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Criminal Appeal No. 473 of 1978, heard on 20th February, 1985.

‑‑‑Ss. 4 6 10(2)‑‑Penal Code (XLV of 1860), Ss. 420, 468, 471 & 120‑B‑‑Prevention of Corruption Act (II of 1947), S. 5(2)‑‑Central Law Officers Ordinance (VII of 1970), S. 4‑‑Notification No. F .23 (3) / 72‑AI, dated 10‑7‑1973‑‑Appeal against order of acquittal passed by Special Judge‑‑Direction by Federal Government to Public Prosecutor to present appeal, a condition precedent‑‑Direction given to Deputy Attorney‑General to conduct appeal, would not tantamount to direction to present appeal‑‑Appeal filed by Deputy Attorney‑General who was not a notified Public Prosecutor, held, not properly presented and dismissed.‑‑[Appeal against acquittal].

Malik Muhammad Qayyum, Deputy Attorney‑General for Appellant.

Mian Muzaffar Ahmad for Respondents.

Date of hearing: 20th February, 1985.

This Criminal Appeal arises from the judgment of learned Special Judge (Central), Lahore whereby he on 16‑11‑1977 acquitted Munawar ud‑Din and Muhammad Sharif respondents of the charges under sections 420/468/471 t 120‑B, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947.

2. Mian Muzaffar Ahmad, the learned counsel for the respondent quoted section 10(2) of Pakistan Criminal Law Amendment Act, 1958 to contend that present appeal having not been validly presented by any Public prosecutor on the specific directions of the Federal Government, was not entertainable. On the other hand, the learned Deputy Attorney‑General while conceding that Mr. Dilawar Mehmood, Deputy Attorney General, Government of Pakistan who had filed the appeal was not a notified Public Prosecutor, maintained that under section 4 of Central Law Officers Ordinance, 1970, Notification No. F. 23(3)/72‑AI, dated 10‑7‑1973 and letter No. F. 2(98)/78‑Sol, Government of Pakistan, Ministry of Law and Parliamentary Affairs (Law Division), dated 30‑3‑1976, the learned Deputy Attorney‑General of Pakistan was authorised to conduct appeal against the respondent, before Lahore High Court, Lahore.

3. I have considered the submissions made by the learned counsel fj parties with care. I find sufficient force in the contentions of the learned counsel for the respondent. The relevant provisions of law may be reproduced conveniently.

Section 10, Pakistan Criminal Law Amendment Act.

(1) ...................................................... ..

(2) "Notwithstanding the provisions of section 417 of the Code of Criminal Procedure, 1898, in any case tried by a Special Judge appointed by the Federal Government under section 3, in which such Special Judge has passed an order of acquittal, the Federal Government may direct the Public Prosecutor to present an appeal to such Court as aforesaid."

(3) ............................................................. .

(4) ............................................................. .

(ii) CENTRAL LAW OFFICERS ORDINANCE, 1970.

Section 4. Right of Audience:

"In the performance of their official duties, the Additional Attorney‑General, Deputy Attorney‑General and Standing Counsel shall have the right of audience in all Courts in Pakistan."

(iii) Notification No. 23(3)/72‑‑AI, dated 10‑7‑1973.

(1) ............................................................. .

(2) ............................................................. .

(3) ............................................................. .

4(1) "It shall be the duty of the Deputy Attorney‑General and Standing Counsel: ‑

(a) to advise the Federal Government on any legal matter referred to them by the Federal Government and, to perform such other duties of a legal character as are assigned to them from time to time by the Federal Government;

(b) to appear on behalf of the Federal Government, if it so requires, in all cases, suits, appeals and proceedings before Supreme Court or a High Court in which the Federal Government is concerned."

(iv) Letter No:F.2(98)/78‑Sol.

Government of Pakistan

Ministry of Law a Parliamentary Affairs

(Law Division).

Islamabad, the 30th March, 1978.

From

Mr. Anis Ahmad,

Section Officer,

Tele: 26822

To

The Deputy Attorney‑General,

High Court Building,

Lahore.

"Subject:‑‑ Filing an appeal case ST v. Munawar‑ud‑Din etc. Special Case No. 51/71 under sections 420/468/471 a 120‑B, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947, decided by Special Judge (Central) Lahore; before the High Court, Lahore.

Sir,

On consideration of the facts placed before it, this Division has decided to contest/pursue the above matter, I am accordingly to request 'you kindly make it convenient to conduct the above matter on behalf of the Federal Government and/or its Officer."

From the examination of the provisions of law reproduced above, it is very much obvious that for filing appeal against acquittal by the Special Judge, the direction by the Federal Government to the Public Prosecutor to present an appeal before the High Court, Vas a condition precedent and unless the appeal was filed by the Public Prosecutor on the direction of the Federal Government, the same could not have been entertained. From the language of section 4 of Central Law Officers Ordinance, 1970, notification, dated 10‑7‑1973 and the letter, dated 3p‑3‑1978, it is crystal clear that the learned Deputy Attorney‑General had the right of audience in all Courts in Pakistan; that it was his duty to appear on behalf of Federal Government in which the Federal Government was concerned and that through letter referred to above he was only asked to conduct appeal on behalf of Federal Government or its Officer but this would not tantamount to direction by the Federal Government to Public Prosecutor to present appeal against acquittal. For all these reasons, I am convinced that the appeal was not properly l8 presented and as such, there is no alternative but to dismiss it on this score alone.

M. Y. H. Appeal dismissed.

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