,618 on the basis of genuine documents. Thereafter the respondent filed an application under section 265-K, Cr.P.C. That as the sanction order was not accorded by the proper authority, the respondent should be acquitted. The learned trial Court held that the prosecution has failed to prove that the respondent was guilty. The Court also held that the order of sanction for prosecution was not proper. The respondent was, therefore, acquitted.
3. Mr. Aftab Ahmad Akhund, the learned counsel for the respondents has raised preliminary objection that the appeal has not been competently filed. Mr. Noor Nabi Memon has adopted this argument. In this regard it may be mentioncd that there are four sets of appeals filed against four respondents. In Criminal Acquittal Appeals Nos. 93 of 1984 to 101 of 1984 the appellant has been described as follows:- "State through Ex-Officio Public Prosecutor and Deputy Attorney- General, Government of Pakistan, High Court Building Karachi."
' In Criminal Acquittal Appeals Nos. 23 to 29 of 1985, 41 of 1985 and 42 of 1985 the appellant has been described as follows:- "State through Ex-Officio Public Prosecutor and Special Prosecutor (Banking Offences) Government of Pakistan, Hyderabad."
' In Criminal Acquittal Appeals Nos. 33 of 1985 to 40 of 1985 the appellant has been described as follows:- "State through Ex-Officio Public Prosecutor Government of Pakistan, Hyderabad."
4. All the memos. Of appeal have been signed by Mr. Sarfraz Ahmad. In Criminal Acquittal Appeals Nos. 23 of 1985 to 29 of 1985 and 33 of 1985 to 40 of 1985 he has signed as Ex-Officio Public Prosecutor and the rest of the memos. Of appeal have been signed by him as Ex-Officio Public Prosecutor and Special Prosecutor. The learned counsel for the respondent has contended that the appeal could be filed by the Public Prosecutor who was conducting the case before the trial Court or any Public Prosecutor who was specifically appointed for his purpose. According to the learned counsel, Mr. Sarfraz Ahmad was not such a Public Prosecutor and therefore, the appeal is not competent. The learned counsel has referred to section 417, Cr.P.C. And section 492, Cr.P.C. Section 417, Cr.P.C. Provides that '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'. Public Prosecutor has been defined by section 4(t), Cr.P.C. As follows:- "Public Prosecutor means any person appointed under section 492 and includes any person acting under the direction of a Public Prosecutor and any person conducting a prosecution on behalf of the State in any High Court in exercise of its original criminal jurisdiction."
Section 492, Cr.P.C. Empowers the Provincial Government to appoint generally or in any case or for any specified class of cases for any local area one or more officers called Public Prosecutor.
Therefore, under section 492 the Public 1 Prosecutor is appointed by the Provincial Government and any person acting1A under his direction is also a Public Prosecutor. Mr. Sarfraz Ahmad relying on the Superintendent and Rememberancer Legal Affairs East Pakistan v. Aminul Hag! And another PLD 1960 Dacca 783 contended that as Public Prosecutor includes Assistant Public Prosecutor, he being an A.P.P. Is a Public Prosecutor. In this case while referring to section 4(1), Cr.P.C. It was observed that:- "This definition includes an Assistant Public Prosecutor and also any other person who conducts a prosecutor under the direction of Public Prosecutor."
There can be no cavil with this observation as section 4(t), Cr.P.C. Clearly' provides so. Relying on Additional Advocate-General and Public Prosecutor West Pakistan Karachi v. Muhammad Bashir Khan and Abdul Rahim PLD 1958 Kar. 312 the learned counsel for the appellant contended that an appeal under ect. Ion 417, Cr.P.C. Directed by Provincial Government to be presented by one Public Prosecutor may be presented on his direction by any other person. Such direction to any other person should be from the Public Prosecutor. All these observations made under section 4(t) and 492, Cr.P.C. Can apply to Mr. Sarfraz Ahmad if he has filed appeals under the direction of the Public Prosecutor which he has not. Even if this position is assumed to be correct the matter does not conclude there.
