P L D 1958 (W (PLP)

KAYANI C. J.‑The petitioner's services as Public Prosecutor were terminated on the 24th of December 1956 under rule 4.9 (1) of the Law Department Manual. Rule 4.9 is. as follows :,‑ (1) The engagement of any Public Prosecutor may be terminated on cause shown to the Government by the Legal Remembrancer. (2) The engagement of any Public Prosecutor may, without the assignment of any cause, be terminated upon the expiry of three month's' notice in writing, given to him under the authority of the Punjab Government of its intention to do so. The petitioner claims that since he was a holder of a civil post in connection with the affairs of the Province, an oppor tunity to show cause should have been given to him under Article 181 of the Constitution.

2. The services were terminated in the following circum stances. The petitioner had conducted a Sessions case before the Additional Sessions Judge of Gujrat which came up in appeal before a Division Bench of the High Court. In the judgment of the High Court the following observations were made about the conduct of the petitioner :‑ "The Public Prosecutor merely tendered Mehram's con fessional statement Ex. P. R., before closing the prosecution case. He, however, did not examine Chaudhri Muhammad Sharif, Magistrate, who had recorded the aforesaid statement. Mr. Iqbal Husain, Public Prosecutor, who is now posted at Campbellpur, stated before us that he did not examine Chaudhri Muhammad Sharif, Magistrate, as he had formed the opinion that the version given in the confession Ex. P. R. was false. This is inconsistent with the act of tendering Ex. P. R. as evidence in the case ". "Before we conclude the judgment, we must express our strong disapproval of the manner in which this case was handled by the investigating officer, the Public Prosecutor and the Committing Magistrate ". "It appears from the judgment of the learned Sessions Judge that the learned Public Prosecutor took the stand at the trial that the report under section 173 of the Code of Criminal Procedure regarding Mutalli, Salehon, Yara and Dadu was wrong and consequently the order of discharge was also wrong. In spite of this he never moved for the annul ment of the order of discharge and for a direction for the commitment of the persons in question. We called him in the course of the arguments of the appeal to explain the reason for adopting this course but he was unable to give any satisfactory explanation. It is still more surprising that the learned Sessions Judge also failed to take this action suo motu. On the other hand he used this lapse on the part of the authorities concerned as a ground for acquitting Mehram. The entire proceedings in this case are deplorable ". Extracts from the judgment were sent to the petitioner by the Solicitor to Government and he was called upon " to explain the reasons. for not conducting this case properly ". He gave an explanation and apparently this'' provided the " cause shown to the Government by the Legal Remembrancer" under rule 4.9 (1) of the Law Department Manual.

3. Under rule 4.10, " subject to the provisions of rule 4.9. the engagement of every Public Prosecutor shall be for a period of four years " whereafter the post would be regarded as vacant. It is apparent that the petitioner's service is under a special term. In view of the majority decision in the Full Bench ruling in Federation of Pakistan v. Khwaja Ghulam Sarwar (R. F. A. 14 of 1956) (PD 1958 Lah. 500) it must be held that the order which the petitioner impugns is not hit by Article 181 of the Constitution. It is unnecessary to determine whether he holds a Civil post.

4. The petition is, therefore, dismissed but in view of the fact that the Full B‑.nch judgment has been given very recently there will be no order as to costs. Certificate to appeal to the Supreme Court is granted. MUHAMMAD RAFIQ J.‑This is a writ petition filed by Syed Iqbal Hussain Shah, Advocate, Sialkot, whereby he challenges the legality of the order of the Governor of West Pakistan, dated 24th of December 1956, terminating his services as Public Prosecutor, Campbellpur, with immediate effect, under rule 4.9 (1) of the Punjab Law Department Manual.

2. The petitioner's case is, that on the 17th of December, 1952, when he was a lawyer of ten years' standing, practising at Sialkot, he was appointed as a temporary Additional Public Prosecutor at Sialkot. He continued in that appointment till the 6th of December, 1954, when, being the senior‑most Additional Public Prosecutor, he was appointed a regular Public Prosecutor in the grade of Rs.

