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Official Citation: 2025 LHC 1154
Court / Jurisdiction: Lahore High Court
Year of Decision: 2024
Decision Date: 2024-12-31
Parties: Malik Mudassar Ali and others vs Secretary, Public Prosecution JUDGMENT
Ruling Summary: This decision was rendered by the Lahore High Court on 2024-12-31, officially reported as 2025 LHC 1154. In this matter between Malik Mudassar Ali and others and Secretary, Public Prosecution JUDGMENT, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2025LHC1154
Court Name: Lahore High Court Judge(s): Anwaarul Haq Pannun Title:Malik Mudassar Ali and others vs Secretary, Public Prosecution
JUDGMENT
Reported As: 2025 LHC 1154 Result: Petition Allowed Judgment
JUDGMENT Anwaarul Haq Pannun, J. Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have assailed the order dated 16.07.2021 passed by the Secretary Public Prosecution/respondent No.1, inquiry report dated 07.10.2021 of the Director General Labour Welfare, Punjab/Inquiry Officer and the directions issued by the Chief Minister, conveyed through letter dated 05.4.2022 issued by the Section Officer (E-II), Government of the Punjab, Public Prosecution Department. 2. Precisely, the factual matrix of instant petition is that the petitioners Malik Mudassar Ali, the Member, Muhammad Sadiq, the Chairman, the Secretary/Member and Syed Muhammad Asif Javed, the Member of the District Appeal Committee, D.G Khan agreed with the opinion formed by the trial Prosecutor that the acquittal judgment dated 08.09.2016, passed in case/FIR No.205 dated 29.08.2015, offence under Section 376 PPC, registered at Police Station City Taunsa Sharif, by the learned Addl. Sessions Judge, Taunsa Sharif, is not fit for appeal. The Secretary to the Government of the Punjab, Public Prosecution Department, on 16.07.2021, ordered to initiate inquiry proceedings against the petitioners. The Director General Labour Welfare Punjab, Lahore/ Inquiry Officer, concluded the inquiry vide his inquiry report dated 07.10.2021 that "all the accused Officers as Chairman and Members of District Appeal Committee failed to perform their duties efficiently as they rendered defective opinion and agreed with the defective opinion tendered by trial prosecutor, wherein the trial prosecutor recommended the case as not fit for appeal, hence it is recommended that the charges leveled against the above said accused officers are proved and
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as per Section 4(a)(ii) of PEEDA Act, 2006, penalty of withholding of increments for a specific period of 02 years is recommended against all the accused officers". Thereafter Secretary Public Prosecution Department/ respondent No.1 vide order dated 25.11.2021 issued a show-cause notice to the petitioner and appointed Director General Punjab Libraries/respondent No.4 as the Hearing Officer for providing opportunity of hearing to the petitioners and on the basis of finding of the Hearing Officer, the competent Authority/Chief Minister vide his directions, conveyed through letter dated 05.4.2022 issued by the Section Officer (E-II), Government of the Punjab, Public Prosecution Department, remanded the matter to the Director General Labour Welfare/respondent No.3 for reviewing the recommendations and proposing penalties in accordance with the proven charges against the accused officers and resubmit the remanded inquiry report at the earliest, hence this petition. 3. Learned counsel for the petitioners after dishing up the factual details of the matter contends that the opinion, which the petitioners had formed, declaring the case not fit for appeal is based on the guidelines and the Code of Conduct issued by the Prosecutor General and that the impugned disciplinary proceedings, in absence of any malice attributable to the petitioners, have been initiated by respondent No.1, without any reference from the Prosecutor General under Section 10(2) of the Act, hence the impugned proceedings are illegal, totally unwarranted, without jurisdiction and lawful authority, therefore, the same may be set aside/quashed. Learned counsel relied upon the case reported as "Shagufta Sarwar, ADPP and another Vs. Special Judge Anti-Terrorism Court and others" (PLJ 2023 Lahore 121 (DB). On the other hand, learned Assistant Advocate General while submitting report and parawise comments on behalf of the respondents contends that the competent authority has passed the order for initiation of disciplinary proceedings/action against the petitioners so the proceeding under the PEEDA Act, 2006 are quite in accordance with law. Further adds that the petitioners are Civil Servants as their appointments have been made under the Punjab Civil Servant Act, 1974, therefore in view of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, this court has no jurisdiction to entertain instant petition and prayed for dismissal of instant writ petition. Learned counsel for the petitioners, while exercising his right of rebuttal has contended that the question raised in the petition is pure question of law and the same does not touch upon the terms and conditions of their Service, therefore, the bar contained in Clause 2 of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 is not attracted. 