Muhammad Shakeel and others vs Government Of Punjab through Home

ORDER

In all these criminal appeals, the appellants have impugned their respective orders of various dates, passed by the Home Department, Govt. of the Punjab, vide which their individual representations filed under section 11-EE (3) of the Anti-T errorism Act, 1997 against the orders for insertion of their names in Fourth Schedule under the Act ibid, were rejected.

2. During hearing of these matters, question arose before this Court whether in appeals filed under section 11- EE(3-A) of the Anti-T errorism Act, 1997, the Prosecutor Department is to assist this Court or A 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 Of ficer 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 of fice 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 administrativ e 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 representat ion, 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 of fice.

5. In the case in hand, although, the impugned orders have been passed under Anti-T errorism 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-T errorism 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. INSPECT OR-GENERAL OF POLICE (PUNJAB), LAHORE and others" (PLD 2005 Lahore 470) wherein, while describing the powers and duties of an Ex-Of ficio Justice of Peace, it has been observed that the powers and duties of a Justice of Peace or an Ex-Of ficio 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-Of ficio 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 of fice represents the State.

6. For what has been discussed above, we are of the firm opinion IC that the impugned orders passed under section 11-EE(3) of the Anti-T errorism Act, 1997 are administrative in nature; hence, Advocate General office shall assist the Court in these appeals.

7. Today record of the case is not available; hence, the matter be listed after summoning the record.