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Petitioner: THE STATE through Pakistan Coast Guard, Karachi and others VS Respondent: SHERIN KHAN and others
Court Name: Sindh High Court Judge(s): Muhammad Mujeebullah Siddiqui Title:THE STATE through Pakistan Coast Guard, Karachi and others vs SHERIN
KHAN and others Case No.:Special Criminal Acquittal Appeals Nos.4, 29 of 1991, 4 of 1993, 1, 3, 8, 9, 10 of 2002, 3, 6, 9, 10 of 2003, 2, 5, 7, 10, Nil, Nil and 12 of 2004 Date of Judgment:2005-06-20 Reported As: PLD 2005 Karachi 560 Result: Order accordingly Judgment JUDGEMENT In all the above acquittal appeals at the instance of State, under section 185-F of the Customs Act, 1969, a common objection has been raised to the maintainability of the appeals for the reason that the appeals have not been filed by the person competent in law to file the appeals. 2. Before I proceed to consider the contention, it would be appropriate to reproduce the relevant provisions contained in sections 185- and 185-9 of Customs Act, 1969, which read as follows:-- 185-F. Appeal to Special Appellate Court.---(1) Any person, including the Federal Government, aggrieved by any order passed or decision made by a Special Judge under this Act or under the Code of Criminal Procedure, 1898 (Act V of 1898), may subject to the provisions of Chapters XXXI and XXXII of the Code, within sixty days from the date of the order or decision, prefer an appeal or revision to the Special Appellate Court, and in hearing and disposing of such appeal or revision, such Court shall exercise all the powers of a High Court under the said Code. (2) Except as otherwise provided in subsection (1), the provisions of the Limitation Act, 1908 (IX of 1908), shall apply to an appeal or, a revision preferred under subsection (1). 185-G. Persons who may conduct prosecution, etc.---(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), a Special Prosecutor appointed under section 48 of the Prevention of Smuggling Ordinance, 1977, shall be competent to conduct prosecution before a Special Judge for and on 'behalf of the Federal Government and to withdraw prosecution when so required by the Federal Government.
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(2) A Law Officer appointed under the Central Law Officers Ordinance, 1970 (VII of 1970), shall or an Advocate authorized by the Board or an officer subordinate to it be competent to conduct proceedings before a Special Appellate Court on behalf of the Federal Government and to withdraw such proceedings when so required by the Federal Government," (The word "or an Advocate authorized by the Board or an officer subordinate to it," were inserted by the Finance Ordinance, 2002, with effect from 15-6-2002). 3. The question as to who is competent in law to file acquittal appeal on behalf of State under sections 185-F and 185-G of the Customs Act, came for consideration for the first time before a learned Single Judge of this Court, in the case of State v. Abdul Qayyum PLD 1980 Karachi 465. In this case the acquittal appeal was filed by the Provincial Government, Zaffar Hussain Mirza. J. (as his Lordship then was) held as follows:-- "Under section 185-F it is Federal Government which has been given the right to appeal against any order passed or decision made by the Special Judge and under section 185-G(2) a Law Officer appointed under Central Law Officers Ordinance, 1970, shall be the competent person to conduct proceedings before a Special Appellate Court on behalf c!. The Federal Government and, to withdraw such proceedings when so required by the Federal Government." 4. A similar question came for consideration before a learned Single Judge of the Lahore High Court in the case of State v. M. Ashraf, 1986 PCr.LJ 137. In this case also a preliminary objection was raised to the effect that there was no proper appeal, as the appeal was presented by an Advocate on behalf of Federal Government. The precise objection was that the learned Advocate was not authorized to prefer appeal as this could be done by a Law Officer appointed by the Central Law Officers Ordinance, 1970 and the learned Advocate was not such a Law Officer. 5. Saad Saood Jan. J. (as his Lordship then was) examined the relevant provisions of law. A letter received by the learned Advocate who preferred appeal from the Central Board of Revenue, directing him to file an appeal was produced. The letter contained the opinion as well as decision of the Law Division of the Federal Government, as follows:-- "We agree with the view of the C.B.R. That the judgment of the Special Judge should be impugned before the Appellate Tribunal Mr. Muhammad Nawaz Abbasi, Advocate, 9-The Mall, Rawalpindi is not on our Panel but he is a Special Prosecutor for customs cases and is nominated for filing the appeal." It was observed by the learned Single Judge, as follows:-- "Under the rules of business of the Federal Government, the Law Division looks .After legal proceedings and litigation concerning the Federal Government. The Law Division was, therefore, competent to nominate Mr.. M. Nawaz Abbasi, to file an appeal on behalf of the Federal Government.It is also to be noticed that unlike the Pakistan Criminal Law Amendment Act, 1958, section 185-F does not specify the person through whom alone the Federal Government can exercise its right of Appeal. Thus it can nominate any member of the Bar for this purpose." 