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Criminal Miscellaneous No. 6255 of 1968, decided on 6th February 1969.

Ss. 492 & 493 --Public Prosecutor, appointment of‑Counsel engaged by private complainant‑Subsequently appointed by State as Special Public Prosecutor to conduct same case‑Appointment, held, not in accordance with law‑Such counsel, however, permitted to act in terms of S. 493 as subordinate to Public Prosecutor‑ Word "act" in S. 493‑Meaning‑Not distinct and different from word "plead".

In a murder case a counsel originally engaged privately by the complainant party was subsequently appointed as Special Public Prosecutor to conduct the same case:

Held, in the prosecution of a criminal case, particularly a case of murder, an Advocate privately engaged is not a proper person to conduct the prosecution, as he would represent the interests of his client and it is above all things essential that in the prosecution on behalf of the State private interests and private feelings, for instance, the desire to wreak vengeance should have no place. Therefore, an Advocate privately engaged to represent a com plainant should have no other place than that of one strictly subordinate to an officer who prosecutes on behalf of the State, for the State stands not necessarily for a conviction, but for justice".

The appointment made by the Provincial Government of a privately engaged counsel, to act as Special Public Prosecutor was not in accordance with law.

The word act' in section 493, Cr. P. C. is not to be understood in the technical sense as meaning something distinct and different from the word plead'. A Court can always ask any lawyer practising in that Court to assist it in the decision of a matter before it where the State representative is not before a Court; and can call upon a complainant's counsel as amicus curiae if a Court considers it desirable to obtain the assistance of a counsel engaged by a complainant in placing the facts before it. In the instant case, as the transfer of the case to the High Court's original jurisdiction, was ordered it was considered desirable that the counsel of eminence who has been engaged by the complainant should be allowed to act in this case as required under section 493, Cr. P. C. He was permitted to conduct the prosecution provided always that the Public Pro secutor in charge of this case would continue to be in charge of this case to issue directions on all important matters.

Hyder Bux Jaffari v. Crown P L D 1951 Sind 29 Medichetty Ramakistiah and others v. The State of Andhra Pradesh A I R 1959 Andh. Pra. 659 and Vaz v. Emperor 1930 M W N 769 rel.

R. v. Puddick (1865) 4 F & F 497 and R. v. Banks (1916) 2 K B 621 ref.

S. 526‑Transfer of case to High Court under its extraordinary original jurisdiction Victim of murder ex‑Governor of a Province‑Case having received undue publicity creating reasonable apprehension in mind of accused against a fair trial‑Local atmosphere not congenial to trial of case‑Case, in circumstances, transferred to High Court.

Raja Muhammad Sabir for Petitioner.

Mian Aslam Riaz Hussain, Asstt. A.‑G. for the State.

Date of hearing : 6th February 1969.

This application (Criminal Miscellaneous No. 6255 of 1968), under section 526, Cr. P. C., by Malik Asad Khan son of Malik Amir Muhammad Khan, is. for the transfer of a Session Trial against him under section 32, P. P. C., from the Court of Additional Sessions Judge, Mianwali, to the High Court of West Pakistan, Lahore, for trial on its original side. Criminal Miscellaneous No. 693 of 1969, calls in question the order of the Provincial Government dated the 5th of November 1968, appointing Mr. M. Anwar, as Special Public Prosecutor, to conduct the case "State v. Malik Asad Khan". Malik Sher Muhammad, the informant in this case, has also put in Criminal Miscellaneous No. 6687 of 1968, for the transfer of the case and Criminal Miscellaneous No. 7056 of 1968, for quashing the order of the Government of West Pakistan, appointing Mr. M. Anwar as Special Public Prosecutor in this case. This order will dispose of all these petitions.

2. The facts are these : The case Re : State v. Malik Muhammad Asad Khan, under section 302, P. P. C., for the murder of Malik Amir Muhammad Khan, Ex‑Governor of West Pakistan, is pending in the Sessions Court at Mianwali. The District Magistrate, Mianwali, appointed a local Lawyer as Special Public Prosecutor. Begum Malik Taj Muhammad Khan, a sister of the deceased, put in a petition to the Secretary, Ministry of Law, Government of West Pakistan, Lahore for the appointment of Mr. M. Anwar, Bar‑at‑Law, Lahore, as Special Public Prosecutor, to conduct this case on behalf of the State. The Provincial Government by its order dated the 5th November 1968, issued the following notification :‑

"The Governor of West Pakistan is pleased to appoint Mr. M. Anwar, Bar‑at‑Law, Advocate, High Court of West Pakistan, Lahore, as Special Public Prosecutor for conducting Sessions case, State v. Malik Muhammad Asad-under section 302, P. P. C., in the Sessions Division, Mianwali, fixed for trial from 8th November 1968, on usual scale fee as laid down in rule 11.6 of the Punjab Law Department Manual."

