P (PLP)

The applicant, who is a brother of the deceased Usman Haji Noor Mohammad, has engaged Messrs. Brohi & Co., Advo cates, to assist the Crown Counsel in the conduct of the prosecution case. His wakalat‑nama duly signed by him is attached here with. One key has been recovered from the search of the clothes of the deceased by the accused Mirza and the same is now with the police. This key is required in connection with the opening of a safe where the important papers of the deceased are lying. "The affairs of the deceased have to be adjusted and several important matters have to be looked into and settled. The applicant is the brother of the deceased and is the only person who is entitled to the use of the key. The police have no objection if the key is handed over to the applicant." Some time in January, Mr. A. K. Brohi was appointed Special Public Prosecutor in this case by the District Magist rate. The exact date is not on record. On the 24th of March the present applicant applied to the enquiring Magistrate that the Court should refuse to permit Mr. Brohi to appear for the Crown on the ground that he has already appeared for the complainant, and that his vakalt nama was on the record. The Magistrate called for Mr. Brohi's remarks, which were as follows :‑

" Sir, I have not appeared in the case for the prosecution in my private capacity. All I have done is to apply for the Court's permission to obtain a key which was secured upon the search of the person of the deceased by the police. The key was required by the widow who wanted to open the safe and obtain certain papers. Besides I have been appointed by the learned District Magistrate upon a reference having been made to him by the police. If he should so desire, my appointment as a Special Public Prosecutor could be cancelled by him. In the absence of such an order from him, I am afraid, I cannot do anything in the matter. I suggest that this matter be referred to the District Magistrate for his orders. Under the Law as I understand it, my having filed an application for obtaining a key from the police does not in any manner subject me to an incapacity to appear for the Crown. However, this is for the District Magistrate to decide". The learned Magistrate then considered that since Mr. Brohi's appointment had, been confirmed by the learned District Magistrate, after the objections of the accused, it was not for the Court to deal with his appointment. Hence the application. A notice was issued by this Court to Mr. Brohi but no appearance, has been made on his behalf. Mr. Tufail Ali, for the applicant, states that Mr. Brohi is in Geneva, a statement which also coincides with our own knowledge. In this case the important point is that Mrt.Brohi on the 31st December stated that he had been engaged by the brother of the deceased, Haji Noor Mohammad, to assist the Crown Counsel in the conduct of the prosecution case, and that vakalatnama was attached. It is true, that the application itself was merely for the return of a key on behalf as Mr. Brohi later stated, of the deceased's widow, but the fact remains that he had been engaged by a private person to take step against the accused. There is Ahmed Mohamed v. Emperor (1940) A. I. R. Sind 220, a case parallel in its essentials with the present case. The learned judicial Commissioner, sitting alone, stated that in so serious a matter as a prosecution for murder, it is essential that no private feelings and no private interest which may influence a complainant should be allowed to affect the impartial conduct of the prosecution, which cannot be said to be the case where an advocate engaged by the complainant appears in the complainant's interests conducts the prosecution. And the fact that an advocate has once been engaged, makes it clear that he is thereafter unfitted to conduct the prosecution on behalf of the Crown. With respect, I agree with the principle there laid down. The Crown, as the learned judicial Commissioner also stated, stands not necessarily for a conviction but for justice. 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 cry behalf of the Crown was resolved to secure a conviction by fair means or by foul. I therefore consider that this expression of opinion should be forwarded to the Magistrate; who, before proceeding further with the case, should communicate the contents of this order to the District Magistrate, who, we are sure, will act accordingly. TYABJI, C. J.‑I agree, and only wish to add a few remarks. The principle which we are here concerned with : that the interests the Crown are not identical with the interests of a private complainant, is not merely an abstract principle. It is essential to the proper conduct of a criminal case, that the Public Pro secutor should be entirely free from any private bias against the accused, and any personal interest in the case resulting in a ‑con viction. The Public Prosecutor is expected to strive to the utmost of his ability to secure that justice, and nothing but justice is done. By way of illustration I may refer to just one aspect of this matter. In the course of receiving his instruc tion and conducting the case, a Public Prosecutor often has facts brought to his notice, which may be inconvenient to the prosecution, in the sense that they tell in favour of the accused, and it is often within the power of the Public Prosecutor to suppress such facts, and even to see that evidence is given in‑ such a manner as to make the contrary appear. No honest Public Prosecutor should allow such a suppression to take place contrary to the interests of justice. But if he has received a handsome fee from a private complainant, who is interested in getting the accused convicted and sentenced, there might be a very strong tempta tion, in the way of the Public Prosecutor to act as desired by the party engaging him; and not as he should act in the interests of pure justice. As my learned brother has pointed out, justices must not only be done,, but also appear, to be done, and it is necessary to see that accused persons are not given any legitimate reason for suspecting their cases were not being conducted' fairly, that is solely with a view to secure the ends of justice. K. M. A./A. H. Order accordingly.