A Prosecutor is he who prosecutes another for a crime in the name of the government. Section 4(t) of the Criminal Procedure Code, 1898 defines “Public Prosecutor” as any person appointed under Section 492, and includes “any person acting under the directions 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”.
Legal Framework Governing the Role of Prosecutors in Pakistan
Role of the prosecutors in facilitating the IO during Investigation Process
The role of the Police certainly cannot be seen in isolation of the Prosecution department and what follows is only an illustration of the statutory duty of the Prosecutor in relation to conduct of investigation. It is important for Prosecutors to be well-informed of the investigative processes and to be assertive in exercising their role of scrutinizing the investigative process adopted by the Police.
Registration of an FIR
The role of Prosecutors in coordination with the Police begins immediately after the registration of an FIR. The Police Officer is required to send a copy of the FIR to the District Public Prosecutor who then inspects the same and issues necessary directions to the Head of Investigation or the DPP ( District Public Prosecutor in case of Sindh) and also inspects, scrutinizes and supervises the whole investigation process.
Guidance during the investigation of the case
During the investigation, whenever any legal guidance or opinion is required by the Head of Investigation, it is sought from the District Public Prosecutor, who then issues such guidance or opinion, which is then required to be followed by the Investigating Officer. A Public Prosecutor also has the power to issue general guidelines to the Police regarding investigation necessary for an effective Prosecution. Moreover, under the KPPS and the SPS Act, any insertion or deletion of offences and sections of law in the FIR falls within the exclusive domain of the Investigating Officer and the Prosecutor.
Duty to challenge order of remand
There is no doubt that Prosecutors would be interested in contesting remand themselves in appropriate cases since the extended detention of the accused, if utilized properly, can aid investigation and support the Prosecutor’s case. It is therefore critical that Prosecutors be well-versed with these provisions and be able to use them effectively wherever appropriate.
Prosecutor’s access to case diaries.
While the content of these diaries cannot be used as evidence, a Court may use them to aid it during an inquiry or trial for the purpose of elucidation of certain facts, seeing time of investigation and for clearing up obscurities.
Neither the accused nor his counsel is allowed access to the case diaries merely on the ground that the Court uses them. Where a Police Officer who made the case diary uses it to refresh his memory, he may be contradicted by the Court by using the case diary in accordance with Articles 140 & 156 of the Qanun-e-Shahadat, 1984.
Crucially, the Prosecutor is allowed access to the case diaries. Prosecutors should therefore avail the advantage allowed to them under the law in order to be better prepared for trial and to be better equipped than the defense counsel and the private complainant counsel and therefore be more influential in proceedings.
Police-Prosecution Coordination on bail
When a Prosecutor receives a notice of a Bail Petition having been filed, he shall requisition the Police file, and may also require the Investigation Officer (IO) to brief him about the relevant facts of the case.
Where an IO or the Prosecutor considers a bail granting order against the facts of the case or law, the matter will be referred to the District Public Prosecutor (DPP) for advice. The DPP shall determine whether an application for cancellation of bail is warranted or not.
Scrutiny of the Challan
Upon conclusion of the investigation, the Investigating Officer formulates his own opinion for disposal of the case due to insufficient evidence or for a recommendation for the accused to be sent for trial and submit a Police report/challan under Section 173 of the Cr.P.C. to the Prosecutor, who then submits it to the authorized Magistrate. The role of Prosecutor upon receipt of this report is of great significance; he is required to scrutinize the challan for lacunae and either forward the same to the competent Court if he finds it fit for submission, or return it to the Investigation Officer with written direction to resubmit the report after removal of the deficiencies and defects so identified by him (3 days time period for Sindh and Punjab, 7 for KP while no time frame has been identified under the Balochistan law).
Following this, the Prosecutor is required to submit the amended report to the competent Court. The Court while taking cognizance on a police report takes cognizance of the offence but not of a particular person charged in report as an offender.
The decision to prosecute
One of the foremost and essential functions of a Prosecutor is to make the decision whether or not to prosecute a case. While the Police, government, media, pressure groups and other stakeholders may be strongly inclined that a particular case be prosecuted, the final decision rests with the Prosecutor who in making his decision has to fairly, firmly, impartially, consistently, efficiently and with integrity.
Application for discharge (in cases of insufficient evidence)
If the Prosecutor is of the opinion that there is insufficiency of evidence, he can submit an application under Section 265-D of the Cr.P.C and under Section 4(c) and 5(b) of the KPPS Act 2005, Section 9(3) of the SPS Act 2009, Section 6(2) (d) of the Balochistan Prosecution Service (Constitution, Functions and Powers) Act 2003 and Section 10 (3) of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act 2006 apply for the discharge of the accused along with the challan to the competent Court. However, under the powers cannot be exercised in respect of offences punishable with death or life imprisonment.
To learn more, explore the Handbook of Criminal Investigation in Pakistan, 2021