11/07/2023
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15/04/2023
Bail- Offences not falling within the prohibition contained in section 497 , Cr.P.C. - In such like cases grant of bail is a rule and refusal is an exception exception۔
01/04/2023
فوجداری مقدمات میں پراسیکیوٹرز اور پراسیکیوشن کا نظام انصاف میں کردار
ROLE OF PROSECUTOR'S & PROSECUTION IN CRIMINAL CASES
“The quality of a nation’s civilization can be largely measured by the methods it uses in the enforcement of its Criminal Law”
Criminal prosecution emerged with the first crime on earth. It continued in different forms according to requirements/wishes of respective societies. Best criminal prosecutorial system has been introduced by Islam. System of production of evidence against the accused and report of defense was thereof allowed. Mandate for hearing both the parties was made compulsory. No one can be condemned unheard became the order of the day.
Public Prosecution Service:
“No smoke without fire”
It is wrong for a person to be prosecuted if the evidence is in-sufficient. “The essence of wrongness lies in the prosecution of the innocent; if this principle is taken seriously, it should mean not merely that innocent people are not convicted, but also that innocent people should not be prosecuted. The reason for this may be found in the dictum that ‘the process is the punishment’; being prosecuted is an inconvenience at least, often a source of profound and sometimes a considerable expense, and it may also lead to an element of stigma and loss of social esteem.
Pr-Trial Duties and Functions of Public Prosecutor:
Public prosecution is an important component of the Criminal Justice System. Prosecution of an offender is the duty of the executive which is carried out through the institution of the Public Prosecutor. The Public Prosecutor is appointed by the State, and he conducts prosecution on behalf of the State. It is the responsibility of Public Prosecutor to participate in pre, during and after trial proceedings. Public Prosecutor need not be overwhelmingly concerned with the outcome of the trial. He is an officer of the Court and is required to present a truthful picture before the Court. Even though he appears on behalf of the State, it is equally his duty to see that the accused does not suffer in an unfair and unethical manner.
Ø Role of Public Prosecutor in Arrest Proceedings
The power to arrest and detain a person for a period of up to twenty four hours is that of the police. The police are under no obligation to obtain sanction of a Prosecutor prior to the making of an arrest .The Prosecutor should therefore refrain from issuing any directions in matters of arrest and detention. However, the Prosecutor may need to give an opinion regarding arrest decisions and continued detention decisions made either by the Police or a judicial authority.
Ø Role of Prosecutor with Regard to Remands in Police Custody
A remand in police custody, or an authorization to continue detention of a person in police custody is requested and made under section 167 Cr.P.C. Rules regulating Police applications for remand are contained in Police Rules 25.56 (2). A remand request is a request for authorizing continued detention.
After arrest a suspect must be produced before a magistrate as soon as practicable but not later than 24 hours of arrest. At this hearing the Magistrate usually confines his review to the grounds of arrest unless the Police seek permission for extending the detention. An extended detention in police custody is referred to as the “Police remand.”
Where Police wish to seek custody of the suspect for a period longer than 24 hours they have to make a written request to the Magistrate for the purpose .Where a Magistrate is satisfied that grounds for extending detention are present he may extend the detention in police custody for a maximum period of 15 days and in anti-terrorism cases for up to 30 days. In reaching a decision the magistrate has to weigh the loss of liberty of the suspect and the need for detention .When Police consider a remand in police custody necessary, it may make an application to the Court directly or it may apply to the Court through the Public Prosecutor .In the former case the police may argue the application itself.
· Information to be Provided to the Prosecutor
An application for remand should be in relation to an ongoing investigation, it should be in writing and should be accompanied by the following:
a) Date and time of arrest.
b)Reasons for making the arrest.
c)Grounds for seeking remand and evidence in support thereof. Grounds include:
i)Need for information from the arrested person concerning the crime; or the
ii)Need to carry out some important task like taking a suspect to a distance that may be shown to persons likely to identify him as having been seen at or near the scene of the offence, or for comparing foot prints evidence or for recovering stolen goods where the suspect has offered to point out the same.
d)Evidence in possession of the Police in support of the arrest decision.
e)Evidence in possession of the Police which may point away from the suspect.
f)Details of remand obtained earlier in the matter.
g)Period of remand requested.
Review of an Application for Remand
Once the Prosecutor gets an application containing the above mentioned particulars, he should review the information with a view to determine whether he has reasons to support the application. The review decision of the Prosecutor is dependent on the reasons cited by the Police for the arrest, and the grounds for seeking remand, supporting evidence and evidence justifying the release of the suspect/refusal of the remand application.