Malik Sher Muhammad male an application to the Law Secretary, Government of West Pakistan, Lahore, that the appointment of Mr. M. Anwar, as Special Public Prosecutor should be cancelled. This request was not granted.

It may be stated here that Sardar Haji Muhammad Khan, Sessions Judge, Mianwali, and Mr. Rasool Bakhsh Khan Leghari, Additional Sessions Judge, Mianwali, showed their inability to try this case, whereupon his Lordship the Chief Justice of West Pakistan High Court by an administrative order directed Mr. Muhammad Zafarullah, C. S. P., Sessions Judge, Sargodha, who is also, an ex‑officio Additional Sessions Judge for Mianwali, to try this case.

3. On 8th November 1968, when the case was taken up by the Additional Sessions Judge, the accused informed the trial Court that he was applying for the transfer of the case, whereupon the trial Court stayed the proceedings.

4. By my order dated 23rd January 1969, the Law Secretary, Government of West Pakistan, was asked to submit his report as to the appointment of Mr. M. Anwar, as Special Public Prosecutor. Mr. M. Anwar, was also asked to place full facts of his engagement by Begun Malik Taj Muhammad Khan, on the file.

5. The file of the Provincial Law Secretary was sent for and perused. The Provincial Law Secretary in his report dated 30th of January 1969, had described that the victim in this case was a person of the eminence of an ex‑Governor of the Province and the circumstances required that the case should have been conducted by a senior Advocate from outside the district and that the State being the main complainant in criminal matters is primarily responsible for the prosecution of such cases, including the one under reference and has unfettered discretion under the provisions of section 492, Cr. P. C., to appoint any person as a public prosecutor for any case or class of cases in any area of the Province and that Mr. M. Anwar has been appointed as Special Public Prosecutor under the provisions of section 492 (1), Cr. P. C, and will by paid in accordance with rule 11.6 of the Punjab Law Department Manual. He stated that the department is not aware if Mr. M. Anwar had been paid his fee as a private counsel for the prosecution of this case.

6. Mr. M. Anwar, has placed on the record of this Court his signed statement, wherein he has stated that Begun Malik Taj Muhammad Khan had engaged him and moved an application addressed to the Secretary, Ministry of Law, for appointing him as Special Public Prosecutor. He stated that he was contacted by the Solicitor to the Government of West Pakistan, who asked him whether he was prepared to act as Public Prosecutor in the case, to which he readily agreed. The question of fee was raised by the Solicitor, but as he had already been paid his fee by Begum Malik Taj Muhammad Khan through Doctor Toosi, he expressed his inability to accept any fee from the Provincial Government and that was also confirmed to the Law Minister with whom he had a telephonic conversation before the order was passed appoint ing him as Special Public Prosecutor. He also stated that Malik Sher Muhammad is the real maternal uncle of the accused and is only a complainant in name. He stated that the relations between late Malik Amir Muhammad Khan and Malik Sher Muhammad were not very cordial and that the controversy has been raised with regard to his appointment to prevent justice being done.

7. Before I take up the question of transfer, I shall consider whether the appointment of Mr. M. Anwar, Bar‑at‑Law, Advocate, High Court of West Pakistan, Lahore, as Special Public Prosecutor, for this particular case, at the instance of Begum Malik Taj Muhammad Khan, on the terms that the fee would be paid by her was in accordance with law

8. After examining the file of the Provincial Law Secretary regarding the appointment of Mr. M. Anwar, Advocate, as Special Public Prosecutor to conduct this case, and perusing the statement of Mr. M. Anwar, Advocate, in my judgment the appointment of Mr. M. Anwar, by the Provincial Government on the terms that the fee would be paid in accordance with usual scale of fee as laid down in rule 11.6 of the Punjab Law Department Manual vas made in routine. The fact of the matter is that Mr. M. Anwar, Advocate, was appointed as Special Public Prosecutor by the Provincial Government after he had been engaged and paid fee by Begum Malik Taj Muhammad Khan. It must be remembered that in the prosecution of a criminal case, particularly a case of murder, an Advocate privately engaged is not a, popes person to conduct the prosecution, as he would represent the interests of his client and it is above all things essential that in the prosecution on behalf of the State private interests and, private feelings, for instance, the desire to wreak vengeance should. have no place. Therefore, an Advocate privately engaged to represent a complainant should have no other place than that of one strictly subordinate to an officer who prosecutes on behalf of the State, for the State stands not necessarily for a conviction, but for justice. In Hyder Bux Jaffari v. Crown (P L D 1951 Sind 29). Tyabji, C. J. agreeing with Constantine, J observed :‑

