[18-10-1969]-An F. I. R. Was registered at Police Station Isakhel on 3rd of February 1970, under sections 148, 302/149, P. P. C. In which six persons were mentioned as culprits. The police found that out of the six accused, five had not participated in the commission of the offence. Ata Muhammad and Shafa Muhammad were got discharged by a Magistrate and the names of other three i.e. Zafarullah, Raza Muhammad and Muhammad Ramzan were mentioned in column No. 2. Challan was filed only against Khan Muhammad. Faiz Muhammad Khan complainant filed a complaint against the five persons who had been found innocent by the police. The learned Magistrate who conducted the inquiry in this case committed the accused in both the cases to stand their trial.
When the case came up for hearing on 10th of October 1972, Mr. Muhammad Hanif, counsel for the complainant, requested the Court that in view of the procedure laid down by the Supreme Court in Nur Elahi v. The State (PLD 1966 SC 708he should be appointed the Special Public Prosecutor to conduct the complaint case. The learned Sessions Judge passed an order on 11th of October 1972, whereby he discharged the witnesses who were present and referred the matter to the District Magistrate so that the Government could be moved for appointment of the Special Public Prosecutor.
2. On 14th of October 1972, Ata Muhammad one of the accused in the complaint case made an application to the District Magistrate that in view of the fact that Sh. Muhammad Hanif, who was sought to be appointed as Public Prosecutor, was deeply involved with the complainant party, he, should not be appointed a Special Public Prosecutor for the purpose f conducting the proceedings of the complaint case against him and his co-accused. The learned District Magistrate in spite of this objection proceeded to send a recommendation to the Solicitor for appointment of Sh.
Muhammad Hanif as a Special Public Prosecutor. The Government appointed Sh. Muhammad Hanif as Public Prosecutor as recommended by the District Magistrate.
3. Objection was taken to this appointment by Zafarullah one of the accused in this case and I stayed proceedings before the trial Court by my order dated 29th of December 1972. Mr. Wasim Sajjad, the learned counsel for the petitioner submits that the appointment of Sh. Muhammad Hanif was open to grave objection. It is argued that a counsel engaged by a private party is not at par with a Public Prosecutor whose primary duty is to stand for justice between the State and the citizen. The learned counsel submits that a private counsel engaged by a private party cannot bring about that approach of impartiality and detach--ment which is required of a Public Prosecutor. In this connection he has made reference to the case of Hyler Bux Jafferl v. The Crown (PLD 1951 Sind 29). This was a case where an objection was raised to the appointment of a counsel as a Special Public Prosecutor on the ground that he had already appeared for the complainant in the same case. A Division Bench of the Sind Chief Court came to the conclusion that appointment of a counsel privately engaged by the complainant party as a Special Public Prosecutor in the same case was not in the best interest of the administration of criminal justice. Constantine, J.
While dealing with this matter observed as under:------ "It is clear 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.
Secondly, 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."
Tyabji, C. J. Agreeing with Constantine, J. Further elucidated the point and observed that the interests of the Crown were not identical with the interest of the private complainant and that it was essential to the proper conduct of the criminal case that the Public Prosecutor should be entirely free from any private bias against the accused and any personal interest in the case resulting in a conviction. His Lordship visualized a case where a private counsel will be more inclined to suppress evidence or other circumstances which may appear in favour of the accused.
I may add with respect that under section 494, Cr. P. C. a Public Prosecutor is empowered to withdraw a prosecution with the permission of the Court. It is well-nigh impossible to think that a private counsel who has been appointed as a Special Public Prosecutor will ever think about the withdrawal of a case as he was privately engaged to prosecute and secure conviction.
4. The view expressed in the case of Hyder Bux Jafferi, referred to above, was accepted by Shaukat A.I, J. In Malik Asad Khan v. State (1969 P Cr. L J 1048Among others, his Lordship referred to the case of Medichetty Ramakistfah and others v. The State of Andhra Pradesh (AIR 1959 Andh. Pra. 659) where it was observed as under:----- "Unless, therefore, the control of the Public Prosecutor is there the prosecution by a pleader for a private party may degenerate into a legalised means for wreaking private vengeance. The prosecution, instead of being a fair and dispassionate presentation of the facts of the case for the determination of the Court, would be transformed into a battle between two parties in which one was trying to get the better of the other by whatever means available. It is true that in every case there is the over-all control of the Court in regard to the conduct of the case by either party. But it cannot extend to the point of ensur--ing that in all matters one party is fair to the other."
It, therefore, appears to me that on principle the appointment of Sh. Muhammad Hanif as Special Public Prosecutor was against the best traditions of the criminal Courts of this country, especially, when an accused person had objected to his appointment.
5. The learned State counsel submitted that Mr. Muhammad Hanif was appointed a Special Public Prosecutor in view of what their Lordships of the Supreme Court have said in the case of Nur Elahi v.
The State. Dealing with the question of procedure to be adopted by the Sessions Court in a case where along with the challan case there was also a private com--plaint, S. A. Rehman, J.
Suggested that the complaint case should be taken first and that in special circumstances of the case, the Public Prosecutor could permit the complainant's counsel to conduct the proceedings on his behalf under his direction. His Lordships further observed :- "Alternatively and that may meet the situation more adequately, Government in the interest of justice, could notify the complainant's counsel, as a Special Public Prosecutor, for the conduct of that case alone."
It may be pointed out that the above observation just postulates a possibility of the appointment, of a complainant's counsel as a Special Public Prosecutor. There is no indication in the judgment that their Lordships were addressed as to the propriety of such a course. In any case, when an accused person raises objection to the appointment of a private counsel as Special Public Prosecutor, his wishes have to be respected in the larger interest of the administration of justice and in deference to the oft-repeated, but scrupulously followed maxim that justice should not only be done bill appear to be done.
6. I, therefore, allow this petition and direct that an Advocate other than Mr. Muhammad Hanif be appointed as Special Public Prosecutor in this case. The trial has been withheld for a long time. The learned Sessions Judge will now give priority to this case and fix a date for its hearing within six weeks.
[25-10-1973]-Before signing the order in this case I felt that it may be proper to issue notice to Sh.
Muhammad Hanif to state if he wants to appear in this Court to defend the order of the Government appointing him as Special Public Prosecutor in case State v. Zafarullah etc. Notice shall go to him for 12th November 1973.
[20-12-1973 -Notices were sent to Mr. Muhammad Hanif under regis--tered cover on 13th of November and 17th of December 1973. He has not turned up. My order dated 18th of October 1973, that the appointment of Mr. Muhammad Hanif was illegal, therefore, will hold the field.