2013 PLP 161 (SCMR)

In para-10 of C.R.P. No.167 of 2012 decided on 30-8-2012, this Court while commenting on the conduct of the Attorney-General held as under:-- "

10. The effect prima facie, of the foregoing circumstances whether taken independently or cumulatively is that there is a reasonable and well founded prima facie basis for the petitioner's allegation that the Attorney-General did not act fairly and impartially while purporting to act in furtherance of para 22 ibid reproduced above. Since these are matters of serious concern to us and also would be to the Attorney-General as a member of our bar, it would be in the interest of fairness and justice if he is provided an opportunity of hearing to explain his conduct. The office shall, therefore, create a file and issue notice to the Attorney-General."

2. In view of the observations reproduced above, we at the very outset made a query from the Attorney-General whether it would be possible for him to conduct the proceedings of this case fairly, justly, honestly and in accordance with law when he at some stage remained counsel for the respondent? The reply of the learned Attorney-General was that he inspite of that would be able to conduct the prosecution of this case fairly, justly, honestly and in accordance with law. During the proceeding, when we observed that though the Attorney-General is persona designata in terms of Rule 7(2) of Order XXVII of the Supreme Court Rules yet the propriety demands that he should lay his hands off this case, the Attorney-General again responded by saying that when he was on the Bench as a Judge of the Lahore High Court, he declined to hear one of the cases of the respondent on the said score but since the Attorney-General being persona designata, is alone to conduct the proceedings in such matters, the fact that he at some stage remained counsel of the respondent can conveniently be ignored.

3. Learned counsel appearing on behalf of the respondent contended that it has already been decided by the Court in its order dated 13-7-2012 that the Attorney-General shall conduct the proceedings in this case, therefore no option is left with the Court to make a deviation therefrom. Such deviation, the learned counsel added, would be all the more against the rules when Rule 7(2) clearly envisages that the Attorney General shall be under a duty to conduct the proceedings. The learned counsel next contended that the Court is, no doubt, invested with inherent powers to excuse the parties from compliance with any of the rules but that can be done only when sufficient cause is shown. Ends of justice, the learned counsel submitted, or preventing abuse of the process of the Court are the considerations which transcend the rules but in the absence of any such considerations no departure can be made therefrom. Soul and spirit of the rules. the learned counsel argued, in no case could be allowed to be defeated as such exercise would lead to the realm of individual whim and caprice which could never be the intention of the rules maker. The learned counsel next contended that restraining the Attorney-General from conducting the cases on such scores would be a colourable exercise of jurisdiction which is neither fair nor just nor in accordance with law.

4. We have gone through the available record carefully and considered the submissions of the learned counsel for the parties.

5. It is almost a century's old practice that if and when the Chief Justice and Judges referred to in Rule 7(1) decide that action be taken in the matter, a notice of proceedings shall issue to the Attorney-General who in that event be duty bound to conduct them. The Attorney-General being a persona designate is indeed the only person to conduct these proceedings but this is not a rule of universal application. If the Attorney-General for any reason cannot conduct the proceedings fairly, justly, honestly and in accordance with law, the Dy. Attorney-General or any other Advocate Supreme Court can be nominated to conduct the proceedings. The job of the prosecutor is so important that it cannot be allowed to be tinged or tainted with bias. An element of bias in any corner of his mind, can vitiate the whole process. An Advocate or a person appearing in defence can strike left and right and even get away with bias but even a speck of bias on the part of the prosecutor can work havoc in the process. If he is biased in favour of the Court, fair trial would be reduced to an impossibility. If he is biased in favour of the respondent, dignity of the Court would be thrown down the drain. The Attorney-General, therefore, should not only be independent but to be manifestly seen to be independent. In the SUO MOTU case No.4 of 2010 (PLD 2012 SC 553), the Attorney General of Pakistan in his arguments quoted some paragraphs from the guidelines on the role of prosecutors adopted by Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, by submitting that he being a prosecutor need not support the prosecution and was entitled to make independent assessment of the case and assist the Court in accordance with law and his conscience. Inspite of saying so he advanced arguments in support of the respondent in that case and did not advance even a single argument in support of the charge against him. It would not be out of place to refer to the relevant paragraph which reads as under:-- "

