07 March 2005	Monday	25 Muharram 1426

LAHORE, March 6: The proposed draft bill on the creation of an independent criminal prosecution service under the provincial home department has been found in conflict with the related provisions of the constitution , CrPC and the Police Order 2002.

The bill has been examined by the provincial law department which has returned it to the quarters concerned with its observations, sources in the Chief Minister's Secretariat informed Dawn here on Sunday.

According to a decision, the home department is to head the criminal side of the prosecution service and the law department its civil aspect.

The law department, which is currently handling all sides of prosecution, grudges the decision on the ground that pursuing cases in courts was a legal and not an administrative matter.

It asks how the home department can give legal opinion on cases in courts when it is bound to seek opinion of the law department on its own affairs.

Official sources said the proposed bill was sent to the CM's secretariat for approval while bypassing the law department, which normally routed all bills or ordinances to the competent authority for approval after considering its legal aspects. Even the CM's secretariat, he said, sent the bill to the law department while bypassing the cabinet.

Now, the law department which was asked to introduce the bill in the assembly for adoption, had sent it to the home department and other quarters concerned for considering its objections.

Sources said the proposed bill empowered the public prosecutor to decide about initiating a case or continuing with the prosecution of a case. But the law department had found it in direct conflict with sections 170 and 204 of the CrPC, which provides that it is the authority of the investigating officer to send the case for prosecution on his findings. It adds the ultimate authority to continue hearing a case or not rests with courts.

The bill authorizes the public prosecutor to extend the time limit of the completion of the investigation and submission of police report as against Section 173 of the CrPC, which limits it to a maximum of 17 days. It also authorizes the public prosecutor to withdraw a prosecution on his own. But the Section 949 of the CrPC subjects such rights to the consent of the court concerned.

The bill empowers the government or the prosecutor general, with the consent of the government, to entrust supervision of investigation of high profile cases to a public prosecutor whereas the Police Order 2002 provides that all investigation shall be conducted under the supervision of the head of investigation.

Sources said the law department had stated that the proposed draft bill dealt with one aspect of the criminal law and procedure, which fell in the concurrent list. Therefore, it had to be in consonance with the existing federal laws.

The draft bill also provides for the conduct of prosecution in the superior courts by the prosecutor general. But the law department has stated that, at present, the Punjab advocate general, who derives his powers from the constitution, is conducting the criminal prosecution in the superior courts.

It said the proposal to endeavour such litigation to the prosecutor general would create a parallel authority. The proposed draft mentions no qualification for the office of the prosecutor general.