500. This appointment was on probation for six months but in September, 1955, when he was stationed at Gujrat the period was extended to 18 months as provided under rule 4.10 (3) of the Law Department Manual. He made a representation to the Legal Remembrancer, who was the head of the Law Department, that his period of probation should not be changed as he had already worked as an Additional Public Prosecutor. The representation, however, was without effect. Towards the end of 1955, he made a verbal request for his transfer from Gujrat owing to some local intrigues in which he did not want to get himself involved, but the request was not granted. Thereafter he repeated his request in writing and he was transferred to Muzaffargarh about August, 1956. Before that, in July, 1956, he had received a letter from the Law Depart ment that his period of probation was extended by another six months. In October, 1956 he was transferred to Campbellpur and in December following his services terminated by the order of the Governor, as already stated.

4. The petitioner's contention is :‑ (a) that he was the holder of a civil post and termination of his services amounted to his dismissal or removal from service and that the provisions of Article 181 of the Constitution had been violated as he was not afforded a reasonable opportunity of showing cause ; (b) that rule 4.9 (1) of the Law Department Manual had no application in his case and that in any case the rule being contrary to the provisions of Article 181, is illegal and inoperative ; and (c) that according to rule 4 (10) of the Law Department Manual he was to continue for at least four years from the date of his appointment i.e., from the 6th December, 1954.

5. On behalf of the respondent, West Pakistan Government, it was stated that at the time the petitioner was appointed as a Public Prosecutor the period of probation, by mistake, was mentioned as 6 months in the order and when the mistake was discovered he was duly informed. The statement of the petitioner that there were local intrigues in Gujrat and that he had asked for transfer was denied, though it was admitted that later on he was transferred to Muzaffargarh at his own request. The period of 18 months as probation, it was stated, was extended by another 6 months as the reports received from the district authorities on the work of the petitioner were not satisfactory. Further, on a report from the High Court criticising the conduct of the petitioner as a Public Prosecutor in a murder case, his explanation was called for on 19th of November, 1956, and the explanation being considered unsatisfactory his services were dispensed with by the order of the Governor. The respondent denied that the provisions of Article 181 of the Constitution had been violated. It was stated that the petitioner was merely a part‑time counsel engaged on specific terms and that rule 4.9 (1) could be invoked at any time to dispense with his services just like a private counsel. In any case, it was averred, the petitioner was still on probation when his services were terminated and this the Government could do if his work was at any time found to be unsatisfactory.

6. I will only deal with the question whether the petitioner when his services as Public Prosecutor were terminated was the holder of a civil post within the meaning of Article 181 of the Constitution. The term "Civil Post" is not defined anywhere in the Constitution nor in any Act or rules. It was, however, not disputed that a Public Prosecutor is a Public servant within I the meaning of section 21 of the Pakistan Penal Code. It was, also so held in The Empress v. Butto Kristo Doss and another (3 Cal. 497). As to whether he is a public officer, there can also be no doubt. A "public officer", as defined in strouds Judicial Dictionary, is a person who is appointed to discharge a public duty and receives a compensation in whatever shape whether from the Crown or otherwise. We also find the term defined in the Civil Procedure B Code and it was held in Bansi Lal and other v. Muhammad Hafiz (A I R 1939 Pat. 77) that a lawyer when acting for Government is a public officer within section 2 (17) of the Code of Civil Procedure. A Public Prosecutor also, undoubtedly, belongs to civil service. We find "civil service" defined in Wharton's Law Lexicon, 14th Edition (138). It includes all service under the Crown except the naval, military and air service.

7. The fact, however, that a Public Prosecutor is a public officer and a person who is in the civil service of the State does not really help in determining the question before us and we might examine the various rules contained in the Law Department Manual governing the Public Prosecutors.

