PROSECUTION RELATED CASE LAWS

It was prerogative of  the Learned Prosecutor to request for the physical remand of the accused.
S. 167--- Physical remand/police custody on application of complainant/private person after judicial remand---Permissibility---Magistrate had sent the accused to the judicial lockup, as he was no more required for physical remand by the police---District Public prosecutor , nor any other representative of the State, had raised any objection, while the accused was being sent to the judicial lockup---State had also not assailed the order of judicial remand, and the complainant alone had impugned the same in his private capacity---Section 167, Cr.P.C. was clear on the point that any person in his private capacity could not have applied for the police custody of the accused---Impugned order of physical remand was set aside accordingly. 2016  PCrLJ  1566     LAHORE-HIGH-COURT-LAHORE

 Public prosecutor and private advocate---Principle---Public prosecutor is the sole authority to assist Court in furtherance of justice and prosecute case against accused in criminal cases---Any counsel/advocate privately engaged by party may only assist Public prosecutor who remains subordinate to him---Scheme of Criminal Procedure Code, 1898, lays no bar on private complainant to engage counsel of his own choice---Where a private person gets vested right in the matter and any decision of Court may affect his case considerably, such intervener/person may not be kept deprived of right of audience---Every complainant in private complaint has vested right to represent his case effectively before Court and is at liberty to engage counsel of his choice but on his own cost. ---Public prosecutor and private advocate---Job description---Scope---Difference between job description of public prosecutor and private counsel is that public prosecutor does not act as counsel for any particular party and his conduct is not to aggravate case against accused. rather to act in aid of Court in discovery of truth---Privately engaged counsel promotes case of his client and paramount consideration before him is to watch interest of his client.2016  PLD  175     PESHAWAR-HIGH-COURT

Ss. 265-F (3), 493 & 540---Constitution of Pakistan, Art. 10A---Additional witnesses---Complainant's counsel---Status---Due process of law---During trial, application was filed on behalf of complainant to summon two persons as prosecution witnesses, who were not included in calendar of witnesses---Application filed by complainant was dismissed by Trial Court---Validity---Witnesses who were not named in Challan could not be introduced by complainant unless their evidence would appear to Trial Court essential for the just decision of the case---Counsel for complainant could only assist prosecution and while producing their own witnesses independently, complainant stepped out of the position of assisting the prosecution---Order passed by Trial Court covered provisions of S. 265-F(3), Cr.P.C.---Without a gist of evidence of prosecution witnesses recorded by Investigating Officer under S. 161, Cr.P.C. provided to opposite side, examination of such witnesses by court at the instance of complainant would be violation of Art. 10A of the Constitution---High Court declined to interfere in the order passed by Trial Court---Revision was dismissed in circumstances. 2016  PCrLJ  197     KARACHI-HIGH-COURT-SINDH

District Prosecutor, could not be challenged either under Ss.22-A & 22-B, Cr.P.C
S. 9(7)---Constitution of Pakistan, Art.199---Criminal Procedure Code (V of 1898), Ss.22-A & 22-B---Constitutional jurisdiction--- Scope---Powers of District Prosecutor---Deletion or insertion of any offence- District Prosecutor had the powers to scrutinize the available evidence and applicability of offences against all or any of accused as per facts and circumstances of the case-Deletion or insertion of any offence, fell within the exclusive domain of the Investigating Police Agency and District Prosecutor- Question whether the Police or District Prosecutor had rightly deleted or inserted the sections of law, was to be seen by the Trial Court at the time of framing of the charge---Such act by the Investigating Agency or the District Prosecutor, could not be challenged either under Ss.22-A & 22-B, Cr.P.C. or under constitutional jurisdiction of High Court, as that would amount to interference in the investigation. 2015 PLD 84 LAHORE-HIGH-COURT-LAHORE (MUHAMMAD SHARIF CASE)