Prosecutorial Responses with regard to an Application for Remand
Where on review the prosecutor finds that the arrest was correctly made and/or there is need for further investigation/evidence he should support the application for remand. A Prosecutor should not argue a remand application in the absence of arrested suspect, as this is a binding requirement. However, there are some exceptions in which the presence of accused in not necessary and the remand may be contested in his absence.During the hearing of a remand application, a Prosecutor is required to:
a) Justify the factum of arrest (either on evidential grounds or reducing the possibility of obstruction of justice).
b) Show that the arrested suspected is required for further investigation.
Where an application for remand is not filed or is turned down the detained person may either be released or sent to judicial custody.
Role of Prosecution in Remands in Judicial Custody
Remand to judicial custody is requested and made under both section 167 and 344 of the Code. Remand to judicial custody under section 167 is made where a period of 15 days has not elapsed from the date of arrest. Remand to judicial custody after that period takes place under section 344 of the Code. While dealing with judicial remand cases, prosecutors should take in to account the guideline provided in Ghulam Sarwar’s case. It may be a ground for seeking remand in order to procuring further evidence where ex-post facto sanction of custody is requested.
Ø Role of Prosecutor with regard to Bail Applications
A bail is a release of a suspect from custody pending trial on the condition that if he does not fulfill the conditions contained in the bail order or absconds, the surety or sureties will pay the amount of money fixed in the bail order. A bond is a personal assurance that a person would surrender to custody as agreed and will pay affixed sum of money on breach of his promise. A surety is a specified person who gives an under taking that an accused will meet his obligations to appear in the Court. He is not obliged to prevent the commission of further offences by the accused. A security, on the other hand is an actual sum of money or other security that is offered to secure his liability under the bond. In practice, however, the Court rarely accepts the deposit of an actual sum of money to secure appearance. It is provided in the bond that a sum of money may be forfeited, if the accused commits a breach of the condition to attend the Court, when so required.
With respect to grant of bail, offences in Pakistan are divided into two categories-bailable and non-bailable. Bailable offences are those that are not considered serious enough by law to justify a detention even if there is sufficient evidence to implicate the suspect in the offence pending the conclusion of the trial. A bailable offence means that a person connected with the commission of a bailable offence can obtain bail as a matter of right. Both the Station House Officer and the Court can grant bail in bailable offences.The police should take a bail decision in bailable matters in the first place and must not wait for the matter to be taken to the Court.
In non-bail able offences, a person may also be released on bail either by the Police or the Court. The power of Police to grant bail in non-bail able cases is available as long as the person is in its custody.The Prosecutor has no role to play in a Police decision to grant bail. In Pakistan, Bail in non-bailable cases is sought and/or granted on one or more of the following types of grounds:
a) Evidential Grounds
b) Grounds of Public Policy
A suspect/accused may make bail applications to a Court either before or after arrest .The effect of a pre-arrest bail is that police cannot arrest the suspect till such time as is given in the bail order or the conditions mentioned in the bail order remains extent. Bail decisions are important for the suspect, victim and the State and must always be taken after due consideration.
· Particulars/Information required to be Provided to the Prosecutor to Enable him to Formulate a Response to a Bail Application
A Prosecutor needs certain information to formulate an appropriate response to a bail application. This information is as follows:
a) Age and medical condition of the arrested suspect;
b) Date and time of arrest;
c) Reasons for making the arrest (i.e. whether the arrest was or is required to be made on grounds of sufficient evidence or there existed or exist exigent circumstances to make the arrest);
d) Evidence in possession of the Police;
e) Evidence in possession of the Police which justifies the release or does not justify the making of arrest of the suspect; and
f) Nature of the obstruction to justice likely to be caused by the arrested suspect if not in detention.
· Response of the Prosecutor to a Bail Application
The responses of the Prosecutor are dependent on the grounds for seeking bail. When a suspect files a bail application in a non-bail able case, the Court is required to give notice to the prosecution to show cause why he should not be so released. On receipt of such notification, a Prosecutor should require the Police to provide him with all the relevant information pertaining to the case. It should include the police file and other relevant information/evidence gathered till that time. It is best that the Police and Prosecutor hold consultations prior to the date of hearing of the bail application so that the Prosecutor prepares the case properly and understand the Police point of view appropriately.
Once the Prosecutor is in possession of relevant Police papers he should review/scrutinized the file. The evidential test in such cases is the test of reasonable grounds to justify continued detention. This is an objective test where evidence is sufficient to provide an inference of criminality. Again this is a more robust test than the test of probable cause required to make an arrest.Public Policy grounds are factual and easy to review.
The evidential test requires the Prosecutor to examine and assess the available evidence and the applicable law. The Prosecutor while reviewing the police case should give due weight to the opinion of the Police with regard to sufficiency of evidence against the suspect. Since the Police collect the evidence and while doing so come in direct contact with the witnesses they are in an advantageous position to assess their credibility. However, where the Police opinion is not sound, or is contrary to the evidence collected, it should be ignored. The Prosecutor must also check the following things before responding to a bail application as they are relevant factors in a bail decision:
a) Antecedents of the suspect (to find out if he has the predilection to commit further offences),
b) Whether the suspect is likely to abscond,
c) Whether there are chances of the suspect obstructing the course of justice,
d) Age, health and gender of the suspect, and
e) The views of the person entitled to compound in compoundable cases.
