1. ' This appeal under section 417, Cr.P.C. At the instance of Advocate-General, Sindh/Ex-Officio Public Prosecutor, Sindh, is directed against the judgment, dated 21-1-1996 passed by the Additional City Magistrate Court No,III (Karachi East) acquitting the respondents Nos.1 to 3 under section 249-A, Cr.P.C. Of the charge for committing offences punishable under sections 337-A and 337-F, Qisas and Diyat Ordinance.
2. ' For the sake of convenience the impugned order is reproduced below:-- ' "The abovenamed accused persons were challaned by the S.H.O. Police Station Korangi in the Court in consequence of F.I.R. No,505 of 1993, under sections 337-A, 337-F, Qisas and Diyat Ordinance of Police Station Korangi to face their trial on the following allegations.
3. ' Briefly, the story of the prosecution case is that on 5th day of June, 1993 at about 16-30 hours at near House No,Q-308 Korangi, the abovenamed accused persons in furtherance of common intention alongwith the absconding accused namely Mst. Hameeda alias Jameela quarrelled with the complainant Bachan Khan and his son-in-law Muhammad Suleman and started beating with fists blows and head blows with the result they received injuries on their persons in presence of witnesses. After registration of the case and on conclusion of the usual investigation, Investigating Officer of the case submitted challan before the Court.
4. ' On declaring the absconding lady accused namely Mst. Hameeda alias Jameela as proclaimed offender by the Court, the copies of the statements under section 161, Cr.P.C. Were supplied to the accused persons as Exh.2. Subsequently, formal charge under section 242. Cr.P.C. Was framed against the accused as Exh.3 and was read over and explained to them in the language which they understand, to which they did not plead guilty and claimed to be tried. As such, the case was put on regular trial.
5. ' During the course of trial, the prosecution could hardly produce and examine only three witnesses, out of seven witnesses cited in the charge-sheet in spite of repeated process issued by the Court. I have, therefore, considered the case and find that, after framing of the formal charge, the case was adjourned for 48 (forty eight) hearings and, the processes were also issued repeatedly/regularly. The processes were sent through the S.S.P. Concerned with a request to direct the Investigating Officer of the case and the process-server to cause attendance of the witnesses but, all in vain. No witness turned up before the Court for evidence. The reports of the process- server indicate that, the witnesses are not traceable at their given addresses.
6. ' In view of the foregoing discussion, I have reached to a conclusion that, either the witnesses have lost their interest or, they have shifted to some other place and their whereabouts are not known. In both the cases, it is not certain as to how long the prosecution would take to procure the attendance of witnesses. On the other hand, the accused is attending the Court regularly. This is also some sort of punishment to the accused without trial of the case or without proving of the guilt of the offence. There must be a limit of the latitude which can be provided to the prosecution for the production of witnesses. In this instant case, the prosecution has already availed more than sufficient opportunities but, totally failed to procure the attendance of witnesses.
7. ' Under the circumstances, I hold that, there is no probability of the accused persons being convicted if dragged any more. Mere dragging of an accused for an indefinite period without the hope of trial of the case or without the proving of the guilt of the offence would certainly amount an abuse of process of Court. I, therefore, acquit the accused persons namely Saleem alias Gudoo, Kafeel and Mst. Churchill under section 249-A, Cr.P.C. The case against absconding lady accused namely Mst. Hameeda alias Jameela to he kept on dormant file till her arrest. Accused persons namely Saleem alias Gudoo, Kafeel and Mst. Khurshid are on bail and their bail bonds are hereby cancelled and sureties discharged."
8. ' Heard Mr. Javed Akhtar, learned counsel for the State and Mr. Mahmood A. Qureshi, learned counsel for the respondents Nos.1 to 3.
9. ' Learned counsel for the State has submitted that the prosecution had already examined P.W.
10. Muhammad Suleman who is one of the victims and eye-witness of the incident. P.W. Muhammad Ghous is an eye-witness and Musheer of the memo. Of inspection and P.W. Bacchan the main victim. P.W. Bacchan is the complainant as well. All these witnesses had supported the prosecution case. He has further submitted that after examination of the 3 main prosecution witnesses the other main witnesses remained to be examined were Medical Officer and Investigating Officer.