No ground being available to interfere into the observation made by the Public Prosecutor
S. 9---Penal Code (XLV of 1860), Ss. 324/34---Constitution of Pakistan, Art.199---Attempt to commit qatl- e-amd and common intention---Constitutional petition---Powers and functions of Public Prosecutor---Initial F.I.R. in the case was registered under S.324, P.P.C., but Investigating Officer during investigation opined that offence under Ss.337-F(v), 337-A(i), 337-L(2) & 337-H(2) was made out and deleted the offence under S.324, P.P.C.---When challan of the case was submitted before Public Prosecutor for scrutiny purposes, he observed that prima facie from the facts and circumstances of the case, offence under S.324, P.P.C. was made out, and remarked that no ground was available with the Investigating Officer for deletion of offence under S.324, P.P.C.---Petitioner/accused had challenged the legality and propriety of said remarks of Public Prosecutor---Powers and functions of the Prosecutor had been provided under S.9 of the Punjab Criminal Service (Constitution, Functions and Powers) Act, 2006; and under provisions of S.9(5)(a) of said Act, the prosecutor was authorized to scrutinize the report and to return the same within three days to the Officer Incharge of Police Station or Investigating Officer, if he would find the same to be defective, for removal of such defects as would be identified by him---Challan of the case had already been submitted in the Trial Court and charge had already been framed--Remarks of Public Prosecutor at that stage, itself were not a direction, but an observation and in the light of the earlier registration of the case under S.324, P.P.C., had no material bearing on the case; nor it would constitute any direction for addition of offence under S.324, P.P.C. as agitated by the counsel for the petitioner---Trial Court had charged accused under S.324, P.P.C. and accused had pleaded not guilty; and case was at the stage of recording of evidence---Objection raised by the counsel for accused at such stage had no force---No ground being available to interfere into the observation made by the Public Prosecutor, constitutional petition filed by accused, was dismissed, in circumstances. 2013 PCrLJ 1411 LAHORE-HIGH-COURT-LAHORE : AZIZULLAH KHAN CASE
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Word "scrutinize
S 9(5)---Word "scrutinize "---Connotation---Scrutinize means to examine a matter from all pros and cons and attend all its aspects with due care and caution in asmuch as to make deep search or inspect the matter in close, care and thorough manner. 2012 PCrLJ 1823 LAHORE-HIGH-COURT-LAHORE NADEEM alias DEEMA
 
Declined to interfere in direction issued by District Public Prosecutor to investigating officer for inserting offences in final investigating report
S. 9(5) & (7)-Criminal Procedure Code (V of 1898), 5.173---Constitution of Pakistan, Art. 199---Constitutional petition---Prosecutor, duties of---Scope---Accused was aggrieved of direction issued by District Public Prosecutor whereby he directed investigating officer to include certain offences in final investigation report, before the same could be filed in court---Validity---Mandatory exercise under S.9(5) of Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006, delegated upon prosecutors to find out lacunae into report under S.173, Cr.P.C. or in investigation so that the same could be cured before submission the same to court of law for its trial---If prosecutor was prohibited to make such exercise then his job would only confine to the extent of receiving and forwarding the report which exercise would end to nothing but futility---Office of District Public Prosecutor was not only a post-office but it was a bridge between police and court to promote procedure of prosecution for better achievement of justice After making scrutiny of report under 5.173, Cr.P.C., prosecutor was to take two steps as were described in S. 9(5)(a) and (b) of .Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006---Prosecutor either had to return the report to incharge of Police Station or investigating officer, after pointing out defects/lapses with instructions to remove the same or he had to forward the same to court of law, if he found the same fit for submission before the Trial Court---Prosecutor was competent under S,9(7) of Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006, to examine nature of offence committed by accused and if he found that wrong provisions/sections were mentioned in investigation report, then he was fully competent and had lawful power to convert the report according to the offences which according to his opinion prima facie had been committed; thereafter it was the court which had to see before framing of charge that which offence was actually applicable, in the case after perusing available record before him---Object of such exercise was that matter of applicability of offences would be decided by law knowing agencies and not by police which could not provide legal opinion directly to the court---High Court declined to interfere in direction issued by District Public Prosecutor to investigating officer for inserting offences in final investigating report---Petition was dismissed in circumstances2012 PCrLJ 1823 LAHORE-HIGH-COURT-LAHORE NADEEM alias DEEMA
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Termination of petitioners' service on payment of one month's pay---
Petitioners' plea that new Prosecutors had been posted without advertising same---Validity
S. 9---Anti-Terrorism Act (XXVII of 1997), S.18---Constitution of Pakistan, Art.199---Constitutional petition---Post of Public Prosecutor in Anti-Terrorism Court---Appointment of petitioners on such post on contract basis till arrival of selectees by Public Service Commission-- Termination of petitioners' service on payment of one month's pay---Petitioners' plea that new Prosecutors had been posted without advertising same---Validity---Process of appointment of new Prosecutors on permanent basis through Public Service Commission under Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 had been completed in pursuance of directions of Supreme Court---Petitioners were not entitled to continue as Prosecutors after appointment of new Prosecutors---Appointment of petitioner was on contract basis subject to termination on one month's notice or pay in lieu thereof---Termination of petitioner simplicitor was in accordance with Contract Appointment Policy---High Court
dismissed constitutional petition in circumstances. 2011 PLC(CS) 1349 LAHORE-HIGH-COURT- LAHORE : NAJAF ALI MAHEY CASE
 
