Criminal Prosecution denotes a proceeding instituted on behalf of the public and carried on by due course of law, before a competent forum for the purpose of determining the guilt or innocence of a person charged with crime. 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.”
Apart from the responsibility to dispose of criminal cases for the State, Prosecutors in every country play an important role in criminal investigations despite the differences in basic legal principles. Prosecutors can and should play a more influential role during investigation of offenses in coordination with the Police in order to build legally robust cases and ensure that the rights of all the parties involved in the process are protected.
Legal Framework Governing the Role of Prosecutors in Pakistan
The appointment of Public Prosecutors is outlined in Section 492 of the Code of Criminal Procedure, 1898. It outlines the power of the Provincial Government to appoint Public Prosecutors in any local area either for specific cases or generally. Moreover, Section 18 of the Anti-Terrorism Act, 1997 also specifies that the Government shall appoint “proficient, diligent and professionally competent Public Prosecutors” in relation to each Anti-Terrorism Court and may also appoint Additional Prosecutors or Law officers.
Accordingly, in Pakistan, significant legislation has been promulgated particularly at the provincial level and rules, guidelines and protocols have been developed. These empower Prosecutors to be more involved with the investigative process through providing legal guidance to the Police during investigation, handling remand & bail matters and advising/recommending cases for discharge or Prosecution as the case may be.
Moreover, it is important to highlight the primary legal framework and supporting documents for the powers, duties, expected conduct, and limitations to the powers of Prosecutors in Pakistan. There are Acts promulgated for all provinces that regulate the conduct of Prosecutors.
Prosecution Service under Provincial Laws
Each Province has now established a Criminal Prosecution Service with a view to having, “an independent, effective and efficient service for the prosecution of criminal cases, to ensure prosecutorial independence, for better coordination in the criminal justice system.” The service under the Punjab Act consists of the Prosecutor General, Additional Prosecutors General, Deputy Prosecutors General, District Public Prosecutors and Assistant District Public Prosecutors.
Hierarchy of Prosecution Service in Pakistan
The hierarchy of prosecution services in Pakistan is as follows:
Attorney General of Pakistan
Under the Constitution of Pakistan, the highest law officer, at the federation level, is the Attorney General of Pakistan. Article 100 of the Constitution of Pakistan, the Attorney General is appointed by the President of Pakistan and advises the Federal Government upon all legal matters and performs such legal functions as may be referred to or assigned to him by the Federal Government and has the right of audience in all courts and tribunals in Pakistan.
An Advocate General is appointed at a provincial level. Article 140 of the Constitution of Pakistan states that an Advocate General is appointed by the Governor, and serves during the pleasure of the Governor, advises the Provincial Government upon such legal matters and performs such other legal functions as may be referred or assigned to them. The remainder of the provincial hierarchy of prosecution falls under the office of the prosecution.
The prosecution represents the state, playing a pivotal role to find truth and whether or not the suspect has committed the crime he has been accused for. The officials working in the prosecution department are known as District Attorneys, Government Pleaders, or Public Defenders. Police registers the case and then investigates, prepares and presents the case to the District Prosecutor for prosecution. Prosecution presents the victims case to the court, questions witnesses and provides valid evidence to support prosecution.
Relationship between Police and Prosecution
Prosecutors are not empowered with legal authority to direct the police to carry out or avoid certain investigative practices. The police may seek the legal advice of a prosecutor. The interaction between police and the prosecutor makes cooperation necessary. The Prosecutor General is authorized by section 10 of the Punjab Act to issue general guidelines to the prosecutors and investigating officers for effective and efficient prosecution.
Inspection of First Information Report (FIR)
The role of Prosecutors in coordination with the Police begins immediately after the registration of the First Information Report (“FIR”) filed under Section 154 of the Code of Criminal Procedure, 1898. 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. In Farman Ullah vs. The State through Additional Advocate-General, the Peshawar High Court found that S.7 of Khyber Pakhtunkhwa Prosecution Service (Constitution, Functions and Powers) Act, 2005 had prescribed the powers of the prosecutor to scrutinize the case, and that any insertion or deletion of offenses and sections of law in the FIR falls within the exclusive domain of the Investigating Officer and the Prosecutor. The Public Prosecutor also inspects, scrutinizes and supervises the whole investigation process.
Moreover, in Bahar Ali and Others vs the State, the Peshawar High Court found the following:
“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 the 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 a sense of responsibility and accountability in the investigating officers.”