8. Chapter 4 of the Manual deals with Public Prosecutors, who are of two kinds. Those who are appointed by the Govern ment and those who are appointed by the District Magistrate or Sub‑Divisional Magistrate under section 492 of the Code of Criminal Procedure. Public Prosecutors falling under the first category are then divided into 3 classes, namely, (1) Public Prosecutors for districts, (b) Public Prosecutors appointed by Government for special eases and (c) Public Prosecutors ex officio, such as tic Legal. Remembrancer who is a Public Prosecutor for the Province. The petitioner before us comes within the first class which is dealt with under rules 4.5 to 4.23 of the Chapter. Under these rules, a, Public Prosecutor appointed for a District is to be remunerated by means of a consolidated monthly payment. The engagement of every Public Prosecutor, in the absence of any special condition to the contrary, is to be for a period of four years and subject to the conditions that this engagement will be regarded as on probation for the first 18 months. The Government upon the expiry of four years can re‑appoint the same person to be Public Prosecutor for a further period of four years, but no re‑appointment is ordinarily to be made after the Public Prosecutor has attained the age of 55 years. The engagement of any Public Prosecutor may, however, be terminated on a cause shown to the Government by the Legal Remembrancer (now Solicitor), and the engagement may be terminated even without the assignment of any cause upon the expiry of three months' notice in writing, given to him under the authority of the Punjab Government of its intention to do so.

9. The Chief argument before us on behalf of the State has been that the status of a Public Prosecutor is no more than that of a private legal practitioner, as (a) he is not a whole‑time Government servant (rule 4.20 (8)), (b) he earns no pension and has no right to any gratuity (rule 4.17), (c) he is not entitled to any leave either on full or on half pay and even not entitled to medical leave, (d) his services can be terminated on 3 months' notice without assignment of any cause (rule 4.9 (2)), (e) he can be given permission to appear in a private capacity in a criminal case on a private complaint (rule 4.13 (1)) and (f) there is no real restriction on his taking private civil work (rule 4.13 (3)).1 All this is true, but only to show at the most that the service of a Public Prosecutor is a contract service like many others employed p by the Government on temporary basis for a fixed term. This does not mean that a person on contract service is not the holder ' of a civil post. Only recently a learned Judge of this Court held in a case, The Province of the Punjab v. Ch. Nazir Husain ( P L D 1956 Lah. 556), that the Chairman of a Public Service Commission is the holder of a civil post within the meaning of section 240 of the Govern ment of India Act, 1935. In that case Ch. Nazir Husain's appointment as Chairman of . the Public Service Commission was for 3 years and his services were dispensed with earlier, the period of 3 years having been reduced to one year. The case of the present petitioner is on much stronger grounds as his service was not only on contract basis but he was also on the regular cadre of Public Prosecutors. The rules contained in the Law Depart ment Manual themselves also will show that he was the holder of a civil post and that his position was not merely that of a private legal practitioner. In rule 4.7, ' that deals with the appointments of Public Prosecutors, it is stated that all appoint ments under this rule will be regarded as individual appointments to posts, requiring special qualifications. Again, in rule 4.10 it is mentioned that upon the expiry `of four years from the date of the appointment of any Public Prosecutor, the post shall be vacant. (1) P L D 1956 Lah. 556 Next we find, as in the case of other Government servants, that a Public Prosecutor receives a month salary, normally retires at the age of 55 years and is liable be transferred from one district to another. He also draws his travelling allowance according to the rules governing Government servants in other departments. The fact that a Public Prosecutor is not entitled to any pension or gratuity under rule 4.17 makes no difference, and as a matter of fact the very existence of such a rule goes to show that Public Prosecutors were not being considered merely as private practitioners, as otherwise there was no need for framing such a rule. The argument that a Public Prosecutor's services could be dispensed with even at a moment's notice it, Government, like any other client, were not satisfied with his work is based on the assumption that he is necessarily a legal practitioner. " Public Prosecutor" according to section 4 (1) (t) of the Code of Criminal Procedure means ant, person appointed under section 492 of the Code. It is not necessary that the person so appointed should be a legal practitioner. One such instance is to be found in the rules themselves. Under rule 3.6, the Legal Remembrancer (now Solicitor) is ex officio Provincial Public Prosecutor generally in regard to all Courts other than High Court, and in regard to that Court also when it is necessary for him to appear therein under the rules or under the orders of the Government. (Punjab Government Notification No. 698, dated 18th May, 1899). Further, under rule 1.2 he can himself not only take charge of the conduct of any criminal case but also conduct it on behalf of the Crown. A familiar instance is of Prosecuting Sub Inspectors and Prosecuting Inspectors of Police who have been appointed as Public Prosecutors under section 492 of the Code of Criminal Procedure (Punjab Gazette Notification No. 7431, dated 10th March 1926, published in the Gazette dated 12th March 1926). Such being the position, another argument advanced on behalf of the State also does not hold water. The argument is that if a Public Prosecutor be found guilty of professional misconduct and as a result he is dismissed or suspended from practice under the provisions of the Legal Practitioners Act 1879 he will, in that a vent, no longer be able to appear in Courts and, therefore, it will not be possible for the Government to retain him in service any more. It is obvious that this argument also proceeds on the assumption that a Public Prosecutor is necessarily a Legal Practitioner, which, as already seen, is not the case. But even if in case he happens to be so and he is dismissed or suspended from practice for professional misconduct he could still continue to be a Public Prosecutor though he will not be able to appear in any Court in his capacity as a legal practitioner. As already observed, the appointment of a Public Prosecutor is made by the Government under section 492 of the Code of Criminal Procedure and as such his actions are not controlled by the provisions of the Legal Practitioners Act. It will, however, be different if the Government, in view of the action against him for professional misconduct, terminates his services according to the terms of his contract.

