PLJ 2023 Lahore (Note) 45
Constitution of Pakistan, 1973--
----Art. 199--Pakistan Penal Code, (XLV of 1860), Ss. 387 & 506--Producing of accused for physical remand opinion of concerned prosecutor for appropriate order--Disagreement with opinion of prosecutor--Remarks and recommendations of ATC Judge--Statutory powers of prosecutors--According to law officers in both cases, they are aggrieved to extent of remarks and recommendations recorded by Judge ATC about Prosecutors and Prosecution department the Judge was not cognizant of fact that Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006) is still holding field giving various powers to Prosecutors to be used from day one when FIR is recorded in police station--Judge ATC has impinged upon authority of Prosecutors and crossed its’ limits while giving unethical, biased and prejudiced observations in particular when there was no material at all in support of these remarks.
[Para 9, 12 & 14] A, B & F
2012 PCr.LJ 1823 ref.
Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006--
----Preamble--Prosecution department is enjoying independent status with an aim of efficient prosecution in criminal cases.
[Para 13] C
Role of Prosecutor--
----The intervention of independent Prosecution Serving agency is not ceremonial or role of Prosecutor is not of a post office but to have a check on working of investigating officers at right time and right place for reason that ultimate responsibility of Prosecutors is to ensure effective prosecution. [Para 14] D
Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006--
----S. 18--Proceedings against prosecutor--No suit, prosecution or other legal proceedings shall lie against Prosecutor in respect of anything done or attempted to be done by him in good faith. [Para 14] E
Mr. Mehroze Aziz Niazi, Advocate for Petitioner.
Mr. Shahid Aleem Additional Prosecutor General for State.
Date of hearing: 15.11.2021.
PLJ 2023 Lahore (Note) 45
[Multan Bench, Multan]
Present: Ahmed Nadeem Arshad and Sohail Nasir, JJ.
SHAGUFTA SARWAR, ADPP--Petitioner
versus
SPECIAL JUDGE ANTI TERRORISM COURT etc.--Respondents
W.P. No. 17809 of 2021 & Crl. Rev. No. 311 of 2021,
decided on 15.11.2021.
Order
While commenting upon judicial restraint,[1] this Court had observed that:-
i. The Courts can interpret the provisions of law but cannot change or substitute such provisions and also cannot go beyond the wisdom of law.
ii. When spoken about judicial review, it is also necessary to be alive to the concept of judicial restraint.
iii. The principle of judicial restraint requires that Judges ought to decide cases while being within their defined limits of powers.
iv. Judges are expected to interpret any law as per the limits laid down in the law.
v. It is the source of law which the judges are called upon to apply and that Judges, when apply the law, are constrained by the rules of language.
2. We are confronted with the same question again as it appears, that the learned Judge Anti Terrorism Court (ATC) Dera Ghazi Khan by exceeding his jurisdiction has encroached upon the powers of the Prosecution’s Department.
3. Muhammad Ajmal is an accused of First Information Report (FIR) No. 659 recorded on 17.09.2021 under Sections 387/506, PPC at Police Station City Muzaffargarh on the complaint of Dr. Muhammad Iqbal. On 20.09.2021, he was produced before the learned Duty Magistrate Muzaffargarh with a written request for his physical remand. On that day the concerned Prosecutor formed the following opinion: -
“Forwarded with the opinion that above mentioned Section 387, PPC stated u/S. 6(2)(k) under the definition of “Terrorism” of the Anti-Terrorism Act, 1997. However, forwarded for appropriate order.”
4. As evident from the order, the learned Duty Magistrate did not take notice of above said opinion and regulated the custody of accused (physical remand) with police for one day.
5. Again, on 23.09.2021, accused was produced before the learned Area Magistrate Muzaffargarh for obtaining his physical remand. Even at this occasion the concerned Assistant District Public Prosecutor (ADPP) forwarded the request with the following opinion:
“Thresh hold Test.