4. Arguments heard and record perused. 5. The word "prosecute" is derived from a Latin word and signifies not only "to follow", but "to follow intensively" without intermission; thus to follow or pursue with a view to reach, execute or accomplish. According to the Webster's New International Dictionary (Second Edition) "prosecution" means inter alia, "the process of exhibiting formal charges against an offender before a legal tribunal, and pursuing them to final judgment on behalf of the State or Government as by indictment or information." In the Oxford English Dictionary "Prosecution" means "the following up, continuing, or carrying out of any action, scheme, or purpose, with a view to its accomplishment of attainment. According to Corpus Juris Secundum the term "prosecution" has different meanings when used in different relations and it is regarded as a word of limited or extended signification according to the intention of the law maker or the person using it. In its broadest sense the term would embrace all proceedings in the course of justice or even elsewhere for the protection or enforcement of a right or the punishment of a wrong, whether of a public or private character. In a more limited sense the term includes the act of conducting or waging a proceeding in Court; the following up or carrying on of an action or suit already commenced until the remedy be attained; the institution and carrying on of a suit in a Court of law or equity to obtain some right or to redress and punish some wrong. It includes commencing, conducting and carrying a suit to a conclusion in a Court of Justice. The above elaboration has profoundly been
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made by a full Bench of the Hon'ble Supreme Court of Pakistan, headed by Anwaarul Haq CJ, as his Lordship then was, in a case reported as "Syed Alamdar Hussain Shah Versus Abdul Baseer Qureshi and 2 others" (PLD 1978 Supreme Court 121). 6. Before dilating upon the issue agitated through this petition, it appears appropriate to have a cursory glance over the relevant Law under which the appointment of Prosecutors, previously, used to be made. "Public Prosecutor" as defined under Section 4(t) Cr.P.C is a person, who has been appointed under Section 492 Cr.P.C. and it includes any person acting under the directions of a Public Prosecutor and any person conducting a Prosecution on behalf of the State in any High Court in the exercise of its original criminal jurisdiction. Part-IX, Supplementary Provisions, Chapter XXXVIII OF THE PUBLIC PROSECUTOR of Cr.P.C is comprised over Sections 492 to 495, in which power of appointment of a Public Prosecutor along with his functions and duties have coherently been outlined. It is the power of the Provincial Government, under Section 492 Cr.P.C, to appoint one or more officers to be called Public Prosecutors, generallyor in any case or for any specified class of cases, in any local area. The Officer Incharge of the Prosecution in the District, in absence of the Public Prosecutor or where no Prosecutor has been appointed, has also been authorized to appoint any other person not being an officer of Police below such rank as prescribed by the Provincial Government in his behalf, to be Public Prosecutor for the purpose of any case. It is clarified that the term "Officer Incharge of Prosecution in the District" was previously introduced through the Code of Criminal Procedure (Amendment) Ordinance (XXXVII) of 2001, which in fact has replaced the earlier reference to "the District Magistrate or, subject to the control of the District Magistrate, the Sub-Divisional Magistrate". The appointments of Public Prosecutor in general, were made under the Law Department Manual, 1938 and under its Part-II, Criminal Business, Criminal Proceedings by or on behalf of or affecting the State, the Advocate General was the Ex-officio Public Prosecutor for criminal cases in the High Court and Supreme Court. The Secretary Law Department and solicitors used to serve as ex-officio Provincial Public Prosecutors and were responsible for the prosecution of criminal matters in the Courts other than the High Court. The appointments of the Public Prosecutors by the Government made under Section 492 Cr.P.C were a different class than the Local Public Prosecutor appointed by District Magistrate under Rule 3.7 of the Manual. The Public Prosecutors for district were previously appointed under District Law Officers Appointment Rules 1977, these rules have been repealed while replacing the same with new rules named as the District Law Officers Service Rules, 2010, vide Notification No.SOR-III (S&GAD)1-6/97 dated 21 May, 2010. The Prosecutors were categorized as District Attorneys, Deputy District Attorneys and Assistant District Attorneys. In special cases, the Federal and Provincial Government are also empowered to appoint Prosecutors under Section 6(6) of the Pakistan Criminal Law Amendment Act, 1958. 