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Petitioner: PROVINCE OF SINDH through Chief Secretary, Sindh, Sindh Secretariat VS Respondent: PROSECUTOR-GENERAL SINDH, CRIMINAL PROSECUTION DEPARTMENTHonorable Justice Amir Hani MuslimAbdul Fateh Malik,Abid S. Zubairi
2012 P L C (C.S.) 263
[Supreme Court of Pakistan]
Present: Khilji Arif Hussain and Amir Hani Muslim; JJ
PROVINCE OF SINDH through Chief Secretary, Sindh,
Sindh Secretariat and another
Versus
PROSECUTOR-GENERAL SINDH, CRIMINAL PROSECUTION DEPARTMENT and others
Civil Petition No. 727-K of 2011, decided on 8th December, 2011.
(On appeal from judgment dated 3-6-2011 of the High Court of Sindh, Circuit Court, Hyderabad, passed in C.P.D. No.587 of 2011).
(a) Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Act (IX of 2010)---
----Ss. 5(2)(3) & 6(1)---Constitution of Pakistan, Art. 185(3)---Transfer and posting---Prosecutor-General, powers of---Scope---Respondents were officials of Sindh Criminal Prosecution Service who assailed their transfer and posting orders issued by the Prosecutor-General---High Court dismissed the petition filed by respondents and maintained the posting orders---Validity---Power of transfer and posting was purposely retained with Prosecutor-General, who was otherwise head of the service under the Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2009, as he was better placed to make informed decisions vis-a-vis transfer of members of the Service as opposed to Special Secretary, Law and Justice Department---Legislature keeping in view to achieve objects of independence of prosecution service, had, therefore, entrusted power of control, administration and supervision to Prosecutor-General by making him head of the service with sole object to effectuate his administration over the service--Entrustment of such powers essentially include power to "transfer" and "posting" of members of the service, as he was the best judge to post members according to their experience, expertise and professional knowledge---Inbuilt scheme existed whereby powers of transfer and posting were conferred upon the Prosecutor-General by using expression "administration" "control" and "Head of Service" under Ss.5(2), 5(3) & 6(1) of Sindh Criminal Prosecution Service (Constitution, Functions and - Powers) Act, 2009, respectively---Intention of Legislature was to make the Prosecutor-General responsible for administration and control of the service and words "control" would mean that he had the power to transfer and post his subordinates in terms of Ss. 5 and 6(1) of Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2009---Supreme Court declined to interfere in the judgment passed by High Court---Leave to appeal was refused.
State of Assam v. Ranga Muhammad and others AIR 1967 SC 903; Iftikhar Ahmad v. The Muslim Commercial Bank Ltd. PLD 1984 Lah. 69; Sharif Faridi v. Federation of Pakistan and another PLD 1989 Kar. 404; M.H. Mirza v. Federation of Pakistan 1994 SCMR 1024; Zia Ghafoor Piracha .v. Chairman Board of Intermediate and Secondary Education, Rawalpindi 2004 SCMR 35; Abdul Haq v. Province of Sindh PLD 2000 Kar. 224; Abdul Haque Indhar v. Province of Sindh 2000 SCMR 907; Amanullah Khan Yousufzai v. Federation of Pakistan PLD 2011 Kar. 451 and Muhammad Ali Satakzai v. Appointing Authority through Registrar Balochistan High Court 2011 SCMR 2011 ref.
(b) Words and phrases---
---- `Administration '-Meaning.
Black's Law Dictionary and Chambers 21st Century Dictionary rel.
(c) Words and phrases--
'Control'---Meaning
Black's Law Dictionary and Ballentine's Law Dictionary rel
(d) Words and phrases---
---- `Supervise'---Meaning.
Black's Law Dictionary and Ballentine's Law Dictionary rel.
(e) Words and phrases---
--_Administration', 'control' and supervision'---Connotation---Phrase "administration, control and supervision" means management or. executive duties relating to an institution---In order to perform duties of management effectively, head of institution is required to be equipped with absolute powers to have control over the members of the-organization.
State of West Bengal v. Nripendra Nath AIR 1966 SC 447; Corporation of the City of Nagpur v. Ramchandra G. Modal and others AIR 1984 SC 636 and Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445 rel.
