' Being aggrieved and dissatisfied with the order, 'dated 18-12-1996 passed by the learned Special Judge Anti Corruption (Provincial) Hyderabad under section 249-A, Cr.P.C. Whereby the respondents were acquitted in Special Case No,59 of 1987 which had arisen out of Crime No,1 of 1987 of A.C.E. Hyderabad under sections 409, 420 and 34, P.P.C., read with section 5(2) Act II of 1947 the State has preferred the present acquittal appeal which has been filed by the learned Advocate-General Sindh.
2. The brief facts of the prosecution case are that on 14-1-1987 Haji Amir Ali, Circle Officer A.C.E., Hyderabad incorporated written report sent to him by Rationing Controller, Hyderabad in section 154, Cr.P.C. Book. After usual investigation respondents Nos.1 and 2 were sent up to stand trial in the above case along with six other accused.
3. The Trial Court framed the charge. The respondents pleaded not guilty to the said charge and claimed to be tried. The prosecution examined P.W.1 Ghulam Nabi son of Muhammad Siddik, P.W.2 Muhammad Siddik son of Akhtar Hussain and P.W.3 Muhammad Siddique son of Khamiso Khan.
4. Thereafter, an application under section 249-A, Cr.P.C., was moved before the Trial Court on behalf of the respondents which was allowed and they were acquitted.
5. At the very outset learned counsel for the respondents Nos.1 and 2 contended that this appeal was time-barred and that it was incompetently filed since Advocate-General was not public prosecutor on the date when this appeal was preferred.
6. The learned State Counsel has however contended that Advocate-General was public prosecutor and that under section 10 of Criminal Law Amendment Act, 1958 no period of limitation is provided and that it was on this account that office did not raise objection regarding the competency of this appeal.
7. I have heard the learned counsel for the parties, I have also perused the material placed on record.
8. The perusal of impugned order of acquittal under section 249-A, Cr.P.C. Shows that it was passed on 18-12-1996. The appellant applied for copy of the impugned order on 8-6-1998 and it was supplied to him on 13-6-1998. Appeal was however presented before this Court on 10-7-1998.
9. For the sake of convenience, it will be pertinent to reproduce herein under section 10 of Pakistan Criminal Law Amendment Act, 1958:--- "Section 10. Appeal, revision and transfer of cases:
(1) An appeal from the judgment of a Special Judge shall lie to the highest Court having appellate jurisdiction in the territorial limits in which the offence is tried by the Special Judge, and the same Court shall also have powers of revision.
(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 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.
(3) The aforesaid Court shall have authority to transfer any case from the Court of Special Judge to the Court of another Special Judge: Provided that notwithstanding anything contained in section 526 of the Code of Criminal Procedure, 1898, the Special Judge from whose Court a transfer is desired, shall not be bound to adjourn the case, but if he rejects a request for adjournment, he shall record his reasons for doing so.
(4) No prosecution under this Act against any person either generally or in respect of any one or more of the offences for which he is being tried shall be withdrawn except under the orders in writing of the appropriate Government."
10. The plain reading of above provisions shows that no period of limitation has been provided therein. It will however not be out of place to mention here that where an enactment provides a Special procedure for some matters mentioned therein the said provisions must apply in regard to those matters only and the provisions of the code will apply to other matters in respect whereof the Special enactment is silent. In this context reference can be made to a case from Indian jurisdiction reported in (AIR 1941 Nag. 338).
11. Article '157 of Limitation Act prescribes period of six months for filing appeal against acquittal.
' The relevant Article is reproduced herein below for ready reference: {{TABLE}} #TBS Time from which period begins to run. #TBE #TBS Article. Description Period of of Suit Limi- tation #TBE
157. Under the six The date Code of months of the Criminal order Procedui appealed 1898 from from an order of acquittal. {{TABLE}}
12. Thus, the bare reading of above provisions show that the contention of the learned Assistant Advocate-General that because no period of limitation is provided in section 10 of the Criminal Law Amendment Act, 1958, therefore, State can prefer acquittal appeal at any time is misconceived and it is devoid of force.
