This judgment will dispose of the two criminal Revision Applications No. 46 and 48 of 1985, filed by the applicants who are facing trial under section 302, P.P.C. In the Court of Additional Sessions Judge, Karachi.
2. The facts in brief are that the applicants were facing trial in the Court of Sessions, Karachi. They were acquitted by the trial Court. An appeal was filed against the acquittal and the private complainant also submitted a revision petition. The appeal and the revision were dismissed by the High Court. The judgment of acquittal was challenged in the Supreme Court of Pakistan and the Supreme Court allowed the appeal and ordered retrial of the case.
3. Mr. Abdul Wahab Khan, Advocate during the first trial appeared as counsel for the complainant and he submitted an application to argue the case on behalf of the prosecution but this application was rejected by the trial Court. Mr. Abdul Wahab Khan also represented the complainant during the hearing of the Acquittal Appal. It is an admitted fact that after the trial the complainant party moved the Provincial Government for appointment of Mr. Abdul Wahab Khan as Assistant Public Prosecutor but the said application was refused and Mr. Arshad Ali Qureshi was appointed as Assistant Public Prosecutor to conduct this case at the request of the complainant party. On 20-6-1984 Mr. Abdul Wahab Khan, Advocate for the complainant moved an application to conduct the prosecution but the trial Court rejected such application on 5-7-1984. A Revision was filed in the High Court by the mother of the deceased but the same was withdrawn by the applicant (mother of the deceased).
Now the Government of Sind has appointed Mr. Abdul Wahab Khan on 13-1-1985 as Special Public Prosecutor to conduct the prosecution. An application was submitted to the trial Court by the accused---s' counsel that Mr. Abdul Wahab Khan be not allowed to conduct the prosecution on behalf of the State but this application was rejected on the ground that the Court is not empowered to annul or cancel the notification of the Government, hence the present Revision Applications.
4. I have heard the learned counsel for the parties. Reliance has been placed by the learned counsel for the applicants on the cases of Ahmed Mahmood Ismail v. Emperor AIR 1940 Sind 220, Hyder Bux Jafferi v. The Crown PLD 1951 Sind 29 and Malik Asad Khan v. The State 1969 P Cr. L J 1058 in support of their contentions that a counsel for the complainant cannot be appointed as Public Prosecutor to conduct the case on behalf of the State.
This was followed in P L .D 1951 Sind 29 and in this case it has been observed that where a person has been engaged by a private person and also appointed as Public Prosecutor, a situation may arise where would be conflict between the duties which he owes to his private employer and to the Crown and it is clear that the possibility of such a situation should be avoided. It was-further observed that it is one of the main principles of criminal law that justice should not only be done, but seem to be done. It would be contrary to that principle to allow an accused ground to think that the person conducting the prosecution on behalf of the Crown was resolved to secure a conviction by fair means or by foul.
The Supreme Court has approved the ratio decidendi in Malik Asad Khan's case and it was held that there was 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.
The authorities quoted above thus decided a principle of law that the prosecution of accused in a State case must be done by the Public Prosecutor appointed by the State and the counsel for the complainant has no place to prosecute the case against the accused. The conclusion would be that for the safe dispensation of justice a privately engaged counsel should not be appointed a Public Prosecutor to conduct the case on behalf of the State because the function and object of the law is that justice should be done and such procedure should not be adopted which would vindicate the cause of the complainant and seek conviction at all costs. However under section 493 a private party or the complainant may engage a private counsel but such private counsel should act subordinate to the Public Prosecutor.
Under section 492 the Provincial Government may 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.
Under section 493 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.
Therefore, a privately engaged counsel must act as a subordinate of the Public Prosecutor. Learned counsel for the respondent has referred to the following observations of the Supreme Court in the case of State through National Bank of Pakistan 1984 SCMR 594: "However, if it appears that the Public Prosecutor in 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 (Malik Asad Khan's case) was appointed as Special Public Prosecutor to conduct the prosecution in the said case."
On the basis of this observation the trial Court rejected the application moved by the accused that Abdul Wahab Khan may not be permitted to appear on behalf of the State.
From the above authorities it is clear that a counsel engaged by a complainant should not be appointed as the Public Prosecutor. The observations made in the Lahore case and the Supreme Court case would be kept in view in disposing of these applications. Mr. Anwar Advocate was engaged by the sister of the deceased but before the trial started he was appointed as Public Prosecutor by the State. He had not performed any act before his appointment as Public Prosecutor. While annuling the notification the Court appointed him as amicus curiae to conduct the case. In the Sind case Mr. A.K. Brohi was engaged only for moving an application to get the key of the safe as 'certain important documents were necessary. He had not appeared on behalf of the complainant in the case uptil that stage as the trial had not yet started. In spite of this fact the Court did not allow him to appear as Public Prosecutor.
5. In these circumstances I am of the opinion that the case of Abdul Wahab Khan is distinguishable than the case of M. Anwar Advocate and, therefore, the notification issued by the Government of Sind appointing Mr. Abdul Wahab Khan as Public Prosecutor has to be struck down. There is no evidence that the Public Prosecutor appointed by the State to conduct the case has been negligent in his duties which may be considered a ground for taking away the brief from him and appointing the counsel for the complainant as Public Prosecutor. The Supreme Court has observed that if Public Prosecutor is not performing his function properly then State may be moved for appointing complainant's counsel as Public Prosecutor.
I have given above the circumstances under which Mr. Abdul Wahab Khan cannot be appointed as Public Prosecutor. However, he can appear as counsel for the complainant and assist the P.P. As required under section 493. He can perform such acts under the guidance and supervision of the Public Prosecutor appointed by the State to J conduct the case. A counsel appearing on behalf of the complainant cannot sit as a silent spectator but he can perform such functions under the supervision of Public Prosecutor which may be entrusted to him by the State counsel.
"The section is confined in terms persons against whom proceedings are taken. But even the complainants have been held to have the legal right to be represented by counsel, of course, when the Government takes up the prosecution the officer acting on behalf of the Government will take the lead."
The word "act" in section 493 does not mean something other than examination and cross- examination of the witnesses or addressing the Court. The word is not used in a technical sense.
6. The upshot of the above discussion is that counsel for the complainant can perform all the acts as a counsel under the direction of Public Prosecutor and in this way he would not be in a position to withhold such evidence which is favourable to the accused as the Public Prosecutor is over all incharge of the case.
The petition is accepted in the aforesaid terms.