The recommendations of a Prosecutor to a Court in connection with a bail application should always be based on evidence, established principles relating to bail and in accordance with the principles of justice and fair play. The Prosecutor should bring to the attention of the Court the actual facts. Where the prosecution has collected and retained any material that supports the case of the defense it should not be suppressed and should be disclosed to the Court. Where it is necessary to present a Police Officer or witness in Court the Prosecutor should never force a Police Officer or witness to divulge information to the Court, which may prejudice the outcome of an investigation.
In view of the current state of collection of evidence and lake of information regarding likelihood of violation of bail conditions, the Prosecutor may find it difficult to respond to a bail application. In such a situation a Prosecutor may decline to respond to a bail application.
·Role of Prosecutors with regard to Applications for Re-calling Bail/Cancellation of Bail
A Prosecutor may consider making an application to the appropriate Court for recall of bail (both pre-arrest and post-arrest) when he is dissatisfied with a bail decision or where he comes in possession of some information, which was not available at the time of contesting an earlier bail application, and which may reasonably be a ground for cancellation of bail. There may be different grounds to file cancellation of bail application; some of them are given below:
a) Non-reading or mis-reading of materials relating to the case including that in favour of defense.
b) Over looking essential considerations in the grant of bail.
c) Where a bail decision is obtained by practicing fraud in the Court.
d) Additional evidence has come into possession of the Police.
e) Person released on bail has obstructed the course of justice.
f) Person released on bail has threatened the prosecution witnesses.
g) There is an apprehension that the person released on bail may abscond.
h) Person released on bail has repeated an offence similar to one in respect of which he was granted bail.
i) Where bail order is conditional and non-fulfillment of condition is observed.
The prosecution should ensure that it has sufficient material to support allegations forming bases of the application for cancellation of bail. Where recall of bail is sought the application should be filed with the Court that granted bail. Prosecutors should not withhold any information in order to justify filing of subsequent applications to cancel bail. Where a Court decline a request to recall bail, a Prosecutor may apply a revision application to the superior Court. Where a cancellation application is dismissed as being withdrawn. A subsequent application is permissible and may be filed. However, the Court should be informed of all previous applications and their outcomes.
Ø Role of Prosecutor where a Post Conviction Bail Application is Filed
Where a person has been convicted of a bailable offence, he may apply to the sentencing Court to suspend the sentence and allow him to present an appeal and seek an order for suspension of sentence from the appellate Court. The Court has the discretion to allow or refuse the same. Where a convicted person appeals the decision of conviction, he may also seek an order of suspension of sentence from the appellate Court. The Court may suspend the sentence and release him on bail or personal recognizance. The Prosecutor may contest a post conviction bail application where the following circumstances exist:
a) Where he is of the opinion that the conviction is un-likely to be reversed in appeal.
b) Where he is of the view that the surety is not of appropriate standard and/or the convict will abscond.
Ø Role of Prosecutor in an Application under Section 87 of the Code
Where an application under section 87 is to be made by the Prosecutor, he should firstly, ensure that meaningful attempt has been made to contact the absconder. Secondly, he should seek details of the absconder’s properties in order to apply for an attachment order from the Court.
Ø Role of Prosecutor where a Discharge Report has been Submitted
A discharge report is filed when the Police wish to release a suspect from custody on account of insufficient evidence or lack of evidence. Discharge reports only deals with the issue of liberty of a particular suspect/accused and does not in any manner indicate a disposal of the FIR/Case. It has been held that a discharged suspect cannot be sent up for trial until the discharge order stands. This is probably not in consonance with the other case law, which allows the Police to investigate a discharged suspect. A discharge under section 63 or release on bail or bond is somewhat different from a discharge under section 173 (3) Cr.P.C. The latter discharge is a discharge of the bond taken by the Police or the Court and this discharge makes the first release un-conditional. A discharge order cannot be passed after cognizance of a case has been taken.
Responsibilities of Police towards Prosecutors:
i) An officer in-charge of a police station or the investigation officer shall
Ø immediately report to the District Public Prosecutor, the registration of each criminal case by sending a copy of the first information report;
Ø send the police report under section 173 Cr.P.C, to the concerned Prosecutor within the period prescribed by law; and
Ø if an investigation is not completed or cannot be completed within the time provided under the law, record reasons for the delay and Inform the Prosecutor.
(ii) An officer in-charge of the police station or investigation officer shall, within the time specified by the Prosecutor, comply with the directions and remedy the defects pointed out by the Prosecutor in a police report under section 173 of the Code including report for cancellation of the first information report or request for discharge of an accused or suspect.