7. In addition to above, under Section 495 Cr.P.C, it is discretionary with any Magistrate, inquiring into or trying any case, to permit any person, other than an officer of Police below the rank to be prescribed by the Provincial Government in this behalf to conduct the prosecution, but no person other than the Advocate General, Standing Counsel, Government Solicitor, Public Prosecutor or other Officer generally or specially empowered by the Provincial Government in this behalf, shall be entitled to do so without such permission, with an authorization to withdraw from prosecution. It may further be pointed out that Rule 27.1 to 27.39, Chapter XXVII, Volume-III of the Police Rules, 1934, hereinafter to be referred as the Rules, deals with the prosecution and Court duties, in addition to the role of Investigating Officer and prosecution staff. Under Rule 27.4, all the police officers viz. all Superintendents, Assistant and Deputy Superintendents of police with reference to Section 492 of the code, are ex-officio public prosecutors in respect of all cases for trial before the Sessions Courts. Subsection (4) of Section 495, Cr.P.C, however, imposes a restriction that a Police Officers, who had taken any part in the investigation into the offence with respect to which the accused is
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being prosecuted, shall not be permitted to conduct the prosecution. All prosecuting Inspectors and prosecuting Sub-inspectors of police were appointed as Public Prosecutors under 27.4(2) of the Rules, in the local areas for all cases which may be enquired into or tried by a Magistrate including a Magistrate having powers under section 30 of the Code of Criminal Procedure. 8. After the above discussion, it is felt appropriate that the powers and functions of the Prosecutor under the Code of Criminal Procedure, 1898 be examined. The Public Prosecutor, without any written authority, under Section 493 Cr.P.C, is entitled to appear and plead in any case, under his charge, before any Court, under inquiry, trial or appeal. In-spite of privately engaged advocate by the complainant, the prosecution would be conducted by Public Prosecutor and such Advocate would act under his direction. Reliance can be placed on the case reported as "State through National Bank of Pakistan Vs. Mumtaz Ahmad and others" (1984 SCMR 594), "Rustom Khan and another Vs. The State" (1986 P Cr. L J 440) and "Zarif Khan Vs. the State" (1987 SCMR 1353). Since under the law, the State is obliged to represent itself in Court for prosecution, therefore, the Public Prosecutor, being its representative is empowered to withdraw under Section 494 Cr.P.C. with the consent of the Court, from the prosecution of any person either generally or in respect of any one or more of the offences for which he is being tried, before the judgment is pronounced. It is, however, made clear that upon such withdrawal from the prosecution, before a charge has been framed, the accused shall be discharged and if the same is made after a charge had been framed or when no charge is required to be framed under the Code, the accused shall be acquitted. 9. Under any democratic dispensation, upon imbibing the ever changing realities, the legislature comprised over the chosen representative of the electorates, while projecting the will of the public, legislate the laws, being its primary function, either by introducing suitable amendments in the existing statutes or altogether a fresh piece of legislation to cater the requisite need or to bring certain reforms for smooth and swift functioning of the government to the benefit of the society, enabling it to march in parallel with the world at large. The above discussion has shown that the appointments of Prosecutors in the past were mainly made on the strength of the Code of Criminal Procedure, 1898, under the Law Department Manual, 1938 or the Police Rules, 1934, which were tailored by the then colonial masters suitable to their needs as colonizers. Therefore in a major shift from executive controlled system, to establish an independent and merit based structured system for appointments of the Prosecutors and for the prosecution of criminal cases, with a well-knit and inbuilt mechanism for meaningful coordination and accountability from bottom to top, the Provincial Legislature had enacted a law in the form of "The Punjab Criminal Prosecution Service (Constitution, functions and Powers) Act III of 2006", hereinafter to be referred as the Act. The Punjab Criminal Prosecution Service, hereinafter to be referred as the "Service" as 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 along with its incidental matters, has been established. The words/terms "prosecution" and "prosecutor" have distinctively been defined under Sections 2(k) "prosecution" means the prosecution of a criminal case and 2(l) the "Prosecutor" means the Prosecutor General, Additional Prosecutor General, Deputy Prosecutor General, District Public Prosecutor, Deputy District Public Prosecutor, Assistant District Public Prosecutor and a Public Prosecutor appointed under the Act and shall also be deemed to be the Public Prosecutor under the "Code". 10. A synopsis of organizational structure along with its official hierarchy, including the powers and functions of the Service have exhaustively been elaborated in the Act. The office of the Prosecutor General has been created for the first time. The Prosecutor General is appointed under Section 6(1) of the Act by the Government and he is "the head of the Service". The administrative control of the Service has been vested, in prescribed manner, in the Prosecutor General. It is also the prerogative