6. With reference to subsection (2) of section 185-G , as it stood at that time, it was contended that only a Law Officer mentioned therein would present an appeal on behalf of the Federal Government. The contention was not accepted and it was held that subsection merely enables the Law Officer appointed under the Central Law Officers Ordinance, to conduct proceedings before the Special Appellate Court, by virtue of his office but it does not create any exclusive right in this regard in his favour. It was further held that there was nothing to preclude the Federal Government from appointing counsel other than Law Officer for conducting proceedings on its behalf before the said Court. 7.' Again this question came for consideration before a learned Single Judge of this Court, in the case of Christopher Rollins Kelly v. The State 1997 PCr.L.J 51. In this case objection was raised to the maintainability of revision filed by the Federal Government through the Collector of Customs, for
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enhancement of the sentence. It was contended that by virtue of amendment inserted by Act (XVII) of 1985, in Central Law Officers Ordinance (VII) of 1970, the revision filed through an Advocate on approved panel of Central Board of Revenue was not legally maintainable. Mr. Deedar Hussain Shah, J. (as his Lordship then was) referred to the provisions contained in section 4-A, inserted by Central Law Officers Act, 1985 in the Central Law Officers Ordinance, 1970, which reads 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 Attorney-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." The Notification issued by the Central Board of Revenue, Government of Pakistan, which contained name of Mr. Fariduddin, Advocate, as an Advocate on the Panel of Central Board of Revenue, was also examined. It was held as follows:-- "The revision filed by the Federal Government is not signed by the Collector of Customs himself but someone else whose name and designation is not ascertainable. Furthermore Central Law Officers (Amendment) Ordinance, 1985 authorizes only Additional Attorney-General and Deputy Attorney- General and Standing Counsel to file appeal and revision for and on behalf of the Federal Government before any Court or Tribunal including Special Courts or such, the Notification appointing Mr. Fariduddin, to file any revision as an Advocate on Panel on behalf of the Federal Government does not legally entitle him to to so. Under these circumstances, I am of the firm opinion that this revision is not maintainable." 8. Similar question was again agitated before a Single Bench of this Court in the case of State v. Bashir Ahmed Choudhry PLD 2000 Karachi 198. It was reiterated that in view of the provisions contained in section 4-A of the Central Law Officers Act of 1970, 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 appeal and revision for and on behalf of the Federal Government before any Court or Tribunal including a Special Court constituted under any law. It was submitted that the acquittal appeals were not filed by the Law Officers specified above therefore, the appeals were incompetently filed and were not maintainable. Reliance in support of the contention was placed on the following judgments:-- (1) Liaqat Ali and 11 others v. The State (1992 SCMR 372).; (2) The State through Public Prosecutor v. Shoukat Ali (1998 P. Cr. L.J. 1503); (3) Chirstopher Rollins Kelly and 2 others v. State (1997 P. Cr. L.J 51); and (4) State through Advocate-General, Sindh v. Hanif Ahmad and others (1994 SCMR 749). 9. On behalf of the State it was contended that under section 185-F(1) of the Customs Act, 1969, any person, including the Federal Government, aggrieved by airy order passed or decision made by Special Judge under this Act or under Code of Criminal Procedure, 1898, may, subject to the provisions of Chapters XXXI and XXXII of the Code, prefer an appeal or revision to the Special Appellate Court. By virture of this provision the acquittal appeals were competently filed. After referring the judgments cited above, Syed Deedar Hussain Shah, C.J (as his Lordship then was) and by reference to the provisions contained in section 4-A of the Central Law Officers Act, 1970, as well as section 185-F(I) of the Customs Act, 1969, the contention that any person can file acquittal appeal before the High Court was repelled. It was held that the acquittal appeals were not competent as they were not filed by authorized Law Officers of the Federal Government. The appeals were dismissed accordingly. 10. This judgment was followed by a learned Singh Judge of the Lahore High Court in the case of Director Intelligence and Investigation (Customs and Excise) v. Ahmed Fazil, 2005 MLD 241. The
