Syed Mansoor Ali Shah, J.-- Respondents are advocates, who were, appointed as defence counsel by the Court in criminal cases. After having successfully conducted and concluded the cases they approached the provincial government for recovery of their professional dues, which on one pretext or the other, have not yet been paid to them. Aggrieved of this inaction on the part of the government, they approached the High Court by invoking its constitutional jurisdiction. The writ petitions filed, by them were allowed, directing the petitioners to pay the professional fee to the respondents as per prescribed procedure. The Government preferred Intra Court Appeals, which were also dismissed vide impugned judgment dated 27.2.2019, hence these petitions.
2. We have heard the learned counsel for the parties at some length and have gone through the record of the case. The payment of professional fee to a defence counsel appearing in pauper accused cases in the Sessions and Magisterial Courts was[1] regulated under Notification dated 3.8.2016 ("Notification"), issued by the Public Prosecution Department Government of the Punjab. As per the Notification, a defence counsel, in pauper accused case, appearing in the High Court is paid Rs. 25000/- per case. As per para 6 of the said Notification, the fee to be paid to a defence counsel appointed by the High. Court for an unrepresented accused, is exclusively governed under Rule 5, Part-E, chapter-4 of Volume-V of the Rules and Orders of the Lahore High Court. Para 6 of the Notification and Rule 5 of the Rules and Orders of the High Court are as reproduced hereunder for ready reference:- Para 6 of the Notification: "6. In case the defence counsel is appointed for unrepresented accused by the High Court under para-2 of Rule-2 of Part-I(E), Chapter 4 Volume V of the High Court Rules and Orders, the fee shall be, paid according to the scale prescribed in Rule-5 of the chapter ibid. Such cases shall be processed and approved by the office of Prosecutor General Punjab. Defence Counsel fee will also be disbursed by the office of Prosecutor General Punjab."
Rule 5 of the Rules and Orders of the Lahore High Court: "5. The legal practitioner so employed shall receive a fee of not less than Rs. 2000/- or if the hearing lasts more than a day, a fee not exceeding Rs. 200/-, per day. This payment shall be made through the Provincial Law Secretary on the production of a certificate signed by the Deputy Registrar (Judicial), in which the total amount of fees allowed to the leggy practitioner by the Judges hearing the case shall be stated." (emphasis supplied)
Examination of the Notification and the Rules and 'Orders of the Lahore High Court show that the professional fee of a defence counsel (both in pauper accused cases or unrepresented accused cases), if appointed by the High Court, is to be regulated by the High Court itself and the Judge of the High Court hearing the case can fix the amount of professional fee, which cannot be less than Rs. 2000/-. It is important to underline that the Rules and Orders of the High Court, :referred to above, do not distinguish between a defence counsel in pauper accused cases or un-represented accused cases and the above cited Rule 5 provides that the Judge of the High Court can appoint a defence counsel and also fix their professional fee, to be paid by the provincial government. While the Notification deals with the defence counsel appointed by the government in pauper accused cases and deputed by the prosecution department in the Courts.
3. With the promulgation of the Punjab Legal Aid Act. 2018[2] ("Act"), the appointment of defence counsel by the government is now regulated under the statutory regime of the Act as opposed to the Notification issued under the executive authority of the government. The legal picture that emerges is that if the defence counsel is appointed in a pauper or unrepresented accused case by the High Court, the professional fee of the defence counsel shall be regulated under the High Court Rules and Orders, referred to above and in case a defence counsel is appointed under the Act and deputed at the High Court or Sessions or Magisterial Court, in pauper accused cases (now referred to as "indigent person"[3] under the Act), it will be covered under the Act. It is important to underline that Rules and Orders of the High Court framed under Article 202 of the Constitution are subject to the Constitution and the law. Therefore, with the new Act in the field and considering that the professional fee is to be paid by the government, we are sanguine that the Lahore High Court while fixing the professional fee of a defence counsel appointed by the Court, shall maintain parity with the rates of professional fee fixed under the Act and if thought appropriate, the High Court may also consider revisiting Chapter 4, Part E of Volume V of its Rules and Orders to carry out necessary amendments in order to achieve better compatibility between the Act and the Rules and Orders of the Lahore High Court.
4. In the present set of cases, the respondents were admittedly appointed as defence counsel by the High Court (it is not clear if they were appointed in pauper or un-represented accused cases) and had duly completed and concluded the cases entrusted to them. Learned Additional Prosecutor General frankly pointed out that in the past, in almost 115 cases referred to them, where defence counsel were appointed by the High Court, a fee of Rs. 25,000/- per case has been paid to the said defence counsel as per the rate given in the Notification. In order to maintain parity and to ensure that there is no discrimination, we direct the Prosecution Department to pay the respondents (who appeared in the High Court), professional fee in the sum of Rs. 25,0001- per case.
The Prosecution Department is directed to ensure that all the codal formalities are completed and the respondents are paid their fee latest within a period of two months from today. Considering that it is an old matter and complete documentation as per the Notification and the Rules and Orders of the Lahore High Court may not be available, we observe that in these particular cases, the only facts that need to be verified for the purpose of making the payment of professional fee are (i) that the counsel appeared in the case and (ii) that he or she duly concluded the case. This can easily be ascertained from the final judgment passed in the case. The Registrar of the Lahore High Court and the Prosecution Department, as well as, the Accountant General office are directed to ensure that keeping in view the above- parameters, just in these long over-due cases, the payment to the respondents appearing in the High Court at the rate of Rs. 25,000/- per case is made within the period specified above.
5. As regards the cases where some of the respondents appeared as defence counsel before the Sessions Court, they are governed by the Notification and are entitled to a sum of Rs. 20.000/- per case. The Prosecution Department, as well as, the Commissioner's office will process their cases and ensure payment is made to them within two months from today. Once again, in these specific cases, as the matter is long over-due, the main document to be relied upon for release of payment shall be the judgment of the Sessions Court, showing that the respondent counsel duly represented the accused and the case was finally concluded.
6. In case the payment is not made within the specified period of two months, the respondents may approach this Court for necessary orders and appropriate action against the departmental personnel.
7. With these observations, these petitions are disposed of.
1. As it is now governed by The Punjab Legal Aid Act, 2018.
2. 24th May, 2018.
3. "indigent person" means a person involved in the commission of an offence or a female involved in a family dispute and does not have the financial capacity to engage an Advocate on his or her own. (as per Section 2(c) of the Punjab Legal Aid Act, 2018).