AJMAL MIAN, J.---By this common judgment, we intend to dispose of the above appeals as they involve common question of law, namely, whether an Assistant Advocate-General can file an acquittal appeal. It seems that through the judgments under appeal, D.Bs./S.Bs have dismissed the above acquittal appeals which were filed by the Assistant Advocate-General on behalf of the State against the judgments of acquittal in favour of the private respondents on the ground that the Assistant Advocate-General was not covered by Section 492, Cr.P.C. Thereupon, the State filed petitions for leave to appeal, which were granted to consider the above question.
2. In support of the above appeals, Mr. Abdul Ghafoor Mangi, learned Additional Advocate-General, Sindh, has invited our attention to a notification dated 25-10-1960 issued by the Governor of erstwhile West Pakistan in exercise of powers conferred by subsection (1) of Section 492 of the Code of Criminal Procedure, hereinafter referred to as Cr.P.C., whereby he appointed the Additional Advocate-General, West Pakistan, Lahore, as the Public Prosecutor generally for West Pakistan.
According to him, the above notification continued even after the dissolution of West Pakistan and restoration of the Provinces. Then he invited our attention to Rule 22-A of the Rules for the Conduct of the Legal Affairs of Government framed in 1940, hereinafter referred to as the Rules, which provides that the Assistant to the Advocate-General shall appear for the Crown---
(a) in all civil and criminal appeals in the Chief Court which are entrusted to him by the Advocate- General,
(b) in civil suits in the Chief Court in which Government of Sindh is a party, and
(c) in such other cases as the Government, or the Advocate-General, may from time to time direct.
His further submission was that in terms of above Rule 22-A of the Rules, the Advocate- General/Provincial Government authorised the Assistant Advocate-General to file the acquittal appeals against judgments under appeal.
3. The above contention seems to be not tenable as the office of the 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 under the Rules. In this regard, reference may be made to Rules 22, 23 and 25 of the Rules. At this juncture, it may be pertinent to reproduce Sections 417 and 492 of Cr.P.C., which read as follows:--- "417 .Appeal in case of acquittal.---(1) Subject to the provisions of subsection (4), the Provincial Government may, in any case, direct 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.
(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.
(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 lie under subsection (1).
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) The District Magistrate, or subject to the control of the District Magistrate, the Sub-Divisional Magistrate, 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."
4. A perusal of the above-quoted subsection (1) of Section 417 indicates that subject to the provisions of subsection (4) of the above Section, the Provincial Government has been authorised to direct the Public Prosecutor to present an appeal to the High Court from the original or appellate order of acquittal passed by any Court other than a High Court; whereas, subsection (2) thereof confers a right upon a complainant to file an application in the High Court for grant of special leave to appeal from the order of acquittal. It may further be noticed that subsection (3) of it provides a period of sixty days for filing application under subsection (2) for the grant of special leave to appeal; whereas, subsection (4) lays down that if, in any case, the application under subsection (2) of the above Section for grant of special leave is declined by the High Court, then no appeal under subsection (1) thereof shall lie.
It may further be noticed that subsection (1) of section 492 of Cr.P.C. Empowers the Provincial Government to 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; whereas, subsection (2) thereof empowers the District Magistrate and the Sub-Divisional Magistrate, in the absence of the Public Prosecutor appointed by the Provincial Government, to 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.
5. We may now refer to the relevant case-law at this stage.
(i) Kadir Bux and others v. The Crown PLD 1955 Federal Court 79; in which the facts were that the appellants who were charged under section 302, P.P.C., were acquitted by the Additional Sessions Judge. The Advocate-General of Sindh preferred an appeal against the order of acquittal in the Chief Court of Sindh, which was accepted and acquittal order was set aside and the appellants were convicted under section 302, ,P.P.C. And were sentenced to transportation for life. Leave to appeal was granted by Federal Court to consider the competency of the appeal, which was accepted by the erstwhile Sindh Chief Court. The above objection was overruled by the Sindh Chief Court by holding that the principle "the greater includes the less" was applicable and that the Advocate-General was necessarily a Public Prosecutor within the meaning of Section 417, Cr.P.C. The Federal Court allowed the above appeal and observed as follows as to the interpretation of above provisions of Sections 492 and 417, Cr.P.C:--- "The terms in which sections 492 and 417, 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, so nomine. 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 eo nomine 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 function 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."