Forwarded with the opinion that offence under Section 387, PPC fall under the definition of sec 6(2)(k) of Anti-Terrorism Act, 1997. With this observation forwarded to Court for appropriate order.”
6. This time the learned Magistrate while taking into consideration the said opinion, granted one day physical remand with direction to the Investigating Officer to produce the accused before the learned ATC Dera Ghazi Khan.
7. Finally on 28.09.2021 accused was produced before the learned ATC with a request of physical remand of ten days. The learned Judge while showing his disagreement with the opinions of the learned Prosecutors (ibid) turned down the request of the Investigating Officer and directed him to produce the accused before the learned Area Magistrate. To this extent there was nothing wrong, but the subsequent paragraph of the order dated 28.09.2021 was shocking and reproduced as under:
“Before parting with this order, I am constrained to observe that virus of corruption and omission or deletion of offence without any legal reason and referring the matter to this Court has increased to cancerous magnitude, therefore, the direction are being issued to Secretary Prosecution to take strict disciplinary action against the learned ADPP Muzaffargarh who misinterpreted the provisions of law due to reasons best known to him. It is further directed that in future if any wrong opinion and wrong interpretation made by any ADPPs, DDPPs or District Prosecutors will be formed to interfere in the investigation, the proceedings shall not only be initiated against the concerned prosecutors but also strict action shall be taken against the Secretary Prosecution Punjab who has supervisory role on all the prosecution who is indirectly contributory factor for promoting this dishonest practice. Ahlmad of this Court is directed to transmit the copy of this order to Secretary Prosecution Punjab, all the district public prosecutors, all the DPOs of D. G Khan Division for their guidance in future with the warning that in future if such like defective investigation and wrong interpretation of law is made by any prosecutor or District prosecutor, the proceedings shall be conducted against the not only ADPPS, DDPPs. IOs but all the heads of police department of D.G Khan Division and all the District Public Prosecutors of D.G Khan Division”
8. Even in the second paragraph of the order the learned Judge criticized the working of Prosecution department in the following manners:
“The learned ADPP who gave the opinion even does not know that Section 387, PPC is not scheduled offence of this Court and also wrong interpretation of Section 6(2)(k) of the Anti-Terrorism Court the learned ADPP has jumped in blind well, perhaps due to monitory gains. The circumstances demands that strict action should be taken against such prosecutor working in Dera Ghazi Khan Division and District Public Prosecutors of Dera Ghazi Khan Division have failed to play the role to discourage such practice resulting into miscarriage of justice due to ignorance of law of the prosecutor of Dera Ghazi Khan Division”
9. Shagufta Sarwar the Assistant District Public Prosecutor through writ petition (17809 of 2021) and the State on the strength of Criminal Revision (311 of 2021) have assailed the said order. As both the matters are against one and the same decision so being decided together by way of this single order. It is important to add here that as issue was between the Court and petitioners therefore, no notices are required to be issued to any other person. It is also relevant to add here that according to learned law officers in both the cases, they are aggrieved to the extent of remarks and recommendations recorded by the learned Judge ATC about the Prosecutors and Prosecution department.
10. All concerned have been heard.
11. We have observed that there are two parts of the impugned order. In first portion, the learned Judge made serious observations directly or indirectly relating to entire Prosecution Service whereas, in the second part, he is of the view that prosecution has no role whatsoever in the process of investigation.