11. Learned State Counsel has vehemently argued that the learned trial Court had not issued summons to the Medical Officer through the Medical Superintendent, Jinnah Hospital, Karachi, and took no serious efforts for procuring attendance of the Investigating Officer. The trial Court acquitted the respondents under section 249-A, Cr.P.C. Without looking into the provisions contained in section 249-A, Cr.P.C. Which empower a Magistrate to acquit an accused at any stage after hearing the Prosecutor and the accused and for the reasons to be recorded if he considers that the charge is groundless or there is no probability of the accused being convicted in any offence. Learned trial Court has not given any findings whatsoever on the point that either charge is groundless or there is no probability of the accused being convicted on any offence, although 3 prosecution witnesses had fully implicated the accused persons. He has further submitted that the learned trial Court while acquitting the respondents under section 249-A, Cr.P.C.
12. Was influenced merely by the delay in conclusion of the trial. Learned trial Court gave this finding without examining its own record. A perusal of the order-sheet of the trial Court shows that on several dates the accused persons were absent and thus, they also contributed in causing delay in conclusion of the trial. On 5-6-1995, the accused persons were not present and their Advocate submitted application for condonation of their absence. On 8-3-1995 P.W. Muhammad Ghous was present and his examination-in-chief was recorded. Cross-examination was reserved as his Advocate was not present. Again on 26-3-1995 P.W. Muhammad Ghous was present but hearing was adjourned at the request of the Advocate for the accused. On 15-1-1995 an application for adjournment was submitted on behalf of the accused persons. On 30-11-1994 the accused were not present and their Advocate submitted an application for condonation of their absence.
13. Likewise on several dates the accused remained absent and/or sought adjournments. Learned State Counsel has submitted that in the circumstances the learned trial Court has not properly exercised the jurisdiction under section 249-A, Cr.P.C. And has exceeded the mandate of law. He has urged that the impugned order be set aside and ;he case be remanded to the learned trial Court for concluding the trial in ordinary course.
14. On the other hand Mr. Mahmood A. Qureshi, learned counsel for the respondents has raised preliminary objection to the maintainability of the appeal. He has submitted that an appeal under section 417, Cr.P.C. Has been filed under the signature of Mr. Abdul Ghafoor Mangi (the then Advocate-General, Sindh) who was not competent to file the appeal and, therefore, the appeal is liable to be rejected as not maintainable. He has argued that under section 417(1) the Provincial Government may, in any case, 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 the High Court.
15. According to him learned Advocate-General, Sindh is not a Public Prosecutor as envisaged under section 492, Cr.P.C. In support of this contention he has placed reliance on the following judgments:-
(1) State v. Hanif Ahmad 1994 SCM R 749, (2) State v. Javed Iqbal 1997 PCr.LJ 591 (Karachb, - (3)
16. State v. Nooru alias Noor Muhammad 1998 PCr.0 35 (Karachi) and (4) State v. Badlo Gosh alias Galu Fakir and another 1999 PCr.C 416 (Karachi).
17. ' In the case State v. Hanif Ahmad (supra) the relevant facts were that an Assistant Advocate- General filed acquittal appeals which were dismissed by the High Court for the reason that the Assistant Advocate-General was not covered by section 492, Cr.P.C. The State filed petition for leave to appeal which was granted. It was contended before the Honourable Supreme Court by Mr. Abdul Ghafoor Mangi (the then Additional Advocate-General, Sindh) that vide Notification, dated 25-10-1960 the Governor of Erstwhile West-Pakistan, in exercise of powers conferred under subsection (1) of section 492, Cr.P.C. Appointed the Additional Advocate-General of West Pakistan, Lahore, as Public Prosecutor generally for West Pakistan. It was submitted that the Notification continued even after the dissolution of West Pakistan, and that in terms of rule 22-A of the Rules for conducting of the legal affairs of the Government framed in 1940 the Advocate-General authorized Assistant Advocate-General to file acquittal appeals.
18. ' The contention was not accepted for the reason that the office of the Public Prosecutor has distinct functions and duties which are different from the duties of the Assistant Advocate-General or of the Advocate-General under the Rules. After referring the provisions as contained in sections 417 and 492, Cr.P.C., the case-law was considered. The first judgment which was considered was in case of Qadir Bux and others v. The Crown PLD 1955 FC 79. In this case the facts were that the accused persons facing charge under section 302,. P.P.C. Were acquitted by the Sessions Judge.
