Anwaarul Haq Pannun, J. Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have assailed the order dated 16.07.2021 passed by the Secretary Public Prosecution/respondent No.1, inquiry report dated 07.10.2021 of the Director General Labour Welfare, Punjab/Inquiry Officer and the directions issued by the Chief Minister, conveyed through letter dated 05.4.2022 issued by the Section Officer (E-II), Government of the Punjab, Public Prosecution Department.
2. Precisely, the factual matrix of instant petition is that the petitioners Malik Mudassar Ali, the Member, Muhammad Sadiq, the Chairman, the Secretary/Member and Syed Muhammad Asif Javed, the Member of the District Appeal Committee, D.G Khan agreed with the opinion formed by the trial Prosecutor that the acquittal judgment dated 08.09.2016, passed in case/FIR No.205 dated 29.08.2015, offence under Section 376 PPC, registered at Police Station City Taunsa Sharif, by the learned Addl. Sessions Judge, Taunsa Sharif, is not fit for appeal. The Secretary to the Government of the Punjab, Public Prosecution Department, on 16.07.2021, ordered to initiate inquiry proceedings against the petitioners. The Director General Labour Welfare Punjab, Lahore/ Inquiry Officer, concluded the inquiry vide his inquiry report dated 07.10.2021 that "all the accused Officers as Chairman and Members of District Appeal Committee failed to perform their duties efficiently as they rendered defective opinion and agreed with the defective opinion tendered by trial prosecutor, wherein the trial prosecutor recommended the case as not fit for appeal, hence it is recommended that the charges leveled against the above said accused officers are proved and as per Section 4(a)(ii) of PEEDA Act, 2006, penalty of withholding of increments for a specific period of 02 years is recommended against all the accused officers". Thereafter Secretary Public Prosecution Department/ respondent No.1 vide order dated 25.11.2021 issued a show-cause notice to the petitioner and appointed Director General Punjab Libraries/respondent No.4 as the Hearing Officer for providing opportunity of hearing to the petitioners and on the basis of finding of the Hearing Officer, the competent Authority/Chief Minister vide his directions, conveyed through letter dated 05.4.2022 issued by the Section Officer (E-II), Government of the Punjab, Public Prosecution Department, remanded the matter to the Director General Labour Welfare/respondent No.3 for reviewing the recommendations and proposing penalties in accordance with the proven charges against the accused officers and resubmit the remanded inquiry report at the earliest, hence this petition.
3. Learned counsel for the petitioners after dishing up the factual details of the matter contends that the opinion, which the petitioners had formed, declaring the case not fit for appeal is based on the guidelines and the Code of Conduct issued by the Prosecutor General and that the impugned disciplinary proceedings, in absence of any malice attributable to the petitioners, have been initiated by respondent No.1, without any reference from the Prosecutor General under Section 10(2) of the Act, hence the impugned proceedings are illegal, totally unwarranted, without jurisdiction and lawful authority, therefore, the same may be set aside/quashed. Learned counsel relied upon the case reported as "Shagufta Sarwar, ADPP and another Vs. Special Judge Anti-Terrorism Court and others" (PLJ 2023 Lahore 121 (DB). On the other hand, learned Assistant Advocate General while submitting report and parawise comments on behalf of the respondents contends that the competent authority has passed the order for initiation of disciplinary proceedings/action against the petitioners so the proceeding under the PEEDA Act, 2006 are quite in accordance with law. Further adds that the petitioners are Civil Servants as their appointments have been made under the Punjab Civil Servant Act, 1974, therefore in view of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, this court has no jurisdiction to entertain instant petition and prayed for dismissal of instant writ petition. Learned counsel for the petitioners, while exercising his right of rebuttal has contended that the question raised in the petition is pure question of law and the same does not touch upon the terms and conditions of their Service, therefore, the bar contained in Clause 2 of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 is not attracted.