Function of Public Prosecutor was only to pin point the defects in investigation as well as in the report and to direct the Investigating Agency to remove the same---Trial Court
Ss. 365/382/342/148/149---Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006), Ss.9 & 10--- Validity---Sections 9 and 10 of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006, did not authorize the Public Prosecutor to direct for submission of report/challan under S.173, Cr.P.C. against the accused for their trial or to recommend Departmental inquiry or registration of criminal case against the Food Inspector--Public Prosecutor had no authority to assume and abdicate the function, authority and jurisdiction of Trial Court and he had travelled beyond his jurisdiction and committed a grave illegality by issuing the aforesaid directions to S.H.O.---Function of Public Prosecutor was only to pin point the defects in investigation as well as in the report and to direct the Investigating Agency to remove the same---Trial Court, however, while passing orders even on the cancellation report could issue necessary direction to the Investigating Officer after examining and perusing the available material to submit challan against the accused---Public Prosecutor had no jurisdiction to direct the S.H.O. for doing the same---Impugned direction was set aside and the constitutional petition was ,accepted accordingly. 2009 PCrLJ 1043 LAHORE-HIGH-COURT-LAHORE TANVEER HUSSAIN QURESHI CASE

District Prosecutor, could not be challenged either under Ss.22-A & 22-B, Cr.P.C
Ss. 22-A & 22-B---Penal Code (XLV of 1860), Ss.324/354/337-A(i)/337-F(i)/337-L(ii)/34---Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (XXIX of 2006), S.9(7)--- ---Under provisions of S.9(7) of Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006, District Prosecutor had the powers to scrutinize the available evidence and applicability of offences against all or any of accused as per facts and circumstances of the case---Deletion or insertion of any offence fell within the exclusive domain of the District Prosecutor---Question whether the District Prosecutor had rightly deleted S.324, P.P.C., would be seen by the Trial Court at the time of framing the charge, but petitioner could not assail such an order either under provisions of Ss.22-A & 22-B, Cr.P.C. or in constitutional jurisdiction of the High Court as it would amount to interfering with the process of investigation which was not the mandate of law---Ex-Officio Justice of Peace had rightly dismissed the application of the petitioner, in circumstances. 2009 PLD 135 LAHORE-HIGH-COURT-LAHORE
 

