PESHAWAR, Oct 28: Peshawar High Court Chief Justice Tariq Pervez Khan has declined to give concurrence to a proposal by the provincial government for assigning powers of special judicial magistrates to executive officers in accordance with a controversial ordinance.
Official sources said that NWFP Home Department had sent a letter to Peshawar High Court in September last requesting concurrence/recommendation for conferment of powers of special judicial magistrate on certain officers of government.
The controversial ordinance -- The Code of Criminal Procedure, 1898 NWFP Motor Vehicle Ordinance, 1965, West Pakistan Maintenance of Public Order Ordinance, 1960 and Police Order, 2002 (Amendment) Ordinance, 2008 -- was promulgated by NWFP governor on August 5, 2008, despite objection raised by law department that it was not in line with the constitution.
The constitutional life of a provincial ordinance is three months. Sources said that as the ordinance was going to lapse on November 4, therefore, the government was planning to re-promulgate it before its expiry date.
It was learnt that few days ago PHC Registrar Qalandar Ali Khan sent a reply to the government informing it that the chief justice had regretted the proposal because of pendency of cases.
“I am directed to refer to your letter No. SO (JUDL) HD/3-88/08 dated Sept 16, 2008, on the subject cited above and to say that Honourable Chief Justice of this court is pleased to regret the proposal because of pendency of lis,” the letter states.
The government was seeking concurrence/recommendation of the high court under section 14 of the Criminal Procedure Code.
Under the said section the provincial government may on the recommendation of the high court confer on any person all or any of the power conferred or conferrable under this CrPC on a judicial magistrate.
The initiative to assign various powers to the executive officers was taken by home department and a summary was sent to law department for vetting. However, the law department had returned the summary without vetting with various observations in August.
The ordinance mentioned different categories of powers to be exercised by executive officers. The executive officers are empowered to deal with different categories of cases including section 107 to 112, 127 to 143, 145, 146, 147, 174 and 176 of CrPC; Motor Vehicle Ordinance; Section 16 of the MPO; and, Article 144 of the Police Order.
These provisions are mostly related to public nuisance, public peace and tranquillity, unlawful assemblies and motor vehicles etc.
The officials recommended for exercising the said powers included the district coordination officers, assistant coordination officers, district officer revenue, deputy district revenue officers and assistant district revenue officers.
The law department had objected that the CrPC was an existing law belonging to concurrent legislative list of the 4th Schedule to the Constitution. It was added that any amendment in it by the provincial legislative inconsistent with existing provisions thereto, would be void with in the meaning of Article 143.
The law department had proposed that it would be appropriate to forward the subject proposal to interior ministry for making requisite amendments by parliament.
Under article 143 both the federal and provincial governments are empowered to legislate on subjects mentioned in the Concurrent List, but province could not enact a law in conflict with the federal law.
As through a presidential ordinance in 2001 the powers of executive officers were reduced in these laws, therefore the provincial government could not legislate contrary to that.
Legal circles believed that the ordinance was poorly drafted. They added that some top bureaucrats in the province were bent upon regaining their erstwhile judicial powers as without those powers there was no charm in the superior services.