4. Arguments heard and record perused.
5. The word "prosecute" is derived from a Latin word and signifies not only "to follow", but "to follow intensively" without intermission; thus to follow or pursue with a view to reach, execute or accomplish. According to the Webster's New International Dictionary (Second Edition) "prosecution" means inter alia, "the process of exhibiting formal charges against an offender before a legal tribunal, and pursuing them to final judgment on behalf of the State or Government as by indictment or information." In the Oxford English Dictionary "Prosecution" means "the following up, continuing, or carrying out of any action, scheme, or purpose, with a view to its accomplishment of attainment. According to Corpus Juris Secundum the term "prosecution" has different meanings when used in different relations and it is regarded as a word of limited or extended signification according to the intention of the law maker or the person using it. In its broadest sense the term would embrace all proceedings in the course of justice or even elsewhere for the protection or enforcement of a right or the punishment of a wrong, whether of a public or private character. In a more limited sense the term includes the act of conducting or waging a proceeding in Court; the following up or carrying on of an action or suit already commenced until the remedy be attained; the institution and carrying on of a suit in a Court of law or equity to obtain some right or to redress and punish some wrong. It includes commencing, conducting and carrying a suit to a conclusion in a Court of Justice. The above elaboration has profoundly been made by a full Bench of the Hon'ble Supreme Court of Pakistan, headed by Anwaarul Haq CJ, as his Lordship then was, in a case reported as "Syed Alamdar Hussain Shah Versus Abdul Baseer Qureshi and 2 others" (PLD 1978 Supreme Court 121).
6. Before dilating upon the issue agitated through this petition, it appears appropriate to have a cursory glance over the relevant Law under which the appointment of Prosecutors, previously, used to be made. "Public Prosecutor" as defined under Section 4(t) Cr.P.C is a person, who has been appointed under Section 492 Cr.P.C. and it includes any person acting under the directions of a Public Prosecutor and any person conducting a Prosecution on behalf of the State in any High Court in the exercise of its original criminal jurisdiction. Part-IX, Supplementary Provisions, Chapter XXXVIII OF THE PUBLIC PROSECUTOR of Cr.P.C is comprised over Sections 492 to 495, in which power of appointment of a Public Prosecutor along with his functions and duties have coherently been outlined. It is the power of the Provincial Government, under Section 492 Cr.P.C, to appoint one or more officers to be called Public Prosecutors, generallyor in any case or for any specified class of cases, in any local area. The Officer Incharge of the Prosecution in the District, in absence of the Public Prosecutor or where no Prosecutor has been appointed, has also been authorized to appoint any other person not being an officer of Police below such rank as prescribed by the Provincial Government in his behalf, to be Public Prosecutor for the purpose of any case. It is clarified that the term "Officer Incharge of Prosecution in the District" was previously introduced through the Code of Criminal Procedure (Amendment) Ordinance (XXXVII) of 2001, which in fact has replaced the earlier reference to "the District Magistrate or, subject to the control of the District Magistrate, the Sub-Divisional Magistrate".
The appointments of Public Prosecutor in general, were made under the Law Department Manual, 1938 and under its Part-II, Criminal Business, Criminal Proceedings by or on behalf of or affecting the State, the Advocate General was the Ex-officio Public Prosecutor for criminal cases in the High Court and Supreme Court. The Secretary Law Department and solicitors used to serve as ex-officio Provincial Public Prosecutors and were responsible for the prosecution of criminal matters in the Courts other than the High Court. The appointments of the Public Prosecutors by the Government made under Section 492 Cr.P.C were a different class than the Local Public Prosecutor appointed by District Magistrate under Rule 3.7 of the Manual. The Public Prosecutors for district were previously appointed under District Law Officers Appointment Rules 1977, these rules have been repealed while replacing the same with new rules named as the District Law Officers Service Rules, 2010, vide Notification No.SOR-III (S&GAD)1-6/97 dated 21 May, 2010. The Prosecutors were categorized as District Attorneys, Deputy District Attorneys and Assistant District Attorneys. In special cases, the Federal and Provincial Government are also empowered to appoint Prosecutors under Section 6(6) of the Pakistan Criminal Law Amendment Act, 1958.
