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.
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.
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.