Role of Prosecutor during Investigation
Under Section 5 (d) of the Act, a Public Prosecutor has the power to issue general guidelines to the Police regarding investigation necessary for an effective Prosecution. Additionally, the Investigation Officer (IO) may hold consultations with the duty Prosecutor in all cases at the initial stages of an investigation; however, all evidential material collected by the Investigation Officer (IO) must be mandatorily provided to the Prosecutor along with the Police file when seeking advice from the Prosecution Office.
Advice so given will deal primarily with admissibility of evidence, evidential sufficiency, probable lines of inquiry, possible defenses, and reliability/credibility of witnesses. The Prosecutor will then further aid in identifying and rectifying any evidential weaknesses in the case if it is required. These may include:
- the non-provision of required essential documents,
- the absence of the required detail in documents,
- jurisdictional shortcomings,
- other evidential weaknesses.
The Guidelines for Scrutiny of Police Reports promulgated and issued under Section 10 (1) of the Punjab Criminal Prosecution Service (Constitution, Functions & Powers) Act, 2006 elaborate upon identifying defects in a police report, and explain the difference in remediable and non-remediable defects in the following words:
“Defects are remediable and non-remediable. Remediable defects are those, the removal of which does not amount to miscarriage of justice. Non-remediable defects or non-rectifiable defects are those that may have an impact on the integrity of evidence.
Examples of remediable defects include situations where the police have indicated in the police report that they have recorded the statement of particular witness but the statement is not attached to the police report. Examples of non-remediable defects are where recovery memos are without signatures of the recovery witness(s). Asking the police to obtain signatures of a person who was not present during the search may amount to fabrication of evidence, although signature of a person who was present but missed out on signing does not amount to fabrication. The police must never be requested to remove a known non-rectifiable defect and any such removal must be noted if done by the Police on its own.”
Therefore, the content and manner of prosecutorial advice needs to be such that the Prosecutor should identify procedural defects and non-provision of necessary information. However, while seeking information, the Police should not be advised to remove non-remediable defects, and these defects must not be cited by the Prosecutors in reference to the Police. The Prosecutor may, however, keep a separate note of non-remediable defects for his personal record, as has been highlighted in the aforementioned Guidelines for Scrutiny of Police Reports. On the other hand, if defects found by the Prosecutor can be lawfully remedied, the Prosecutor must direct the police to remove those remediable defects.
Each consultation conducted between the Police and the Prosecutor’s Office may be recorded in ‘Form B’, which will lay out the problems encountered, possible solutions, and actions taken to rectify the problems. This will then be allocated a reference number, which can then be used (only) internally by both the Police and the Prosecutor throughout the life of the case.
In addition to this, the Police Rules, 1934 also state that “Investigating Officers are expected to take steps to secure expert technical assistance and advice, whenever such appears desirable in the course of an investigation for purposes of evidence or for demonstration in Court”. This rule further emphasizes on the responsibility of the Investigating Officers to seek the guidance of Prosecutors in technical legal advice.
Arrest and Remand
Provisions relating to remand are particularly relevant to the role of a prosecutor since if utilized properly it can aid 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.
However, it is pertinent to mention that according to the SOPs of the KP Prosecution Service, where the Prosecutor is of the opinion that the order ‘refusing remand’ is in violation of the law or serves as an unwarranted restriction of access to justice, the Prosecutor shall challenge the order through a revision petition in the competent Court. The Police will render all reasonable assistance to the Prosecutor in the filing and pursuit of the petition, ensuring attendance of Court hearings and that all necessary documents are provided to the Prosecutor’s Office.
Section 172 of the Cr.P.C makes it mandatory for an Investigating Officer to enter day to day proceedings of the investigation in a case diary (Zimni) which contains details such as the time of receipt of information, places visited, statements of circumstances ascertained and collection of evidence and mode of collection etc. While the content of these diaries cannot be used as evidence, since these are privileged documents, 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.
Prosecutor Access to Case Diaries
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.
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. In all cases, the IO shall brief the Prosecutor on the following matters prior to a bail hearing:
- Evidence that has been collected.
- Evidence that is likely to be collected in the future (e.g. pending forensic reports).
- Antecedents of the accused.
- Likelihood of absconding.
- Likelihood of obstruction of justice.
- Age, health, and gender of the Accused.
The Prosecutor will consider the following facts in deciding whether or not to apply for cancellation of bail:
- The Court did not have the requisite jurisdiction.