13. The limitation creates valuable right in favour of the parties. Whoever sleeps over his right is not entitled to the relief beyond the period of limitation prescribed by law. It is also well-settled that even for the purpose of condonation of delay appellant has to explain delay of each day.
Reference can be made to the case of Government of the Punjab through Secretary (Services), Services General Administration and Information Department, Lahore and another v. Muhammad Saleem (PLD 1995 SC 396) and N.-W.F.P. Through Chief Secretary and another v. Mst. Hussan Pari and others (PLD 1988 SC 144).
14. In the case of Ashiq Muhammad and another v. Khuda Bakhsh and 5 others reported in PLD 1998 Pesh.68, it was observed as under:--- "7. Appeal/revision/transfer of case under Act XL of 1958 are governed by section 10 of the Act (ibid).
Subsection (2) thereof provides for appeal against acquittal which reads as under:--- ' Notwithstanding the provision of section 417 of the Code of Criminal Procedure (V of 1898), in any case tried by 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.
8. A bare reading of the aforesaid provision of law provides a right of appeal to the Central Government through Public Prosecutor against an order of acquittal passed by Special Judge appointed by the Central Government. In the instant case, the trial Judge is undisputedly appointed/notified by the appropriate Government has been defined in section 2(a) of the Act (ibid.) means in relation to a person serving in connection with the affairs of the Centre and any other person employed by the Central Government or by a Corporation or other body or organization set up, controlled or administered by, or under the authority of, the Central Government, (the Central Government) and in other cases, the Provincial Government and were tried by the Special Judge notified by the Government of N.-W.F.P. Section 10 or any other section of the Act (ibid) provides no right of appeal to the Provincial Government against the order of acquittal passed by the Special Judge appointed/notified by the Provincial Government.
9. The question of maintainability of appeal against the acquittal under the Special Act came before the Court in "The Superintendent and Remembrancer of Legal Affairs, Government of East Pakistan v. Syed Bazlur Rehman and others" reported in PLD 1960 Dacca 200. The issue of maintainability of appeal under section 417 of the Criminal Procedure Code was thoroughly thrashed and it was held in following words: 'But, reading the provisions of Act X of 1956 as they are, along with the provisions of appeal under the Code of Criminal Procedure, we cannot hold that, in the absence of a provision for appeal under the said Act, the provisions of section 417 by themselves would entitle the Provincial Government to maintain an appeal against an order of acquittal. We, therefore, hold that no appeal lies against an order of acquittal passed by a Special Magistrate under Act X of 1946 or, on appeal, by a Sessions Judge.'
10. The same issue in a case under Prevention of Corruption Act (II of 1947) tried under Pakistan Criminal Law Amendment Act (XL of 1958) and sections 3, 10(2) and (4) read with section 6(5) and section 417, Cr.P.C. Was thoroughly discussed by Full Court of the Supreme Court of Pakistan in The State v. Muhammad Hussain PLD 1968 SC 265 and the following conclusion was drawn:--- '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 Judge 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 proceeding 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.'
15. Again in paragraphs 13 and 14 it was observed as under:--- "13. The contention is not sustainable for the simple reason that by striking down subsection (5) of section 6 of the Criminal Law Amendment Act, 1958, the other provisions more particularly section 10(2) of the Act would not be omitted ipso facto. Section 10(2) is still in the field in unamended form.
As earlier stated right of appeal is a statutory right and unless statute provides for, there will be no right of appeal. There is no provision for appeal even for the Provincial Government what to say of an aggrieved person/complainant. The Criminal Procedure Code, 1898 is not applicable to the proceeding under Criminal Law Amendment Act, 1958. By insertion of 2-A in section 417, Cr.P.C. The legislation could also amend section 10(2) of the Act (ibid), but the same is still in force unamended.