It is not the proper duty of the police to prosecute criminal cases which they have been engaged in inquiring into. It is at present a duty assigned to them, and it being assigned to them, they are bound to perform it to the best of their ability, but it is not their proper duty, and they should be relieved of such business. In this case the officer appointed to conduct the prosecution was a most important corroborating witness. The result of his having been appointed to conduct the prosecution was that the prisoner’s counsel objected to his being put in the witness-box, because he had been present the whole of trial and at the examination and cross-examination of all Witnesses.
Role & Responsibilities of Public Prosecutor in Criminal Trial:
The Prosecutors are responsible for criminal prosecution under statute and for providing prosecution-related legal advice to law enforcement agencies. The Prosecutors are not investigative agents. They prosecute when a charge of violating law has been laid following an investigation by a law enforcement agency. The Prosecutors provide legal advice and assistance to investigators at the investigation stage and works closely with them, on complex cases. In all Districts and Tehsils, the Prosecutors are responsible for prosecuting all Criminal cases. On Provincial level, the Prosecutors perform a number of key roles to fulfill its criminal litigation responsibilities.
The purpose of a criminal trial is not to support at all costs a theory, but to investigate the offence and to determine the guilt or innocence of the accused, and the duty of public prosecutor is to present not the police but to State and this duty should be discharged by him fairly and fearlessly, and with a full sense of responsibility that attaches to his position.
The solemn duty of the prosecutor is that he shall bring the culprits to book and to save the innocents from the clutches of cruel. A Public prosecutor should avoid any proceedings likely to intimidate or unduly influence witnesses on either side. There should be on his part no unseemly eagerness for, or grasping at conviction.
He is bound to assist the Court with his fairly considered view and the Court is entitled to have the benefit of the fair exercise of his function.
Prosecutor bound to call all eye-witnesses mentioned in FIR unless he has reasons to believe witnesses not likely to speak truth or un-necessary or himself an accomplice. Failure to examine such witnesses or witness able to give important information, held, would justify Court to draw inference adverse to prosecution.
Ø Appearance of Public Prosecutor
A prosecutor spearheads the trial on behalf of the State. A prosecutor does not appear for the informant, the Police or any other person. He appears on behalf of the state.His primary and only duty is to ensure that offenders are brought to justice in a fair and equitable manner. Therefore, a Prosecutor must always act in the interest of justice and never solely for the purpose of seeking a conviction. Further the pursuit of justice must always be in accordance with law and procedure and never in violation of due process.
Ø Analysis of the Case
A Prosecutor must analyze a case from all aspects either of facts or law. The Prosecutor should always stick to facts. In order to know the facts of a case, the Prosecutor must be able to distinguish between information and conclusion. Information is knowledge acquired from one or more senses while a conclusion is the outcome of mental processing of information. The Prosecutor has also a complete command of substantive law and procedural law. In substantive law he should know the ingredients of an offence and the regime of general exceptions. In the realm of procedure he must know the rules regarding collection and processing of evidence and impact of failure to follow these rules. He must be cognizant of the rule that all violations do not entail exclusion
Ø Proceedings initiated without the assistance of Public Prosecutor
It was observed that a matter being a murder case, presence of the Public Prosecutor was very necessary while recording statements of witnesses and if Public Prosecutor was not available with the Court it was the duty of the Presiding Officer to borrow other Public Prosecutor of Sessions Court, but that had not been done. Trial Court not taking into consideration the ingredients of Section 265-A, Cr.P.C. particularly when it was a murder case, impugned order set-aside, trial Court directed to summon both the witnesses and re-examined with the assistance of Public Prosecutor.Orders passed by Additional Sessions Judge under section 540 Cr.P.C. without seeking assistance of Public Prosecutor in terms of sec. 493 Cr.P.C. would be improper, perverse and illegal orders
Ø Sharing information with the Defence
Sharing of certain information with the defense is a requirement of the law. This is so because accused persons need to have fair notice of the charges against them and the evidence in possession of the prosecution so that they have ample opportunity to gather information, which may assist them in their defense. Information, which needs to be shared with the defense, is of two types; (a) information on which the prosecution is relying, such is disclosure of used material; and (b) information on which the prosecution is not relying but which, the Police has collected and retained during the course of its investigation, such is disclosure of un-used material.
Ø Public Interest exceptions to Disclosure
There may by material, which may not be shared with the defense on grounds of public interest. Some of these public interest factors are;
a) the need for protection of intelligence sources;
b) the need for protection of life or property of citizens; and
c) National security.
Ø Withdrawal from Prosecution
The Public Prosecutor has the authority to withdraw a case from trial. He and he alone has the ultimate authority to withdraw a case from prosecution. But the practice is that he receives instructions from the government and pursuant to those instructions, he withdraws the case from prosecution. The grounds of withdrawal could be many, including:
1) False implication of accused persons as a result of political and personal vendetta;
2) Inexpediency of the prosecution for the reasons of state and public policy; and
3) Adverse effects that the continuation of prosecution will bring on public interest in the light of changed situation.
