Role of Prosecutors - Punjab Judicial Academy

101 Pages·2012·0.45 MB·English

Role of Prosecutors
By
Qaiser Javed Mian
Director Research/Faculty Member,
Punjab Judicial Academy, Lahore
A police report under section 173 of the
Code including a report of
cancellation of the first information
report or a request for discharge of a
suspect or an accused shall be
submitted to a Court through the
Prosecutor appointed under this Act.
1. Abdul Hafeez Junejo Versus The State
2010 YLR 470
Before Sajjad Ali Shah, J
“Application of accused challenging legality of order of change of section of
Penal Code ---Applicant/accused originally was charged under Ss.316/337-K/34
P.P.C., but on the direction of District Public Prosecutor S.316, P.P.C was
deleted and S.302 P.P.C, was incorporated---Counsel for applicant contended
that such change of section of P.P.C was made on the direction of District Public
Prosecutor who had no authority to direct such change and that neither material
produced was considered nor there was any application of mind through a
speaking order---Validity---Conduct of prosecution on behalf of government
was the responsibility of the Prosecutors and every report under S.173,, Cr.P.C.
including the report for cancellation of F.I.R. or discharge of a suspect or an
accused had to be filed in the court after same was scrutinized by the Public
Prosecutor---Prosecutors had the powers to return such report to officer
incharge of a Police Station or the Investigating Officer, if he found it defective
for the removal of identified defect---As result of such scrutiny as an expert his
opinion could be placed before the court for its convenience and consideration,
without any binding force---Prosecutor having expertise in the field was in a
better position to opine that on the basis of the investigated fact accused could
be tried under a specific provision and in the present case, the fact that the
accused persons being officers/officials of Public, could not be ignored---In view
of such clear mandate provided to the Prosecutor, the opinion of District Public
Prosecutor appeared to be in consonance with such mandate and the
acceptance thereof by the Investigating Officer followed by changes of section of
Penal Code could not be questioned---Court was ultimately to decide the
provisions with which accused was charged.”
2. Tanveer Hussain Qureshi and 8 others
Versus
District Public Prosecutor, Sialkot and 2 others.
2009 P Cr.L J 1043.
Before M.A. Zafar, J
District Public Prosecutor while scrutinizing the cancellation report submitted
by the Investigating Officer in the case, did not agree with the same and
directed the S.H.O. to prepare challan under S.173, Cr.P.C. against the
accused for their trial in the Court in accordance with law---Validity---Sections
9 and 10 of the Punjab Criminal Prosecution Service (Constitution, Functions
and Powers) Act, 2006, did not authorize the Public Prosecutor to direct for
submission of report/challan under S.173, Cr.P.C. against the accused for
their trial or to recommend Departmental inquiry or registration of criminal
case against the Food Inspector--Public Prosecutor had no authority to
assume and abdicate the function, authority and jurisdiction of Trial Court
and he had traveled beyond his jurisdiction and committed a grave illegality
by issuing the aforesaid directions to S.H.O.---Function of Public Prosecutor
was only to pin point the defects in investigation as well as in the report
and to direct the Investigating Agency to remove the same---Trial Court,
however while passing orders even on the cancellation report could issue
necessary direction to the Investigating Officer after examining and perusing
the available material to submit challan against the accused---Public
Prosecutor had no jurisdiction to direct the S.H.O. for doing the same---
Impugned direction was set aside and the constitutional petition was accepted
accordingly.”
3. Rasoolan Bibi Versus Additional Session Judge and others
PLD 2009 Lahore 135
Before Khurshid Anwar Bhinder, J
Petitioner had called in question order passed by Ex-Officio Justice of
peace, dismissing the petition under Ss.22-A & 22-B, Cr. P.C. filed
against order passed by the District Public Prosecutor concerned
deleting S.324,P.P.C. in the case F.I.R. registered under
Ss.324/354/337-A(i)/337-F(i)/337-L(ii)/34, P.P.C.---Validity---Under
provisions of S.9(7) of Punjab Criminal Prosecution Service
(Constitution, Functions and Powers) Act, 2006, District Prosecutor
had the powers to scrutinize the available evidence and applicability
of offences against all or any of accused as per facts and
circumstances of the case---Deletion or insertion of any offence fell
within the exclusive domain of the District Prosecutor---Question
whether the District Prosecutor had rightly deleted S.324, P.P.C.,
would be seen by the Trial Court at the time of framing the charge,
but petitioner could not assail such an order either under provisions of
Ss. 22-A & 22-B, Cr.P.C. or in constitutional jurisdiction of the High
Court as it would amount to interfering with the process of
investigation which was not the mandate of law---Ex-Officio Justice of
Peace had rightly dismissed the application of the petitioner, in
circumstances.
4. Lal Khan and another
Versus
Station House Officer, Police Station Kotwali Jhang and 6 Others
2010 P Cr. L J 182 [Lahore]
Before Kazim Ali Malik, J

