As all the appellants are prosecutors within the meaning of Section 2(1)(1) of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 (Act III of 2006). During the proceedings a question emerged as to whether all the appellants being prosecutors are civil servants or not in view of different provisions of the Act ibid, therefore, I intend to decide the question of civil servant by this single order and jurisdiction of this Tribunal.
2. Brief facts of the case are that all the appellants were proceeded by Secretary Government of the Punjab Prosecution Department under the provisions of the PEEDA Act, 2006.
3. The appellants namely Zahid Younas; District Public Prosecutor, was penalized by the Secretary Public Prosecution on behalf of the Chief Minister vide impugned order dated 21.3.2013.
4. The appellant Malik Tariq Mehmood was former District Public Prosecutor Kasur. He was proceeded against departmentally under the provisions of the PEEDA Act, 2006 on the allegation of corruption etc and penalized by the Secretary Public Prosecution on behalf of the Chief Minister vide impugned order dated 7.8.2013. Both the appellants called in question impugned penalty orders through these appeals.
5. During the course of arguments and proceedings before this Tribunal a question arose as to whether the appellants were civil servants or not and this Tribunal has jurisdiction to adjudicate upon the matter.
6. The contention of the appellants is that honourable Lahore High Court in a Wiit Petition No, 29737/2016 titled Muzaffar Ali Anjum vs. Government of the Punjab has not exercised the constitutional jurisdiction under Article 199 as the petitioner therein were civil servants. They stated that the petitioner of the writ petitioner was prosecutor. Added that the appellants are civil servants and working under the Punjab Criminal Prosecution Service Constitution, Functions and Powers Act, 2006. Submitted that in view of the Punjab Government Rules of Business, 2011 Prosecution is a department of the government therefore, they are civil servant and this Tribunal has the jurisdiction to adjudicate upon the matter. They argued that in Service Appeal No, 4723/2012 vide judgment dated 22.7.2016 this Tribunal has granted the relief to the appellant Muhammad Amer Yaqoob. Ex.
J.0 of the office of the District Prosecution Department, Kasur. They argued away that in some service appeals by the prosecutors, this Tribunal had entertained the appeals and decided the same in their favour.
7. The learned Law Officer of the department stated that the appellants are civil servants and in this regard relied upon a judgment of the honourable Lahore High Court, Lahore passed in Writ Petition No, 19330/2014 dated 23.12.2014.
8. The learned District Attorney relied upon PLD 1997 Supreme Court 382. Upon a question of this Tribunal he also relied upon 2012 SCM R 307.
9. Arguments heard and record perused.
10. In order to resolve the controversy and question on the subject, the judgment of the honourable Supreme Court of Pakistan as rendered in Province of the Sindh case (see 2012 SCM R 307) was perused. This judgment pertains to Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Act, IX of 2009. Some provisions of the Act ibid is similar and para-materia to the provisions of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 (Act III of 2006). The comparative chart of the provisions is given below verbatim:-- SINDH CRIMINAL PROSECUTION SERVICE (CONSTITUTION, FUNCTIONS AND POWERS) ACT, IX OF 2009THE PUNJAB CRIMINAL PROSECUTION SERVICE (CONSTITUTION, FUNCTIONS AND POWERS) ACT 2006 (ACT III OF 2006).
Section 16(1)(2) (Indemnity)
1. No suit, prosecution or other legal proceedings shall lie against a Prosecutor in respect of anything done or attempted to be done by him in good faith under this Act.Section 18 (Indemnity)
1. No suit, prosecution or other legal proceedings, shall lie against a Prosecutor in respect of anything done or attempted to be done by him in good faith under this Act.
2. A Prosecutor appointed under this Act shall be deemed to be a public servant within the meaning of Section 21 of the Pakistan Penal Code, 1860 (Ordinance XLV of 1860)2. A Prosecutor appointed under this Act shall be deemed to be a public servant within the meaning of Section 21 of the Pakistan Penal Code, 1860 (Ordinance XLV of 1860).
Section 18. (Act to override other laws)
The provisions of this Act shall have effect notwithstanding anything contained in any other law for the time being in force.Section 20. (Act to override other laws)
The provisions of this Act shall have effect notwithstanding anything contained in any other law for the lime being in force: A case of the province of Sindh vs. Prosecutor-General, Criminal Prosecution Department and another was heard by the honourable Supreme Court of Pakistan reported as 2012 SCM R 307. In the said judgment the honourable Supreme Court of Pakistan considered different provisions of the Sindh Criminal Prosecution. Service (Constitution, Functions and Powers) Act, IX of 2009 like Sections 5(1), 11(2), 14 and held that if these provisions are read conjunctively, would further manifest the intention of the legislature to give independence to the prosecution service. Further held that the legislature has provided in-built administrative and independent mechanism in the Act. The honourable Supreme Court of Pakistan in the case also discussed Sections 16(2) and 18.
According to the obiter dicta and interpretative analysis of the honourable Supreme Court of Pakistan on the subject Section 18 excluded the application of any other law for the time being in force and concluded as under:-- What we conclude from the plain reading of the provisions of Sections 14 and 18 of the said Act together is that the status of the members of the service is that of a public servant as defined under Section 16(2) of the said Act and they are not civil servants . Secondly, the Civil Servants Act, 1973 and rules framed thereunder would not apply to such members in deviation of the provisions of the said Act.
