2024 P L C (C.S.) 516
[Balochistan High Court]
Before Muhammad Hashim Khan Kakar and Muhammad Aamir Nawaz Rana, JJ
NAJEEBULLAH and others
Versus
GOVERNMENT OF BALOCHISTAN through Chief Secretary and others
Constitution Petitions Nos.1488 and 1556 of 2022, decided on 1st March, 2023.
Balochistan Prosecution Service (Constitution, Functions and Powers) Act (VI of 2003) -
-- ----S.5 ---Constitution of Pakistan, Art. 175(3) ---Administration, control and supervision of
the Balochistan Prosecution Service--- Members of service under the Balochistan Prosecution
Service (Constitution, Functions and Powers) Act, 2003--- Transfer and posting--- Prosecutor
General or the Secretary, Prosecution Department, Government of Balochistan ('GoB') ---
Petitioners (who were performing their duties in the Prosecution Department, GoB) were
aggrieved from a letter addressed to the District Public Prosecutors of Quetta etc. wherein it was mentioned that the Prosecutor General had no authority to issue transfer/posting orders of officers of BPS -17 and above, which authority, according to the impugned letter, vested
exclusively with the Secretary, Prosecution Department, GoB ---Question was as to whether
the powers for transfer and posting of the members of service under the Balochistan Prosecution Service (Constitution, Function and Powers) Act, 2003, vested in the Prosecutor General or the Provincial Government? ---Held, that "Prosecutor General" has been defined in
S.2(l) of the Balochistan Prosecution Service (Constitution, Functions and Powers) Act, 2003, which holds the Prosecutor General responsible for management of prosecution and control over the Prosecutors and in the same manner, according to S. 5(2) of the Balochistan Prosecution Service (Constitution, Functions and Powers) Act, 2003, the administration of the service has been vested in the Prosecutor General ---Intent of the legislature is to create
independent and uninfluenced Prosecution Department so that the trust of general public be restored ---Independent and fair prosecution is indispensible for any civilized criminal justice
system ---Constitution of Pakistan is based upon trichotomy of powers ---Article 175 (3) of
the Constitution envisages separation of judiciary from the executive ---On the same analogy
separation of prosecution from the executive is also necessary for transparent and fair prosecution of cases ---For the administration, control and supervision under Balochistan
Prosecution Service (Constitution, Functions and Powers) Act, 2003, the intent of legislature while enacting the Balochistan Prosecution Service (Constitution, Functions and Powers) Act, 2003 was to formulate independent, impartial and fair prosecution services free from external influences and ulterior considerations of any kind---For this very purpose, the Prosecutor General was authorized with management and administration of Prosecutors independently and the Secretary, Prosecution Department GoB had no role in said regard---High Court set -aside the impugned letter dated 08.09.2022--- Constitutional petition was
allowed, in circumstances.
Province of Sindh through Chief Secretary, Sindh, Sindh Secretariat v. Prosecutor -
General Sindh, Criminal Prosecution Department 2012 of PLC (C.S.) 263 and Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445 ref.
Muammar Qazafi Khan for Petitioners (in C.P. No.1488 of 2022).
Muhammad Ali Rakhshani, Additional Advocate General for Respondents Nos.1 and
2 (in C.P. No.1488 of 2022).
Munir Ahmed Khan Kakar, Sanaullah Ababki and Abdul Ghani for Respondent No.3
(in C.P. No.1488 of 2022).
Naeem -ul-Haq Kulachi for Petitioner (in C.P. No.1556 of 2022).
Muhammad Ali Rakhshani, Additional Advocate General for Respondents Nos.1 and
2 (in C.P. No.1556 of 2022).
Munir Ahmed Khan Kakar, Sanaullah Ababki and Abdul Ghani for Respondent No.3
(in C.P. No.1556 of 2022).
Date of hearing: 3rd November, 2022.