(f) Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Act (IX of 2010)---
----Ss. 14, 16(2) & 18---Sindh Civil Servants Act (XIV of 1973), S.10---Sindh Government Rules of Business, 1986, Schedule-I, Sr. No.21, Col.4---Members of Prosecution service---Status---Members of the service are public servants as defined in S. 16(2) of Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2010, and they are not civil servants---Provision of S.18 of Sindh Criminal Prosecution Service (Constitution, Functions and, Powers) Act, 2010 is a non-obstante clause which excludes application of all other laws including Sindh Civil Servants Act, 1973, rules framed thereunder and Sindh Government Rules of Business, 1986. [p. 275] G & H
Abdul Fateh Malik, Additional A.-G., Sindh for Petitioners.
Abid S. Zubairi, Advocate Supreme Court for Respondent No. 1.
Khalid Javed Khan, Advocate Supreme Court and Mazhar Ali B. Chuhan, Advocate-on-Record for Respondent No.2.
Dates of hearing: 10th and 11th November, 2011.
JUDGMENT
AMIR HANI MUSLIM, J.---Through this petition the petitioners seek leave to appeal against the judgment dated 3-6-2011 passed by a learned Division Bench of the High Court of Sindh, Circuit Bench Hyderabad, dismissing the Constitution Petition No.D-587 of 2011 filed by the pro forma respondents Nos.l to 3 challenging their transfer orders made by the Prosecutor-General, Sindh.
2. Brief facts of the case as they appear from the record are that the pro forma respondents Nos.1 to 3 after their induction in Criminal Prosecution Service, Sindh, upon exercise of their one time option, were posted at District Hyderabad. The Prosecutor-General, Sindh, the respondent No.1, -by order dated 25-3-2011, transferred pro forma respondents Nos.1 to 3 from District Hyderabad to District Umer Kot, against which the pro forma respondents preferred the constitution petition, which petition was dismissed by the impugned judgment.
3. The learned Advocate-General, Sindh, has contended that under the provisions of Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2010 (hereinafter referred to as "said Act"), the Prosecutor-General, Sindh, has no authority to order transfer of any of the members of the service. His next contention was that under section 5(1) and (3) of the said Act, the Government,of Sindh has the power to order transfer and posting of any of the members of the service. His further contention, was that the competent authority for tile purpose of appointment under the said Act, is the Sindh Government and not the Prosecutor-General. According to him, under the Sindh Government-Rules of Business, 1986, read with Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, which rules are framed under section 26 of the Sindh Civil Servants Act, 1973, the officers holding posts in BS-17, other than Civil Judges and Judicial Magistrates can be transferred and posted only by the authority notified there-under. According to him, Rule 4(1)(7) of the. Rules of 1974, defines the competent authority which has the powers of appointment which includes power of transfer and posting. At S. No.21 Column 4 of the Schedule I of the Sindh Government Rules of Business 1986, Special Secretary Law , has been notified as Head of the attached department for the purposes of Criminal Prosecution Service Department.
4. The learned Advocate-General further contended that the power of transfer and posting under the said Act vests with the Sindh Government and could be exercised by the Special Secretary Law notified as head of the Prosecution Department attached with the law department.
5. He has next contended that section 5 of the said Act provides `control' and 'administration' of members of service. section 5(1) provides that Government shall exercise general superintendence to ensure achievement of objectives of this Act. Section 5(2) provides that administration of the service shall vest in Prosecutor-General. The learned Advocate-General has contended that the Sindh Government has been assigned general superintendence under section 5(1) which includes the power of transfer and posting of the members of service. According to him power to post and transfer, therefore, in the face of the language of the section used under the Act, does not authorize the Prosecutor General to order transfer and posting of the members in service. He next contended that Prosecutor-General is appointed by the Sindh Government under subsection (1) of section 6 for a period of three years. The terms and conditions of service of the Prosecutor General are determined by the Provincial Government in terms of subsection (2) of section 6. The Government can, however, remove him from the office even prior to completion of his tenure, inter alia, either on the ground of misconduct and or on physical infirmity. The Prosecutor-General has a right of audience on behalf of the Government in the lower Courts, High Courts, Federal Shariat Court and the Supreme Court of Pakistan and the Prosecutor General, in law, is required to keep informed the Government about the performance of the service under subsection (1) of section 11 of the Act IX of 2010.