Under S.9 of Punjab Criminal Prosecution Service (Constitution,
Functions and Powers) Act, 2006, the prosecutor was required to
scrutinize the report under S.173, Cr. P.C. in order to decide as to
whether or not same was fit for submission before the court of
competent jurisdiction---Public Prosecutor, mechanically submitted
the challan in court without application of legal mind---Under S.
190(1)(b), Cr. P.C., the court would take cognizance of the offence
and not of the offender---In the present case Trial Court took
cognizance of the challaned accused in utter disregard of said
mandatory provisions of law---Investigating Agency, the prosecution
and the Trial Court, in circumstances had completely failed to
discharge the obligations cast on them by the law.

Waqar Ilias and another v. The State PLD 1993 Quetta 49 ref
5. Allah Yar Versus Hussain Ali and another
PLD 2009 Lahore 87
Before Muhammad Akram Qureshi, J

S.449 Cr.P.C--- Withdrawal from prosecution---Rule of caution---
Guide lines---Court, in view of the discretionary power vested in
the Public Prosecutor to withdraw from prosecution of a case
under S.494, Cr.P.C. acts in a supervisory capacity to see that
such power is not used arbitrarily and contrary to public interest
causing interference with the ordinary course of justice---Court must
satisfy itself about the reasons advanced by the public prosecutor
….

Any executive opinion of the District Prosecutor counselling
the case should not have prevailed upon the said judicial order
of the Trial Court---Trial Court should not have permitted the
withdrawal of the case by a mechanical order---Impugned order
being not in accordance with the dictums of Superior Courts, was
illegal,…
6. Tariq Habib Versus The State
2009 YLR 1364 [Karachi]
Before Mrs. Qaiser Iqbal, J

Similarly on the receipt of a report for sanction Deputy District Public
Prosecutor, despite endorsing his opinion, directly issued a direction
to the Investigating Officer for submitting challan in the Court---
Magistrate, without applying his judicial mind passed a stereotyped
order without adhering to the provisions of law and examination of
record, acting arbitrarily violating the principles of natural justice-
Magistrate thus had failed to exercise its discretion in a lawful
manner by deciding the matter in a slipshod manner without
giving cogent reasons and considering the material on record---For
disposal of the investigating report, Magistrate was required under
the law to act reasonably, fairly, justly and assigning reasons
justifying his order---Impugned order having been passed by the
Magistrate on the basis of report of the District Public Prosecutor
without application of his own independent mind, was not warranted
under the law and the same was quashed accordingly.
7. Bahar Ali and 2 others Versus The State and another
PLD 2008 Peshawar 28
Before Syed Yahya Zahid Gillani, J

S.8(2) of the North-West Frontier Province Prosecution Service
(Constitution, Functions and Powers) Act, 2005 makes a S.H.O.
bound to send copy of each F.I.R. of his police station to District
Public Prosecutor and it bestows an extraordinary responsibility on
District Public Prosecutor to inspect F.I.Rs. and wherever necessary
to Suo Motu issue necessary guideline to investigating officer and
that would be in the shape of “Direction”, to the Head of
Investigation. He can also inspect, scrutinize and supervise the
whole Investigation process of the cases. While reporting to
Government under section 8(6) of the Act, the District Public
Prosecutor can highlight lapses of the investigating officer in acute
cases of negligence for appropriate departmental level punitive
action to promote sense of responsibility and accountability in the
investigating officers
8. Muhammad Ashraf alias Bhuller Versus The State
2008 YLR 1462 [Lahore]
Before Muhammad Ahsan Bhoon,J

Investigating Officer on the basis of statements of many persons
appearing in defence had found the accused innocent and had placed
him in Column No. 2 of the challan, but on the direction of District Public
Prosecutor had placed his name in Column No. 3 of the challan, which
fell outside the purview of the duties of the District Public
Prosecutor and no legal sanctity was attached to his opinion qua
the guilt of accused---
PLD 1954 Sindh 256 and 1983 SCMR 370 ref.

It is always the Court which is to charge the accused under the relevant
provisions of law keeping in view the evidence available on record
regarding the crime alleged and not the District Public Prosecutor.

No Court can order Investigating Officer to submit challan while placing
the name of accused in column Nos.2, 3 or 4, rather Court can only
direct the Investigating Officer to submit final report after completing
investigation.
1983 SCMR 370 ref.