JUDGMENT
MUHAMMAD AAMIR NAWAZ RANA, J. ----Through this judgment, we intend to
dispose of the above captioned constitution petitions as the legal propositions involved are
identical in nature which have culminated in a legal question as to whether the powers for transfer and posting of the members of service under the Balochistan Prosecution Service (Constitution, Function and Powers) Act, 2003 (hereinafter "the Act of 2003") vests in the office of Prosecutor General or the Secretary, Prosecution Department, Government of Balochistan ('GoB')?
2. Tersely, the relevant facts of both the petitions are that the petitioners are performing
their duties in the Prosecution Department, GoB and are aggrieved from letter dated
08.09.2022, addressed to the District Public Prosecutors of Quetta, Lasbela at Hub, Loralai,
Mastung and Musakhail, wherein while interpreting section 5 of the ibid Act it has been mentioned that the Prosecutor General has no authority to issue transfer/posting orders of officers of BPS -17 and above, which authority, according to the impugned letter, vests
exclusively with the Secretary, Prosecution Department, GoB. To further clarify the
controversy between the parties, the impugned letter dated 08.09.2022 is reproduced"
"To,
The District Public Prosecutors, Quetta, Lasbela at Hub, Loralai, Mastung and
Musakhail.
Subject: ILLEGAL ORDERS OF PROSECUTOR GENERAL.
The undersigned is directed to refer to the office order of Prosecutor General bearing Mem No.682/PG dated September 1, 2022, wherein attachment orders (made in the name of distribution of work from one end of province to the other) of DDPP Hub to Mastung, DDPP Loralai to Quetta, ADPP Musakhail to Quetta and state Counsel from Mastung to Hub, have been issued, in violation of delegation of powers of Government of Balochistan issued vide No. S. O(R -1)-3(9)/212- S&GAD/2016 -221 5,
dated July 17, 2012 and partially modified vide No.S.O. (R -1)3(9)/S&GAD -
2018/1362- 1461, dated March 21, 2019 (Copy enclosed for ready reference).
2. Hence the above attachments are without legal authority and be considered as cancelled ab initio. Violation of Rules is a serious issue and is being taken up at appropriate level of the Government. The officers mentioned in the above order are directed to stay at their respective stations till further orders as per law and Rules. All the concerned District Public Prosecutors are also hereby directed, not to relieve the officers named in the above referred order and not accept joining reports, on orders made beyond the scope of above mentioned, Delegations of powers, of Government of Balochistan.
3. Section 5, of Constitution, Function and powers of Prosecution Act, 2003, does not empower the Prosecutor General to order transfer/posting or attachments from one post to the other or from one district to the other. Under the Government of Balochistan, delegations of powers, 2012, the authorities are well defined, wherein the Prosecutor General is empowered to undertake transfer postings of officials upto BPS-1-16 only. From BPS -17 and above the authority for transfer/postings are
delegated to Secretary, Chief Secretary and Chief Minister, which must be abided by all the authorities of Government of Balochistan ".
3. Learned counsel for the petitioners as well as learned counsel for Prosecutor General
(respondent No.3) mainly contended that the legislation had passed the Act of 2003 in order
to ensure independent, impartial and effective prosecution service free from illegal influences of the executives. It was argued that the provisions of the Act of 2003 have to be read in toto and the cumulative effect of the same is. The legislature has empowered the Prosecutor General Balochistan to control and supervise the working of members of service
so that competent and effective prosecution of the cases be ensured. Learned counsel
submitted that previously the prosecution was part of the executive which had raised number
of questions regarding the impartiality of the Prosecution Department, as the role of the prosecution is to assist the Courts fairly and in transparent manner to achieve the ends of justice and they are not supposed to be the party in the proceedings at the instance of the executive.
