THE STATE vs GHULAM SHABBIR and 9 others

' ABDUL SHAKURUL SALAM, (CHAIRMAN)--- This State appeal against acquittal of the respondents has arisen out of the following circumstances:-- ' The respondents were being tried under sections 307, 395, 397, P.P.C. Read with section 17 (Haraabah) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 when after conclusion of the evidence and during the course of arguments, the parties entered into a compromise and filed a compromise deed Exh.C.1. The accused promised to pay Rs,2,00,000 (Rupees two lacs) as Diyat and compensation to the injured persons and also to restore 500 maunds of salt and 345 bags of fertilizer. Suboh Sadiq, Advocate, one of the accused paid Rupees two lacs to the complainant party in the Court. He also paid Rs,74,685 as price of 500 maunds of salt and 345 bags of fertilizer. The compromise was completed. At the instance of the learned trial Court, both the parties embraced each other and ended their long-standing enmity. They also agreed to withdraw civil and criminal proceedings pending against each other in different Courts.

They were allowed a fortnight time to do the needful. After recording the statements of the parties accomplishing the compromise, the learned trial Court acquitted the respondents of the charges against them. This is vide order, dated 21-12-1991. This is challenged by an appeal filed under the signatures of Deputy Attorney-General.

2. Learned counsel appearing for the State/appellant contended that the parties could not have compromised nor the Court could have accepted the same and acquitted the accused. He placed reliance on Parvez Iqbal v. The State PLD 1985 FSC 134, and Ghulam Muhammad v. Mst. Murad Bakhta and 6 others PLD 1991 FSC 78. In the first case, the issue was not the validity of compromise in that case but a compromise effected in another case was sought to be used. Therefore, the observations were rather obiter dictum. The second case does not deal with the question of compromise. In the case in hand the parties have entered into a compromise and the accused have compensated the complainant party. Both parties have also agreed to withdraw all litigation inter se. Purpose of administration of criminal law to maintain peace and tranquility has been achieved.

3. Besides this, appeal is not competent as it has not been filed in accordance with law i,e. Section 13(5) of the Ordinance under which this Court was constituted i,e. Special Courts for Speedy Trials Ordinance, 1991 (XXV of 1991). The aforesaid provision is as follows:-- "The Attorney-General or Advocate-General may or on being directed by the Government, shall present to the Supreme Appellate Court an appeal against the order of acquittal or a sentence passed by a Special Court within 30 days of such ordeRs,"

' A plain reading of this provision shows that it is the Attorney-General or the Advocate-General who may or being directed by the Government file an appeal against an order of acquittal. In the case in hand, the appeal has not been filed by Attorney-General or the Advocate-General or on being directed by the Government as defined i,e. Federal Government. On the other hand, it has been filed by the Deputy Attorney-General.

4. The learned counsel appearing in support of this appeal has referred to a decision of another Supreme Appellate Court, Lahore-II in Criminal Appeal No,10 of 1991 (Liaqat Aii v. State 1992 SCMR 372) wherein an objection was raised that the appeal filed by the Deputy Attorney-General was not competent. The learned Court in that case has held that:- "The above contention would have prevailed if we would not have ourselves discovered the fact that the Central Law Officers (Amendment) Act, 1985 (Act XVII of 1985) incorporated section 4-A in the Central Law Officers Ordinance, 1970 (VII of 1970) providing as follows:-- 4-A. Central Law Officers to be deemed to be public prosecutors, etc.--Notwithstanding anything contained in any other law for the time being in force, all Additional Attorneys-General, Deputy Attorneys- ' General and Standing Counsel shall be deemed to be public prosecutors and shall be competent to institute, file and conduct any proceedings, including appeal and revision, for and on behalf of the Federal Government before any Court or Tribunal including a Special Court constituted under any law.

' A plain reading of the above newly-added section indicates that it provides that notwithstanding anything contained in any other law for the time being in force, all Additional Attorneys-General, Deputy Attorneys-General and Standing Counsel shall be deemed to be public prosecutors and shall be competent to institute, file and conduct any proceedings including appeal and revision for and on behalf of the Federal Government before any Court or Tribunal including the Special Court constituted under any law.

' The above provision read with subsection (5) of section 13 of the Ordinance makes it clear that the present acquittal appeal has been competently filed."

5. We regret that we have a different view for reasons to follow. It may be noticed that section 4-A of the Central Law Officers Ordinance, 1970 (VII of 1970) relied upon provides that all the Additional Attorneys-General, Deputy Attorneys-General and Standing Counsel shall be deemed to be public prosecutors and shall be competent to institute, file and conduct any proceedings including appeals and revisions for and on behalf of the Federal Government before any Court or Tribunal including a Special Court constituted under any law (underlining is our). This provision lays down that the Deputy Attorneys-General will be deemed to be public prosecutors for the specified purpose. But section 13(5) of the Special Courts for Speedy Trials Ordinance, 1991 (Ordinance No,XXV of 1991) does not allow filing of an appeal by a public prosecutor. It is the Attorney-General or Advocate-General or they being directed by the Government, who can file an appeal. Therefore, this appeal having not been filed by the Attorney-General or the Advocate-General or either of them having been directed by the Federal Government is not competent. The Deputy Attorney- General being deemed as public prosecutor may file appeals under other statutes where appeals can be filed by public prosecutoRs, But they cannot file an appeal under this special statute (XXV of 1991) which specifically provides who can file an appeal. It may also be taken note of that this special Ordinance (XXV of 1991) provides for specially chosen cases by the Federal Government to be put up for trial before the specially constituted Courts and appeals before the specially constituted Appellate Courts consisting of two learned Judges of. High Court and a Judge of the Supreme Court. The appeals against the order of the trial Court are to be filed by the Attorney- General, Advocate-General or either being directed by the Federal Government. If the Deputy Attorney-General deemed as public prosecutor could file an appeal, it will be open to the real public prosecutor to file an appeal. In the province of the Punjab, there are more than 32 public prosecutors and each will be competent to file an appeal. This will defeat the purpose of the Special Ordinance (XXV of 1991) which intends to keep the trial and appeals under the Ordinance of chosen cases in a separate category and in different forums regulated at the Federal level.

Allowing the real public prosecutors or those deemed to be so will be contrary to the intent and spirit of the statute. Therefore, for all the reasons, the appeal as constituted is not competent.

6. For the foregoing reasons, this appeal is dismissed.