Power of Attorney in Criminal Cases: Legal Boundaries and Judicial Rulings

A Power of Attorney (POA) is a legal document that authorizes one person, the “principal,” to appoint another, the “agent” or “attorney-in-fact,” to act on their behalf in certain matters. While POA is commonly applied in civil, commercial, and administrative cases, its use in criminal law is severely limited. Courts in Pakistan and other regions typically require the direct involvement of the complainant or accused in criminal proceedings, as these cases involve personal and public interests that cannot be delegated to an attorney.

1. Concept and Types of Power of Attorney

Power of Attorney is classified broadly into two types:

• General Power of Attorney (GPA): Grants wide-ranging authority to the agent to act on the principal’s behalf across multiple domains.
• Special Power of Attorney (SPA): Confers specific, limited authority, allowing the agent to perform designated tasks.

In civil cases, POA allows agents to represent parties, file suits, submit applications, and make claims. However, in criminal cases, the legal system upholds the principle that criminal liability and proceedings are personal and cannot be represented or fulfilled by someone who lacks direct knowledge and involvement in the alleged act.

2. Legal Framework: Applicability of Power of Attorney in Criminal Cases

Criminal cases involve offenses against the state or society. Unlike civil cases, where private disputes can be resolved through negotiation, criminal cases invoke punitive actions that affect public order, and thus they require the direct presence of the parties involved. In Pakistan, this stance aligns with Sections of the Criminal Procedure Code (CrPC) and judicial interpretations which underline that representation in criminal cases, either for the complainant or the accused, must be personal.

3. Judicial Rulings and Recent Precedents

Several judicial decisions have clarified the inadmissibility of POA in criminal cases. These rulings underscore that only individuals directly involved in the offense can file complaints or testify.

W.P. No. 97 of 2024 – Lahore High Court, Rawalpindi Bench

In Sonia Sharief v. Addl. District & Session Judge, etc., the Lahore High Court, Rawalpindi Bench, in January 2024 reiterated the inadmissibility of POA in criminal proceedings. Here, the petitioner sought to lodge a complaint through a special attorney under Section 6 of the Muslim Family Laws Ordinance, 1961. The court dismissed the complaint, citing that the law mandates personal involvement in filing and prosecuting complaints. The judgment clarified:

“Criminal proceedings cannot be initiated through an attorney as the criminal administration of justice recognizes only those as a witness or complainant who either have seen, heard, or at least perceived any fact towards the offense.”

This judgment reinforces the position that criminal complaints and defenses are personal actions and cannot be delegated through POA.

Muhammad Qasim v. SHO Police Station Khudadad (2016 MLD 1238)

In this landmark case, the court emphasized that a criminal complaint or First Information Report (FIR) must be lodged by the person with firsthand knowledge of the offense. The judgment underscored that:

“An attorney, being not speaking of his own knowledge, would not fall within the meaning of ‘witness/complainant.’ Thus, an attorney cannot legally, under such status, file an FIR or a criminal complaint.”

This ruling is significant because it reiterates that POA cannot substitute the personal experience and testimony of the principal in criminal cases.

Liaqat Ali Mir v. Additional Sessions Judge (2017 P Cr. LJ 1026)

The Lahore High Court in Liaqat Ali Mir further clarified that non-appearance by the complainant in criminal proceedings results in the dismissal of the case, as a personal presence is essential. The judgment states:

“Appearance of the complainant before the Magistrate is necessary and non-appearance contemplates consequences in the shape of dismissal of complaint and acquittal of respondent accused.”

4. Rationale Behind Restricting Power of Attorney in Criminal Cases

The core rationale for prohibiting POA in criminal cases stems from several legal and ethical considerations:

• Direct Knowledge and Accountability: Criminal cases require the complainant or witness to have direct knowledge of the events. Testimonies from individuals without firsthand knowledge weaken the case and may compromise justice.
• Authenticity of Testimony: Criminal proceedings are based on facts that must be authenticated through direct testimony. An attorney representing a complainant or accused may lack the personal experience to convey the truth accurately, which could jeopardize the legal outcome.
• Fair Trial and Justice: Allowing POA in criminal cases could undermine the concept of a fair trial, as the accused is entitled to confront the actual accuser, not a proxy. The principle of “nemo judex in causa sua” (no one should be a judge in their own cause) also extends to personal representation in criminal cases.
• Public Interest and Social Order: Criminal laws protect public welfare and social order. Allowing complaints to proceed via POA could lead to potential misuse, as attorneys might act on instructions without understanding the true nature of the allegations or the interests involved.

5. Exceptional Circumstances and Limitations

In some jurisdictions, limited exceptions apply when it comes to allowing attorneys to represent parties in criminal matters, particularly for administrative tasks. For instance, the court may permit POA for procedural filings or allow an attorney to perform certain actions when the principal is unavoidably absent due to extenuating circumstances, such as severe illness. However, these exceptions remain strictly limited, and the principal must be personally present for significant phases, such as lodging complaints, giving testimony, or defending themselves in court.

6. Conclusion

The prevailing view across Pakistani judicial rulings maintains that Power Of Attorney is alien to criminal cases, underscoring the necessity for direct personal involvement in filing complaints, prosecuting cases, or defending charges. The recent case of Sonia Sharief v. Addl. District & Session Judge serves as a compelling precedent in emphasizing that criminal complaints must be made by those directly affected, preserving the integrity and accountability essential in criminal jurisprudence.

This restriction protects the sanctity of criminal proceedings and ensures that justice is pursued with authenticity, as direct testimony from the involved parties is crucial for the fair administration of justice.