7. In addition to above, under Section 495 Cr.P.C, it is discretionary with any Magistrate, inquiring into or trying any case, to permit any person, other than an officer of Police below the rank to be prescribed by the Provincial Government in this behalf to conduct the prosecution, but no person other than the Advocate General, Standing Counsel, Government Solicitor, Public Prosecutor or other Officer generally or specially empowered by the Provincial Government in this behalf, shall be entitled to do so without such permission, with an authorization to withdraw from prosecution.
It may further be pointed out that Rule 27.1 to 27.39, Chapter XXVII, Volume-III of the Police Rules, 1934, hereinafter to be referred as the Rules, deals with the prosecution and Court duties, in addition to the role of Investigating Officer and prosecution staff. Under Rule 27.4, all the police officers viz. all Superintendents, Assistant and Deputy Superintendents of police with reference to Section 492 of the code, are ex-officio public prosecutors in respect of all cases for trial before the Sessions Courts. Subsection (4) of Section 495, Cr.P.C, however, imposes a restriction that a Police Officers, who had taken any part in the investigation into the offence with respect to which the accused is being prosecuted, shall not be permitted to conduct the prosecution. All prosecuting Inspectors and prosecuting Sub-inspectors of police were appointed as Public Prosecutors under 27.4(2) of the Rules, in the local areas for all cases which may be enquired into or tried by a Magistrate including a Magistrate having powers under section 30 of the Code of Criminal Procedure.
8. After the above discussion, it is felt appropriate that the powers and functions of the Prosecutor under the Code of Criminal Procedure, 1898 be examined. The Public Prosecutor, without any written authority, under Section 493 Cr.P.C, is entitled to appear and plead in any case, under his charge, before any Court, under inquiry, trial or appeal. In-spite of privately engaged advocate by the complainant, the prosecution would be conducted by Public Prosecutor and such Advocate would act under his direction. Reliance can be placed on the case reported as "State through National Bank of Pakistan Vs. Mumtaz Ahmad and others" (1984 SCMR 594), "Rustom Khan and another Vs. The State" (1986 P Cr. L J 440) and "Zarif Khan Vs. the State" (1987 SCMR 1353).
Since under the law, the State is obliged to represent itself in Court for prosecution, therefore, the Public Prosecutor, being its representative is empowered to withdraw under Section 494 Cr.P.C. with the consent of the Court, from the prosecution of any person either generally or in respect of any one or more of the offences for which he is being tried, before the judgment is pronounced. It is, however, made clear that upon such withdrawal from the prosecution, before a charge has been framed, the accused shall be discharged and if the same is made after a charge had been framed or when no charge is required to be framed under the Code, the accused shall be acquitted.
9. Under any democratic dispensation, upon imbibing the ever changing realities, the legislature comprised over the chosen representative of the electorates, while projecting the will of the public, legislate the laws, being its primary function, either by introducing suitable amendments in the existing statutes or altogether a fresh piece of legislation to cater the requisite need or to bring certain reforms for smooth and swift functioning of the government to the benefit of the society, enabling it to march in parallel with the world at large. The above discussion has shown that the appointments of Prosecutors in the past were mainly made on the strength of the Code of Criminal Procedure, 1898, under the Law Department Manual, 1938 or the Police Rules, 1934, which were tailored by the then colonial masters suitable to their needs as colonizers. Therefore in a major shift from executive controlled system, to establish an independent and merit based structured system for appointments of the Prosecutors and for the prosecution of criminal cases, with a well-knit and inbuilt mechanism for meaningful coordination and accountability from bottom to top, the Provincial Legislature had enacted a law in the form of "The Punjab Criminal Prosecution Service (Constitution, functions and Powers) Act III of 2006", hereinafter to be referred as the Act. The Punjab Criminal Prosecution Service, hereinafter to be referred as the "Service" as an independent, effective and efficient service for prosecution of criminal cases, to ensure prosecutorial independence for better coordination in the criminal justice system of the Province along with its incidental matters, has been established. The words/terms "prosecution" and "prosecutor" have distinctively been defined under Sections 2(k) "prosecution" means the prosecution of a criminal case and 2(l) the "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 the Act and shall also be deemed to be the Public Prosecutor under the "Code".
