25 October 2004	Monday	10 Ramazan 1425

LAHORE, Oct 24: The controversy as to which department should head the proposed independent prosecution service has allegedly eroded the provincial government's capacity to pursue cases in courts, making scores of such cases time-barred.

Official sources informed Dawn on Sunday that this had happened because of the tug-of-war between the home and the law departments to get hold of the service. And a delay in taking a decision on the recent advice by the donor, Asian Development Bank, that the service should be placed under a new ministry was adding fuel to fire, they said.

The prosecution service is intended to be established in the provinces under the ADB-funded Access to Justice Programme. In Punjab, its main hurdle has been the desire by the home and the law departments to control it under various legal justifications given by them in support of their claim.

The chief minister had constituted a high-level committee, headed by law minister Raja Basharat, to solve the controversy but the home department reportedly got approved from him a summary that was sent while by-passing the law department to own criminal side of prosecution without any opposition.

Sources said the home department, in the meantime, also got the Punjab Government Rules of Business 1974 amended after getting an approval from the chief minister to a summary sent to him again without its consent. "Every summary goes to the chief minister through the law department, but this was sent to him directly," they claimed.

They said after 'unilaterally' amending the rules of business the home department got hold of the prosecution side. But this created another controversy because the Law Department Manuals of 1938 under which the prosecution was a part of it, was still intact.

Under the manuals, they said, the district attorneys used to send time limit cases regarding appeals against acquittals or enhancement of sentences to the parent law department for advice. The law department in turn would ask the advocate-general to pursue the cases either in the high court or the Supreme Court.

Now, they said, conditions regarding the filing of the cases started worsening when the post of the home department's additional secretary judicial fell vacant after the high court withdrew its officer working against it and posted him as additional sessions judge.

Since then, the post had been lying vacant, rendering the home department unable to dispense with the responsibility it had undertaken. It then sent the cases to the advocate-general for advice, but he returned those unattended with the plea that he was under the law and not the home department. "We are unable to understand as to who would pursue such cases in courts," sources said.

They said inspectors (legal), who were a part of the home department, had now become an entity of the now independent police, leaving no mechanism for it to even pursue government cases in the subordinate judiciary.

In view of these complications and its own assessment, they said, the ADP sent a summary to the provincial government clarifying that by independent prosecution service it meant a system independent of any existing department. It should be placed under a new department, having a minister and an administrative secretary, it said.

The summary was sent to the chief minister, who constituted a committee under the chief secretary but there had been no verdict by it even after the lapse of 20 days.

Sources said according to the law department placing the prosecution service under the home department meant that the executive and the judiciary were once again been joined in violation of a Supreme Court ruling under which they were separated many years ago. It would also eliminate the independence of the prosecution, which was necessary to maintain under the legal framework.