- There were serious flaws in the Court’s decision-making process.
- Bail was obtained through misrepresentation.
- Person granted bail has misused the provision of bail.
- Person granted bail has not fulfilled the essential conditions on which bail was granted.
- New material has come to light which weighs against the grant of bail.
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.
If the application for cancellation of bail moves forward, the Police and Prosecutor shall have a duty to disclose all material information to the Court, unless it is necessary for that information to remain protected for the carrying out of an effective investigation. In all cases, the Prosecutor shall move swiftly and without undue delay. The Prosecutor shall not seek unnecessary adjournments and shall ensure that post-arrest bail petitions are argued at the first available opportunity.
Police Report under Section 19 ATA
In respect of the police report, both the investigating authority and the public prosecutor have specific roles to play. The investigating authority is responsible for submitting the report upon expiration of the investigation, while the public prosecutor is required to scrutinize it for any deficiencies or flaws.
Under Section 19 of the ATA, a challan may be final or interim.
As mentioned above, a Police Report is signed and submitted to the ATC directly by the investigating officer, while under the Cr.PC, a police report is forwarded to the Magistrate through the Public prosecutor. For cases of investigation pursuant to Sections 4 and 5 of the ATA, the police report shall be signed and forwarded by the police member of the JIT.
Although under Section 19 of the ATA the public prosecutor is not involved in the submission of a final report, it is still a mandatory component for compliance with section 173 of Cr.P.C and Section 9(4) of the Punjab Criminal Prosecution Service Act, 2006 KP Prosecution Act 2005. Moreover, under Section 19-B of the ATA, it is obligatory for the public prosecutor to scrutinize the case file “to ensure that all pre-trial formalities have been committed.”
The second proviso to Section 19 (1) provides for the submission of an interim report where the investigation is not completed in 30 days from the lodging of an F.I.R.
In this case, within 3 days after the expiration of 30 days the investigating officer or the JIT must forward to the ATC an interim report through the Public Prosecutor, signed by the investigating officer of the police. The interim report shall state the result of the investigation that has been conducted till that point.
The ATC is empowered to commence trial on the basis of this interim report, and if it decides to not do so, to then record reasons for such a decision.
Role of Public Prosecutor
In the case of Bahar Ali v. the State (PLD 2008 Peshawar 28), it was highlighted:
The Director General [of Prosecution] is now expected to prove the worth of the “Prosecution Institution” in the minimum possible time by attaining the target of improving standard of investigation in all cases… by motivating, launching and promoting endeavours through District Public Prosecutors with a well-oriented check and balance system so that the cases may successfully face all kinds of [scrutiny] on the dissection table of qualified and experienced law experts, in courts of law.
As noted above, both under the ATA and Cr.P.C, public prosecutors have specific functions in respect of a police report. These functions are reiterated and further enunciated in the specific laws establishing the prosecution services in each of the provinces. In Punjab, under Section 9 of the Criminal Prosecution Service Act, 2006 (CPSA), the prosecution branch has the following functions:
To scrutinize the report and return it to the SHO or investigating officer within three days if found to be defective for the removal of such defects as provided under section 9 (5) of Punjab Criminal Prosecution Service Act, 2006;
To submit the report for trial if found to be fit for such purposes;
If required, to submit in writing the results of such scrutiny to the Court with his opinion on the same as provided under section 9 (7) of Punjab Criminal Prosecution Service Act, 2006;
Where the report is interim, to examine the reasons for delay, and if he thinks fit to request the Court for postponement of trial until the completion of investigation, or to commence the trial on the basis of the interim report.
When the prosecutor reviews the police report, the prosecutor must consider whether there are any defects/shortcomings in the report. The term “defect” has not been defined in the statute but the defects would include non-provision of essential documents, non-provision of essential details in documents, evidentiary weaknesses or jurisdictional shortcomings. The defects may be either be ‘remediable’ or ‘non-remediable’. A remedial defect can be remove and this would not result in a miscarriage of justice. However, a non-remediable defect cannot be remedied since it has an impact on the integrity of the evidence.
In Rasoolan Bibi v. Additional Sessions Judge, it was held that under Section 9 (7) of the CPSA “it is crystal clear that the prosecutor has the powers to scrutinize the available evidence and applicability of offences… the deletion or insertion of any offence [is] within the exclusive domain of the Prosecutor.” Whether the prosecutor had correctly deleted a provision from the report or not, had to be ascertained by the trial court and could not be assailed by the petitioner in front of the Justice of Peace as the latter had no authority to interfere in such matters.