It can be said without any fear of contradiction that District Public Prosecutor or Prosecutor is not just a post office or forwarding agency.
The District Public Prosecutor, Nankana Sahib, while making reference to the provisions of Section 9 of The Punjab Cranial Prosecution Service (Constitution, Functions and Powers) Act, 2006 (III of 2006) maintained that the District Public Prosecutor is obliged and required to distribute work to the prosecutors with respect to the Court of Sessions and Courts of Magistrates within the District and while exercising said power he assigned different duties including exanimation of Report under Section 173 of The Code of Criminal Procedure, 1898 (V of 1898). Making reference to Section 9(5) of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 (Ill of 2006), it was contended that according to sub-section the prosecutor is obliged and required to scrutinize Report or request and¬ then to proceed further as envisaged in clauses (a) & (b) of sub-section (5) of the Act of 2006 the Word “scrutiny” is of significance. The expression "scrutinize" has not been defined in The Act- III of 2006 and as such dictionary meaning has to be taken into consideration. The Expression “scrutiny” has been defined in the Merriam Webster’s Collegiate Dictionary (Eleventh Edition) which is re- produced for ready reference:---
Scrutiny:- Scrutinium, fr. scrutari to search, examine, prob, fr. ScrutA trash (164) 1: a searching study, inquiry, or inspection: EXAMINATION 2. a searching look 3: close watch.”
Keeping in view the definition now I will examine the duties and powers of the prosecutor. Duty has been caste upon the prosecutor to carefully examine Reprot or request made by the police as and when the same is submitted to the office of the order of the Court and medico-legal District Public Prosecutor. Memo. of objection has been placed on record by the District Public Prosecutor, Nankana Sahib, according to which, the statement of both injured persons (detenus) were not recorded under Section 161 of the Code of Criminal Procedure, 1898 (V of 1898). Similarly, it was opined that both the detenus i.e. Nazir Ahmad and Khurshid Ahmad were medically examined on 17th of March, 2011 by certificates duly issued by the Medical Officer are on the file suggesting injuries on the persons of the detenus which was information to establish the stance of the complainant regarding torture by the police but the same were not considered by the Investigating Officer. The learned law officer raised four objections and cancellation report was returned with the direction to submit the report under Section 173 of the Code of Criminal Procedure, 1898. Keeping in view the language and text of Section 9(5) of Act III of 2006, it can be said without any fear of contradiction that District Public Prosecutor or Prosecutor is not just a post office or forwarding agency. Conscious application of the Code of Criminal Procedure, 1898 or cancellation report. If the prosecutor cannot examine such reports by applying his judicial mind then submission of Reports to the office of District Public Prosecutor will be an exercise in futility. The prosecutor is obliged to examine all aspects of case by attending the material available on record. One can will imagine the sanctity of cancellation report prepared without recording the statements of detenus under Section 161 of the Code of Criminal Procedure, 1898. Preparation of cancellation Report in utter disregard of Medico-legal certificates issued after medical examination of detenus by the order of the Court is also not understandable.Viewed from which ever angle i.e. on legal as well as factual premises, objections raised at the instance of learned Law officer are hardly subject to any exception and as such petition being devoid of any force is dismissed.Petition dismissed
K.L.R. 2012 Criminal Cases 5 MEHMOOD MAQBOOL BAJWA, J. Appeliant & Repondent : Muhammad Amin Vs S.H.O. and others Appeal/Case No:Writ Petition No. 8985 of 2011

Appointments --------Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006),
Regln. 39---Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006), S. 8---Constitution of Pakistan, Art.199--- Examination held in year, 2008, was the first examination held by the Commission under the provisions of Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006---Examination in question had exposed certain defects, which were corrected through experience and implemented in subsequent examinations---High Court observed that it would be fair and just that first examination held in year, 2008, be treated as an aberration and an exception and not as an opportunity/chance availed by petitioners for the purposes of Regln.39 of Punjab Public Service Commission Regulations, 2000---Petition allowed accordingly. 2012 PLD 213 LAHORE-HIGH-COURT-LAHORE

S. 8(3)---Punjab Criminal Prosecution Service (Conditions of Service) Rules, 2007---Constitution of Pakistan Art.199---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court appeal---Ad hoc/temporary Deputy Prosecutors General (DPG) and Additional Prosecutors General …………Petitioners had occupied such posts for more than one year without recommendations of Public Service Commission and against terms and conditions of their appointment orders---Government action in making appointment to public office must reflect transparency and fairness---Absence of eligible persons to occupy posts reserved to be filled through promotion would not mean that ineligible persons should be made to retain the same-- -Court of law could not sanction such a course of action---Intra-court appeals were dismissed in circumstances. 2012 PLC(CS) 632 LAHORE-HIGH-COURT-LAHORE
Ss. 8(4) & 15---Constitution of Pakistan, Art.199---Constitutional petition---Appointment on contract basis---Dispensing with and termination of services---Petitioners were appointed as Additional Prosecutor General and Deputy Prosecutor-General in BS-19 & BS-18 on contract basis for a period of 3 years ---Appointments, if any to be effected, otherwise than by initial recruitment had no nexus to the rights of the petitioners, nor was of any legal consequence to the lis---Impugned notification which appeared to have been issued in compliance with the directions of Supreme Court, no exception could be taken thereto---Petitions were dismissed. 2011 PLC(CS) 1412 LAHORE-HIGH-COURT-LAHORE Ch.AMJAD HUSSAIN