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acquittal appeal was filed by Director Intelligence which was dismissed as not maintainable. 11. Before coming to the contentions raised on behalf of learned Advocates for the State in this case, I would like to examine the judgments which have been referred in the case of State v. Bashir Ahmed Choudhry (supra) 12. In the case of Liaquat Ali v. The State 1992 SCMR 372, a question about the maintainability of acquittal appeal under section 13 Special Courts for Speedy Trials Ordinance, 1991 was raised with reference to the provisions contained in section 13(5) thereof, which reads as follows:-- "(5) 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 thirty days of such order." 13. The appeal was filed by the Deputy Attorney-General and objection to the competence of appeal was raised that it could be filed by the Attorney-General or Advocate-General or at the direction of the Government as contemplated under subsection (5) above. The Hon'ble Supreme Court observed that with the insertion of section 4-A, in, the Central Law Officers Ordinance, 1970 by the Central Law Officers (Amendment) Act 1985, an acquittal appeal filed by Additional Attorney- General, Deputy Attorney-General or Standing Counsel, are competent in law when both the provisions are read together. 14. In the case of State v. Shoukat Ali, 1998,PCLLJ 1503 (Kar), an objection was raised to the maintainability of an acquittal appeal on the ground that the appeal was not filed by Public Prosecutor or by the Standing Counsel for the Federal Government or by a person notified to be a Public Prosecutor within the meaning of section 492 Cr. P.C. The provision contained in subsection (2) of section 10 of Pakistan Criminal. Law Amendment Act, 1958, was referred, which reads, as follows:-- "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 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." 15. The provision contained in section 4-A of the Central Law' Officers Ordinance, 1970 was also considered. It has observed, that by virtue of insertion of section 4-A in the Central law officers Ordinance, 1979, Additional Attorneys-General, Deputy attorneys-General sand Standing Counsel were notified to be Public convectors and were authorized to institute, file and conduct any proceedings including appeal/revision for and on behalf of Federal Government before any Court or Tribunal in-eluding a Special Court constituted under any law. It was, conceded by the Standing Counsel that the appeal was not filed by any of the Law Officers notified in section 4-A of the Central Law Officers Ordinance, 1970. The memo. Of appeal was signed by someone and was filed by State through Public Prosecutor F.I.A. Zone Karachi. It was not known as to who was the officer signing the memo. Of appeal. It was held that since the appeal was not signed and filed by any of the law officers authorized under the law therefore the appeal was not maintainable. 16.. In the case of State v. Hanif Ahmed, the acquittal appeal was filed by Assistant Advocate- General and it was held that the Assistant Advocate-General was not competent in law to file an appeal and therefore. The appeal was not maintainable. 17. Now I proceed to consider the contentions raised by the learned Advocates for the State. Mr. Raja Muhammad lqbal, has contended that under section 185-F of the Customs Act, any person aggrieved including the Federal Government may file an appeal and any person includes Collector of Customs. This contention has already been repelled in the case of Bashir Ahmed Choudhry, (supra) with which I agree. 18. He has next contended that the litigation on behalf of Government is controlled under the Rules of Business, 1973 framed by the Federal Government. He has submitted that under Rule 3(1), the
