' KHALIL-UR-REHMAN RAMDAY, J.---This appeal through leave of this Court is directed against a judgment, dated 17-10-1995 passed by a learned Division Bench of Balochistan High Court in Criminal Acquittal Appeal No,16 of 1995 whereby the said learned Division Bench had dismissed the preliminary objection raised by the accused-appellants regarding the competence of the above mentioned Criminal Acquittal Appeal on the ground that the said appeal, filed under section 417 of the Cr.P.C. Had not been filed by a competent person and was, therefore, not maintainable.
2. The background of this case is that having been accused of the commission of offences punishable under sections 467/468/471/ 482/483/420 and 109 of the P.P.C. Vide F.I.R. No,4 of 1991 of Police Station F.I.A. (Crimes), Quetta, the appellants before us were tried by the learned Sessions Judge of Quetta, who, as a result of the trial, acquitted the said appellants through his judgment, dated 31-10-1994. The said acquittal was called in question before the Hon`ble High Court of Balochistan, through an appeal under section 417 of the Cr.P.C. The appellants before us took up a preliminary objection before the High Court submitting that an appeal challenging an acquittal could have been filed under section 417, Cr.P.C. Only by the Provincial Government or else by the complainant if the acquittal had been recorded in a case which had commenced on a private complaint. It had been added that the appeal in question had obviously not been filed by the Provincial Government and since the trial in question had not ensued in pursuance of a private complaint therefore, even the complainant was not qualified to file the said appeal. The learned Deputy Attorney-General appearing before the Hon'ble High Court attempted to meet this objection by submitting that a Deputy Attorney-General, by virtue of his said office was a Public Prosecutor and was thus competent to institute and file proceedings including appeals and revisions for and on behalf of the Federal Government in terms of section 4A of the Central Law Officers Ordinance No,VII of 1970 and that in the circumstances, the appeal in question was maintainable.
3. Through the judgment impugned before us the Hon'ble Supreme Court repelled this preliminary objection and found that the appeal against acquittal in question was competent because the same had been filed by a Deputy Director of F.I.A. In his capacity as an aggrieved person within the purview of, subsection (2A) of section 417 of the Cr.P.C.
4. The above mentioned subsection (2A) was added to section 417 of the Cr.P.C. Through an Amending Act No,XX of 1994 which had received the assent of the President on 28-10-1994 and which had been gazetted on 14-11-1994. The judgment in question of acquittal had been passed by the learned Sessions Judge on 31-10-1994 and leave was granted by this Court to consider whether a right of appeal which was conferred on an aggrieved person on 11-11-1994 would be available against an accused person who had secured his acquittal on 31-10-1994 i.e, well before the said right of appeal had been incorporated in section 417 of the Cr.P.C.
5. The learned Deputy Attorney-General reiterated the submission which had been offered. Before the learned High Court in defence of the appeal against acquittal in question by submitting that a Deputy Attorney-General being a Public Prosecutor and being authorized to file appeals and revisions etc. On behalf of the Federal Government had rightly filed the said appeal and that the appeal in question was therefore, competent in the eyes of law.
6. We have perused Central Law Officers Ordinance, 1970. It is true that a Deputy Attorney-General does stand declared as a Public Prosecutor and it is also true that he does stand authorized to file appeals and revisions but these appeals and revisions which such a law officer is permitted to file are the ones which are to be filed on behalf of the Federal Government. Needless to say that under section 417 of the Cr.P.C. No right accrues to the Federal Government to file an appeal and consequently no authority was available with the Deputy Attorney-General to file an appeal under the said provisions of law. This submission of the learned Deputy Attorney-General is, therefore, without merit.
7. The next and the alternative submission of the learned Deputy Attorney-General was that the competence of the appeal in question could be defended on the strength of the provisions of subsection (2A) of section 417 of the Cr.P.C. And argued that the said appeal had been filed by a Deputy Director of F.I.A. At Quetta in his capacity as a "person Aggrieved by the order of acquittal" and that the said appeal was thus maintainable on the strength of the said provisions of subsection (2A) of section 417, Cr.P.C.
8. We have perused the memorandum of appeal in question filed before the Balochistan High Court. A certified copy of this appeal which is available on our record describes the appellant as under:-- ' "State through Deputy Director (FIA) of Pakistan at Quetta".
' It may be mentioned here that a copy of this appeal which is available on our file describes the appellant differently and recites the appellant to be:-- ' "State through Deputy Attorney-General of Pakistan at Quetta".
Needless to mention here that we would rather go by the certified copy of the memorandum of appeal and not by the copy which is available on our file and which is uncertified. As would appear from the description of the appellant in this appeal, the same is declared to have been filed by the State through a Deputy Director of F.I.A. Therefore, the submission of the learned Deputy Attorney- General that this was an appeal filed by the Deputy Director in this capacity as a person aggrieved of the acquittal is factually incorrect. Consequently, the question whether above mentioned provisions of subsection (2A) of section 417 of the Cr.P.C. Were attracted in the present case and if so attracted- then whether the said provisions would be available when these provisions were added after the judgment of acquittal had been passed, becomes irrelevant. Needless to add that it is nobody's case that any authority vested in the Deputy Director of F.I.A. To file the appeal in question on behalf of the State.
9. Thus our conclusion is that the said appeal was neither competent in view of the provisions of section 4A of the Central Law Officers Ordinance No,VII of 1970 nor was the same maintainable under subsection (2A) of section 417 of the Cr.P.C.
10. In this view of the matter the impugned judgment of the Hon'ble Balochistan High Court dated 14-6-1995 delivered in Criminal Acquittal Appeal No,16 of 1995 regarding the above-noticed preliminary objection is not legally tenable and the same is, therefore, set aside. Criminal Appeal No,5 of 1996 is allowed in the above terms.