10. A synopsis of organizational structure along with its official hierarchy, including the powers and functions of the Service have exhaustively been elaborated in the Act. The office of the Prosecutor General has been created for the first time. The Prosecutor General is appointed under Section 6(1) of the Act by the Government and he is "the head of the Service". The administrative control of the Service has been vested, in prescribed manner, in the Prosecutor General. It is also the prerogative of the Government, under Section 8 (1) of the Act, to appoint the Additional Prosecutor General and Deputy Prosecutor General to conduct criminal cases in the Supreme Court, High Court, the Federal Shariat Court or any other Special Court. The Prosecutor General [under Section 6(7) of the Act] is authorized to delegate any of his functions to an Additional Prosecutor General or to a Deputy Prosecutor General. The Prosecutor General or if so authorized by him, an Additional Prosecutor General, on the strength of Subsection 2 of Section 9 of the Act, is also authorized to distribute work to the Prosecutors in the Supreme Court, the High Court, the Federal Shariat Court or a Special Court established under any law for the time being in force. It is important to note that [under Subsection 3 of Section 5 of the Act], "a Public Prosecutor", Additional Prosecutor General and Deputy Prosecutor General are required to perform their functions under the directions of the Prosecutor General.
11. The appointment of a District Public Prosecutor is made by the Government in each District under the Act. He is also Officer Incharge of the prosecution in the District. A District Public Prosecutor is authorized [under Section 9(3) of the Act] to distribute work to the Prosecutors with respect to the Courts of Sessions and Courts of Magistrates within the District. A Prosecutor working under the supervision and control of the District Public Prosecutor [under Subsection 4 of Section 13 of the Act], is obliged to keep the concerned District Public Prosecutor informed about the progress of all criminal cases under his charge. Being quite conspicuous, it has been noticed that all the Prosecutors including those who despite being under the immediate control of the Officer Incharge of the Prosecution of the District are still obliged to perform their functions subject to general guidelines by the Prosecutor General, issued under Subsection 1 of Section 10 of the Act. Hence, in nutshell, it can safely be concluded that irrespective of the difference in their designations and postings in the service hierarchy, all the Prosecutors i.e. Additional Prosecutor General, Deputy Prosecutor General, District Public Prosecutor, Deputy District Public Prosecutor, Assistant District Public Prosecutor or a Public Prosecutor are obliged to perform their functions, as aforesaid, under the directions and general guidelines issued by the Prosecutor General. The constitution of service appears to be vertical and epicentral in its organizational character with the chain of command flowing from the office of the Prosecutor General to the lowest rung of the service. Significantly, except the appointment of Prosecutor General, all other appointments in the service are to be made, in prescribed manner [under Subsection 3 of Section 8 of the Act] either by initial recruitment or promotion or transfer. The initial appointment in the service are made [under Subsection 4 of Section 8 of the Act] on the recommendations of the Punjab Public Service Commission after a competitive test and examination to select the best of the best legal brains with their expertise in the field of law to achieve the object behind the Act.
12. The state of Pakistan is represented in Courts or Tribunals constituted under the law through a Prosecutor or an Advocate General, or an Attorney General for Pakistan as the case may be.
However, without prejudice to the powers conferred under any law on the office of Attorney General of Pakistan and the Advocate General of the Province, the Prosecutor General and the Additional Prosecutor General can depute [under Section 11 of the Act] any Prosecutor otherwise qualified for conducting prosecution before the Supreme Court, the High Court or the Federal Shariat Court and in this respect, the Prosecutor General is required to maintain his constant liaison with the office of Attorney General of Pakistan and the Advocate General in relation to criminal matters pending in any such Court.