While on the other hand, learned Additional Advocate General ('AAG') appearing on
behalf of respondents Nos.1 and 2 vehemently opposed this petition and submitted that under section 5 (5) of the Act of 2003, the Government shall exercise control over the service. Learned AAG submitted that the Competent Authority, for the purpose of appointment under the Act of 2003, is the Government of Balochistan and not the Prosecutor General. According to learned AAG, under the Balochistan Government Rules of Business, 2012
(hereinafter "the Rules of 2012"), the officers holding posts in BPS -17 and above can be
transferred and posted only by the Authority notified thereunder. While concluding his
arguments, learned AAG submitted that the conjunctive interpretation of the Act of 2003, the
Rules of 2012 and the Balochistan Civil Servants (Appointment, Promotion and Transfer
Rules, 2009 (hereinafter "the Rules of 2009") clearly demonstrate that the Secretary, Prosecution Department is the Competent Authority vis -à-vis transfer and posting of officers
of BPS -17 and above.
4. We have heard learned counsel for the petitioners, learned counsel appearing on
behalf of the Prosecutor General as well as we have patiently heard the contentions of learned AAG and have considered their interpretations vis -à-vis the Act of 2003 and the
Rules of 2012. The issue raised in these petitions purely pertains to the interpretation of the ibid Act and the relevant Rules, so the scope is restricted to the extent; as to whether the powers for transfer and posting of the members of service under the Act of 2003 vests in the Prosecutor General or the Provincial Government? With this backdrop, it is important to consider the relevant provisions of the Act of 2003, its preamble reads as under:
"Preamble. ---An Act to recognize and establish the Prosecution Service in the
Province of Balochistan.
WHEREAS the goal of achievement of speedy Justice requires the organization, control, powers and duties of a separate Prosecution Service for the Prosecution of offences and matters incidental thereto in the Province of Balochistan in the manner hereinafter appearing".
5. The Prosecutor General has also been defined in section 2 (l) of the Act of 2003. For
the facility of ready reference, same is reproduced:
"(l) "Prosecutor General" means the Chief Prosecutor of the Province responsible for the management of prosecution and control over prosecutors, appointed under subsection (1) of section 4 of the Act ";
(Emphasis supplied)
6. Since the petitioners and respondents are giving their own interpretation of control
over the service and the administration of the Prosecution Department, therefore section 5 of the Act of 2003 has immense importance, which reads as follow:
"5. Control over and Administration of the service. ---(1) The Government shall
exercise control over the service.
(2) The Administration of the service shall be vested in the Prosecutor General.
(3) The Prosecutor General shall distribute work among the public prosecutors on the basis of territorial and functional jurisdiction of criminal Courts.
(4) All Public Prosecutors within a district shall be under the control and supervision
of the District Public Prosecutor of that district.
(5) Public Prosecutors empowered to appear in Courts having territorial jurisdiction in
part or whole of a district shall be under the control and supervision of the District Public Prosecutor of that district unless the Government so directs otherwise in a specific case".
(Emphasis supplied)
7. The prosecution being integral part of criminal justice system is required to be
independent in order to meet the dictates of justice, as arrest, detention and prosecution are directly linked with liberties of the people, which are considered as fundamental rights under the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter "the Constitution"), therefore the independence of prosecution services has paramount importance in any civilized country. It is observed that independence provides courage to proceed in accordance with law, equity and good conscience. Without pressure from the executive/Government, an independent prosecution properly evaluates the evidences and then decides on whether to forward the challan to the Court or not. It has been observed with dismay that a common practice in voyage is; the challans are forwarded in a mechanical manner without proper deliberation, consequently huge number of people languish in prisons for years despite insufficient evidence against them and ultimately when they are acquitted, already they had undergone immense physiological traumas and financial losses.
This aspect of the matter was considered by the European Convention on Human
Rights and particularly in Articles 5 and 6 of said Convention it was resolved that the
prosecution has to adhere to fair trial and must act as bulwark against human rights abuses. A
Prosecutor not only owes duty to the Nation as a whole but also to each individual person.
He owes a duty of fairness not only to the victims of crimes but to the suspects as well. The standards set by International Association of Prosecutors ('IAP') requires Prosecutors to prosecute cases "firmly but fairly ----- and not beyond what is indicated by the evidence".
