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Criminal Petition No. 318 of 1983, decided on 30th January, 1984.

(On appeal from the judgment dated 31st July, 1983 of the Lahore High Court in Criminal Miscellaneous No. 458‑M of 1983).

S. 493--- Pakistan Criminal Law Amendment Act (XL of 1958). S. 6(1)‑Person conducting prosecution before Court of special judge deemed to be public Prosecutor Counsel of complainant can only assist such person and cannot have any independent status in that behalf--Counsel of complainant represent interests of own client more vigorously and effectively than Public Prosecutor‑‑Representative of state prosecutes accused and is incharge of prosecution maintaining fair balance between perpetrator of crime and aggrieved party ‑public if found to be not performing or unable to perform his duty Prosecutor ‑State, held, could be moved to permit counsel for complainant to conduct prosecution in a particular case, which permission could in suitable cases be allowed.

Malik Asad Khan v. The State 1969 P Cr. L J 1058 ref.

Muhammad Ashraf Falahi, Advocate Supreme Court and M. Z. Khalil, Advocate‑on‑Record for Petitioner.

Ch . Mehdi Khan Mahtab, Advocate-on Record for Respondents Nos1, 3 and 5.

Date of hearing : 30th January, 1984.

his petition is directed against the order dated 1‑7‑1983 passed by a learned Single Judge of the Lahore High Court dated 3 in Criminal Miscellaneous Petition No. 458/M of 1983.

The facts briefly are that a case entitled "State v. Mumtaz and others under section 409, P.P.C. is pending in the Court of the Special Judge (central) Lahore. The complainant in that case is the National Bank of Pakistan. After the evidence of certain P. Ws. was recorded by the learned trial Judge, the counsel for the complainant (National Bank of Pakistan) submitted an application under section 540, Cr. P. C: to recall P. Ws. 3, 4 and 5 for re‑examination on 6‑3‑1983. This application was subsequently also signed on 14‑3‑1983, by the Public Prosecutor. The accused, in the reply submitted by them to this application, opposed the prayer made therein both on the ground that the counsel for the complainant was not competent to move the said application, as well as on the merits. When arguments on this application were heard on 16‑4‑1983 by the learned trial Judge, the learned counsel for the complainant‑Bank did not press the application in respect of P. W. 5, but pressed it only so far as the resummoning of P. Ws. 3 and 4 was concerned. However, the counsel for the accused contested the locus standi of the counsel of the complainant‑Bank to file the application. In this connection he relied upon the provisions. of section 6(1) of the Pakistan Criminal Law Amendment Act, 1958. According to it, the Court of the Special Judge is to be deemed to be a Court of Session and although the provisions of Chapter XXXVIII of the Criminal Procedure Code, which, inter alia, deals with the conduct of the prosecution before it are excluded, the said section 6(1) itself lays down that the Special Judge shall be deemed to be a Court of Session and the trial before it shall be conducted by a Public Prosecutor.

The learned trial Judge held that the position of a trial before the Special Judge and the Sessions Judge was, so far as the conduct of the prosecution by the Public Prosecutor was concerned, not materially dissimilar. He went on to add that as under section 493, Cr. P. C., which falls in Chapter XXXVIII of the Criminal Procedure Code, the counsel for the complainant has no independent position and he has to act under the direction of the Public Prosecutor, the application made by the counsel for the complainant for resummoning the witnesses was not competent. In this connection, he pointed out that although the said application was also signed by the Public Prosecutor, but the Public Prosecutor had signed it subsequently and he had not claimed that it was filed under his instructions. Accordingly, he held that the counsel for the complainant had no right to file the application. However, the learned Court proceeded to consider the merits of the application suo motu and decided to resummon one of the P. Ws. and declined to summon the other'.

