1. The petitioner namely Zafar Ali Shah, who is an Advocate by profession, through instant petition under Section 497(5) of The Code of Criminal Procedure, 1898 (hereinafter referred as "Cr.P.C."), seeks cancellation of bail allowed to the Respondent No. 1 by the learned Additional Sessions Judge, Chunian by way of order dated 10th September, 2016.
2. Precisely, the facts necessary for adjudication of instant petition are that Respondent No. 1 was apprehended by the police on the 'basis of suspicion and allegedly from his possession, 1220 grams Charas was recovered which resulted into registration of case FIR No. 280 dated 09.08.2016 offence under Section -9(c) of The Control of Narcotic Substances Act, 1997 (hereinafter referred as "CNSA, 1997"), at Police Station Sadar Chunian, District Kasur.
2. 3.The respondent after his arrest, moved an application for grant of post-arrest bail before the learned Additional Sessions Judge, Chunian which was allowed vide order dated 10th September, 2016.
3. 4.Vide order dated 20th October, 2016, while issuing notice to the respondents, a question as to maintainability of the instant petition and locus standi of the petitioner was framed. In order to resolve the said legal question, we had appointed Mr. Azam Nazeer Tarrar, Advocate as Amicus Curiae to assist the Court qua maintainability of this petition and scope of Section 497(5) of " Cr.
4. P. C . " .
5. 5.In support of his petition, the petitioner submitted that he brought this petition in .pro bono publico capacity as impugned order has been passed in flagrant violation of law.
6. 6.Mr. Azam Nazeer Tarrar, Advocate/Amicus Curiae while referring Section 497(5) of "Cr.P.C." submitted that powers under the said provision of law are akin to the revisional powers. He, hwever, added that allowing a private individual to move such application will open a Pandora Box. He added that a private individual does not figure anywhere in the scheme of law and allowing a private entity to assume the role of prosecutor will offend the relevant provisions contained in " Cr . P. C . " .
7. On the other hand, learned Deputy District Public Prosecutor while adopting the arguments advanced by the learned Amicus Curiae submitted that authority conferred on a Prosecutor cannot be delegated to a private individual.
7. 8.After having beard the respective contentions, we have also gone through the relevant provisions dealing with the subject.
8. 9.While examining the scope of Section 497(5) of "Cr.P.0 ", it would be advantageous to first go through the said provision which reads as under: "A High Court or Court of Session and, in the case of a person released by itself, any other Court may cause any person who has been released under this section to be arrested and may commit him to custody." . It is manifestly clear from the bare reading of the above referred provision that neither any specific manner or procedure for filing an application for cancellation of bail has been prescribed nor any specific person or authority is mentioned who is competent to move for the said purpose.
9. The powers conferred under the said ' provision are unrestricted and unbridled by virtue of which this Court or the Court of Sessions in case of a person released by itself or any of the other Court direct his arrest for committing him to custody. These powers are undoubtedly quite similar and akin to the powers of revision provided in Chapter XXXII of "Cr.P.C." as is capsulated in Sections 435 and 439 of the said Code.
10. 10.We are, however, mindful of the fact that invocation of jurisdiction of Section 497(5), "Cr.P.C." can be made on an application of any concerned person and in absence of any such application by the Court itself, whenever any lapse, capriciousness or arbitrariness amenable to the 'jurisdiction comes to the notice of the Court.
11. 11.In order to regulate the procedure with regard to the criminal matters. The Code of Criminal Procedure, through an "Act V of 1898", was promulgated. Part IX of the Code relating to the supplementary provisions comprises of Chapter XXVIII which deals with the appointment and functions of the public prosecutors. Section 492 of "Cr.P.C." bestows power upon the Provincial Government to appoint, generally, or in any case, or for any specified class of cases, in any local area, one or more officers to be called Public Prosecutors. By virtue of Section 493 of the Code ibid, 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.
12. Power of withdrawal from the prosecution has also been divested to the Public Prosecutor in terms of Section 494 of "Cr.P.C.". This leaves no stone unturned that it is within exclusive domain of a Prosecutor appointed under Section 492 "Cr.P.C." to conduct the prosecution.
13. 12.The impugned order was passed by a Court established under Section 46 of "CNSA, 1997". As per Section 50 of the said Act, the Federal Government is empowered to appoint a person who is an Advocate of the High Court to be a Special Prosecutor on such terms and conditions as may be determined by it and any person so appointed shall be competent to conduct proceedings under the said Act before a Special Court and, if so directed by the Federal Government, to withdraw such proceedings.
14. 13.The Government of Punjab in order to establish an independent, effective and efficient service for prosecution of criminal cases to ensure pro secutorial independence, for better coordination in the criminal justice system of the Province and matters incidental thereto promulgated the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 (hereinafter referred as "Act III of 2006"). Section 2 (1) of the said Act defines the Prosecutor as under:-- "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 this Act and shall be deemed to be the public prosecutor under the Code."
15. 14.Chapter-Ill of the "Act III of 2006" ordains the powers and functions of the prosecutors whereby the prosecutors are made responsible for the conduct of the prosecution on behalf of the Government. The general superintendence over the ServiCe to ensure achievement of the .objectives of the Act vest with the Government whereas the administration of the Service vest in the Prosecutor General. By virtue of Section 10 of "Act III of 2006", the Prosecutor General can issue general guidelines to the Prosecutors or officers responsible for investigation for effective and efficient prosecution. Section 11 of the Act ibid bestows a power upon the Prosecutor General and the Additional Prosecutor General to depute any Prosecutor, otherwise qualified, for conducting prosecution before the Supreme Court, the High Court or the Federal Shariat Court.
16. 15.The above survey of law leads us to an irresistible conclusion that it is the "Prosecutor" who is primarily responsible and empowered to conduct the prosecution. We are also cognizant of the fact that initially no right of appeal was available to any private individual in case of acquittal, however, by an Act XIX of 1997, Sub Section 2 (A) was added in Section 417 of "Cr.P.C.", whereby an aggrieved person was equipped with the right to file an appeal against an order of acquittal but no other provision is available either in the "Cr.P.C." or the "C.N.S.A, 1997" empowering a private individual to assume the role of prosecutor.
17. 16.The petitioner is alien to the proceedings and allowing him to move an application for cancellation of bail would open a floodgate permitting every private individual to settle his personal scores with an accused who is booked in an FIR having no direct nexus with that person.
18. Thus, allowing a private individual to move for cancellation of bail allowed to an accused wherein such person is neither a complainant, a witness nor directly aggrieved in any manner would be in complete negation of the mandate of Chapter MONTH of "Cr.P.C." and it will certainly disturb the fiber of law and frustrate the object and scheme of prosecution. Reference in this respect can be placed on the case of "Ghulam Rasool v. The State" (PLD 2013 Sindh 214).
19. 17.For the foregoing reasons, without touching upon the merits of the case, we are thus, of the considered view that instant petition is not maintainable on account of lack of locus standi of the petitioner and as such, it is dismissed.
20. 18.The petitioner, however, may approach to the Prosecutor General for the said purpose, who would be at liberty to proceed further strictly in accordance with law. Before parting, we deem it appropriate to commend the assistance rendered by the learned Amicus curiae in the matter in hand.