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of the Government, under Section 8 (1) of the Act, to appoint the Additional Prosecutor General and Deputy Prosecutor General to conduct criminal cases in the Supreme Court, High Court, the Federal Shariat Court or any other Special Court. The Prosecutor General [under Section 6(7) of the Act] is authorized to delegate any of his functions to an Additional Prosecutor General or to a Deputy Prosecutor General. The Prosecutor General or if so authorized by him, an Additional Prosecutor General, on the strength of Subsection 2 of Section 9 of the Act, is also authorized to distribute work to the Prosecutors in the Supreme Court, the High Court, the Federal Shariat Court or a Special Court established under any law for the time being in force. It is important to note that [under Subsection 3 of Section 5 of the Act], "a Public Prosecutor", Additional Prosecutor General and Deputy Prosecutor General are required to perform their functions under the directions of the Prosecutor General. 11. The appointment of a District Public Prosecutor is made by the Government in each District under the Act. He is also Officer Incharge of the prosecution in the District. A District Public Prosecutor is authorized [under Section 9(3) of the Act] to distribute work to the Prosecutors with respect to the Courts of Sessions and Courts of Magistrates within the District. A Prosecutor working under the supervision and control of the District Public Prosecutor [under Subsection 4 of Section 13 of the Act], is obliged to keep the concerned District Public Prosecutor informed about the progress of all criminal cases under his charge. Being quite conspicuous, it has been noticed that all the Prosecutors including those who despite being under the immediate control of the Officer Incharge of the Prosecution of the District are still obliged to perform their functions subject to general guidelines by the Prosecutor General, issued under Subsection 1 of Section 10 of the Act. Hence, in nutshell, it can safely be concluded that irrespective of the difference in their designations and postings in the service hierarchy, all the Prosecutors i.e. Additional Prosecutor General, Deputy Prosecutor General, District Public Prosecutor, Deputy District Public Prosecutor, Assistant District Public Prosecutor or a Public Prosecutor are obliged to perform their functions, as aforesaid, under the directions and general guidelines issued by the Prosecutor General. The constitution of service appears to be vertical and epicentral in its organizational character with the chain of command flowing from the office of the Prosecutor General to the lowest rung of the service. Significantly, except the appointment of Prosecutor General, all other appointments in the service are to be made, in prescribed manner [under Subsection 3 of Section 8 of the Act] either by initial recruitment or promotion or transfer. The initial appointment in the service are made [under Subsection 4 of Section 8 of the Act] on the recommendations of the Punjab Public Service Commission after a competitive test and examination to select the best of the best legal brains with their expertise in the field of law to achieve the object behind the Act. 12. The state of Pakistan is represented in Courts or Tribunals constituted under the law through a Prosecutor or an Advocate General, or an Attorney General for Pakistan as the case may be. However, without prejudice to the powers conferred under any law on the office of Attorney General of Pakistan and the Advocate General of the Province, the Prosecutor General and the Additional Prosecutor General can depute [under Section 11 of the Act] any Prosecutor otherwise qualified for conducting prosecution before the Supreme Court, the High Court or the Federal Shariat Court and in this respect, the Prosecutor General is required to maintain his constant liaison with the office of Attorney General of Pakistan and the Advocate General in relation to criminal matters pending in any such Court. 13. It is the responsibility of Officer Incharge of a police station or the Investigation Officer [under Section 12 of the Act] to immediately report to the District Public Prosecutor by sending a copy of the first information report about the registration of each criminal case. One copy of first information report [Under Rule 24.5 (d) of the Police Rules, 1934] has also to be submitted to the District Public Prosecutor concerned and if the case pertains to Special Court then to the Senior