13. It is the responsibility of Officer Incharge of a police station or the Investigation Officer [under Section 12 of the Act] to immediately report to the District Public Prosecutor by sending a copy of the first information report about the registration of each criminal case. One copy of first information report [Under Rule 24.5 (d) of the Police Rules, 1934] has also to be submitted to the District Public Prosecutor concerned and if the case pertains to Special Court then to the Senior Prosecutor of the Special Court. He is also responsible to submit a police report under Section 173 Cr.P.C within the period prescribed by law. In case investigation is not completed or cannot be completed within the time provided under the law, after recording reasons for the delay, he is bound to inform the Prosecutor. The Officer Incharge of the Police Station or Investigation Officer is also bound to comply with the directions and remedy the defects pointed out by the Prosecutor in the police report under Section 173 Cr.P.C. including the report for cancellation of the first information report or request for discharge of accused or suspect, within the specified time.
However in case of failure of the Police Officer in discharge of his duties as aforesaid, the Prosecutor is enjoined upon [under Clause "d" of Subsection 9 of Section 13 of the Act] to report the details of the investigations, which have been conducted in violation of law or instructions issued by the Prosecutor General or not completed in time provided under the law, without reasonable cause, to the District Public Prosecutor and the District Public Prosecutor is well within his competence to inform the head of the investigation and the Prosecutor General for appropriate action.
A police report under section 173 Cr.P.C including a report of cancelation of first information report or a request for discharge of a suspect or an accused has to be submitted to the Court through the Prosecutor concerned. The Prosecutor is obliged to diligently scrutinize such reports or the request, while utilizing the legal expertise on his command. Upon scrutiny, if he finds the same to be defective, while pointing out such defects, he can return it within three days to the Officer Incharge of the Police Station or Investigating Officer, as the case may be, for removal of such defects. On the other hand, if he finds the report or the recommendations fit for submission, he is obliged to file the same before the Court of competent jurisdiction. On receipt of an interim report under Section 173 Cr.P.C, the Prosecutor is enjoined upon to examine the reasons assigned for delay in the completion of investigation and if he consider the reasons compelling, request the Court for postponement of trial and in case investigation is not completed within reasonable time, he has to make a request to the Court for commencement of trial. However, where the reasons assigned for delay in completion of investigation are not compelling, he shall request the Court for commencement of trial on the basis of evidence available on record. The Prosecutor is also under an important obligation to submit in writing to the Magistrate or the Court, the result of his assessment as to the available evidence and applicability of offences against all or any of the accused as per facts and circumstances of the case and the Magistrate or the Court shall give due considerations to such submissions. In addition to above, if an accused pleads guilty or at the time the Prosecutor sums up the case, as the case may be, the Prosecutor is competent to propose to the Magistrate or the Court the punishment, which in his assessment, the accused should be awarded.
14. A Prosecutor, after obtaining prior approval of: the District Public Prosecutor in case the offences are punishable up to three years and the Prosecutor General, where the offences are punishable up to seven years, as the case may be [under Clause "e" of Subsection 3 of Section 10 of the Act] with the consent of the Court is empowered to withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is being tried.
In addition to above, a Prosecutor is authorized in all other offences and the offences triable by the Special Courts, as aforesaid, to withdraw from the prosecution. Moreover, at any stage of the trial before any trial Court subordinate to High Court [under Clause "f" of Subsection 3 of Section 10 of the Act] before the judgment is passed, the Prosecutor General or any Prosecutor specifically authorized by him, for the reasons recorded in writing is empowered to inform the Court on behalf of the Government that the Prosecutor shall not prosecute the accused of the charge, thereupon all proceedings against the accused shall be stayed and the accused shall be discharged. Such discharge however, shall not amount to acquittal unless the Court directs otherwise. A Prosecutor working under the directions of the Prosecutor General is duty bound to keep the Prosecutor General informed about the progress of all the cases under his charge. A District Prosecutor is also under an obligation to keep the Prosecutor General informed regarding the information supplied to him by the Prosecutors working under his supervision and control, in discharge of their obligations, about the progress of all criminal cases under their respective charge and for this purpose, every Prosecutor has to maintain an independent file in the prescribed manner of each case assigned to him for prosecution.