6. The learned Advocate-General contended that the provisions of section 18 of the Act IX of 2010, do not authorize the Prosecutor-General to exercise power of transfer and posting as the Act is silent on the exercise of such powers. He, however, submitted that the office of Prosecutor-General has a tenure post, and the tenure of the Prosecutor-General in the case in hand has been extended for a period of 3 years by amending the provisions of section 6(3) of the Act IX of 2010 on his completion of earlier tenure.
7. The learned Advocate-General contended that the learned High Court while passing the impugned judgment has overlooked the import of the provisions of Section 14 of the said Act which specifically provides that Sindh Civil Servants Act would be applicable to the members of the service and has been erroneously held that the Sindh Civil Servants Act, 1973 and the rules framed there-under_ would not be applicable to the members of the service. According to the learned Advocate-General Sindh, section 14 of the Act of IX of 2010 does not exclude the application of Sindh Civil Servant Act 1973 read with its rules and Sindh Government Rules of Business 1986, under which the authority to transfer and posting vests with the Sindh Government. His main argument was that since the authority to appoint the members of the service vests with the Sindh Government, therefore, power to order transfer and posting will automatically attached to the power of appointment and would vest with the Sindh Government. He submitted that the provisions of section 18 of the Act IX of 2010, in no way, abdicate the authority of the Sindh Government for transfer and posting of the members of the Service under the Sindh Civil Servants Act, 1973 and the rules framed thereunder.
8. As against this Mr. Abid S. Zubari, the learned Advocate Supreme Court for respondent No.1, has contended that the object of legislation of the Sindh Criminal Prosecution Service was to raise an independent and effective prosecution service independent of the clutches of the executive. He submitted that sections 5(2), 5(3) and 6(1) of the Act have to be read together. The conjunctive effect of these provisions of the said Act is to vest, inter alia, the powers, of transfer and posting in the Head of the service, which is the Prosecutor-General, Sindh, the respondent No.l. He further submitted that section 5(3) provides that Prosecutor-General shall have the `control' and 'supervise' the working of the members of service. In support of his contention, he has relied upon the case of State of Assam v. Ranga Muhammad and others (AIR 1967 SC 903).
9. He next contended that power to transfer and posting falls within the meaning of 'Control' and 'Supervision' and the same are elaborated in the said Act itself, ,as such, the Provisions of Sindh Civil Servants Act, 1973 and the rules framed thereunder shall not confer any power upon the Government to order transfer and posting of a member of Criminal Prosecution Service. This power, under the Act, has to be exercised by the Prosecutor-General, who is the head of service and is better placed to make informed decisions vis-a-vis the transfer of members of service as opposed to the Special Secretary, Law and Justice Department. Mr. Zubairi further argued that entrusting Prosecutor General powers to control and supervise the subordinate Prosecutors in terms of section 5(3) of the Act clearly reflects that the legislature intended to maintain discipline amongst the members of service through the Prosecutor-General.
10. It was contended by Mr. Zubairi that the words 'Control', `Supervise and Superintendence' has been discussed and interpreted in the case of Iftikhar Ahmad v. The Muslim Commercial Bank Ltd. (PLD 1984 Lahore 69) and Sharaf Faridi v. Federation of Pakistan and another (PLD 1989 Karachi 404) He submitted that the 3 distinct phrases used in the said Act interpreted in the aforesaid judgments clearly manifest the intention of legislature to grant power of transfer and posting to the Prosecutor-General.
11. He further contended that the provisions of Civil Servants Act, 1973 and the rules framed there-under regarding transfer and posting in particular are not applicable to the members of service in view of section 14 of the said Act, which clearly states that "Subject to the provisions of this Act and rules, member of the service including the staff, shall be appointed and governed under the Sindh. Civil Servant Act, 1973 (Sindh XIV No.14 of 1973) and rules made thereunder". He has relied upon the cases of M.H. Mirza v. Federation of Pakistan (1994 SCMR 1024) and Zia Ghafoor Piracha v. Chairman Board of Intermediate and Secondary Education, Rawalpindi (2004 SCMR 35). His next contention was that mere mention of the Sindh Civil Servants Act, 1973, in section 14 of said Act, does not imply that the members and employees of the service are to be regarded as civil servants. Even otherwise, by virtue of section 16(2) of the said Act, the members of the service are deemed to be public servants as opposed to the civil servants. It was next contended by the learned counsel that the provisions of Section 18 of said Act have overriding effect on all the other laws currently in force, therefore, the provisions of said Act shall overrides the provisions of Sindh Civil Servants Act, 1973 and Sindh Government Rules of Business, 1986, vis-a-vis transfer and posting of member of service. He, for the aforesaid reasons, submits that the petition is liable to be dismissed.
