ASHIQ MUHAMMAD vs SHAUKAT ALI and others

' Through this appeal filed under section 417(2), Cr.P.C. The appellant has called in question the legality of the impugned judgment, dated 13-3-1995 passed by the learned Special Judge, Anti Corruption, Dera Ghazi Khan whereby the accused/ respondents No, 1 to 3 were acquitted by giving them benefit of doubt.

2. Facts of the prosecution case in nutshell are that a case No,173/93, dated 24-8-1992 was registered under sections 409/420/468/ 471, P.P.C. At Police Station, Civil Line, Dera Ghazi Khan against the accused respondents Nos.1 to 3 at the instance of Ashiq Hussain complainant. The accused respondents were arrested and after due investigation they were challaned.

3. At the trial the learned lower Court framed charge under sections 409/420/468/471, P.P.C. To which the accused respondents pleaded not guilty and claimed to be tried.

4. In order to bring home the charge against the accused respondents the prosecution produced as many as seven witnesses . In their statements recorded under section 342, Cr.P.C. The accused respondents pleaded to be innocent. Consequently the learned lower Court while disbelieving the prosecution version acquitted the accused respondent by giving them benefit of doubt, hence this appeal.

4-A. The learned counsel for the appellant vehemently argued that the impugned judgment passed by the learned trial Court is against law and facts. Further contended that the prosecution fully succeeded in bringing home the charge against the accused respondents, therefore, the impugned judgment passed by the learned trial Court suffers from illegality which is liable to be set aside.

5. On the contrary the learned counsel for the accused respondents at the outset contended that respondent No,3 has died, therefore, the appeal to his extent stands abated. He further argued that the instant appeal is not maintainable in the eye of law is such the same has not been filed and signed by the public prosecutor under the direction of the Provincial Government. Reliance is placed on 1998 PCr.LJ 1503 Karachi and 1989 PCr.LJ 1842 Karachi.

6. Arguments heard. Record perused.

7. Admittedly the instant appeal has been filed by Sardar Muhammad Latif Khan Khosa, Advocate, against the acquittal of the accused respondents. There is no denying the fact that the same has been filed by a private counsel, and was not presented by the pubic prosecutor within the meaning of section 429, Cr.P.C. The learned counsel for the respondents has drawn my attention towards the relevant provisions of subsection (ii) of section 10 of Pakistan Criminal Law Amendment Act 1958 which envisages as under:-- "Notwithstanding the provisions of section 417 of the Code of Criminal Procedure, 1989 in a case tried by a Special Judge appointed by 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".

' It is also worth-mentioning that by an Act XVII of 1985, new section 4-A was inserted in the Central Law Officers Ordinance (VII of 1970) which reads as under: "Notwithstanding anything, contained in any other law for the time being in force, all Additional Attorneys-General, Deputy Attorneys-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".

8. Keeping in view the provisions of section 4-A of the aforesaid Ordinance, Additional Attorney General, Deputy Attorney General and Standing Counsel have also been notified to be the public prosecutor who also got the authority to institute, file and conduct any proceedings on behalf of the Federal Government. Since the instant appeal has not been arisen from the judgment of Special Judge, Anti-Corruption (Central) but instead of the same it has come out of the judgment of learned Special Judge, Anti-Corruption, Punjab to which as discussed above only the public prosecutor was competent to institute, file and conduct the proceedings including appeal and revision on behalf of the Provincial Government in view of the relevant provisions of subsection (ii) of section 10 of Pakistan Criminal Law Amendment Act, 1958. Admittedly the present appeal has not been signed by one of the public Prosecutor but was signed by a counsel who is not competent to file the same.

9. In view of the above discussion and relying upon the afore-quoted judicial precedents the instant appeal stands dismissed being not maintainable.