15. Ordinarily the proceedings against an accused terminate either in the form of acquittal i.e. recorded under Section 249-A Cr.P.C. [power of magistrate to acquit accused at any stage], 245 of Cr.P.C. [acquittal after trial by the magistrate], 265-K Cr.P.C. [power of Court of Sessions to acquit the accused at any stage], 345 Cr.P.C. [acquittal as a result of compounding of offences with or without permission of Court] or by delivering a judgment under Section 366 Cr.P.C. either of acquittal or conviction. Where a Prosecutor is of the opinion that an application for enhancement of sentence or a revision should be filed in any case, he is required to refer the matter, [under Subsection 5 of Section 13 of the Act], to the District Public Prosecutor or the Prosecutor General, as the case may be, who has to take appropriate measures thereon under the law. In addition to above, in case of acquittal by a Court in a District, the concerned District Public Prosecutor; and Special Court, the concerned Prosecutor, respectively are required [under Subsection 6 of Section 13 of the Act] to report the details of the case to the Prosecutor General along with grounds for appeal, thereupon the Prosecutor General, if deems appropriate, has to make a request to the Government for preferring an appeal under Section 417 Cr.P.C or any other enabling provision of any other law.
16. Admittedly, a Prosecutor is responsible for the conduct of prosecution on behalf of the Government [under Subsection 1 of Section 9 of the Act] and is required [under Clause "d" of Subsection 3 of Section 10 of the Act] to perform such functions and exercise such powers as may be entrusted to him under the Code and any other law for the time being in force. A Prosecutor is also under an obligation to perform such other duties as may be assigned to him [under Clause "e" of Subsection 9 of Section 13 of the Act] by the Government or the Prosecutor General. A Prosecutor, in all matters [under Clause "a" of Subsection 9 of Section 13 of the Act] is duty bound to perform his functions and exercise his powers fairly, honestly, with due diligence in public interest and to uphold justice. To re-inforce the above, the Prosecutor General Punjab, [in compliance with Section 17 of the Act] with the prior approval of the Government, had issued the Code of Conduct for the Prosecutors, containing general guidelines for effective prosecution. In addition to above, irrespective that some of the Prosecutors are under the immediate administrative control of the Officer Incharge of the prosecution of the District, they are not only bound to work and perform their functions under the directions of the Prosecutor General, but also are obliged to follow the general guidelines issued by him. Moreover, a Prosecutor, besides performing his functions and discharging his duties, owing to his responsibilities towards the Court, while maintaining a well oriented balance, has to render his assistance to uphold justice.
17. While treading ahead to close the discussion, it is reiterated that the Prosecutor General is head of the service and the administration of the service vests in him. All the Prosecutors are duty bound to keep the Prosecutor General informed directly or through proper channel about the progress made in all criminal cases under their charge. The position of the Prosecutor General, in view of constitution of the Service, is quite pivotal and focal in all manners, therefore, he has been given a free hand to take all steps to regulate the conduct of the Prosecutors by way of issuing directions and general guidelines, as aforesaid, to ensure prosecutorial independence for a better coordination in the criminal justice system of the Province and to achieve other avowed objects behind the promulgation of the Act. He being the custodian of the service possesses all relevant necessary powers to effectuate his control over the service. Even a recommendation, if made by the Prosecutor General, for making an order of posting and transfer of the members of the service is given due weight objectively by the relevant Authority, would bear fruitful results. Needless to say that the Prosecutor General had issued his guidelines in September 2021 under the title of "the guidance on challenging orders and decisions of criminal Courts" and has also constituted certain committees i.e. District Appeal Committee [comprising over Chairman, the District Public Prosecutor and two members i.e. one DDPP and one ADPP], Special Court Appeal Committee [headed by a person nominated by the Prosecutor General Punjab for the whole Province with two members], High Court Appeal Committee [at Benches level shall be headed by Incharge Regional Office with at-least two Deputy Prosecutors Generals shall be the members of the committee], Supreme Court Appeal Committee [headed by the Incharge Prosecution at Principal Seat Islamabad or Incharge of Supreme Court Lahore Registry shall be the Regional Chairman with two DPGs/APGs] and Provincial Appeal Committee[headed by Chairman Nominated by the Prosecutor General Punjab with two members from DPGs/DDPPs], who are required, after examining the record of the relevant case and assessing the worth of the evidence produced at trial, as they were required to give their assessm ent at pre-trial stage, to form their independent opinion, with their recommendations for filing the appeal, as discussed hereinabove, in the light of relevant provisions of the Act. According to the criteria for challenging the decisions by way of appeals, contained in paragraph No.12 of the Code of Conduct issued by the Prosecutor General, the Prosecutor after considering, merits of the judgment [error of facts or law i.e. conclusion drawn by court were unreasonable, acquittal order is perverse, shocking, artificial or ridiculous and suffers from non- reading or misreading of evidence], likelihood of success of appeal or revision [despite availability of merits, there exists no chance to succeed on technical grounds] and public interest [cases having no merits, cannot be challenged merely because of public interest], should only recommend an appeal or revision while observing his Code of Conduct, directions and guidelines issued by the Prosecutor General, as elaborately discussed hereinabove being obliged to discharge his functions and perform his duties at all stages of the criminal prosecution i.e. investigation, pre-trial assessm ent on the basis of evidence available on record at the time of filing of report under Section 173 Cr.P.C, withdrawal from prosecution, propose to the Magistrate or the Court the punishment, upon pleading guilty by an accused or summing up of the prosecution's case, including the stage of appeal, still remains under the constant vigilance for evaluation of their performance and administrative control of the District Public Prosecutor and the Prosecutor General, therefore, to achieve the object of effective, efficient and prosecutorial independence of the criminal cases, while enacting the provision of Subsection 2 of Section 10 of the Act, the legislature has left the discretion with the Prosecutor General or the District Public Prosecutor, as the case may be, to refer the matter to the competent authority against any public servant working in connection with investigation or prosecution for committing any act, prejudicial to the prosecution, under any law for the time being in force for initiation of disciplinary proceedings. This issue previously came under consideration of a learned Division Bench of this Court in a case reported as "Shagufta Sarwar, ADPP and another versus Special Judge Anti-Terrorism Court and others" (PLJ 2023 Lahore 121(DB)) and "Shakeel Ahmed Shaikh and 2 others Vs. Province of Sindh through Chief Secretary Sindh & 3 others" (PLJ 2011 Karachi 140 (DB)).
18. The matter can be viewed from another angle. Subject to certain terms and conditions, the power regarding appointment of the Prosecutor General lies with the Government, which however cannot be varied during his term in office. The extension in his tenure however shall still be subject to the evaluation of his performance by the Government. Although the Government can remove the Prosecutor General on the ground of misconduct or physical infirmity after affording opportunity of being heard before completion of tenure of his service in office, yet a reasonable security of service has been granted to him. The Prosecutor General is also bound to keep the Government informed about the performance of the service. The Prosecutor General has been required to submit an annual report of service to the Government [under Clause "a" of Subsection 1 of Section 13 of the Act] within three months of the conclusion of the calendar year, which the Government shall lay before the Provincial Assembly within two months of its receipt and in this way, the Prosecutor General has been held accountable to the elected representatives of the people, which is the true essence of the democracy. The power of superintendence over the service, in addition to above, lies with the Government. In the light of above synchronized discussion, it can safely be observed that the office of the Prosecutor General, while holding a unique position, is like a bridge between the Government and rest of the members of the service, under the Act. The word "superintendence" connotes oversight, inspection; care and oversight for the purpose of directions; and with authority to direct; the act of superintendent. Reliance is placed upon case reported as "Sharaf Faridi and 3 others Vs. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another" (PLD 1989 Karachi 404).