14. Even revision petition by the complainant against an acquittal order under the Act (ibid) is not maintainable under section 435/439, Cr.P.C. Because Pakistan Criminal Law Amendment Act, 1958 is by itself a procedural law which shall prevail upon the general law i,e, Cr. P.0 . "
16. In the present case even no application for condonation of delay has been filed. The appeal is hopelessly time-barred. I am also fortified by a D.B. Decision of this Court in case of The State through Public Prosecutor v. Shoukat Ali (1998 PCr.LJ 150) wherein it was observed as under:--- "So far the appeal being time-barred, it would be seen that the appeal was presented on 4-10-1992 whereas the judgment was passed and announced on 29-1-1992. The certified copy filed with memo of appeal would show that the appellant applied for the certified true copy of the judgment on '2-4-1992 which was made ready on 10-4-1992 but it was collected or delivered on 25-7-1992.
According to Article 157 of Limitation Act, period of limitation for filing an appeal by the Federal Government' against the order of acquittal has been prescribed as six months from the date of order appealed from. In the instant case, the date of order is 29-1-1992, therefore, as provided under Article 157 the appeal should' have been filed by 28-7-1992 but because certified true copy though ready after eight days of making application, was collected/delivered on 25-71992 hence the time spent in collecting the certified true copy from 11-4-1992 till 25-7-1992 (though ready earlier) cannot be excluded as it could not be considered to be a requisite time under the Limitation Act because if the appellant had taken reasonable and proper steps to obtain certified true copy of acquittal order, he could have conveniently collected it on 10-4-1992 as it was ready on 10-4-1992 but the appellant having not collected the same, the period from 11-4-1992 to 25-7- 1992, when it was ready and was not collected, cannot be excluded in computing the period of limitation prescribed for filing appeal under Article 157. The appeal could have been filed by 5-8- 1992 but was filed on 4-10-1992 and there was 59 days' unexplained delay in filing appeal. There is no application under section 5 of Limitation Act for condoning the delay in filing appeal explaining the delay of each day. In the instant case, the appellant due to act of dilatoriness on his part took late delivery of certified true copy of acquittal order, therefore, the said period from the date of preparation of the copy till it was collected cannot be excluded as requisite time. The appeal has been filed 59 days' after the expiry of six months' period prescribed under Article 157 of Limitation Act, which is on the face of it is beyond the period of limitation, hence appeal is time-barred, which period of delay has as well created a vested right in favour of the respondent, which could not be taken away without any justification of each day's delay.
' In view of the aforesaid reasonings, the appeal is not maintainable for not having been filed and signed by authorised, person and also being time-barred."
17. In the case of Haji Muhammad Ashraf v. The State and 3 others reported in 1999 MLD 330 I have also expressed the same view. Thus, on the point of Limitation I the appeal merits no consideration and it is dismissed accordingly.
18. Now I will advert to the point that whether on 1-7-1998 Advocate-General was public prosecutor as envisaged under section 417, Cr.P.C. And whether he was competent to file the present appeal?
My answer is in affirmative. By virtue of Notification No, S.GENL: 6-7 of 1993/1118/170, dated 29-7-1993 the Advocate-General Sindh was appointed as public prosecutor. The Notification is reproduced herein under in extenso for the sake of ready reference: "GOVERNMENT OF SINDH IN LAW DEPARTMENT ' NOTIFICATION ' Karachi, dated the 29th July, 1993.
' No, S. GENL: 6-7 of 1993 : ---In exercise of powers conferred by subsection (1) of section 492 of the Code of Criminal Procedure, 1898, and in modification of defunct West Pakistan Law Department Notification No, GENL: 1-9 of 1960, dated the 25th October, 1960, the Government of Sindh are pleased to appoint the Advocate-General Sindh, Karachi to be the Public Prosecutor generally for Sindh.
Abdul Qadir Siddiqui Secretary to Government of Sindh Law Department No,S.GENL:6-7/ Karachi, dated 29th 93/1118/170 July, 1993"
19. Thus, from the plain reading of above notification it is crystal clear that appeal was filed competently.
20. The upshot of the above discussion is that this appeal stands dismissed along with the listed applications.