P L D 2020 Lahore 629 (PLP)

Laws Cited

Representation

• ----S. 11-EE---Proscription of person---Administrative order---Scope---Question before High Court was whether, in appeals filed under S.11-EE(3-A) of Anti-Terrorism Act, 1997, the Prosecutor Department had to assist the court or it was a matter wherein the Advocate-General Office was required to render assistance---Held, Anti-Terrorism Act, 1997 was primarily linked with criminal law, repercussions flowing therefrom were penal and right of appeal also laid before the judicial forum---Where the order was passed in administrative capacity against which right of appeal was provided before the High Court, in such like matters, Advocate-General Office represented the State---Order passed under S.11-E(3) of Anti-Terrorism Act, 1997 was administrative in nature, hence, Advocate General Office was required to assist the court.
• Ch. Umar Hayat Sindhu for Petitioner (in Writ Petition No.9637/2017).
• Muhammad Shan Gul and Zafar Hussain Ahmad, Additional Advocate Generals.
• 2. During hearing of these matters, question arose before this Court whether in appeals filed under section 11-EE(3-A) of the Anti-Terrorism Act, 1997, the Prosecutor Department is to assist this Court or it is a matter wherein the Advocate General office is to render assistance, and on this legal proposition, today, we have heard learned counsel for the appellants as well as the learned Law Officer at length.
• 3. Stance of learned counsel for the appellants in respective appeals is that the prosecution department should argue the case, while on the other hand, learned Additional Advocate states that since the impugned orders have been passed in administrative capacity; hence, it is prerogative of the Advocate General office to argue the matter.
• 4. To settle this precise legal issue, nature of the matter as well as its stage is necessary to be analyzed i.e. whether same has arisen as a result of prevention of a crime or is an outcome of post occurrence event. Second phase i.e. post occurrence crime would definitely relate to an FIR or lodging of a complaint and proceedings in such like matters would come within the purview of criminal hierarchy, wherein, after submission of challan, trial is commenced and proceedings are initiated and regulated under the Code of Criminal Procedure. In such like matters, prosecution department is the appropriate office to represent the State. So far as the prevention of crime is concerned, it may relate to the Maintenance of Public Order Ordinance, 1960 and in this respect order is passed by the government under its administrative domain with a purpose to maintain the law and order situation, when and where reported. Against such an order, right of filing a representation is provided under section 20-A of the Maintenance of Public Order Ordinance, 1960 before the Home Department i.e. Secretary Home and after culmination of the process of representation, no remedy before judicial forum is provided and when no remedy is provided, it is for this reason that writ petition is preferred, in which office of Advocate General represents the State/Government and not the Prosecutor General office.
• 5. In the case in hand, although, the impugned orders have been passed under Anti-Terrorism Act, 1997 which primarily is linked with criminal law, repercussions flowing therefrom are penal and of course right of appeal also lies before the judicial forum but when same order is passed in administrative capacity against which also right of appeal is provided before the High Court but same cannot change the nature of the subject-matter, as filing of appeal under Anti-Terrorism Act in such like matters is similar course to the writ petition, filed against the order passed under the Maintenance of Public Order Ordinance, wherein, the office of Advocate General is to represent the State. We also seek guidance in this regard from Full Bench Judgment of this Court "KHIZER HAYAT and others v. INSPECTOR-GENERAL OF POLICE (PUNJAB), LAHORE and others" (PLD 2005 Lahore 470) wherein, while describing the powers and duties of an Ex-Officio Justice of Peace, it has been observed that the powers and duties of a Justice of Peace or an Ex-Officio Justice of Peace in Pakistan as provided in sections 22-A and 22-B, Cr.P.C. do not involve any jurisdiction which can be termed as judicial in nature or character and the functions to be performed by the Ex-Officio Justice of Peace in Pakistan are merely administrative and ministerial in nature and character. Although, while exercising such powers, the order is passed under section 22-A(6) of the Code of Criminal Procedure for registration of the case but the same is an administrative order against which writ petition is filed and the Advocate General office represents the State.
• 6. For what has been discussed above, we are of the firm opinion that the impugned orders passed under section 11-EE(3) of the Anti-Terrorism Act, 1997 are administrative in nature; hence, Advocate General office shall assist the Court in these appeals.

Headnotes / Summary

Judgment & Decree