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Federal Secretariat shall comprise the Ministries and Divisions shown in Schedule-1, while under Rule 3(3), the Government business is distributed among the Divisions in the manner indicated in Schedule-II. He has pointed out that the Ministry of Finance and Revenue consists of Finance Division and Revenue Division. Under Schedule-II, the business distributed to Ministry of Law and Justice, inter alia, included "Legal proceedings and litigation concerning the Federal Government" With effect from May 24, 1994 the words, "except the litigation concerning Revenue Division" were added. Subsequently the Revenue Division was substituted by Finance Division. Again the 'Finance Division' was substituted by "Revenue Division" with effect from December 1, 1998. 19. It was provided in rule 14(1)(e) that, the law and Justice Division shall be consulted before instituting criminal or civil proceeding in a Court of law in which the Government is involved, 20. In the light of law .As it stood in the year 1984, Customs General Order No,1 of 1984, dated 22nd January, 1984 was issued which reads as follows: "CUSTOM GENERAL ORDER NO.1 OF 1984, DATED 22ND JANUARY, 1984. SUB: FILING OF APPEAL AGAINST THE ORDERS OF SPECIAL JUDGE (CUSTOMS) PASSED UNDER THE CUSTOMS ACT, 1969. According to clause 14(1)(e) of the Rules of Business, Law Division is to be consulted before instituting criminal or civil proceedings in all Courts of law in which the Government is involved. However, cases involving prosecution of accused persons before the Special Judge (Customs) under the provisions of the Customs Act, 1969 are not referred to Law Division. Instead a challan is submitted against the arrested persons in the said Court. (2) A question raised whether an appeal against the orders of Special Judge (Customs) would be filed by the Department without consulting the Law Division or otherwise. Accordingly a reference was made to Law Division, who has advised as under:-- According to the requirements of the Rules of Business and Secretariat Instructions it is the ultimate responsibility of the Law Division to decide to file or defend a case in the Court of law. Accordingly, in the normal course each and every case, before it is defended or filed in the Court of law, the Law Division has to be consulted. But, however, in the cases in which adequate punishment has been awarded to the accused persons by the Court of the Special Judge and the Department is satisfied with the punishment, the Law Division would not insist for reference to examine the filing of appeal for enhancement of the sentence but in the cases in which the Court has acquitted the accused persons, the Law Division will have to be consulted to decide whether an appeal against the acquittal order would lie in such a case'. (3) The above advice of the Law Division is circulated for strict compliance in future." 21. The Revenue Division was initially created in the year 1994. Subsequently it was abolished and again created under Notification No,4-14/98. Min-I, the Gazette of Pakistan Extraordinary, Part. III, dated December 1, 1998. Serial No,27-A was assigned to the Revenue Division. Entry-No,5, reads as follows:-- "5. Legal proceedings and litigation. The prosecution and defence of legal proceedings concerning the Revenue Division shall be subject to the following conditions, namely:-- (i) in a case in which Central Board of Revenue or the Revenue Division is a party, the counsel to conduct the case shall be appointed out of the panel of Advocates approved by the Law, Justice and Human Rights Division; (ii) in a case where the counsel is to be appointed from outside the approved panel, such appointment should be made with the prior approval of the Law, Justice and Human Rights Division; (iii) in a case where a fee to be paid to an Advocate is one million rupees or more, the fee shall be fixed in consultation with the Law, Justice and Human Rights Division; and
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(iv) the panel of Advocates referred to in clause (I) shall be reviewed every year in consultation with the Law, Justice and Human Rights Division." 22. A letter has been produced written by Ministry of Law, Justice and Parliamentary Affairs Division, dated 30th June, 1994, which states that under the Notification of Cabinet Division dated 19-5-1994, the Law and Justice Division, has ceased to be responsible in respect of litigation concerning Revenue Division, and the legal proceedings and litigation concerning the Revenue Division relating to C.B.R., Income Tax, Sales Tax and Custom Duties etc., shall be conducted by counsel appointed by that Division. 23. Mr. Raja M. Iqbal has produced another letter issued by C.B.R. Bearing C .No,1(7)Cus.Jud/2002 dated 7-6-2002, which inter alia contains:- (i) The Director Generals, Directors and Collectors (hereinafter called the Head of Organization) are competent to decide whether or not an appeal should be filed against the adverse orders of Courts, Tribunals and Adjudication Authorities. (ii) The Head of Organization will engage counsel for filing appeals from the panel of Revenue Division approved by Ministry of Law, Justice and Human Rights. (iii) The Head of Organization shall be personally responsible for filing appeals in Appellate Tribunals, High Courts and the Supreme Court of Pakistan: (xiii) In all cases where the field organization and C.B.R. Are also respondents, the responsibility of filing appeal shall rest with field organization. In a case where C.B.R. Is the sole respondent, the concerned Secretary (Judicial) in consultation with Legal Advisor or Head of field organization, if required, will prepare appeal and get approval of the competent Authority where after the same will be filed in the Court through a Legal Advisor or a Counsel as instructed by .The Board. 