Ø Charge
A charge is framed by the Court and is considered by many as the starting point of a trial. A charge is necessary so that the accused knows the nature and particulars of allegations against him. A charge is necessary in order to give structure to the trial and avoid finishing expeditions. While the Court has the power to frame charge a prosecutor may prepare a draft of the potential charges and put it before the Court in the shape of the opinion of the Prosecutor. Where the charge is materially different from the recommendations of the Prosecutor, or is otherwise lacking the essential particulars, or is made contrary to law, the Prosecutor may take exception and invite the attention of the Court to these matters. Where a Court is barred from taking cognizance of the case it must not formulate a charge unless the relevant sanction has been presented to it. If a sanction is not available, the prosecution should request the Court to stay the proceedings till the required consent or approval is obtained.
Ø Recording of Evidence
Rendering of evidence follows the framing of charge. The prosecution first opens evidence and the Prosecutor should, at this stage, has his case prepared. Case preparation amongst other things, should include a summary of prosecution witnesses for quick reference and easy access. In the formulation of the colander of witnesses the Prosecutor should be guided by consideration of reliability, however, witnesses essential to the unfolding of the narrative, on which the prosecution is based, must, of course be called by the prosecution, whether in the result, the effect of their testimony is for or against the case for the prosecution.
· Evidence not in possession of the Prosecutor
Not all evidence is in the possession of the prosecutor. A Prosecutor can therefore make a request to the Court to issue an order under section 540 of the Code to summon witnesses or produce evidence, which is necessary for a just decision of the case.
In Benazir Bhutto Case, it was observed that, however, a request or an application by a party to examine a witness not mentioned in the list of witnesses is not to be equated with an application to examine certain persons as Court witnesses.
Ø Appointment of Local Commission
The High Court or the Sessions Court can appoint local commission’s in respect of cases pending before them. Magistrates however, need to make a request to the Sessions Court or High Court for appointment of local commissions. Where during a trial or inquiry a Prosecutor finds that some important witness for the prosecution is unable to appear before the Court to give evidence due to justifiable reason he may make an application to the Court for appointing a local commission.
Ø Given up Witnesses
Prosecutor besides being responsible for conducting prosecution of case entrusted to him was also empowered to choose which witnesses were to be produced in a trial and which to be given up being un-necessary, having been one over, but in making that selection he must act with great responsibility. Provisions of Sec.492 & 493, though do not given expressly the authority to Prosecutor for moving application before the Court in order to seek permission for giving up a witnesses, but are implied being incharge of the prosecution. Public Prosecutor, in circumstances is not the sole arbitrator, rather his request is always subject to the discretion of Court as it is only the Court which could decide the fate of such request on the basis of its reasonableness keeping in view the ends of justice. Court could not be expected to sit as a silent spectator even on notice that the non production of certain witnesses was likely to result in miscarried of justice.
Section 265-A and 265-F (2) Cr.P.C. read together mean that in cases instituted upon police report the Court shall ascertain from the Public Prosecutor the names of persons whom he wishes to produce as prosecution witnesses and shall summon said persons to give evidence whereas the word complainant figuring in section 265-F(2), Cr.P.C. connotes to the complainant in the complaint case, therefore, only in case instituted upon private complaint it is prerogative of the complainant to name the witnesses whom he would intend to produce whereas in the case of cases instituted upon police report under section 173, Cr.P.C. it is right of the Public Prosecutor to name the persons who are to be produced as prosecution witnesses. Where the complaint through his application intended to give up investigation officers as P.Ws. whom the prosecution considered necessary to be produced in order to bring the entire facts and material on record and not to withhold some part of it. To facilitate the trial Court to reach a just decision, therefore, the trial Court had rightly dismissed the petitioner’s application and there is no force in the petition.
Ø Burden of Proof on Prosecution
It is for the Public Prosecutor to establish the guilt against the accused in the Court beyond a reasonable shadow of doubt. The evidence is in three forms, namely, oral evidence (i.e., statements of witnesses); documentary evidence; and circumstantial evidence. Forensic evidence also plays an important role in varied crimes. In the Indian system, the statement of a witness is recorded by the investigating officer. The statement is not required to be signed by a witness under the law. The witness is required to appear in the Court and prove the facts mentioned by him to the investigating officer at the pre-trial stage and to face cross-examination by the defence lawyer. The Public Prosecutor conducts the examination-in-chief of a witness and, thereafter, his reexamination, if need be, in order to clarify ambiguity, if any, after a witness’ cross examination. Similarly, the documents cited in evidence are required to be proved by the Public Prosecutor with the help of witnesses. The forensic evidence is proved through the documents prepared by the experts and also by the testimony of the experts in the Court. The experts are also liable to be cross-examined by the defence counsel. On the basis of the facts proved by the oral, documentary and forensic evidence, the Public Prosecutor tries to substantiate the charges against the accused and tries to drive home the guilt against him. If there is a statutory law regarding presumptions against the accused, the Public Prosecutor draws the Court’s attention towards that and meshes it with other evidence on record. While the law requires establishing a prima facie case for charge-sheet purposes, the law for conviction is that the guilt should be proved beyond a reasonable shadow of doubt. The standard of proof in Indian Courts is quite high and that largely explains the low conviction rate, particularly in IPC offences.