"The principle which we are here concerned with : that the interests of the Crown are not identical with the interests of a private complainant, is not merely an abstract principle. It is essential to the proper conduct of a criminal case, that the Public Prosecutor should be entirely free from any private bias against the accused, and arty personal interest in the case resulting in a conviction. The Public Prosecutor is expected to strive to the utmost of his ability to secure that justice, and nothing but justice is done. By way of illustration I may refer to just one aspect of this matter. In the course of receiving his instruction and conducting the case, a Public Prosecutor often has facts brought to his notice, which may be inconvenient to the prosecution, in the sense that they tell in favour of the accused, and it is often within the power of the Public Prosecutor to suppress such facts, and even to see that evidence is given in such a manner as to make the contrary appear. No honest Public Prosecutor should allow such a suppression to take place contrary to the interests of justice. But if he has received a handsome fee from a private complainant, who is interested in getting the accused convicted and sentenced there might be a very strong temptation in the way of the Public Prosecutor to act as desired by the party engaging him, and not as he should act in the interests of pure justice. As my learned brother has pointed out, justice must not only be done, but also appear to be done, and it is necessary to see that accused persons are not given any legitimate reason for suspecting that their cases were not being conducted fairly, that is solely with a view to secure the ends of justice."

9. In another judgment in Medichetty Ramakistiah and others v. The State of Andhra Pradesh (A I R 1959 Andh. Pra. 659) the Division Bench while examining sections 270, 492 and 493, Cr. P. C., observed :‑

"These provisions are clearly conceived in the public interest as well as in the interest of the accused because the position of the Public Prosecutor is, it must be borne in mind, unlike that of any Advocate appearing for a private party. It is well recognised, to use the words of Crompton J., in R. v. Puddick, (1865) 4 F & F 497 at page 499, Public Prosecutors should regard themselves rather as Ministers of justice assisting in its administration than as Advocates' an observation which was adopted by the Court of Criminal Appeal in R. v. Banks, (1916)2 K B 621.

Unless, therefore, the control of the Public Prosecutor is there, the prosecution by a pleader for a private party may degenerate into a legalized means for wreaking private vengeance. The prosecution instead of being a fair and dispassionate presentation of the facts of the case for the determination of the Court, would be transformed into a battle between two parties in which one was trying to get better of the other by whatever means available. It is true that in every case there is the over‑all control of the Court in regard to the conduct of the case by either party. But it cannot extend to the point of ensuring that in all matters one party is fair to the other.

A prosecution, to use a familiar phrase, ought not to be a persecution. The principle that the Public Prosecutor should be scrupulously fair to the accused and present his case with detachment and without evincing any anxiety to secure a con viction, is based upon high policy and as such Courts should be astute to suffer no inroad upon its integrity, otherwise there will be no guarantee that the trial will be as fair to the accused as a criminal trial ought to be. The State and the Public Prosecutor acting for it are only supposed to be putting all the facts of the case before the Court to obtain its decision thereon and not to obtain a conviction by any means fair or foul. Therefore, it is right sad proper that Courts should be zealous to see that the prosecution of an offender is not handed over completely to a professional gentleman instructed by a private party."

10. To conclude I would say, the appointment made by the provincial Government of Mr. M. Anwar, a privately engaged counsel, to act as Special Public Prosecutor was not in accordance with law.

11. For the foregoing reasons, the notification dated the 5^th of November 1968, should not be allowed to stand and is hereby annulled.

12. The next question that calls for determination is whether Mr. M. Anwar should be allowed to act in this case in accordance with the provisions of section 493, Cr. P. C. section 493 of the Code, runs :‑

"493. The Public Prosecutor may appear and plead without any written authority before any Court in which any case of which he has charge is under inquiry, trial or appeal, and if any private person instructs a pleader to prosecute in any Court any person in any such case, the Public Prosecutor shall conduct the prosecution, and the pleader so instructed shall act therein, under his directions."

The word "act" in shorter Oxford Dictionary means to carry out any action; to perform. . . . . . In Vaz v. Emperor (1930 M W N 769) Reilly J. of the Madras High Court pointed out that the word act' is not to be understood in the technical sense as meaning something distinct and different from the word plead'. The exact words of the head‑note in that case read :‑

"The word act' in the end of section 493, Cr. P. C., does not mean something other than examining or cross‑examining witnesses or addressing the Court and is not used in any technical sense in distinction from the word appear and plead' in the opening part of the section."