The complainant‑Bank, thereupon, filed a petition in the Lahore High Court under section 461‑A, Cr. P. C. to challenge the above decision of the Special Judge. The learned Judge in the High Court, however, agreed with the interpretation placed on the provisions of section 6(1) of the Criminal Law Amendment Act by the learned Special Judge. He observed that the Pakistan Criminal Law Amendment Act, 1958 provides that a person conducting prosecution before the Court of a Special Judge shall be deemed to be a Public Prosecutor. As in this case a Public Prosecutor had been appointed to conduct the prosecution in the Court of the Special Judge, the counsel for the complainant could assist the Public Prosecutor in the conduct of the case but could not act independently, unless he was appointed as a Public Prosecutor in this case in super session of the Public Prosecutor already appointed.

The complainant‑Bank feeling dissatisfied with the correctness of the judgment of the Courts below has now moved this Court for leave to appeal against them.

We have heard Mr. Muhammad Ashraf Falahi, learned counsel for the petitioner, in support of this petition for leave to appeal, but he has not been able to show any error in view expressed by the Courts below. Since section 6(1) of the Pakistan Criminal Law Amendment Act, 1958 provides that the person conducting the prosecution before the Court of a Special Judge shall be deemed to be a Public Prosecutor, it is obvious that it is the said person, who has to conduct the prosecution and any other counsel, such as the counsel of the complainant, can only assist him and cannot have any independent status in this behalf. Otherwise, there would be two prosecutor in the same case which would only result in confusion.

Mr. Falahi submitted before us that the relevant law, namely, the Criminal Law Amendment Act, had been enacted in order to eradicate corruption and bribery and given the well‑known apathy and indifference of the Public Prosecutors in the conduct of the prosecution, the object of effectively eradicating bribery and corruption through Court action was suffering grievously. In view of this tragic situation, the counsel for the aggrieved party should be allowed to act as the prosecutor. At any rate the law should be interpreted progressively and the counsel for the complainant given a more independent role than has been visualized hithertofore. In this connection, reliance was placed on a judgment of a learned Single Judge of the Lahore High Court in Malik Asad Khan v. The State (1969 P Cr. L J 1058), which related to the trial of Malik Asad Khan under section 302, P. P. C. for the murder of his father Malik Amir Muhammad Khan, wherein the provisions of section 493, Cr. P. C. were, according to the learned counsel for the petitioner, interpreted in a liberal manner to further the interests of justice with a view to allowing the counsel of the complainant a more positive role in the conduct of the case. The following head note of the above judgment was particularly stressed :‑‑

"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 practicing 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 Prosecutor in charge of this case would continue to be in charge of this case to issue directions on all important matters."

It was also pointed out that in the earliest Code of Criminal Procedure enacted in India by the British authorities, namely, the Code of Criminal Procedure of 1861, a somewhat similar position was adopted. The relevant provision with regard to this subject, namely, section 360 was couched in the following terms :‑

"360. In every trial before a Court of Session the prosecution shall be conducted by the Government Pleader or by some other Officer specially empowered in that behalf, and the complainant, if there be a complainant, shall be examined as a witness in the case,"

There is no doubt that the counsel of the complainant do normally represent the interests of their client more vigorously and effectively than a Public Prosecutor. However, a criminal act is not only a crime committed against the person or the institution harmed by that act, but it is also a crime against the society and is, accordingly, punished by the State Hence, it is the representative of the State who prosecutes the accused party and is incharge of the prosecution, maintaining a fair balance between the perpetrator of the crime and the aggrieved party. However, if it appears that the Public Prosecutor is not performing or cannot perform this duty satisfactorily, the State may be moved to permit the counsel for the complainant to conduct the prosecution, in that particular case, which permission can, in suitable cases, be allowed on the same analogy as Mr. Anwar, Barrister‑at‑Law, counsel for the complainant in the reported case mentioned above was appointed as Special Public Prosecutor to conduct the prosecution in the said case.

With these observations, this petition stands dismissed.

M. Z. M. Petition dismissed

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