THE STATE through Public Prosecutor vs SHOUKAT ALI

1. ' HAMID ALI MIRZA, J.--- This is an appeal under section 10(2) of Criminal Law Amendment Act, 1958 directed against the judgment of acquittal, dated 29-1-1992 passed by Special Judge, Central-I, Karachi in a Case No,68 of 1988 State v. Shoukat Ali registered under section 161, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947 as per Crime No,42 of 1986 of F.I.A. Circle-I, Karachi, whereby the respondent was acquitted in the above crime.

2. ' Heard learned Standing Counsel. There are two legal objections in this appeal viz. About its being maintainable on the ground that the appeal was not filed by the Public Prosecutor or by the Standing Counsel for the Federal Government and (ii) that the appeal was filed beyond the period of limitation.

3. ' So far the plea of non-maintainability of appeal, admittedly this appeal was not presented either by Standing Counsel of the Federal Government or a person notified to be Public Prosecutor within the meaning of section 492, Cr.P.C.

4. ' Subsection (ii) of section 10 of Pakistan Criminal Law Amendment Act, 1958 reads:-- "Notwithstanding the provisions of section 417 of the Code of Criminal Procedure, 1898 in a case tried by a Special Judge appointed by Central Government finder 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."

5. By an Act XVII of 1985, new section 4-A was inserted in the Central Law Officers Ordinance (VII of 1970) as under:-- "Notwithstanding anything contained in any other law for the time being in force, of Additional Attorney-General, Deputy Attorney-General and the Standing Counsel shall be deemed to be Public Prosecutor and shall be competent to institute, file and conduct any proceedings, including appeals and revisions, for and on behalf of Federal Government before any Court or Tribunal, including a Special Court constituted under any law."

6. By virtue of insertion of new section 4-A in the Central Law Officers Ordinance, 1970, Additional Attorneys-General, Deputy Attorneys-General and Standing Counsel have been notified to be Public Prosecutors who have been authorised to institute, file and conduct any proceedings including appeal, revision for and on behalf of Federal Government before any Court or Tribunal including a Special Court constituted under any law. In the instant case, Syed Tariq Ali has rightly conceded that memo. Of this appeal has not been filed by any of the Law Officers notified in the abovesaid Act No,XVII of 1985. On perusal of the memo. Of this appeal, it would appear that same is not signed by any one of mentioned Law Officers for or on behalf of appellant/Federal Government but has been signed by someone as "State" through Public Prosecutor F.I.A. Karachi Zone, Karachi, but no notification has been filed that the person who has filed and signed appeal was Law Officer within the meaning of newly-inserted section 4-A of Central Law Officers Ordinance VII of 1970. As this appeal has not been filed and signed by any of the Law Officers authorised under the law, therefore, the appeal cannot be said to have been legally filed hence the appeal is held to be not maintainable in law. The plea raised is answered in the affirmative holding that the appeal is not maintainable in law.

7. ' 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.

8. 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 25-7-1992 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.

9. 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 hence same is hereby dismissed.