This question was also considered in Medichetty Ramakistiah and others v. The State of Andhra Pradesh their Lordships addressed follows:---

"To sum up, the conduct of all prosecutions before a Court of Session shall be in the hands of a Public Prosecutor appoint ed under section 492, subject to his power to instruct a duly qualified person acting under his directions, and where either before a Magistrate or before a Court of Session, a pleader is instructed by a private individual to Prosecute any person in a case before any Court, the pleader so instructed may act in that case subject to the over‑all supervision of the Public Pro secutor. Such a pleader can conduct the examination, cross examination and re‑examination of witnesses as also address arguments to the Court. These provisions do not, however, authorise the abdication of his functions by the Public Prosecutor; he should continue to be in charge of the case and to issue directions on all important matters."

13. I am of the view that a Court can always ask any lawyer practising in that Court to assist it in the decision of a matter before it where the State representative is not before a Court; and, can call upon a complainant's counsel as amicus curiae if a Court considers it desirable to obtain the assistance of a counsel engaged by a complainant in placing the facts before it. In the instant case, as I am ordering the transfer of the case to this Court's original jurisdiction, I consider it desirable that the counsel of the eminence of Mr. M. Anwar, who has been engaged by the complainant should be allowed to act in this case as required under section 493, Cr. P. C.

Needless to add, that he is permitted to conduct the prosecu tion provided always that the Public Prosecutor in charge of this case would continue to be the in charge of this case to issue directions on all important matters.

14. The common grounds urged for the transfer of the case in Criminal Miscellaneous Nos. 6255 and 6687 of 1968, are :‑

(i) that the case has been given undue publicity and the atmosphere at Mianwali is not congenial for trig of this case and that when the case was taken up on the 8th of November 1968, a large number of people were present outside the Court; and

(ii) that the undue importance which has been given to the case has also caused a reasonable apprehension in the mind of the petitioners that they will not have a fair trial in the trial Court.

In Criminal Miscellaneous No. 6255 of 1968, Malik Asad Khan has also stated that he apprehends that tile Provincial Govern ment by appointing Mr. M. Anwar, as Special Public Prosecutor is keen to secure his conviction, and that his appointment has given him a reasonable apprehension that he will not have a fair trial except in the High Court of West Pakistan. In the petition (Criminal Miscellaneous No. 6687 of 1968) of MAik Sher Muhammad it has been stand that the petitioner being the complainant has no faith in the learned Special Public prosecutor, namely, Mr. M. Anwar, as Mr. M. Anwar, Advocate, according to him was forced to resign from his post, because of the differences with late Malik Amir Muhammad Khan, who was then Governor of West Pakistan.

15. The Law Secretary in his comments stated that there is nothing on the record to show that late Malik Amir Muhammad Khan had forced Mr. M. Anwar, to resign from the post of Advocate‑General which he had held. Likewise Mr. M. Anwar in his signed statement has stated that Malik Sher Muhammad is the real maternal uncle of the accused and is only a complainant in name and that he had no personal animosity towards late Malik Amir Muhammad Khan or that he was ordered to resign from the post of Advocate‑General. I need not dilate on this subject further. As observed earlier, the notification of the Provincial Government has been set aside and Mr. M. Anwar has been allowed to act in this case as required under section 493, Cr. P. C. The Provincial Law Secretary m his report has also admitted that the accused is a big landlord of the Ilaqa wielding such influence in the locality and the victim was his own father, ho was a person of the eminence of an Ex‑Governor of the province. He had further stated that there can be no objection the case is transferred to the original jurisdiction of the High court. The request for the transfer of the case to this Court on s original jurisdiction is on behalf of the accused and Malik Sher Muhammad, complainant, and Mr. M. Anwar also supports it.

16. As stated in the earlier part of the order, the Sessions Judge and the Additional Sessions Judge posted at Mianwali also Bowed their inability to hear this case. The deceased in this case was an Ex‑Governor of the Province. The case is being hotly contested. The local atmosphere is not congenial to the trial of this case. As this case has been given undue publicity it is but natural to suppose that some officials as well as non officials in the locality may have formed preconceived notions about the case. It has been held time and again by this Court teat in such cases the state of mind of the accused is to be considered and as confidence in good Government is the essence 4 proper administration, the transfer of the case from one district to another district of a calmer atmosphere is highly desirable, and it is the duty of this Court to maintain this confidence in the mind of general public.

It first struck me to transfer this case from Mianwali district another district, but considering the peculiar circumstances of tie case and that the victim was an Ex‑Governor of the Province, I think the circumstances require that this case should be tried on the original side of the High Court.

17. Under these circumstances, I withdraw the case State v. Malik Asad Khan, under section 302, P. P. C., from Mianwali district and transfer the same on the original side of this Court, with the direction that this case may be laid before my Lord the Chief Justice for nominating a Judge of this Court for trial and disposal in accordance with law.

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