The Prosecutor has an immense role. He has to prove the facts. He has to prove the circumstances, and then he has to draw the inferences and convince the Court that the arraigned accused alone is guilty of the offences that he has been charged with. This is an onerous task and requires sound legal knowledge, the ability to handle witnesses and the capability to carry the Court along with him.
Ø Public Prosecutor may appear without Vakalatnama
The Public Prosecutor may appear and plead without any written authority, such as a Vakalatnama or warrant of attorney.
Ø Position of Counsel engaged by Complainant
Where the prosecution is being conducted by the Public Prosecutor and a counsel is also engaged by a private person, so long as the Public Prosecutor retains the management of the prosecution, the counsel engaged by the party can address the Court in accordance with the directions of the Public Prosecutor.
Where the state does not appear, it is open to the Court to avail itself of the assistance of the counsel engaged by the complainant; it being purely of academic interest whether such counsel is regarded a complainant’s counsel or an “amicus curie.” The position of Complainant’s counsel is strictly sub-ordinate to the Public Prosecutor.
Ø Public Prosecutor not acting Properly
No doubt the Public Prosecutor is responsible for conducting the prosecution of the case entrusted to him and is empowered to choose which witnesses to produce at the trial and which to give up as un-necessary or as having been won over. But in making this selection he must act and not sit as a silent spectator even when he notices that the non production of certain witnesses is likely to result in miscarriage of justice. In proper cases when he smells foul play the trial judge would not only be justified, but would in-fact be duty bound, in the interest of justice to ascertain the facts himself directly from the witnesses.
Ø Effect of Withdrawal from Prosecution and Discharge of Accused (Distinction of Sec.173 (3) and 494 Cr.P.C.)
An order of acquittal or discharge passed in terms of Sec.494 Cr.P.C. with the consent of the Court is a judicial order liable to revision by Courts. While in cases coming up under section 173(3) Cr.P.C. an order would not amount to discharge and it will be still open for the Police to carry out the investigation to put up a fresh challan or for an aggrieved person to file a private complaint.
Ø Discretion of Public Prosecutor
“So long as the Prosecutor has probable cause to believe that the accused committed an offence defined by statute, the decision whether or not to prosecute and what charge to file or bring, generally rests entirely in his discretion.”(Wayte (470 U.S. 598))
There is no embargo on the powers of Public Prosecutor to withdraw from prosecution of any case. The statue conferring the power of withdrawal on the Public Prosecutor prescribes no guidelines and indicates no controlling features, except that such a power can be exercised before the judgment is pronounced and is subject to “consent of the Court”. From such a general dispensation certain consequences necessarily follow.
· When discretion may be exercised
The legislature has not defined the circumstances under which a withdrawal is permissible. Therefore, no hard and fast rule can be laid down on the subject. Each case has its own features. The Public Prosecutor while withdrawing from the case must show reasonable grounds and should not act on the instruction or orders of the superior authorities alone.
· Effect of application for withdrawal
When an application for withdrawal is made there is no provision made for any formal inquiry under section 494 Cr.P.C. nor it is competent.
· Consent of Court
State or the Public Prosecutor has no absolute power to withdraw a criminal case but the consent of the Court is required A plain reading of sec. 494 Cr.P.C. categorically provides for an important role of the Court as without its consent, no effect of withdrawal from prosecution shall take place.
Ø Application for declaring witness as Hostile
Public Prosecutor is incharge of prosecution in a criminal trial. He did not made any request to the Court to declare PW, widow of deceased, hostile, when she was examined and cross examined. Application made by brother of deceased to get her declared hostile. Applicant held no locus standi to apply for permission of the trial Court to allow cross examination of the widow in terms of Article 150 & 151, Q.S.O. 1984
Post Trial Responsibilities of Public Prosecutor:
Public Prosecutor has some post trial responsibilities as he has different pre-trial responsibilities. Trial ends on acquittal or conviction of the accused/suspect and in both cases Prosecutor has to perform his duty by filing of appeal against the judgment if the accused has acquitted by the Court and if convicted but not as much as per the heinousness of the guilt/offence file revision for the enhancement of sentence.