The CPSA empowered the Prosecutor General Punjab under Section 17 to issue a Code of Conduct for Prosecutors (the Code). Pursuant to a 2016 amendment to the CPSA, it is now mandatory for prosecutors to perform their duties in accordance with the Code.
Rule 4 of the Code, relating to the role of prosecutors during investigations and criminal proceedings, enjoin prosecutors:
To impartially and objectively provide advice to ensure that investigating services respect the law and human rights;
To proceed with the institution of a criminal case only when there is sufficient reliable and admissible evidence to do so;
To examine propose evidence to ascertain if it has been lawfully obtained and to strive to ensure that action is taken against persons who use unlawful methods for obtaining evidence.
Rule 5 of the Code provides that:
In order to ensure the fairness and effectiveness of prosecutions, prosecutors shall cooperate with the Police, the Courts, the legal profession, defense counsel and other Government Agencies, whether nationally or internationally; and render assistance to the prosecution services and colleagues of other jurisdictions, in accordance with the law and in a spirit of mutual co-operation.
Scrutiny of the police report by the prosecutor’s office is a vital component of criminal proceedings. Where the prosecutor is available and willing to provide assistance, it is beneficial for the trial. Otherwise, it may suffer from serious flaws which are hard to rectify at later stages. Following are some examples of such flaws.
Inclusion of incorrect provisions in the report
Where incorrect legal provisions are included in the report, the case eventually suffers. Even though, amendment of charges is possible during trial, it is very limited in scope. Therefore, it is essential that these flaws be removed before the case is sent to trial. Where the prosecutor’s office does voice their objections, the police then proceed to remove the fatalities or errors from these reports.
Moreover, the prosecutor may flag a case to be unfit for trial and suggest its dismissal; however, the same has to be confirmed by the Court. Thus, the accused essentially remains in custody while the Court deliberates upon the fatalities in the investigation or case.
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 within seven days. Following this, the Prosecutor is required to submit the amended report to the competent Court.
The role of the Prosecutor in the light of his expertise and understanding of jurisprudence has been comprehensively articulated by Justice Sajjad Ali Shah in case titled Abdul Hafeez Junejo v The State (2010 YLR 470) as:
“…the conduct of the Prosecution on behalf of government is the responsibility of the Prosecutors and every report under Section 173 of the Code of Criminal Procedure including the report for cancellation of FIR or discharge of a suspect or an accused has to be filed in Court after the same is scrutinized by the public Prosecutor …Prosecutors have the power to return such report to the officer In charge of a Police station or the Investigating Officer if they find it defective for the removal of identified defect…the result of such scrutiny as an expert opinion may be placed before the Court for its convenience and consideration of course without any binding force. Even otherwise, the Prosecutor having expertise in the field is in a better position to opine that on the basis of the investigated fact the accused can be tried under a specific provision”.
The term ‘scrutinize’ in this context means to examine a matter from all pros and cons and attend all its aspects with due care and caution inasmuch as to make deep search or inspect the matter in close, care and thorough manner. Therefore, the Office of District Public Prosecutor is not only a post-office but a bridge between Police and Court to promote procedure of Prosecution for better achievement of justice.
In scrutinizing the aforementioned report, the Prosecutor is required to examine the nature of offences committed by the accused and analyze whether the correct provisions are mentioned in the investigation report. He can then add or delete or add any offences according to the facts and evidence collected by the Investigating Officer before submitting the report to the Court. The object of this exercise is that the applicability of offences is decided by law-knowing agencies and not by the Police who may not be able to provide legal opinion directly to the Court.
Limitations to Power
It is pertinent to mention that although the Prosecutor is required to point out the defects of the report to the Police, he is not authorized to direct for submission of report/challan under S.173, Cr.P.C. against the accused for their trial or to direct the Investigating Officer to place the name of accused in a specific column of the challan. Hence, there is no legal sanctity attached to the Prosecutor’s opinion on the guilt of an accused person.
Deciding whether 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 act fairly, firmly, impartially, consistently, efficiently and with integrity.
The Prosecutor must acquaint himself with the facts, circumstances and evidence of a case and determine on the strength of these whether there is a sufficient evidential basis to support a Prosecution. Where it is not so, the Prosecutor must not decide to prosecute. A Prosecutor must also make the call whether trial is the best solution in a case or whether it would be preferable to withhold a Prosecution either so that more evidence could be obtained.