5. It is an admitted position that the respondent is an employee of the Federal Government and the provisions of Pakistan Criminal Law Amendment Act, 1958 hereinafter referred to as the Act are applicable. Under the Act Special Judges are appointed by the appropriate Government and he had the jurisdiction within such territorial limits as may be fixed by the appropriate Government by notification in the official Gazette. Appropriate Government has been defined by section 2(a) of the Act and in relation to a person serving in connection with the affairs of the Federal Government, the appropriate Government is the Federal Government. The offences tried by a Special Judge are specified in the schedule to the Act to which further offences can be included by notification of the appropriate Government. The offences which are specified in the schedule are triable exclusively by the Special Judge. The procedure for trial of such cases is provided under section 6 of the Act which makes the Code of Criminal Procedure except Chapter XXXVIII of that Code applicable in so far as it is not inconsistent with the Act. Section 6(5) provides that notwithstanding anything contained in the Code of Criminal Procedure or in any other law a previous sanction of the appropriate Government will be required for prosecution of a public servant under the Act. Section 7 provides special rules of evidence applicable during the trial. Section 10 provides for appeal from the judgment of the Special Judge. Section 10(2) which is relevant for the purposes of this appeal reads as follows:- 10(2) "Notwithstanding the provision of section 417 of the Code of Criminal Procedure 1898, in any case, tried by a Special Judge appointed by the Federal Government under section 3 in which such Special Judge has passed an order of acquittal the Federal Government may direct the Public Prosecutor to present an appeal to such Court as aforesaid."
Therefore, the acquittal appeal is to be filed under section 10(2) and not a under section 417 of Cr.P.C. The Act does not define Public Prosecutor. D However, section 6(1) and (6) of the Act which refers to Public Prosecutor reads as follows:
6. Procedure in trial of cases and powers of special Judges.-- (1) The provisions of the Code of Criminal Procedure, 1898, except those of Chapter XXXVIII of the 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 provision, the Court of a Special Judge shall be deemed to be a Court of Session trying cases without the aid of assessors or jury, and a person conducting prosecution before the Court of a Special Judge shall be deemed to be a Public Prosecutor.
(2)
(3) .................................................................
(4) .................................................................
(5) .................................................................
(6) The Federal Government in cases sent up by Pakistan Special Police Establishment for trial, and in all other cases the Provincial Government, or an Officer authorised in this behalf by the Federal Government or Provincial Government, as the case may be, shall, by general or special order, appoint one or more persons to conduct prosecution before any Special Judge."
6. A perusal of these provisions makes it clear that for conducting the prosecution before the Special Judge in cases relating to the employees of the Federal Government, it is the Federal Government which has to appoint omeone to conduct prosecution before the Special Judge. Such prosecutor shall be deemed to be Public Prosecutor.
7. The scheme of the Act indicates that the prosecution of the employees of the Federal Government in respect of offences specified in the schedule to the Act before the Special Judge is to remain entirely within the control of the Federal Government. In this regard Mr. Aftab Ahmad Akhund the learned counsel has referred to the State v. Muhammad Hussain PLD 1968 SC 265 where it was observed:- "The provisions contained in the Pakistan Criminal Law Amendment Act relating to sanctions for the prosecution of persons serving in connection with the affairs of the Centre, the appointment of Special Judges by the Centre for the trial of such persons, the power reserved to the Centre to withdraw prosecution launched against such persons and finally the power reserved to the Centre to move an appeal against the acquittal of such a person by a Special Judge (Central) combine to create a clear impression that control of prosecutions and of proceedings in Court on behalf of the State against such persons, are matters wholly and exclusively within the power of the Central Government. The general powers of the Provincial Government under the Criminal Procedure Code in these respects are by expression excluded."