24. After resume of the entire statute law, case-law and the administrative instructions issued from time to time, as well as various contentions raised by the learned Advocates for the parties, the legal position emerges as follows:-- (a) By virtue of the decision in the case of State v. Abdul Qayoom (Supra) and Bashir Ahmed Choudhry (Supra), the Federal Government has been given the right to file appeal against any order passed or decision made by the Special Judge. (b) It has been laid down in the case of State v. A. Qayoom (supra) that a Law Officer appointed under Central Law Officers Ordinance, 1970, shall be competent person to conduct proceedings before a Special Appellate Court on behalf of the Federal Government and to withdraw such proceedings when so required by the Federal Government. (c) It has been held in the case of State v. M. Ashraf (supra) that, under the Rules of Business of the Federal Government, the Law Division looks after legal proceedings and litigations concerning the Federal Government. The Law Division was competent to nominate an Advocate for filing appeal on behalf of the Federal Government. Unlike, the Pakistan Criminal Law Amendment Act, 1958, section 185-F Customs Act, does not specify the person through whom alone the Federal Government can exercise its right of appeal. Thus it can nominate any member of the Bar for this purpose. (d) It is further held in the above case that subsection. (2) of section 185-G Customs Act, merely enables the Law Officer appointed under the Central Law Officers Ordinance, to conduct proceedings before the Special Appellate Court, by virtue of his office but it does not create any exclusive right in this regard in his favour. There was nothing to preclude the Federal Government from appointing counsel other than Law Officer for conducting proceedings on its behalf before the Special Appellate Court. (e) In the case of Christopher Rollins Kelly v. The State, 1997 PCr.L.J 51, a revision was filed by the Federal Government through the Collector of Customs for enhancement of sentence. The memo. Was signed by some person whose name and designation was not ascertainable. The objection
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was raised to the maintainability of the Revision Application on the ground that the revision filed through Mr. Fariduddin, Advocate who was on approved panel of Central Board of Revenue, was not legally maintainable, as the Central Law Officers (Amendment) Act 1985, whereby section 4-A was inserted, authorizes only Additional Attorney-General, Deputy Attorney-General and Standing Counsel to file appeal and revision for and on behalf of the Federal Government before any Court or Tribunal including Special Courts. The objection was upheld and it was held that the notification appointing Mr. Fariduddin, Advocate on panel, on behalf of the Federal Government does not legally entitle him to do so. The revision was consequently held to be not maintainable. With due deference to the learned Single Judge of this Court, I am not persuaded to agree with the view taken which I will discuss presently. (t) In the case of State v. Bashir Ahmed (supra), the same learned Single. Judge of this Court reiterated that in view of the provisions contained in section 4-A of the Central Law Officers, (Amendment) Act 1985, the Additional Attorney-General, Deputy Attorney-General and Standing Counsel were deemed to be public prosecutors and were 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. The cases which came for consideration were initiated on behalf of the Federal Government. In the first case, the order of Special Judge Customs and Taxation granting bail was assailed and the application was signed by one Advocate. In the second Acquittal Appeal, which was filed on behalf of Federal Government through Collector of Customs and was signed by some unknown person on behalf of Collector of Customs. It was signed by an Advocate but not in the capacity of representing the Federal Government but merely as an Advocate for the appellant. In the third case, the appeal was filed through Collector of Customs. The Memo of Appeal was signed by an Advocate not in the capacity of representing the Federal Government…
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