Ø Appeals
An appeal system performs a number of functions. The important ones are as follows:
a) to test the validity of the decision of the Court;
b) to correct a mistake of fact or law or erroneous exercise of discretion resulting in injustice;
c) to ensure that the decisions made by the sub-ordinate Court are uniform; and
d) to advance public confidence in the administration of justice.
Appeals can be preferred against acquittal, conviction or sentence. An appeal may be preferred on questions of fact or law and on mixed question of fact and law.
· In case of acquittal:
i) In case of acquittal by a Court in a district, the concerned District Public Prosecutor; and
ii) Special Court, the concerned Prosecutor, shall report the details of the case to the Prosecutor General along with grounds for appeal and the Prosecutor General may request the Government for preferring an appeal.
iii) A Prosecutor shall maintain an independent file in the prescribed manner of each case assigned to him for prosecution.
iv) A District Public Prosecutor shall act as a member of the Criminal Justice Coordination Committee established under Article 110 of the Order.
·Procedures and Practice of Appeal
All appeals are submitted in form of a petition. A petition should specify the grounds of appeal, arguments in favour of the appeal and supporting case law. The appellant need not be present at the appeal hearing unless required by the Court. An appellate Court can assess the testimony given at trial, receive oral or documentary evidence in limited circumstances and give its findings on points of law.
·Procedure to be followed by Prosecutors while filing an Appeal
An appeal against acquittal to the High Court lies on the directions of the government. The decision to appeal should be taken after due diligence and never as a matter of routine. On a pronouncement of a decision, the Prosecutor should immediately apply for certified copy of the transcripts of the judgment and notify the outcome of the trial to the District Appeal Committee. The recommendation to file an Appeal should be made by the District Appeal Committee to the Prosecutor general in consultation with the Prosecutor in all cases under his charge. Special Prosecutors can directly recommend the filing of appeal to the Prosecutor General. Where the Prosecutor General considers the filing of appeal appropriate he should send his recommendation to the Secretary to the Government of the Punjab, Public Prosecution Department.
Ø Revision
The High Court and Sessions Judge have powers to revise certain orders and judgments passed by Courts sub-ordinate to them. With regard to final judgments this power is usually exercise to review sentences, which are alleged to be unjustifiably lenient. They Court may enhance them.
Grounds for filing of Revision
The decision to file revision petitions should also be taken carefully. Before deciding or recommending whether a review petition is in order the Prosecutor should review the basis of the order and evaluate its impact. The grounds of the revision are similar to the grounds for filing an appeal. However, a revision petition should not be made in the following circumstances:
a) Where the impugned order or judgment is appealable.
b) Where the order is an administrative order like an order of cancellation of an FIR passed by a Magistrate or an order of discharge.
c) Where the object of the revision is to have the finding of acquittal converted into conviction
d) Where the sessions Court in revision petition passes the impugned order.
The procedure for obtaining permission for filing a revision is the same as in an appeal.
Functions of the Prosecutor:
A Prosecutor shall
i) in all matters, perform his functions and exercise his powers fairly, honestly, with due diligence, in the public interest and to uphold justice;
ii)on receipt of the police report, final or interim, including a report for cancellation of first information report or request for discharge of an accused, scrutinize the same and process It under section 9;
iii)make such entries in the record and registers as may be prescribed;
iv)report to the District Public Prosecutor, details of investigations, if any, conducted in violation of law or instructions issued by the Prosecutor General or not completed in the time provided under law without reasonable cause and the District Public Prosecutor may inform the head of investigation and the Prosecutor General for appropriate action; and
v)Perform such other duties as may be assigned to him under this Act by the Government or the Prosecutor General.
Court Converge:
Normally prosecutions in the Courts of Magistrates’ and Sessions, and Appeals/revisions at the Superior Courts , are conducted by Public Prosecutors.
Conclusion:
“There is one thing to which everyone in this country is entitled and that is a fair trial at which he can put his case properly before the judge, no cause is lost until the accused person is impartially prosecuted and the judge has found it so; and he cannot find it without a fair trial.”
The prosecution plays a very vital role in dispensing of justice by providing impartial assistance to Court to conduct fair and just trial. It is noteworthy that on the critical subject of role of prosecution in criminal cases, pen ever has been put on paper and practical values of it have been taken into consideration. But its true profile could yet not have been established. Because, there are countless lacunas in safer dispensation of justice. Role of prosecution in criminal trial is not like a fairy tale wherein one is free to give flight to one’s imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. In arriving at the conclusion about the guilt of the accused, the Court has to judge the evidence with the assistance of Public Prosecutor.
As for as the position of criminal justice system of Pakistan is concerned there are many factors which become the hurdle in the way of progress to get fruitful results. Safe administration of justice becomes very difficult due to countless lacunas in different stages of criminal case. The main reason is lack of depth in thought. Our approach is always superficial. We have inherited almost all the system from our British Rules with a belief in their perfection and infallibility. We always start with the hypotheses that the system is free from all defects but the fault lies with the implementation and the people doing the job. This is the place where we lose the path leading to the solution of the problem.