8. The Act of 2003 holds the Prosecutor General responsible for management of
prosecution and control over the Prosecutors and in the same manner, according to section 5(2); the Administration of the service has been vested in the Prosecutor General. The intent of the legislature is to create independent and uninfluenced Prosecution Department so that the trust of general public be restored. The independent and fair prosecution is indispensible
for any civilized criminal justice system. The Constitution of our country is based upon
trichotomy of powers. Article 175 (3) of the Constitution envisages separation of judiciary
from the executive. On the same analogy separation of prosecution from the executive is also necessary for transparent and fair prosecution of cases. This aspect of the matter was considered by the Hon'ble Supreme Court of Pakistan in the case of Province of Sindh through Chief Secretary, Sindh, Sindh Secretariat v. Prosecutor -General Sindh, Criminal
Prosecution Department
1, the relevant excerpt of the same is reproduced:
"19. Section 18 of the said Act is a non obstante clause and excludes application of the other laws. In the face of the section 18, the contention of the learned Advocate -
General that the provisions of Sindh Civil Servants Act, 1973, rules framed there -
under and Sindh Government Rules of Business, 1986, would apply to the members of the service, has no force. The contention of the learned Advocate -General that
section 14 of the said Act makes the provisions of Sindh Civil Servants Act, 1973 and rules frame d thereunder, applicable to the Act is also misconceived. The plain reading
of section 14 makes it clear that the provisions of Act of 1973 and rules framed thereunder would apply to the member of the service, but this application is limited and has been made subject to the provisions of said Act. In other words, in the first place, section 18 excludes the application of any other law for the time being in force, to the members of the service and the section 14 makes application of Act of 1973 and rules fra med thereunder subject to the provisions of the Act. 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. Likewise, the effect of section 14 of the said Act would exclude the application of section 18, which excludes the application
of any other law read with section 14, which makes it clear that if there is no other
provision under the said Act, to resolve the difficulty, the provision of Civil Servants Act and its rules can be made applicable and the Special Secretary, Law, notified therein as head of the attached department cannot be conferred the power of transfer and posting of the members of the service in the face of the aforesaid provisions.
Section 18 of the said Act is a non- obstante clause which excludes the application of
all the other laws including the Act of 1973, rules framed there -under the Sindh
Government Rules of Business 1986. The said Act, as observed earlier, has provided
an inbuilt scheme whereby powers of transfer and posting have been conferred upon the Prosecutor -General by using the expressions 'administration' under section 5(2)
and 'control' under section 5(3) and Head of the Service under section 6 (1) of the said Act".
9. The words administration, control and supervision were interpreted by the Hon'ble
Supreme Court of Pakistan in the case of Mehram Ali v. Federation of Pakistan
2 wherein
while interpreting the expression "supervision and control over the subordinate judiciary"
used in Article 203 of the Constitution, it was held as under:
"I am inclined to hold that the supervision and control over the subordinate judiciary
vested in the High Court under Article 203 of the Constitution keeping in view Article
175, is exclusive in nature, comprehensive in extent and effective in operation. It comprehends the administrative power as to the working of the subordinate Courts
and disciplinary jurisdiction over the subordinate judicial officers. In this view of the
matter, any provision in an Act or any rule or a notification empowering any
executive functionary to, have administrative supervision and control over the subordinate judiciary will be violative of above Article 203 of the Constitution. Besides, it will militate against the concept of separation and independence of
judiciary as envisaged by Article 175 of the Constitution and the Objectives
Resolution. "
In the wake of above deliberations, the intent of legislature while enacting the Act of
2003 was to formulate independent, impartial and fair prosecution services free, from
external influences and ulterior considerations of any kind, for this very purpose, the Prosecutor General is authorized with management and administration of Prosecutors independently and the Secretary, Prosecution Department GoB has no role in this regard.
For the foregoing reasons, the petitions are allowed and the impugned letter dated
08.09.2022 is set aside.
MQ/70/Bal. Petitions allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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