12. We feel no reservation to say that both the areas of the impugned order cannot sustain. There was no material at all available with the learned Judge to make such derogatory, insulting and offensive remarks against any Prosecutor or the Prosecution department. It appears that the learned Judge was not cognizant of the fact that the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006) {Act} is still holding the field giving various powers to the Prosecutors to be used from day one when FIR is recorded in police station. Its’ preamble is much relevant and reproduced as under:
“Whereas it is expedient to establish an independent, effective and efficient service for prosecution of criminal cases, to ensure prosecutorial independence, for better coordination in the criminal justice system of the Province and matters incidental thereto”
13. Plain reading of the preamble makes it clear that prosecution department is enjoying independent status with an aim of efficient prosecution in criminal cases. Its’ Chapter 3 deals with the powers and functions of the Prosecutors. Under Section 12(a) of the Act an officer incharge of a police station or the investigation officer shall immediately report to the District Public Prosecutor,[2] the registration of each criminal case by sending a copy of the first information report. This obligation on the part of police officer is not a formality but with an objective that the Public Prosecutor having the supervisory role has to be on board from day one. Section 10 of the Act empowers the Prosecutor General to issue general guidelines to the Prosecutors or Officers responsible for effective and efficient prosecution. The powers of the Prosecutor General or the District Public Prosecutor are so vast that in terms of Section 10(2) of the Act they can refer to the authority, competent to initiate disciplinary proceedings under any law for the time being in force to take disciplinary action against any public servant working in connection with investigation or prosecution for any act committed by him and is prejudicial to the prosecution. All the powers referred to under Section 9 of the Act, can also be exercised by a Prosecutor under sub-Section 3 of Section 10 the Act. It must not be lost sight also that Public prosecutors perform a crucial role as they are the ‘ gate keepers’ of criminal justice, insofar as without their initiative there cannot be the prosecution and repression of crimes.
14. The question, therefore, before us is that while forwarding the accused with a request for physical remand, whether it was within the domain of the concerned Prosecutor to give his/her opinion about the application of any of the provisions of law? The intervention of independent Prosecution Serving agency is not ceremonial or the of the Prosecutor is not of a post office but to have a check on the working of the investigating officers at the right time and right place for the reason that the ultimate responsibility of the Prosecutors is to ensure effective prosecution. However, this cannot be disputed that finally the powers lie with the Court to agree or disagree with the said opinion (in accordance with law) but under no circumstance it is within the domain of the Court to sit over the powers of the Prosecutors in a way as evident from the impugned order passed by the learned Judge ATC who without applying judicial mind and closing his eyes observed that any wrong opinion amounts to interference in the investigation. The learned Judge, it appears, skipped the provision of Section 18 of the Act that no suit,’ prosecution or other legal proceedings shall lie against the Prosecutor in respect of anything done or attempted to be done by him in good faith. We cannot restrain ourselves to hold that in fact the learned Judge ATC has impinged upon the authority of the Prosecutors and crossed its’ limits while giving unethical, biased and prejudiced observations in particular when there was no material at all in support of these remarks. We also find that the learned Judge was vested with no authority to restrain or restrict the statutory powers available to the Prosecutors. This[3] Court while taking into considerations the provisions of the Act had observed that:
“The judicial system of country always suggests an implied motivation to its other ally units to excel their performance for better assistance of Judiciary in imparting fair and passable justice to the litigants. There was a time when the representatives of the Attorney-General and the Advocate-General Offices joined hands with the judiciary and contributed to a great deal in dispensing justice among the masses. They always remained vigilant while accepting assignments from the Courts of law and put their full strength to defuse the pressure of criminal litigation but with the passage of time the flood of criminal litigation increased gradually and became unbridled which constrained the think tank to unify their heads together and explore predictability of a new viable system to overpower the massive criminal litigation pending in the Courts of law. After analyzing this austere issue with all care and caution the sagacious persons cravingly felt it imperative to establish an independent, effective and efficient institution for prosecution of criminal cases in the Courts to ensure prosecutorial independence for better coordination in the criminal justice system of the country whose prime chore was to save the innocent persons from prosecution and leave no culprit to go scot-free. The