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ٰ ‫ﺼﻠﱢﯽ َﻋ‬
َ ُ‫ﻧَۡﺤَﻤُﺪٗه َو ﻧ‬

Advocate-General
by

[Justice ® Dr. Munir Ahmad Mughal]

Advocate-General is a term used and defined in the Code of


Criminal Procedure, 1898 in section 2, in subsection (1), in clause
(a) as under:
Advocate-General includes also a Government Advocate or where
there is no Advocate General or Government pleader, such officer
as the Provincial Government may, from time to time, appoint in
this behalf.

DEFINITION AND ITS KINDS:

A definition speaks of three things, namely, the term, the genus and the differentia. Here
the term is Advocate-General, the genus is that he is an agent appointed to act and plead
on behalf of the Province, the differentia is that he is the Principal Law Officer of the
Provincial Government. Only that person is to be called “Advocate-General” who has
been appointed as such.

CAN THIS DEFINITION BE EXTENDED TO AN “ADDITIONAL ADVOCATE


GENERAL”?
The question had arisen before the High Court and it was held that the definition as given
in section 4(1)(a) of the Code of Criminal Procedure, 1898 cannot be extended to any
other officer particularly “Additional Advocate General” appointed in Basic Pay Scale 20
with all privileges and benefits of the said grade.1

Advocate General and Public prosecutor are two different offices. Advocate General by
virtue of his appointment cannot become Public Prosecutor as the two offices are

1
1997 MLD 3079

Electronic copy available at: http://ssrn.com/abstract=1943654


differently defined by clause (a) and (t) of section 4(1) of the Code of Criminal
Procedure, 1898 and purpose and intent of two offices is distinct from each other.2

Section4 (1) (t) of the Code of Criminal Procedure, 1898 defines a Public Prosecutor as
any person appointed under section 492, and includes any person acting under the
direction of a Public prosecutor and any person conducting a prosecution on behalf of the
State in any High Court in the exercise of its original criminal jurisdiction.

WHO IS A PLEADER?

Section 4 (1) (r) of the Code of Criminal Procedure, 1898 defines the word “Pleader”. It
says:
“Pleader” used with reference to any proceeding in any Court, means, a pleader or
mukhtar authorized under any law for the time being in force to practice in such Court
and includes:
(1) an advocate, a Vakil and an attorney of High Court so authorized, and
(2) any other person appointed with the permission of the Court to act in such
proceeding.

Thus we have:
1. Advocate,
2. Pleader,
3. Vakil,
4. Attorney,
5. Mukhtar,
6. Advocate-General,
7. Public Prosecutor, and
8. Any other person appointed with the permission of the Court to act in such
proceeding.

Auhtorisation to act or plead in a court of law must be under a law in force. Where any
law does not permit to do so, the authorization to that extent will be void and of no legal
effect.
Power to appoint must also have the backing of a law in force.
For example, it is section 492 of the Code of Criminal Procedure, 1898 which empowers
the Provincial Government to appoint a Public Prosecutor. This discretion is in respect of
of appointing generally, or in a case, or for a specified class of cases, in any area, one or
more officers.
Permission of the Court may be obtained orally or in writing, which when granted will be
mentioned in the Court file that it was asked for by such and such person in such case and
was granted.

HOW THE COURT IS TO EXERCISE ITS DISCRETION IN GRANTING


PERMISSION TO APPEAR AS PLEADER?

2
NLR 1997 Cr. P. C. 355 = 1998 P.Cr. L. J. 35.

Electronic copy available at: http://ssrn.com/abstract=1943654


The discretion of the Court in permitting persons to appear as pleaders must be exercised
judicially with due regard to the interest of the party engaging him. 3

WHAT IS THE DISTINCTION BETWEEN “ADVOCATE GENERAL” AND


“PROSECUTOR GENERAL”?

Advocate General and Prosecutor General are not synonyms by any stretch of
interpretation. Job of a prosecutor is to achieve success in the shape of a conviction while
that of State represented by Advocate General is to do justice between both the parties
and not necessarily to seek conviction if not warranted by law or by circumstances. 4
Office of Public Prosecutor is distinct and his functions and duties are different from the
duties of the Assistant to the Advocate General or of the Advocate General. Appointment
of Public Prosecutor for the purpose should be relatable s. 492 the Code of Criminal
Procedure, 1898.5
Advocate General who is not a public prosecutor within the meaning of s.492 the Code
of Criminal Procedure, 1898 is not competent to present appeal from acquittal.6
Where an appeal against acquittal was not filed or signed by any of the law officers
authorized by the Central Law Officers Ordinance, 1970, was held to be not valid.7

Where Advocate General was notified by the Competent Authority as Public Prosecutor
but he omitted to mention such fact in advertantly and the question arose as to whether
such an omission would vitiate an appeal filed by him? The Honourable Supreme Court
of Pakistan gave the verdict that such an omission would not vitiate such appeal. 8 The
Advocate General NWFP was the Public Prosecutor generally for the whole province.