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Prosecutor of the Special Court. He is also responsible to submit a police report under Section 173 Cr.P.C within the period prescribed by law. In case investigation is not completed or cannot be completed within the time provided under the law, after recording reasons for the delay, he is bound to inform the Prosecutor. The Officer Incharge of the Police Station or Investigation Officer is also bound to comply with the directions and remedy the defects pointed out by the Prosecutor in the police report under Section 173 Cr.P.C. including the report for cancellation of the first information report or request for discharge of accused or suspect, within the specified time. However in case of failure of the Police Officer in discharge of his duties as aforesaid, the Prosecutor is enjoined upon [under Clause "d" of Subsection 9 of Section 13 of the Act] to report the details of the investigations, which have been conducted in violation of law or instructions issued by the Prosecutor General or not completed in time provided under the law, without reasonable cause, to the District Public Prosecutor and the District Public Prosecutor is well within his competence to inform the head of the investigation and the Prosecutor General for appropriate action. A police report under section 173 Cr.P.C including a report of cancelation of first information report or a request for discharge of a suspect or an accused has to be submitted to the Court through the Prosecutor concerned. The Prosecutor is obliged to diligently scrutinize such reports or the request, while utilizing the legal expertise on his command. Upon scrutiny, if he finds the same to be defective, while pointing out such defects, he can return it within three days to the Officer Incharge of the Police Station or Investigating Officer, as the case may be, for removal of such defects. On the other hand, if he finds the report or the recommendations fit for submission, he is obliged to file the same before the Court of competent jurisdiction. On receipt of an interim report under Section 173 Cr.P.C, the Prosecutor is enjoined upon to examine the reasons assigned for delay in the completion of investigation and if he consider the reasons compelling, request the Court for postponement of trial and in case investigation is not completed within reasonable time, he has to make a request to the Court for commencement of trial. However, where the reasons assigned for delay in completion of investigation are not compelling, he shall request the Court for commencement of trial on the basis of evidence available on record. The Prosecutor is also under an important obligation to submit in writing to the Magistrate or the Court, the result of his assessment as to the available evidence and applicability of offences against all or any of the accused as per facts and circumstances of the case and the Magistrate or the Court shall give due considerations to such submissions. In addition to above, if an accused pleads guilty or at the time the Prosecutor sums up the case, as the case may be, the Prosecutor is competent to propose to the Magistrate or the Court the punishment, which in his assessment, the accused should be awarded. 14. A Prosecutor, after obtaining prior approval of: the District Public Prosecutor in case the offences are punishable up to three years and the Prosecutor General, where the offences are punishable up to seven years, as the case may be [under Clause "e" of Subsection 3 of Section 10 of the Act] with the consent of the Court is empowered to withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is being tried. In addition to above, a Prosecutor is authorized in all other offences and the offences triable by the Special Courts, as aforesaid, to withdraw from the prosecution. Moreover, at any stage of the trial before any trial Court subordinate to High Court [under Clause "f" of Subsection 3 of Section 10 of the Act] before the judgment is passed, the Prosecutor General or any Prosecutor specifically authorized by him, for the reasons recorded in writing is empowered to inform the Court on behalf of the Government that the Prosecutor shall not prosecute the accused of the charge, thereupon all proceedings against the accused shall be stayed and the accused shall be discharged. Such discharge however, shall not amount to acquittal unless the Court directs otherwise. A Prosecutor
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working under the directions of the Prosecutor General is duty bound to keep the Prosecutor General informed about the progress of all the cases under his charge. A District Prosecutor is also under an obligation to keep the Prosecutor General informed regarding the information supplied to him by the Prosecutors working under his supervision and control, in…
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