8. The learned counsel for the respondent has referred to Government of Pakistan v. Zardad Badshah 1985 P Cr. L J 1419 in which it was observed that a direction by the Federal Government to the Public Prosecutor to present an acquittal appeal before the High Court was a condition precedent and unless the appeal was filed by the Public Prosecutor on the direction of the Federal Government the same could not be entertained. In this case it was contended that although the Standing Counsel, Government of Pakistan, who filed the appeal was not a notified Public Prosecutor, in view of section 4 of the Central Law Officers Ordinance, 1970 the Standing Counsel and Deputy Attorney-General of Pakistan were authorised to conduct appeals and thus the presentation was proper. This contention was repelled and it was observed that the Standing Counsel has the right of audience in all the Courts of Pakistan but this did not tantamount to a direction by the Federal Government to the Public Prosecutor to present appeals against acquittal.
To the same effect is the observation in State v. IVIunawaruddin and another 1985 P Cr. L J 1413.
Therefore, an acquittal appeal F under section 10(2) of the Act can be filed only by a Public Prosecutor appointed by the Federal Government.
9. Mr. Syed Sarfraz Ahmed, the learned A.A.-G. Has contended that he was authorised by the Government of Pakistan Ministry of Law and Parliamentary Affairs to file the appeals and he has produced a copy of the letter which does not bear any date except October 1984 and reads as follows:- Subject:- FILING OF ACQUITTAL APPEALS IN HIGH COURT IN CASE F.I.R. NO. 4/1980 OF F.I.A. HYDERABAD STATE V. AKHLAQ ALI EX-SUPERVISOR D.E. PHONES, HYDERABAD.
' Syed Sarfraz Ahmad, Advocate, F-4, Al-Qamar Chambers, Near Jubilee Cinema, Karachi, is nominated to file appeals in the High Court against acquittal in F.I.R. No, 4/80 of F.IA., Hyderabad.
The certified copies of judgment may be produced before Syed Sarfraz Ahmad Advocate accordingly. Appeals may be filed immediately. The Dealing Officer from F.LA., Hyderabad may contact and brief him immediately."
10. While referring to this letter Mr. Aftab Ahmad Akhund contended that Mr. Syed Sarfraz Ahmad has been addressed as an Advocate in his private capacity who was authorised to file appeal and could not be deemed to be a Public Prosecutor. In support of his contention the learned counsel has referred to Qadir Bux and another v. Crown PLD 1955 FC 79. In this case the appellants were acquitted by the Additional Sessions Judge. The Advocate-General of Sind preferred an appeal against the order of acquittal. The Chief Court of Sind reversed the judgment and convicted the appellants under section 302, P.P.C. Who preferred appeal to the Federal Court. The appellants contended that the appeal filed by the Advocate-General was not competent as he was not a Public Prosecutor within the meaning of sections 417 and 492, Cr.P.C. It was observed:- "The Crown, if it wishes to move the Court against such an acquittal, must do so in strict compliance with the express requirements of law; non-compliance must necessarily be fatal."
' Reading this provision with the first subsection of section 492, it is abundantly clear that the legal requirement is that the appeal should be presented to the High Court by a Public Prosecutor, namely, a person appointed by the Provincial Government to be called a Public Prosecutor, and that for the purpose of presenting such an appeal the Public Prosecutor should be armed with a direction from the Provincial Government relating to the particular case.
' The terms in which section 492, Cr.P.C. Are expressed leave no room for a relaxed interpretation of the kind suggested on behalf of the respondent. It is quite clear that, having regard to the subject- matter to which section 417, Cr.P.C. Relates, as well as to the wording of section 417, Cr.P.C. Itself, a person presenting an appeal under that section must act as a Public Prosecutor, conominee. He may occupy one or more other offices, but the only one of his functions which is relevant for the purpose of filing an appeal against an acquittal is the function of being a Public Prosecutor. In relation to section 492, Cr.P.C. It is even more obvious that no construction except the conomine construction can be permitted, for the section itself speaks of appointment of persons by the Provincial Government 'to be called Public Prosecutors'. It is entirely correct to say that, in relation to the functions under section 417, Cr.P.C. The validity of the act of filing the appeal depends, in the first instance, upon the person who files the appeal being called a Public Prosecutor, in consequence of having been appointed as such by the Provincial Government. The argument raised on behalf of the respondent that the acts of a person pretending to be a Public Prosecutor become the acts of a Public Prosecutor, by the mere performance thereof, is clearly unsustainable...Although an Advocate may be appointed a Public. Prosecutor and directed by the Provincial Government to file an appeal under section 417, Cr.P.C. Yet his action in filing the appeal would gain validity exclusively from the fact of his having been appointed a Public Prosecutor, and the fact of his being an advocate would in the context, be without relevancy."