19. Advocate-General of Sindh preferred appeal against the order of acquittal in the Chief Court of Sindh, which was accepted and the 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 the Federal Court to consider the competency of the appeal, which was accepted by the erstwhile Sindh Chief Court. It was held by the Sindh Chief Court that the principle "the greater includes the less" was applicable and the Advocate-General was necessarily a Public Prosecutor within the -meaning of section 417, Cr.P.C. The Federal Court allowed the appeal and observed as follows as to the interpretation of the provisions of sections 492 and 417, Cr. P.C.
20. ' "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, co-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 co-nomine construction can be permitted, for the section itself speaks of appointment of persons by the Provincial Government to be called Public Prosecutor'. 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."
21. ' In the second case State v. Muhammad Hussain PLD 1968 SC 265 the question for consideration was whether an acquittal appeal filed by the Assistant Advocate-General of West Pakistan Government, without any direction of the Central Government, as required by section 10(2), Pakistan Criminal Law (Amendment) Act, 1958, in respect of the Anti-Corruption case involving the civil servants was competently filed. It was held that it was within the exclusive competence of the Advocate-General of West Pakistan and, therefore, the appeal filed by the Assistant Advocate- General was not competent in law.
22. ' In the third case State v. Muhammad Salim Baig 1989 PCr.LJ 1849, it was held that an appeal filed by Mr. Sarfraz Ahmad, Assistant Advocate-General, was not competent because he was not appointed as Public Prosecutor.
23. ' After considering the above judgments the Honourable Supreme Court held that Assistant Advocate-General cannot be considered as Public Prosecutor in terms of section 492, Cr.P.C. Which could be determined in accordance with the law contained in section 492, Cr.P.C. And not with reference to Article 140 of the Constitution. The appeal was dismissed.
24. ' In case of State v. Javed Iqbal a D.B. Of this Court held that an appeal filed under section 417, Cr.P.C. By an Assistant Advocate-General was not competent as the Assistant Advocate-General was not Public Prosecutor under section 492, Cr.P.C. In this judgment the earlier judgment of the Honourable Supreme Court in case of State v. Hanif Ahmad 1994 SCM R 749 was followed.
25. 'In case of State v. Nooro (supra) another D.B. Of this Court held as follows:-- ' "Mr. A.G. Shaikh, Additional Advocate-General was unable to satisfy us that the Advocate-General, Sindh who was accorded sanction to file this appeal was ever appointed a 'Public Prosecutor' either by name or by office as required under section 492, Cr.P.C. He also could not point out to any document on record to show that Mr. Zawwar Hussain Jafri, Assistant Advocate-General, Sindh who presented this appeal in Court was authorised to do so or was acting as a 'Public Prosecutor'. Even otherwise merely on the ground that the Advocate-General had been directed by the Government to present the appeal from the order of the acquittal, it cannot be assumed that he had ex officio been appointed as 'Public Prosecutor'. In fact such direction ought to have been issued to the 'Public Prosecutor' as required under section 417, Cr.P.C. Rather than to the Advocate-General.
26. ' The contention of the Additional Advocate-General that by virtue of appointment as Advocate- General he also becomes ex officio 'Public Prosecutor' does not find support from any provisions of the Criminal Procedure Code and cannot be accepted. It was lastly argued by the Additional Advocate-General that under the rules of conduct of legal affairs of the Government the Provincial Government has authorised the Assistant Advocate-General to file appeals against acquittal.
27. Firstly, no such rule was produced for our perusal and secondly even it exists rules cannot override statutory provisions.
28. ' For the reasons aforesaid we are inclined to uphold the objection of the respondents' counsel and accordingly we hold that the present appeal was not presented in Court by a proper and competent person in accordance with the provisions of section 417, Cr.P.C. We, therefore, dismiss this appeal."
29. ' In case of State v. Badlo Gosh (supra) a Single Bench of this Court by placing reliance on judgment of the Honourable Supreme Court in the case of State v. Hanif Ahmad (supra) held that an appeal filed by an Assistant Advocate-General under section 417, Cr.P.C. Was not competent for the reason that he was not a Public Prosecutor.
