- “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.”
Abdul Hafeez Junejo Versus The State
2010 YLR 470
Before Sajjad Ali Shah, 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.
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
Waqar Ilias and another v. The State PLD 1993 Quetta 49 ref
- Investigating Officer had the sole prerogative to put the name of an Accused person in column No. 2 or in column No.3, subject of course as a result of his investigation which could not be undone by any judicial forum; or for that matter by superior officer of his department or by the Public Prosecutor; or Inspector Legal etc. neither under Cr.P.C., North-West Frontier Province Prosecution Service Act, 2005 nor under Police Order, 2002. However, it could be done under reinvestigation.
Asad Zaman Versus Muhammad Sareer
2010 PLD 54
PESHAWAR HIGH COURT-NWFP
- 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.”
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
- 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.
Rasoolan Bibi Versus Additional Session Judge and others
PLD 2009 Lahore 135
Before Khurshid Anwar Bhinder, 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 counseling 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,…
Allah Yar Versus Hussain Ali and another
PLD 2009 Lahore 87
Before Muhammad Akram Qureshi, 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.
Tariq Habib Versus The State
2009 YLR 1364 [Karachi]
Before Mrs. Qaiser Iqbal, 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
Bahar Ali and 2 others Versus The State and another
PLD 2008 Peshawar 28
Before Syed Yahya Zahid Gillani, 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.
Muhammad Ashraf alias Bhuller Versus The State
2008 YLR 1462 [Lahore]
Before Muhammad Ahsan Bhoon,J
- Report under S. 173 Cr. P.C was forwarded to the Public Prosecutor Anti-terrorism Court who, after holding that facts of the case did not attract the provisions of S.7 of Anti-Terrorism Act, 1997, directed Station House Officer to submit the challan to the District Prosecutor after deleting the offence under S. 7 of the Act---Said order was challenged by the complainant in constitutional petition---Validity---Section 9 of Anti-Terrorism Act, 1997 did not authorize the Public Prosecutor to delete the offence under S.7 of the Anti-Terrorism Act, 1997---Public Prosecutor Anti-Terrorism Court had no authority to assume and abdicate the function, authority and jurisdiction of the Trial court to decide the question of jurisdiction or applicability of the relevant section…
Fayyaz Ahmed and another Versus The State and others
2008 P Cr. L J 805 [Lahore]
Before Fazal-e-Miran Chauhan and Hasnat Ahmad Khan, JJ
Mirza Shaukat Baig and others v. Shahid Jamil and others
PLD 2005 SC 530
and
Muhabbat Ali another v. The State
2007 SCMR 142 ref.
- Section 9 of Anti-terrorism Act, 1997 did not authorize the Public Prosecutor to delete the offence under S. 7 of the Anti-terrorism Act, 1997.
- Public prosecutor, Anti-terrorism Court while passing the impugned direction, had traveled beyond his jurisdiction and authority and had committed a grave illegality.
Fayyaz Ahmed Versus State
2008 P Cr L J 805
Lahore-High-Court-Lahore