PRIVY COUNCIL DECISION ON THE QUESTION OF APPOINTMENT OF PUBLIC


PROSECUTOR

Under section 492 of the Code of Criminal Procedure, 1898 it is a part of the executive
authority of the province to make appointments to the post of Public Prosecutor and that,
the executive authority of the province being vested by s.49 of the Government of India
Act, in the Governor who is entitled to appoint the Advocate General, a Public
Prosecutor.9

POSITION OF INSPECTOR LEGAL

3
1978 Cr. L. J. 778; AIR 1978 Supreme Court 1019.
4
PLD 2001 Peshawar 80.
5
1994 SCMR 749.
6
PLD 1955 FC 79.
7
1998 P.Cr. L.J. 1503.
8
PLD 1959 Supreme Court (Pak) 4.
9
PLD 1949 P.C. 21.
Inspector legal is a public prosecutor within the meaning of section 492 and section 494
of the Code of Criminal Procedure, 1898. Any Inspector or Sub Inspector when he has
been authorized to act as Prosecuting Inspector will be deemed to be a Public Prosecutor
for the purposes of s. 492.10

POSITION OF A PRIVATE COUNSEL OF THE COMPLAINANT AND THE


PUBLIC PROSECUTOR

Section 493 the Code of Criminal Procedure, 1898 is the relevant section in this behalf. It
says that the Public Prosecutor may appear and plead without any written authority
before any Court in which any case of which he has charge is under inquiry, trial or
appeal, and if any private person instructs a pleader to prosecute in any Court any person
in any such case, the Public Prosecutor shall conduct the prosecution and the pleader so
instructed shall act therein, under his direction.

WHAT ARE THE DUTIES OF A PUBLIC PROSECUTOR UNDER SECTION


493 THE CODE OF CRIMINAL PROCEDURE, 1898 ?

A Public Prosecutor is to assist the Court in furtherance of justice and not to act as
counsel for any particular party. His conduct would not be to aggravate the case against
the accused but his only object should be to aid the Court in discovery of the truth. A
privately engaged counsel would promote the case of his client and the paramount
consideration before him would be to watch the interest of his client rather than justice be
done in the matter.11
An advocate privately engaged to represent the complainant should have no other place
than that of one strictly subordinate to the officer who prosecutes on behalf of the State,
for the State stands not necessarily for a conviction but for justice. 12
In the prosecution of a criminal case particularly a case of murder, an advocate privately
engaged is not a proper person to conduct the prosecution, as he would represent the
interest of his client and will strive to conviction of the accused instead of justice.13

WHERE COMPLAINANT FEELS THAT PUBLIC PROSECUTOR IS NOT


PERFORMING HIS DUTY SATISFACTORILY CAN HE MOVE THE STATE
TO PERMIT HIS COUNSEL TO CONDUCT THE PROSECUTION? IF SO
WHERE IS THE AUTHORITY TO DO SO?

Public Prosecutor is expected to honestly and competently discharge his functions and
duties to aid the court in furtherance of justice. Where it is alleged and shown to the State
that the PP is not performing or cannot perform his duty satisfactorily, the State can
grant permission in suitable cases. The authority lies in the judicial precedent cited as
1984 SCMR 594.

10
PLD 1971 Lahore 574; PLD 1981 Supreme Court 671; 2000 P.Cr. L. J. 1442; and 2001 P.Cr. L. J. 565.
11
1986 P.Cr. L. J. 440.
12
AIR 1940 Sind 220.
13
1969 P.Cr.L. J. 1058; PLD 1951 Sind 29.
HOW TRIAL COURT IS TO EXERCISE ITS JURISDICTION WHEN A PUBLIC
PROSECUTOR MAKES AN APPLICATION FOR WITHDRAWAL OF THE
CASE UNDER SECTION 494 OF THE CODE OF CRIMINAL PROCEDURE,
1898 ?

Where in a case allegations of criminal breach of trust, cheating, forgery and corruption
were levelled against an accused person but the same were not supported by any witness.
On the other hand the reports exhibited by the prosecution favoured the accused, which
had shown that whatever amount was allocated to him, was properly spent. Evidence
available on record was not sufficient to connect the accused with the commission of the
alleged offence. The Public Prosecutor moved an application before the trial Court for
withdrawal of case against the accused. The trial Court declined the request without
assigning any reason. The High Court of Baluchistan made the following observations:
“Section 494 of the Code of Criminal Procedure, 1898 empowered a Public Prosecutor to
withdraw the case on ground of insufficient evidence…Court had a supervisory
jurisdiction to see the said power could not be used by any authority arbitrarily or
contrary to the public interest. Court may satisfy itself about the request for withdrawal
by assigning reasons for the acceptance or rejection of an appeal…For the purpose of
allowing or disallowing a request for withdrawal and assigning the reasons, the court
must not necessarily record evidence and such discretion could also be exercised on the
basis of material available on record…Prosecution had not been able to prove its case
against the accused…Trial Court had not only failed to properly appreciate the evidence,
but had also failed to exercise its jurisdiction for not granting permission for withdrawal
of the case on the ground of meagre evidence.. Trial Court had not advanced any reasons
while rejecting the application for withdrawal, which would mean that the Court had not
considered the evidence and material available before it…Act of trial court not only
amounted to misreading and non reading of the evidence but also amounted to non-
exercise of jurisdiction vested but also amounted to non exercise of jurisdiction vested in
it, which was an illegality and irregularity…Impugned judgement was not sustainable, in
circumstances which was set aside.”14

14
PLD 2011 Quetta 40.