(underlined are mine)
It was further held as under: "Section 18 of the said Act is not obstante clause which excludes the application of all the other laws including the Act of 1973, rules framed thereunder the Sindh Government Rules of Business, 1986."
According to the dictum ibid the prosecutors within the meaning of Section 2(1)(1) of Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Act, IX of 2009 are not civil servants.
11. The appellants before this tribunal are prosecutors within the meaning of Section 2(1)(i) of the Punjab Criminal Prosecution Service (Constitution, Functions and. Powers) Act, 2006 (Act III of 2006), Section 20 of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers)
Act, 2006 (Act III of 2006) actually is 'akin and similar to Section 18 of Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Act, IX of 2009. Both these Sections convey and import the same meaning i,e, these provisions exclude the applicability of other laws being non obstante clause. The honourable Supreme Court of Pakistan held that Section 18 of Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Act, IX of 2009 has excluded the Act of 1973 meaning thereby Sindh civil Service Act, 1973 was not applicable in the matter.. Likewise, in view of Section 20 of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers)
Act, 2006 (Act III of 2006) has actually excluded the applicability of the Punjab Civil Servants Act, 1974. Section 15 of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers)
Act, 2006 (Act III of 2006) pertains to the authority to make rules and regulations which empower the government i,e, Government of the Punjab to make rules for carrying the purpose of the Act. On account to this mandate the rules namely Punjab Criminal Prosecution Service (Conditions of Service ) Rules, 2007 were issued and promulgated by the Governor of the Punjab in exercise of his powers as conferred under Section 15 of the Act. These rules were framed under the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 (Act III of 2006). Such rules were not framed under Section 23 of the Punjab Civil Servants Act, 1974. Government was fully aware of fact that Punjab Civil Servants Act, was not applicable therefore, service rules were framed under the Prosecution Act instead of PCS Act. It has been mentioned in Section 18(2) of the Punjab Act III of 2006 that the prosecutor appointed under this act shall be deemed to be a public servant within the meaning of Section 21 of the, PPC, 1860. Had the legislature of intention to declare the prosecutors as civil servants a specific provision would have been inserted f, declaring them as civil servants but no such provision exists in the " Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 (Act III of 2006), therefore,it is found that the prosecutors (appellants) are not civil servants. In Dr. Ahmad Salman Waris Assistant Professor's case (PLD 1997 SC 382) the honourable Supreme Court of Pakistan held that in order to make a matter exclusively the Tribunal under the act and to create ouster creation of jurisdiction of all other Courts and tribunals under article 212 of the Constitution it must be shown that the matter is agitated by a civil servant and is arisen from final order of the competent authority whether original or appellate. As discussed herein above, the appellants are not civil servants in view of the dictum laid down by the honourable Supreme Court of Pakistan in 2012 SCM R 307 at page 319 (paragraph). The order dated 22.7.2016 as passed in Service Appeal No, 4723/2012 is not applicable in the case as said appellant is a junior Clerk and not the prosecutor within the meaning of Section 2(1)(l) of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 (Act III of 2006), therefore, I am afraid that judgment dated 26.9.2016 of honourable Lahore High Court, Lahore as passed in Writ Petition No, 29737/2016 is of no help to the appellants. Likewise, the judgment dated 22.7.2016 of this Tribunal passed in Service Appeal No, 4723/2012 is not applicable. The judgment of this tribunal as was referred by the learned counsel for the appellants regarding prosecutors, neither such question was raised nor it emerged prior to this appeal in hand, therefore, the contention of the learned counsel for the appellants in this respect is not tenable and appreciable.
12.The Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 (Act HI of 2006) was promulgated with intent to establish an independent, effective and efficient service for prosecution of the criminal cases in the Punjab. The preamble of the act ibid undoubtedly manifest that prosecution agency in the Punjab was raised independent, free from clutches of the executive.
In this regard, the preamble, Section 5(2) and Section 6(1) of the Act can be referred.
13.The appellants were proceeded under the provisions of the PEEDA Act, 2006 and penalized under the same act. They can be employee within the meaning of 2(h)(i) of the PEEDA Act, 2006: Section 19 of the PEEDA Act, 2006 creates a forum of appeals and give rights to aggrieved persons to invoke the jurisdiction of this Tribunal. An amendment was introduced in Section 19 of the PEEDA Act, 2006 on 29.5.2014 in which the employees mentioned in Section 2(h)(i) were excluded from definition of the civil servant for the purpose of the PEEDA Act, 2006. After 29.5.2014 such kind of Govt. servants/appellants are debarred to invoke the jurisdiction of this Tribunal under Section 19 of the PEEDA Act, 2006. On this account appeals are also not maintainable.
14. The upshot of the above discussion is that the appellants being prosecutor within the meaning of Section 2(1)(1) of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers)
Act, 2006 (Act III of 2006) are not civil servants therefore, this tribunal has no jurisdiction to adjudicate upon the matter. Resultantly the appeals are dismissed being not maintainable. The remedy lies elsewhere. The relevant staff of this Tribunal in view of Rule 21 of the PST (Procedure)
Rules, 1975 is directed to furnish/send a copy of this judgment to the competent authority as well as Chief Secretary, Punjab within 15 days from the date of receipt of this order in the concerned branch.