12. Mr. Khalid Javed Khan, learned counsel for the respondent No.2 has submitted that in order to have prosecutor service uninfluenced from the executive, the said Act was promulgated. He submitted that without prosecution service there can be no trial and previously prosecution waspart of the executive and in order to make the prosecution service independent, said Act was enacted, which has inbuilt administration and independent mechanism. He has referred to the provisions of sections 5(2), 11, 13, 14 and 18 of the said Act. According to him, the Act keeps the Prosecutor-General completely independent. Members of service have been made accountable to the Prosecutor-General and their ACRs are authored by him being reporting officer. _ According to Mr. Khalid Javed Khan, the Act does not make either the Prosecutor-General or any other member of the service a civil servant, therefore, provisions of Sindh Civil Servants Act, 1973 and the rule framed thereunder and or the provisions of Sindh Government Rules of Business, 1986, would be inapplicable to them particularly in view of section 18 of the Act, which has overriding effect.
13. His next contention was that the application of Sindh Civil Servants Act, 1973, and rules framed thereunder or any other law has been made subject to the provisions of the Act in terms of section 14 of said Act, therefore, could not be made applicable in deviation of the provisions of the Act. In support of his contentions, he has relied upon the cases of Abdul Haq v. Province of Sindh (PLD 2000 Karachi 224), Abdul Haquel Indhar v. Province of Sindh (2000 SCMR 907), Amanullah Khan Yousufzai v. Federation of Pakistan (PLD 2011 Karachi 451) and Muhammad Ali Satakzai v. Appointing Authority through Registrar Balochistan High Court (2011 SCMR 2011).
14. We have heard the learned Advocate-General, counsel for the respondents Nos.l and 2 and have also perused the record. The issue raised in these proceedings is restricted to the extent as to whether the powers for transfer and posting of the members of Service under the said Act vests 'in the Prosecutor-General or the Provincial Government. For the purpose of convenience, the provisions of sections 3, 5, 6, 14 and 18, are reproduced hereinbelow, as the entire controversy between the parties: rests upon interpretation of these provisions:--
"3. Government shall establish and maintain a service to be called the Sindh Criminal Prosecution Service.
(5) (1) Government shall exercise general superintendence over the Service to ensure achievement of the objectives of this Act.
(2) The administration of the Service shall vest in Prosecutor-General.
(3) A public Prosecutor, an Additional Prosecutor-General, a Deputy Prosecutor-General and an Assistant Prosecutor-General shall perform their functions under the control and the supervision of the Prosecutor-General and general superintendence of the Government.
(4) Subject to the sub-clauses (1) and (2) control of all Prosecutor within a District shall work under the supervision of the District public Prosecutor.
(6) (1) Government shall appoint a Prosecutor-General, who shall be the Head of the Service on such terms and conditions, as may be determined by Government.
(2) The terms and .conditions of service of the Prosecutor-General shall not be varied during the terms of his office.
(3) The Prosecutor-General shall hold office for a non-extendable period of three years.
(4) The Prosecutor-General may resign from his post during the tenure of his office by tendering resignation in writing to Government.
(5) Government, may for reasons to be recorded in writing and after providing him an opportunity of being heard, remove the Prosecutor-General prior to the completion of his tenure, on the ground of misconduct or physical infirmity.
(6) The Prosecutor-General shall have a right of representation and audience on behalf of government I lower Court, the High Court, the Federal Shariat Court and the Supreme Court.
(7) The Prosecutor-General may delegate any of his powers and functions to an Additional Prosecutor-General or to a Deputy Prosecutor-General or an Assistant Prosecutor-General.
(14) Subject to the provisions of this act and the rules, members of the Service, including the staff, shall be appointed and governed under the Sindh Civil Servants' Act, 1973 (Sindh Act No.14 of 1973) and rules made thereunder.
(18) The provisions of this Act shall have effect notwithstanding anything contained in any other law for the time being in force."