The Guidelines for Prosecutors issued by the Khyber Pakhtunkhwa Prosecution Service contains a 2-stage test to be applied by Prosecutors to determine whether a case is fit for Prosecution. Any case must pass both stages before the Prosecutor can deem it fit for Prosecution. The two-stage test is as follows:
- Evidential Test – This is a test of sufficiency and quality of evidence where on an objective assessment of evidence and information provided by the investigating agency, the Prosecutor concludes whether or not there exists a realistic prospect of conviction against the accused on each of the charges. It is important to stress that this test is less strict than the one applied by Courts in all criminal cases i.e. proof of guilt beyond a reasonable doubt.In assessing the evidence with a view to it leading to the conviction of the accused, the Prosecutor has to take care to ensure that the said evidence meets the requirements of admissibility. Any violations committed in collecting the evidence may lead to the evidence being excluded. This further highlights the need for Prosecutors to keep up with the investigation and to provide suggestions to the Police so that legal requirements are adhered to. As regards admissible evidence and witnesses, the Prosecutors need to be sure that the same is not tainted and is reliable in all respects. The honesty and integrity of witnesses may become questionable by reason of them being interested witnesses or their testimony could be unreliable by reason of them being chance witnesses if their presence at the place of occurrence is not natural or explained. Moreover, any duress, temptations, motives for false implication or past history of false testimony can also diminish the credibility of a witness.Prosecutors should endeavor to discuss the witnesses with Investigating Officers who have interacted with them during the course of investigation and who are more informed of the context and circumstances in which their evidence is given. Due weight should be given to the opinion of the Investigating Officer in deciding whether the witnesses are reliable and whether their evidence should be considered in determining whether there is a sufficient evidential basis to go forward with Prosecution.
Finally, any lines of defense open to the defendant and any plea made by the accused in his defense during investigation should also be taken into account and both inculpatory and exculpatory evidence should be appreciated in juxtaposition before determining a case fit for Prosecution or otherwise.
- Public Interest Test – This is a public policy test which requires that the Prosecutor ought not to proceed with a Prosecution, even though it is in accordance with the law, where the public interest in favor of proceeding with Prosecution is outweighed by the public interest against proceeding. It is applied once a case passes the evidential test and irrespective of the public interest in favor of a Prosecution, if a case fails the evidence test, it will not progress to the public interest test stage.There are several public interest considerations which may bear upon the Prosecutor when assessing a case under this test. At times some of these considerations will conflict with others and in making the decision the Prosecutor has to give appropriate weight to each and in some cases one exceedingly significant factor may outweigh all other considerations and compel a Prosecutor to make a conclusion other than that which he would have but for that factor. As a general rule of thumb, the more serious an offense, the greater the public interest in prosecuting it.Some of the most important factors and considerations to this end are the extent of harm or grievousness of injuries caused to a victim, the number of victims, age of the victim, extent of premeditation, the ulterior purpose behind the act for e.g. terrorism – causing fear & panic among the people, whether the accused is a previous offender, whether there is likelihood of repetition and so on. The Prosecutor must also have regard for factors such as the circumstances of the victim, the offender and whether Prosecution would have a positive impact in the community in terms of maintenance of law & order, deterrence of crime and boosting the community’s confidence in the law.
A Public Prosecutor in KPK who receives a report u/s 173 Cr.P.C is competent under Section 4(b) of the Khyber Pakhtunkhwa Prosecution Service (Constitution, Functions and Powers) Act, 2005, to either lodge the same before the competent trial Court or to withhold the same for want of proper evidence and return it to the investigation officer with written direction to resubmit the report after removal of the deficiencies identified by him.
Furthermore, it is for the Prosecutor to determine whether to charge an accused and if so, what charges should be applied before a trial can commence. Under Section 5(b) of the Khyber Pakhtunkhwa Prosecution Service (Constitution, Functions and Powers) Act, 2005, no Prosecution may take effect against persons other than those charged as accused by the Public Prosecutor on the basis of available evidence.
Application for Discharge of Accused or Withholding Prosecution
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 for the discharge of the accused along with the challan to the competent Court. On the other hand, the Prosecutor can withhold Prosecution if reasonable ground exists for him to believe that the offense is compoundable.
The following chart elaborates upon the process for the discharge of accused in case of insufficiency of evidence.
To learn more, explore the Handbook of Criminal Investigation in Pakistan, 2021