10. It was then argued that a Public Prosecutor being entitled to private civil practice with practically no limitation, his position is no more than that of private lawyer engaged by Government and as such it could not be said that he is the holder of a civil post. It was stressed that the Government engaged him just as a legal practitioner engaged by a bank or a company. It may, however, be stated that in the Medical Department doctor are entitled to private practice, but no one would say that they do not hold civil posts. To my mind,1 therefore, a Public Prosecutor employed on monthly salary, whom the rules as contained in the Law Department Manual govern even though he is on contract basis, is the holder of a civil post within the meaning of Article 181 of Constitution. In the case of the petitioner it is more so, as he at the time his services were terminated was on the regular cadre of Public Prosecutors. A Division Bench case from Dacca High Court, Federation of Pakistan v. Shamsul Huda (P L D 1957 Dacca 148), quoted before us, would seem to support the contention of the learned counsel for the petitioner that a Public Prosecutor is the holder of a civil post. That was the case of a Public Prosecutor who was also an advocate of High Court of Dacca. He was temporarily appointed as Public Prosecutor from 1st July 1951, and: was posted at Dacca. The appointment was terminable on one month's notice on either side. In pursuance of the said terms he was served with the requisite notice terminating his services with effect from 9th August 1953. The termination of service was due to adverse report on his work. It was held that the expression person as aforesaid" in subsection (3) of section 240 refers to "every person who holds any civil post under the Crown in Pakistan" in sub section (1) of section 240 of the Act. The last expression, the learned Judges said, is so widely worded that on a plain construc tion it includes all holders of civil posts whether permanent or temporary. It may, however, be pointed out that the question whether a Public Prosecutor is the holder of a civil post does not seem to have been argued before the learned Judges and it was assumed that the petitioner was the holder of a civil post. . What seems to have been argued in that case on behalf of the State was that the provisions of section 240 were applicable only to permanent Government servants, but it was held that the section was applicable to temporary servants also. incidentally, it may be stated that the learned Judges also held that where the contract of service contains any provision of terminating services by one month's notice on either side, and the service was terminated by such notice And the notice did not contain any imputation or charge or implication of misbehaviour or incapacity and was duly served, the termination of services was a termina tion simplicitor under the terms of service contract, and it did not amount to dismissal or removal from service to attract the provisions of section 240.

11. I agree with my Lord the Chief Justice that in view of the Full Bench decision this petition be dismissed. A.H. Petition dismissed.