S.8(4)---Constitution of Pakistan (1973), Art. 185(3)---Direct recruitment---Parties had contended that petitions for leave to appeal be disposed of in the terms that the Government of the Punjab through Prosecutor General be directed to manage examination of all the prosecutors presently functioning in the Province in terms of subsection (4) of S.8 of the Punjab Criminal Prosecution Service (Constitution, Functions and powers) Act, 2006, in two phases that there should not be any discrimination between the candidates, either belonging to the first batch or the second batch and they should be treated at par before the Punjab Public Service Commission that said arrangement had been made without prejudice to the impugned judgment which would remain intact with its full force as a result whereof the Prosecution Branch was not alleged to entrust work to the petitioners during the stipulated period---
Said arrangement between the parties was accepted and petition was disposed of accordingly by the Supreme Court. 2010 SCMR 1587 SUPREME-COURT : NAEEM TARIQ SANGHERA
S. 8(3)(4)---Punjab Criminal Prosecution Service (Conditions of Service) Rules, 2007, Rr.2(d), 4 & 5(1)---
Contract Appointment Policy, 2004 (Punjab)---Constitution of Pakistan (1973), Art. 185(3)---Contract appointments---Protection of law--- ---Person who failed in interview for contractual appointment could not lay valid claim to be recruited against post in question on regular basis---Supreme Court directed that petitioners whose cases were not competently scrutinized/examined they would appear before Recruitment Committee for validation of their temporary/contract appointment subject to language employed in appointment letter---If petitioners opted to appear before Recruitment Committee, which would be constituted to review temporary short term arrangements as per their contract appointment letters, the Committee would dispose of their cases expeditiously---Supreme Court further directed that term of temporary/contract appointment would not exceed a period of one year---If petitioners or others who had appeared in interview before Recruitment Committee, or anyone else who wanted induction in terms of Supreme Court's earlier order dated, 8-1-2010, those petitioners would be at liberty to appear in examination to be conducted by Punjab Public Service Commission for regular appointment---Supreme Court directed Prosecution Department to send requisitions to Punjab Public Service Commission for advertisement of the posts for initial recruitment in accordance with law and rules--Petition was disposed of accordingly. 2010 PLD 841 SUPREME-COURT : ABID IQBAL HAFIZ
S.8(3)(4)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dispensing with services of District Public Prosecutors etc.---Allegation of political victimization etc. by present Provincial Government---In the present case Selection Committee was constituted (prior to the present government) pursuant to the order, dated 11-12-2006 passed in Writ Petition 8456 of 2006;
……………….Held, impugned action (dispensing with services) was neither the result of any mala fide, political victimization, dishonesty of purpose on behalf of the present Government (of the Province of Punjab) nor it was tainted with any ulterior motive/object to illegally displace the functionaries (petitioners) and/or to appointment at their place their persons---Such allegations were nothing except rhetoric, loud, bald, baseless and unsubstantiated. 2010 PLC(CS) 1 LAHORE-HIGH-COURT-LAHORE :
MUHAMMAD SALEEM
S. 8(4)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Advertisement for appointment on contract basis in Criminal Prosecution Service of Government of Punjab---Three years contract service period offered in the impugned advertisement suggests that the process of regular appointment in the service is not anticipated to be completed in such a length of time---Such proposal, prima facie, detracts from the statutory mandate of the Punjab Criminal Prosecution Service (Constitution, Function and Powers) Act, 2006 which must be carried out in all earnest and with expedition---Statutory mode of appointment through an institutionlised process provides merit based transparency---Any different process of recruitment and appointment to posts in the service, howsoever sound and fair, cannot be at par with such process; firstly, because it deviates .from the statutory mandate and secondly, because it shall be ad hoc and, therefore, open to dispute--Principles. 2009
PLC(CS) 763 LAHORE-HIGH-COURT-LAHORE MUSHTAQ AHMED MOHAL