' It was also observed that in appeal preferred against acquittal 'a strict construction according to the very words of the statute' should be given to the provisions of law. In this regard Deputy Legal Remembrancer, Bengal v. Gaya Prasad I L R 16 Cal. 425 was quoted with approval.
11. Applying the above principles to the present case we find that from the 1 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 1G 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.
12. One set of appeals has been filed through the Ex-Officio Public Prosecutor and Deputy Attorney- General. The fact remains that Deputy Attorney-General is not a Public Prosecutor and, therefore, he could neither file the appeal nor direct any one to file it.
13. The respondent is an employee of the Federal Government, therefore, in terms of section 10(2) the acquittal appeal has to be filed by the Public' Prosecutor under the direction of the Federal Government. Under section 6(6) of the Act for the purposes of conducting the prosecution against an employee of the Federal Government the prosecutor has to be appointed by the Federal Government and not by the Provincial Government. In this view of the matter the Prosecutor appointed by the Provincial Government will have no authority in cases for which Federal Government is required to appoint prosecutor. Therefore, the Advocate-General, Additional Advocate-General, Assistant Advocate-General, Public Prosecutor or Assistant Public Prosecutor appointed by the Provincial Government will have no authority to file an acquittal appeal' against an employee of the Federal Government unless they have been specifically appointed by the Federal Government as Public Prosecutor authorised to conduct prosecution or to file appeal. It is pertinent to note that by' virtue of section 6(6) of the Act during trial before the Special Judge, applicability of Chapter XXXVIII of Cr.P.C. Which deals with Public Prosecutor has been excluded and it has been provided that a person conducting prosecution before the Special Judge shall be deemed to be a Public Prosecutor. Such person conducting the prosecution is appointed by the Federal Government in terms of section 6(6). Therefore, for the purposes of trial of the employees of the Federal Government before the Special Judge any person appointed by the Federal Government under section 6(7) to conduct the prosecution will be Public Prosecutor. The Public Prosecutor appointed under section 492, Cr.P.C. Will have no authority or jurisdiction to conduct such cases. In this regard reference has been made to the State through the Additional Advocate- General v. S.A. Sadiq and another 1973 P Cr. L J 100 in which preliminary objection was raised that the appeal was not competent as it was filed by Advocate-General and not by the Public Prosecutor of the Central Government appointed under the Act. It was observed:- ......Subsection (2) of section 10 lays down that notwithstanding the provisions of section 417, Cr.P.C.
In any case tried by a Special Judge appointed by the Cental 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. 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 a Central Special Judge are appointed by the Central Government under section 6, subsection (6). According to subsection (1)' of section 6 any person appointed for conducting case before a 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 I am supported by the authority reported in the State v. Muhammad Hussain PLD 1968 SC 265. Upholding the preliminary objection I dismiss this appeal."
' We are, therefore, of the view that all these appeals were not competently tiled.
14. In all the appeals the learned trial Court relying on 1980 P Cr. L J 815 held that as the respondent was employee of the Ministry of Communication, the sanction for prosecution granted by Ministry of Interior was not a proper sanction. Suffice to say that law as propounded in 1980 P Cr. L J 815 has been overruled by the Supreme Court in State v. Afaq Ali PLD 1986 SC 550.
' As all the appeals have not been filed by a person competent to present them, the same are dismissed.