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Criminal Appeal No. 77 of 1966, decided on 17th July 1972.

---S. 417 read with Pakistan Criminal Law Amendment Act (XXXIV of 1958), Ss. 10(2) & 6 Appeal against acquittal-Provisions of Chap. XXXVIII of Criminal Procedure Code dealing with Public Prosecutor-Not applicable to trial of cases under Criminal Law Amendment Act of 1958-Public Prosecutor appointed by Central Government under subsection (6) of S. 6 of Act XXXI V of 1958 for conduct of cases against Central Government employees before a Central Special Judge-Could alone lodge appeal against acquittal of such employees-Appeal lodged by Provincial Advocate-General under S. 417, Cr. P. C.-Held, not competent.

The State v. Muhammad Hussain P L D 1968 S C 265 rel.

Sardar Fakhre Alam, A: G. and Raza Ahmad Khan, Special Public Prosecutor for the State.

Zahoorul Haq for Respondents.

Date of hearing: 17th July 1972.

S. A. Sadiq, Junior Engineer and Abdur Rahman, Overseer were working in 1961 in the Tarbela Dam Project. There were complaints of misappropriation against them and a case was registered against them which was investigated by the Central Special Police. The two accused were then challaned to the Court of Special Judge (Central), who after proper trial by his order dated 22-11-1965 acquitted both of them. The case on behalf of the prosecution was conducted by the Prosecutor appointed by the Central Jail under section 6(1) of the Act.

2. This is an appeal under section 417, Cr. P. C. filed by the Advocate-General, West Pakistan against the order of acquittal of the two accused. A preliminary objection was raised by counsel for the respondents to the effect that the appeal was not competent inasmuch as it had been filed by the Advocate-General of the Provincial Government, while it should have been filed by the Public Prosecutor of the Central Government appointed under the Pakistan Criminal Law Amendment Act of 1958. After hearing Sardar Fakhre Alam, Advocate-General, assisted by Raza Ahmad, Special Public Prosecutor (Central) and Mr. Zahurul Haq, Advocate for the respondents and going through the file it is abundantly clear that the preliminary objection is very well founded. Subsection (2) of section 10 lays down that notwith standing the provisions of section 417, Cr. P. C. in any case tried by a Special Judge appointed by the Central Government under section 3, in which such Special Judge has passed an order of acquittal, the Central Government may direct the Public Pro secutor to present an appeal to such Court as aforesaid. Now the provisions of Chapter XXXVIII, Cr. P. C., which deal with the Public Prosecutors, do not apply to trial of cases under the Act according to subsection (1) of section 6 of the Act and Public Prosecutors for the conduct of cases against the Central Government employees before a Central Special Judge are appointed by the Central Government under section 6, subsection (6). According to subsection (1) of section 6 any person appointed for conduct ing a case before a Special Judge is deemed to be a Public Prosecutor. The Central Government has appointed a Public Prosecutor for conducting cases before Special Judge (Central) against Central employees and in the circumstances the appeal could only, therefore, be lodged by him and not by the Provincial Advocate-General under section 417, Cr. P. C. The appeal is, therefore, evidently incompetent. In this view of mine I am supported by the authority reported in The State v. Muhammad Hussain (P L D 1968 S C 265). Upholding the preliminary objection I dismiss this appeal.

Appeal dismissed.

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