47. The learned Attorney-General in his arguments quoted some paragraphs from "Guidelines on the Role of Prosecutors, Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to September 1990" to explain his role as a prosecutor that he need not support the prosecution and was entitled to make independent assessment of the case and assist the Court in accordance with law and his conscience. However, all this arguments were in support of the defence and none whatsoever to support the charge against the respondent. The learned Attorney-General began by submitting that there was no law of contempt in force in the country, in that, the Contempt of Court Ordinance 2003 having lapsed by efflux of time under Article 89 stood repealed under Article 264 of the Constitution and that Article 270AA did not protect the said Ordinance. This question squarely came before this Court in SUO MOTU case No.1 of 2007 (PLD 2007 SC 688) where it was held that the Contempt of Court Ordinance (V of 2003) holds the field. This judgment had been affirmed by this Court in JUSTICE HASNAT AHMED KHAN v. FEDERATION OF PAKISTAN (PLD 2011 SC 680). It was pointed out to the learned Attorney General that even if there was no sub-constitutional legislation regulating proceedings of Contempt of Court, this Court was possessed of constitutional power under Article 204 to punish contemnors, with no restrictions on the exercise of power including that regarding quantum of punishment that can be imposed on the contemnor. The learned Attorney-General went on the criticize parts of the judgment in "DR. MOBASHIR HASSAN's" case (ibid). We, however, told him that the said judgment has been upheld by the Full Court in review and we cannot reopen the questions already decided. Concluding his arguments, he submitted, without elaborating, that the evidence on record does not establish the charge of contempt against the respondent."

6. The list of witnesses submitted by the Attorney-General omitting the names of the most important witnesses who could prove the CD would give rise an apprehension that he is not poised to conduct the prosecution in this case fairly, justly, honestly and in accordance with law. When we asked the learned Attorney-General as to where did the CD come from, who prepared it, how would he prove it without including the names of the witnesses who could furnish evidence in this behalf, his reply was that he expected that the content of the CD would be accepted by the respondent. How could he draw this inference at this stage and thus make it a basis for omitting the names of the most important witnesses is a question which has not been answered much less satisfactorily. Alright, the prosecutor who acts or professes to act independently is not supposed to create evidence in support of prosecution but he should bring at least that evidence which is available and necessary for the proof of the charge.

7. How the Chief Justice of Pakistan could figure as a witness in the list of witnesses submitted by the Attorney-General when he neither filed a complaint in his individual capacity nor submitted an affidavit. Even if it were so, he could not have been examined as a witness in view of the proviso to section 17 of the Contempt of Court Ordinance. notwithstanding the desire of the contemnor to cross-examine him. This too shows that he is acting more as a defence counsel than a prosecutor. Where is law? Where is his independence? And where is his most trumpeted conscience? We could not see even the pretence, let alone, semblance of any one of them. Not only that, he always looked all out to throw spanner in the work. His concerns, as far as it can be gathered from his conduct in the Court, aim at turning the table on the Court rather than preserving its dignity. Prosecution of this case thus cannot be held to be in safe hands. If as a Judge, he could refuse to hear a case of the person who remained his client at some stage, it would also be just, proper and in the fitness of things for him not to conduct the prosecution of this case when he persistently stated that he being a prosecutor by virtue of his office is supposed to make independent assessment of the case and assist the Court in accordance with law and his conscience. Granted that the Attorney-General, being persona designata is alone to conduct the proceedings in such matters but his partial and partisan attitude with pronounced leaning towards the respondent cannot be conveniently ignored.

8. Yes, in the normal course of events, this Court is to proceed as nearly as possible in accordance with the rules but it can make a deviation therefrom for the ends of justice and for preventing abuse of the process of the Court. This is what, Order XXXIII in general and rule 6 in particular have been enacted for.

9. In such circumstances, we do not agree with the learned counsel for the respondent that it would be a colourable exercise of jurisdiction. We also do not agree with the learned counsel for the respondent that this exercise would tend to defeat the soul and spirit of the rules. We, however, fail to understand why the learned counsel for the respondent insists on the continuance of the learned Attorney-General as a prosecutor. How he turns out to be a man of his choice is also abstruse if not intriguing. In any case, the Court cannot be blind to the requirements of justice when partiality of the Attorney-General as a prosecutor is patent on the face of the steps he has taken thus far during the proceedings. Nor can the Court act like a statue demonstrating complete indifference or apathy to the acts of its officers and designs behind them. We, therefore, hold that instead of the Attorney-General, an Advocate of this Court with streaks of independence who has also experience of trial should conduct the proceedings as a prosecutor in this case. We direct the Registrar of this Court to give a list of the Advocates with such antecedents within a week so that a prosecutor may be appointed from amongst them. To come up for further proceedings on 9-10-2012. MWA/M-73/SC Order accordingly.