18 October 2004	Monday	03 Ramazan 1425

PESHAWAR, Oct 17: Differences among three departments are affecting the performance of the prosecution service in the NWFP, official sources said.

It is learnt that the law, home and police departments are trying to outdo each other in an effort to control prosecution service. In this regard conflicting notifications have been issued inrecent past by the departments.

Although, Governor Syed Iftikhar Hussain Shah promulgated the Prosecution Service (Constitution, Functions and Powers) Ordinance, 2004, on Aug 25, but the law department has not notified it in the Official Gazette so for.

Sources said that the law department had put forward a legal excuse for not notifying it in the gazette stating that as the provincial assembly session was in progress, therefore it could not be notified in the gazette.

Under Article 128 of the Constitution, the governor may promulgate an ordinance when the provincial assembly is in session.

The assembly session started on Sept 8, whereas the ordinance was promulgated on Aug 25. However, the department delayed the matter and did not include the ordinance in the gazette. The session had ended on Oct 13.

An official of the home department confided to Dawn that the law department had been trying to buy time as the constitutional life of the ordinance was three months and it would lapse on Nov 24.

He added that it was a lame excuse for not notifying the ordinance as Article 128 was related to promulgation of the ordinance and not notifying it in the gazette.

The ordinance envisaged establishment of a separate prosecution institution which also included the prosecution directorate.

For the last two years the home and law departments had been struggling for maintaining supervision over the prosecution service. These departments had pleaded their case before the quarters concerned.

Finally, on March 17, the NWFP chief secretary issued a notification through which the prosecution was detached from the law department and was given under the supervision of the home department. However, some ambiguity was left by the government as it was ordered that in civil cases the government pleaders would function under the law department.

In a meeting in June 2004, chaired by the secretary of the establishment department, it was decided that all the public prosecutors would go to the home department, whereas options would be sought from the additional public prosecutors about which of the department they would like to join. However, instead of seeking options from the APPs both the departments started pick-n-choose and issued separate notifications.

Interestingly, one of the additional public prosecutor, Saleem Khan, was notified by the home department as assistant director of the directorate of prosecution, but the law department notified him as government pleader attached with it.

Recently, the law department has ordered the public prosecutors to vacate their offices situated in different courts as they were the property of law department.

It is learnt that the home department has not yet issued a required notification to the Accountant General's Office so that the salaries of the officials in the prosecution institute could be started as previously they were drawing salaries form the law department.

An official said that if the notification was not issued the prosecution officers in the home department would not receive their salaries in the coming month.

Another factor contributing to the controversy is the functioning of the legal branch in the police department. Under the Access to Justice Programme and during the police reforms, the prosecution branch was separated from the police department. However, the department continued to maintain a legal branch in the department and sought opinions from it, which legal experts claimed was functioning in an illegal manner.

About 80 officers - 13 Legal DSPs, 23 legal inspectors and 44 sub-inspector - were performing their duties in the police department. Under the prosecution ordinance the investigation police could only seek opinion from the prosecution and not from its legal branch.