said efforts matured into reality with the enactment of The Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 (III of 2006). As the human being is fallible and the legislature being from amongst the human being have no exception and the room of improvement in any enactment is always available. The said cumbersome exercise falls on the shoulder of the judiciary inasmuch as while defining any law the Courts point out any flaw, in the said legislation. Likewise, in case of any ambiguity in any provision of the law the Courts also suggest its real meaning and the intention of the legislature. The Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 came into force about five years ago, surfacing of certain questions for determination by this Court as well as by the Hon’ble Supreme Court are natural. The point involved in the instant matter is defining the powers of Prosecutors working under the aforesaid Act as certain provisions, though not ambiguous but entail different meanings”
“The criminal jurists know it very well that the criminal proceedings always take start as and when the arrow of criminal law is thrown in the air by lodging an FIR. After registration of a criminal case the law-enforcing agency comes into motion at once for investigating the matter so as to find out the truth or otherwise of the allegations set forth therein. The basic responsibility imposed upon an Investigating Officer is to ascertain the commission of offence, collection of the substantiating material in support of the allegations and identifying the persons who perpetrate the offence in question to bring their guilt at home. A past analysis of the procedure adopted by the police while conducting investigation in criminal cases shows that the outcome of their efforts in that regard always found shorn of legal justifications. The Hon’ble Judges of higher judiciary have always been expressing anxiety in their judgments and uninterruptedly realizing the police that the sole purpose of investigation is to only collect evidence in support of the allegations leveled against an accused person in the F.I.R. as is evident from Section 4, Cr.P.C. and opinion of an Investigating Officer would not make any accused person guilty or innocent of the offence but on all occasions the police is seen in utilizing its skill towards declaring the accused innocent or guilty.. Although it has not happened in each and every case yet, in most of cases, this practice is being adopted either due to unfamiliarity of the Investigating Officers from law or it happened due to their corrupt practices. I shall also like to say here that the conducive behaviour of the people towards the police to achieve result in their favour also promote/expand the practice of the police in declaring an accused guilty or innocent. In any case the lack of legal knowledge always remained a lame excuse to hamper application of canons of safe administration of justice in criminal cases for which the prosecution only suffer and face consequence. To avoid from such a wretch condition the public exchequer has been burdened to achieve for reaching public welfare aims and objects of improving investigation anti removing difficulties of Investigating Officers through appropriate legal guidance at apt time, who are normally expected to be unaware of legal intricacies, interpretations, as well as guidelines given by the Superior Courts in various ruling about the standards and required strengths of proof, in order to resist defense attacks, successfully. Now on the eve of establishment of Prosecution Agency, the Prosecutors are expected to prove worth of prosecution institution in the minimum possible time by attaining the target of improving standard of investigation in all cases and especially in the cases like the one in hand by motivating launching and promoting endeavors through District Public Prosecutors, with a well-oriented check and balance system, so that the cases may successfully face all kinds of scrutinizing on the dissections table of qualified and experienced laws experts, in Courts of law”
“The intention of the legislation to step in the services of Prosecution agency in between the police and the Courts of law was to explore some worthwhile ambience so as to outset a trial in a criminal case in such a manner which will prove inspiring enough to the Courts to reach to a just conclusion”
15. As the order before us has been impugned to the extent of structure/remarks and recommendations recorded by the learned Judge, so by allowing both the writ and criminal revision, we set aside the impugned order to that extent and direct that those remarks/observations and recommendations will be deemed to be expunged.
16. A copy of this order shall be sent to the learned Judge ATC Dera Ghazi Khan for his guidance with an advice that the philosophy behind the doctrine of judicial restraint is that there is broad separation of powers under the Constitution and that the three organs of the State, the legislature, the executive, and the judiciary must respect each other and must not ordinarily encroach into each other’s domain.
(Y.A.) Write and Criminal Revision was allowed
[1]. Writ Petition No. 15433 of 2021 (Syed Riaz Hussain Shah vs. Government of Punjab & 2 others) decided on 21.10.2021 and approved for reporting https://sys.lhc.gov.pk/appjudgments/2021LHC5807.pdf.
[2]. Section 2(L).
[3]. Nadeem alias Deema versus District Public Prosecutor, Sialkot & 7 others 2012 PCRLJ 1823.
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