(ii) The State v. Muhammad Hussain PLD 1968 SC 265; in the above case the question was, whether an acquittal appeal filed by an Assistant Advocate- General of West Pakistan Government, without the prior sanction of the Central Government as required by Section 10(2) of the Pakistan Criminal Law Amendment Act, 1958, in respect of an anti- corruption case involving a civil servant, was competently filed. The above question was answered as follows:--- "Mr. M. Haleem, Assistant Advocate-General, conceded that in filing the appeal he was acting exclusively in his capacity as an Advocate-General of the West Pakistan Government, and that no reference had been made in the matter to the Central Government.
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 prosecutions 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."
(iii) The State v. Muhammad Nasim Baig 1989 PCr.LJ 1842; in which a Division Bench of the High Court 'of Sindh has dilated upon the controversy in issue as follows:--- "11. 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 discribed 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."
6. We are inclined to hold that the provisions of Sections 417 and 492 Cr.P.C. Are very clear and admit no ambiguity. Under subsection (1) of the former, the Provincial Government has been authorised to 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; whereas under subsection (1) of the latter section, the Provincial Government has been empowered to 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 as pointed out hereinabove. The appointment of a Public Prosecutor for the purpose of filing an acquittal appeal under section 417, C Cr.P.C. Should be relatable to Section 492 and not under any rule. Even the Rule relied upon by Mr. Mangi do not support his contention as under the Rules, the functions and duties of the Assistant to the Advocate-General and the Public Prosecutor assigned are different. The cases referred to hereinabove are in line with the view which we are inclined to take, particularly the case of Kadir Bux and others v. The Crown (supra) and the case of The State v. Muhammad Nasim Baig (supra) on all four are applicable to the case in hand.
7. As regards the above notification dated 25-10-1960 issued by the Governor under section 492(1), Cr.P.C. Appointing Additional AdovcateGeneral, West Pakistan as the Public Prosecutor generally for West Pakistan, we may observe that even if we were to assume that the above notification continued to operate despite of the dissolution of One Unit, it does not improve the case of the appellant as the above acquittal appeals were not filed by the Additional Advocate-General but were filed by the Assistant Advocate-General and, therefore, they were not competently filed, firstly, for the reason that there is no delegation of the authority by the Additional Advocate-General in favour of the Assistant Advocate-General, secondly, the Additional Advocate General could not have delegated his authority in view of the maxim delegatus non potest delegare. In this regard, reference may be made to the following extract from Craies on Statute Law, Sixth Edition, at pages 314 and 315:--- "The power to sub-delegate must be expressly or impliedly authorised by the enabling Act: otherwise the well-known principle delegatus non potest delegare comes into operation."
8. Reference may also be made to footnote 46 from the Corpus Juris Secundum, Vol. 26-A which describes the above maxim delegatus non potest delegare as under:- "46. A maxim meaning "A delegate cannot delegate". That is "an agent cannot delegate his functions to a sub-agent without the knowledge or consent of the principal; the person to whom an office or duty is delegated cannot lawfully devolve the duty on another, unless he be expressly authorised so to do."
9. We have already referred to hereinabove the provisions of subsection (1) of section 492, Cr.P.C.
Which empowers the Provincial Government to appoint Public Prosecutors but the latter have not been authorised in turn to appoint someone else as the Public Prosecutors. In the absence of any express authorisation by the above provision of the Cr.P.C., the above principle delegatus non potest delegare will be very much applicable.
10. It was lastly contended by Mr. Abdul Ghafoor Mangi that under Article 140 of the Constitution, an Advocate-General of the Province has been assigned constitutional duty to give advice to the Provincial Government upon such legal matters and to perform such other duties of legal character as may be referred or assigned to him by the Provincial Government and because of the above constitutional mandate, the Advocate-General was competent to authorise the Assistant Advocate-General to file the above acquittal appeals.
11. The above contention is also untenable as the question, whether the Assistant Advocate- General concerned could be treated as a Public Prosecutor in terms of section 492, Cr.P.C., is to be determined with reference to the language contained in the latter provision and not with reference to above Article of the Constitution. In our view, there is no nexus between the point in issue and the above Article 140 of the Constitution.
12. The upshot of the above discussion is that the above appeals have no merits and the same are accordingly, dismissed.