30. ' On merits learned counsel for the respondent has placed reliance on the judgment of the Honourable Supreme Court in case of Mst. Shabana Naz v. Mst. Hukum Jan 2000 SCM R 1480 in which the acquittal of the accused persons under section 249-A, Cr.P.C. For the reason that not a single prosecution witness was examined in a private complaint for a period of more than 5 years, was upheld.
31. ' In rebuttal of the contentions raised by the learned counsel for the respondents, Mr. Javed Akhtar, learned State Counsel, has submitted that all the judgments on which reliance has been placed by the learned counsel for the respondents are distinguishable as in the present case the appeal has been filed by the Advocate-General and not by Assistant Advocate-General and the Advocate- General, Sindh has been appointed as Public Prosecutor for the Province of Sindh, by the Provincial Government vide Notification, dated 29-7-1993. The said notification was not brought to the notice of the Court in the earlier judgments.
32. ' So far upholding of acquittal by the Honourable Supreme Court vide judgment reported as 2000 SCM R 1480 (supra) is concerned the learned State Counsel has submitted that in the said case not a single prosecution witness was examined while in the present case the prosecution had already examined 3 material witnesses and all of them fully implicated the accused person.
33. ' I have carefully considered the contentions raised by the learned Advocates for the parties and material available on the record. So far the competency of the appeal is concerned I am persuaded to agree with the submission of Mr. Javed Akhtar. Learned State Counsel that Advocate-General, Sindh has been duly appointed Public Prosecutor for the whole of Province of Sindh vide Notification dated 29-7-1993, therefore, all the judgments in which an appeal under section 417, Cr.P.C. Filed by the Assistant Advocate-General has been held to be incompetent are not applicable to the present case. The observation made in the case of State v. Nooro (supra) to the effect that, "Learned Additional Advocate-General was unable to satisfy that the Advocate- General who was accorded sanction to file this appeal was appointed as Public Prosecutor either by name or by office as required under section 492, Cr.P.C." is a result of lack of assistance to the Court. If the learned Additional Advocate-General would have brought to the notice of learned D.B.
34. That the Advocate-General, Sindh was duly appointed as Public Prosecutor for the Province of Sindh vide Notification dated 29-7-1993 the above observation would not have been made. Since the above observation is a result of lack of assistance to the Court and as such is per incurem, therefore, it is not of binding effect: It is, therefore, held that the Advocate-General has been specifically appointed as Public Prosecutor by the Provincial Government for the entire Province of Sindh as required under section 492, Cr.P.C., therefore, this appeal filed by the learned Advocate- General, Sindh is competent in law.
35. ' Coining the merits of the case I find that the ratio of the Honourable Supreme Court's judgment reported as 2000 SCM R 1480 (supra) is not attracted to the facts of the present case, as in this case 3 prosecution witnesses were examined and all of them fully implicated the accused persons.
36. A perusal of the impugned order further shows that the learned trial Court has not considered at all the fact of examination of 3 prosecution witnesses, who duly supported the prosecution case and implicated the accused persons. Moreover, the trial Court has not taken pains to issue summons to the Medical Officer through Superintendent, Jinnah Hospital, Karachi, and coercive process for the attendance of the Investigating Officer. The trial Court has further failed to give any finding that either the charge was groundless or there was no probability of accused being convicted of any offence, which is the condition precedent for the exercise of jurisdiction under section 249-A, Cr.P.C.
37. For the foregoing reasons it is held that the learned trial Court has improperly exercised the jurisdiction vested under section 249-A, Cr.P.C. The impugned order is not maintainable in fact and law and consequently the impugned order is set aside. The case is remanded back to the trial Court with direction that process be issued to the remaining witnesses. Summons be issued to the Medical Officer through Medical Superintendent, Jinnah. Hospital, Karachi. If the remaining prosecution witnesses are not produced after making three attempts the prosecution should be given last opportunity and thereafter the trial Court may close the prosecution case. After closing of the prosecution side, the trial Court should record statement of the accused persons under section 342, Cr.P.C. And afford them opportunity of being examined under section 340, Cr.P.C. If they so desire and further afford opportunity to the accused persons to lead defence if any and thereafter the case be decided on merits.
38. ' After hearing the learned Advocates for the parties in Court today, the appeal was allowed by short order for the detailed reasons to be recorded later on. These are the detailed reasons in support of the short order announced in Court. The appeal is allowed as above.