19. So far as the objection of learned A.A.G regarding maintainability of this petition is concerned, suffice it to observe that although Section 16 of the Act declares that subject to the Provisions of the Act and the Rules, "Members of the Service" and the "Staff" shall be appointed and governed under the Punjab Civil Servants Act, VIII of 1974 and Rules made thereunder, yet it is also quite conspicuous that the legislature through Subsection 2 of Section 18 of the Act has declared the members of the service to be public servants, whereas Section 20 of the Act, gives an overriding effect to certain other provisions including Section 10 of the Act and in this way the mandate contained in Section 10(2) of the Act holds a paramount position in the light of object behind the Act and as such requires its strict compliance failing with any action if taken, would be deemed to be of no consequences and as such a nullity in the eye of law. Needless to observe that Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 has a unique fountain with its solid foundation, treating it to be an alienable right, bestows protection of law. The strict compliance with its command, keeps the things straight especially the machinery of the Government well within its bounds. In-spite of a bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, this Court has ample jurisdiction to pass an appropriate order or issue directions to the public functionaries to act strictly in accordance with law and obey the command of the Constitution and Law. Adherence to the rule of law in general and to the rules of business in particular in conducting its business or running its affairs determine the quality of governance of the Government. This Court under the Constitution has duty to ensure that the Government Institutions abide by the constitutional constraints on their powers, therefore, since the petitioners have admittedly not challenged any action touching upon "terms and conditions" of their service rather have confined their challenge to the powers and actions of respondents on the strength of Subsection 2 of Section 10 of the Act, which, for the above discussed reasons, clearly mandates that either on the reference made by the Prosecutor General or the District Public Prosecutor, the authority is competent to initiate disciplinary proceedings against any member of the service. The indulgence of this Court through this petition has been confined only to the extent of above highlighted question of law around which the entire discussion has been made hereinabove, therefore, the objection is repelled.
20. It is an admitted position that the impugned proceedings had been initiated by respondent No.1, against the petitioners upon an opinion, they had formed, after examining the record of the case that "the case is not fit for appeal" "in absence of any reference" by the Prosecutor General.
The opinion means a view, judgment, or appraisal formed in the mind about a particular matter, a belief stronger than impression and less strong than positive knowledge; a generally held view; a formal expression of judgment or advice by an expert, opinion is synonymous with view, belief, conviction, persuasion, sentiment. Reliance is placed upon case reported as "Altaf Hussain and 4 others Vs. The State"(PLD 2000 Lahore 216). A Prosecutor or the Appeal Committee is obliged to form their opinions, after examining the record in the light of "the guidance on challenging orders and decisions of criminal Courts", fairly, honestly and submit the same before the Prosecutor General for his further consideration. Neither the trial Prosecutor or the members of the Appeal Committee have their final say nor their opinion has a binding effect in filing the appeal. The right to file an appeal vests in the Provincial Government only. Mere forming of an opinion by the Prosecutor unless found based upon mala-fide does not create justification for the initiation of departmental proceedings against a Prosecutor. In the instant case, the record shows that the learned Addl. Sessions Judge, Taunsa Sharif had acquitted the accused Muhammad Ramzan, vide its judgment dated 08.09.20l6, with the observations that "Naseer Ahmad, the complainant (PW-4), Ghulam Siddique (PW-5) and Faheem Khan (PW-6) were turned hostile and despite cross- examination, no incriminating material was brought on record, thus there is no oral evidence against him and only on the basis of medical account being a corroborative piece of evidence, a person cannot be held guilty under the law". In presence of such observations which were based upon the factual aspect of the case i.e. the evidence recorded by the trial Court, the petitioners agreed with the opinion formed by the trial Prosecutor that cogent, confidence inspiring strong independent evidence is required for setting aside the acquittal judgment, which is missing in the case and even otherwise double presumption of innocence becomes attached to an acquitted accused appears to be fair one. The Prosecutors are experts and one of the active players of criminal administration of justice, thus their opinion in absence of any malice, is fully protected under Section 18(1) of the Act ibid.
21. For what has been discussed above, instant writ petition is allowed and the impugned order dated 16.07.2021 passed by the Secretary Public Prosecution/respondent No.1, inquiry report dated 07.10.2021 of the Director General Labour Welfare, Punjab/ Inquiry Officer and the impugned letter dated 05.4.2022, issued by the Section Officer (E-II), Government of the Punjab, Public Prosecution Department, being illegal, having been passed without lawful authority and as such these actions are of no legal effect, thus are hereby set aside/quashed.