Pakistan, Prosecutor is obligated to try every case submitted by the Police, regardless of its status for trial competency in technical, financial and specific nature cases. Most Prosecutors assist Courts to issue Court documents such as citations, summons, warrants, writs and remand requests, except in Pakistan, where Police plays a major role in their direct link with Court, resulting wholesale violation of law and human rights with least action from their police heads despite of repeated higher Court’s directions.
Every system operates under a “time frame” starting from the registering of the case till placing it on Court dockets. In Pakistan, however, it is the Police that decides when to complete investigation and when to go to Court, if they wish to prosecute at all. Prosecution in Pakistan is totally at the mercy of the Police as dependent agency not coordinated independent organ of the bureaucratic system. All prosecutorial systems have some sort of “check and balance” mechanism to control prosecutors pivotal and some times, arbitrary role. In Pakistan, however, there is absolutely no check and balance at the lower tier of prosecutorial practices.
In nut-shell, a systematic analysis of the problem is necessary to find out a correct solution. First the problem should be identified clearly. Next is the stage to ascertain actual factors causing it. We can never solve a problem without removing the actual causes and a substitution for the actual reasons of the problem, unknowingly or for any motive, will always lead to a farce. After the real causes of the problem are identified clearly comes the stage of finding ways to remove said causes and when the real causes of the problem are removed a solution of the problem is achieved.
In criminal justice system Police or Investigating Agencies, Prosecution and Complainant party are main stakeholders. It has been noted that delay in dispensation of criminal justice mainly caused due to inefficient and non-serious investigation by the Police or Investigating authorities and further aggravated by lethargic attitude of the prosecution in discharging their duty. In most of the cases Police for many reasons including lack of sources, proper timing, behaviour problem could not investigate the matter brought before them properly, impartially, efficiently and acted in a mechanical manner or protecting interest of one of the parties either complainant or nominated accused persons, which resulted that it becomes very difficult for the Court to sift the grain from the chaff to deliver criminal justice as required.
Required resources to Police, Prosecutors and Courts with manpower need to be provided to address issue of delay. Number of judges, prosecutors at all level from subordinate Courts up to apex Courts is required to be increased, looking into the pendency of the cases in Courts.
In the ultimate analysis, the policy must be established which seeks to ensure that the Constitutional principles of equality before law and equal protection of law are strictly adhered to. Adherence to law, Constitution leads to nation building. It is sure recipe for economic growth and social progress. Law protects the rights, interests of poor, downtrodden segments of society. It helps to break shake-less of cruelty and injustice. It puts an end to exploitation at the hands of rich and influential. Let us strive to achieve the noble goal, set up in the policy. Let us infuse confidence in the minds of our people that the system of administration of justice is capable of meeting the challenges of time and emerging realties. Let us make the prosecutorial organ of the state as a sheet anchor at the time of serious challengeفوجداری مقدمات میں پراسیکیوٹرز اور پراسیکیوشن کا نظام انصاف میں کردار
ROLE OF PROSECUTOR'S & PROSECUTION IN CRIMINAL CASES
“The quality of a nation’s civilization can be largely measured by the methods it uses in the enforcement of its Criminal Law”
Criminal prosecution emerged with the first crime on earth. It continued in different forms according to requirements/wishes of respective societies. Best criminal prosecutorial system has been introduced by Islam. System of production of evidence against the accused and report of defense was thereof allowed. Mandate for hearing both the parties was made compulsory. No one can be condemned unheard became the order of the day.
Public Prosecution Service:
“No smoke without fire”
It is wrong for a person to be prosecuted if the evidence is in-sufficient. “The essence of wrongness lies in the prosecution of the innocent; if this principle is taken seriously, it should mean not merely that innocent people are not convicted, but also that innocent people should not be prosecuted. The reason for this may be found in the dictum that ‘the process is the punishment’; being prosecuted is an inconvenience at least, often a source of profound and sometimes a considerable expense, and it may also lead to an element of stigma and loss of social esteem.
Pr-Trial Duties and Functions of Public Prosecutor:
Public prosecution is an important component of the Criminal Justice System. Prosecution of an offender is the duty of the executive which is carried out through the institution of the Public Prosecutor. The Public Prosecutor is appointed by the State, and he conducts prosecution on behalf of the State. It is the responsibility of Public Prosecutor to participate in pre, during and after trial proceedings. Public Prosecutor need not be overwhelmingly concerned with the outcome of the trial. He is an officer of the Court and is required to present a truthful picture before the Court. Even though he appears on behalf of the State, it is equally his duty to see that the accused does not suffer in an unfair and unethical manner.
Ø Role of Public Prosecutor in Arrest Proceedings
The power to ar
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