The Khyber Pakhtunkhwa Prosecution Service (Constitution, Functions and Powers) Act, 2005, was enacted in Jan 2005, which was aimed at improving the prosecution service, an integral part of the criminal justice system.

The said Act assigns vast powers to public prosecutors for dealing with criminal cases at different stages, including trials. However, recently the Peshawar High Court has expressed dissatisfaction over the role of prosecution officers because of delay in conclusion of trials due to non-appearance of prosecution witnesses in criminal cases.

While hearing bail plea of an under-trial prisoner in a murder case, a single-member bench comprising senior puisne judge Justice Roohul Amin Khan pointed out that the court had noted in so many cases that prosecution witnesses had deliberately not been appearing before the trial courts and the concerned public prosecutors who were assigned task of pursuing/prosecuting cases on behalf of State had also not been taking interest.

The bail petition of the accused Syed Maqsood Shah was turned down by the court on Jan 25.

In its detailed judgment, the court has explained the functions and powers of the prosecution officers under the Code of Criminal Procedure (CrPC) and Khyber Pakhtunkhwa Prosecution Service (Constitution, Functions and Powers) Act, 2005.

The senior judge Justice Roohul Amin Khan has also directed the additional registrar (Judicial) of the high court to send copy of the judgment to the director general prosecution, who should onward circulate the same among the public prosecutors under his supervision in the province for guidance, reminding them of their official powers, functions and responsibilities as well as strict compliance.

The bench asked the director general of prosecution directorate, the regional prosecutor and concerned public prosecutor, present in court, whether a single instance was available to show that any legal or disciplinary action had been proposed by any public prosecutor to the high-ups against any official witness in any criminal case who was deliberately not appearing before the court or by the director general prosecution against the delinquent public prosecutors, to which their reply was in the negative.

“Dispensation of justice and enforcement of rights are the two chief objectives a civilised community is supposed to accomplish. Timely disposal of dispute and redressal of grievance are two sure signs of effective administration of justice. The criminal justice system requires that a person accused of a crime is brought to justice as speedily as possible, so if he is found guilty, he is punished and if he is found to be innocent, he is discharged or acquitted,” the bench ruled.

“The maxim that justice delayed is justice denied comes true when a criminal trial remains pending indefinitely for no reason whatsoever.”

Explaining the duties of public prosecutors, the bench observed that Section 173 of Code of Criminal Procedure (CrPC) provides that every investigation shall be completed without unnecessary delay and as soon as it is completed, the officer in-charge of the police station shall through the public prosecutor forward to a magistrate empowered to take cognizance of the offence on a police report.

The bench observed that Under 1st proviso to section 173 CrPC, where investigation was not completed within a period of 14 days from the date of recording of the FIR the officer in-charge of the police station should within three days of the expiration of such period, forward to the magistrate through the public prosecutor, an interim report in the form prescribed by the provincial government, stating therein the result of the investigation made until then and the court should commence the trial on the basis of such interim report, unless, for reasons to be recorded, the court decided that the trial should not so commence.

Moreover, the court pointed out that under section 175(5) CrPC the officer in-charge of a police station when forwarded a report, he should along with that report produce the witnesses in the case, except the public servants, and the magistrate should bind such witnesses for appearance before him or some other court on the date fixed for trial.

In the instant case, the bench observed that despite directions of the high court and hectic efforts of the trial court in the shape of issuance of summons, notices and warrants, attendance of prosecution witnesses could not be procured almost in a span of 18 months.

“The prosecutor plays a pivotal role in the administration of criminal justice. Normally, the role of the public prosecutor commences on the completion of investigation by investigation agency and presenting the case to district public prosecutor and putting the challan (charge-sheet) in the court,” the bench maintained.

The court observed: “Foremost objective of the public prosecutor is to ensure a fair trial of the accused by assisting trial courts in the disposal of cases with an aim to deliver a prompt, efficient and speedy service to the litigants for achieving the ends of justice, ensuring judiciousness and speedy legal remedies.”

Justice Roohul Amin observed that due to many reasons, including the incompetency of the investigating officers, the deadline of 14 days for submission of the challan (final report) under section 173 CrPC was missed as a matter of routine, which definitely was the main source of causing undue delay in processing of the case, but thereafter the idol sitting of public prosecutor attached with trial court gave another support to delay the conclusion of trial.

“I have noted with great concern that in almost all the criminal cases, the prosecution witnesses, despite repeated non-bailable warrants, avoid appearance in the courts for recording their testimony,” the bench stated.

The bench observed it was the fundamental duty of the prosecution to ensure that justice was delivered and in pursuance of this, they should lay before the court all relevant evidence and ensure production of all the prosecution witnesses in support of the given evidence.

Published in Dawn, February 22nd, 2021