15. Before the Advocate-General has opened his arguments, we had inquired from him the wisdom behind the legislation of the said Act, he in reply has stated that in order to give independence to the criminal prosecution service, the enactment was promulgated.
16. The issue as to whether, the Prosecutor-General has the powerto order transfer and posting of his subordinates, who are required to report to him in terms of section 11(2), could be answered by looking at the scheme of the said Act. The provisions of section 5(1), speaks about the `control' and 'administration' of the prosecution service. Section 5(2) entrusts the power of administration of service in the Prosecutor-General whereas section 5(3) empowers him to 'control' and 'supervise' the working of the Additional Prosecutors-General, Deputy Prosecutors-General and Assistant Prosecutors-General. The Government has general superintendence over the aforesaid officials. Section 6(1) of the said Act makes the Prosecutor-General as 'head of the service'. In order to record a. finding on the issue of exercise of power of transfer and posting, section 5(2) and (3) and section 6(1), are required to be read together, which would clearly manifest the intent of the legislature that such powers have been delegated to the Prosecutor-General. The sections of the Act referred to hereinabove, have been introduced to achieve the objectives of the Act by making it independent of the executive. The power of 'transfer' and 'posting'. is purposely retained with the Prosecutor-General, who is otherwise head of the service under the Act L as he is better placed to make informed decisions vis-a-vis the transfer of the members of the service as opposed to the Special Secretary, Law and Justice Department. In addition to the aforesaid provisions of the Act, section 9(1) speaks of the authority of the prosecutors and or which they are obliged to conduct the prosecution on behalf of the government independently. Whereas section 11(2) of the Act provides that all the prosecutors would be working under the supervision of the 'Prosecutor-General' and he shall be kept informed about the progress of all the cases under his charge. These two provisions, if read. conjunctively, would further manifest the intent of the legislature to give independence to the prosecution service. The legislature in fact has provided inbuilt administrative and independent mechanism in the Act in order to achieve the object for which it was promulgated. The term 'administration' used in section 5(2) of the Act has been defined in Black's Law Dictionary as under:
"Management or conduct of an office or employment; the performance of the executive duties of an institution, business, B or the like In public law, the administration of government means the practical management and direction of the executive department, or of the public machinery or functions, or of the operations of the various organs or agencies."
The above term has been defined in Chambers 21st Century Dictionary as under:
"the directing, managing or governing of a company's affairs, etc. a period of government by a particular party."
The term 'control' used in section .5(3) of the Act has been defined in Black's law Dictionary and Ballentine's Law Dictionary as under:
Ballentine's law Dictionary
'Control' Verb. To check, restrain, govern, have under command and authority. Wolffe v. Loeb 98 Ala 426, 432 Noun:
A position of authority in direction and management.
Black's Law Dictionary
'Control': v. To exercise, restraining or directing influence over. To regulate; dominate; curb; to hold from action; overpower; counteract; govern.
'Control': n. power or authority to manage, direct, superintend, restrict, regulate, govern, administer, or oversee. The "control" involved in determining whether "principal and agent relationship" or "master and servant relationship" is involved must be accompanied by power or right to order or direct. Mid-Continent Petroleum Corporation v. Vicars, 221 Ind. 387, 47 N.E. 2d 972"
The terms 'supervise used in section 5 (3) has been defined in the Ballentine's Law Dictionary and Black's Law Dictionary as follows:
Ballentine's law Dictionary
'Supervise'. To exercise oversight To keep under inspection See Superintendence.
`Superintendence': Oversight, inspection, supervision, Moffitt v. Asheville, 103 NC 237, 9 SE 695: Care and oversight for the purpose of direction, and with authority to direct: The act of superintending.
"The word seems properly to imply the exercise of some authority or control over the person or think subjected to oversight." Dantzler v. De Bardeleben Coal and Iron. Co. 101 Ala 309, 14 So 10
Black's Law Dictionary
'Supervise'. To have general oversight over, to superintend or to inspect See Supervisor, "Supervisor" A surveyor or overseer Also in some States, the chief officer or a town; one of a board of country officers
In a broad sense, one having authority over others, to superintend and direct.
The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign; reward, ,or discipline other D employees or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not a merely routine or clerical. Nature but requires the use of independent judgment. National…
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