PESHAWAR, Sept 26: The investigation police in the province continue to violate the law by taking opinion from its legal branch despite the establishment of an independent Directorate of Prosecution, legal circles say.
It is learnt that after the promulgation of the NWFP Prosecution Service (Constitution, Functions and Powers) Ordinance, 2004, on Aug 25, it is binding on the investigation police to take legal opinion from the public prosecutor. However, the police continue to take opinion from its own legal branch.
Local lawyers believed that since police was not in favour of the independent prosecution institute (IPI), it continued with the same old procedure of consulting its own legal branch.
They believed that the functioning of the legal branch was illegal. The prosecution ordinance envisaged establishment of the institution which also included the Directorate of Prosecution, which shall be headed by the director general of prosecution.
The establishment of the IPI was part of the Asian Development Bank-funded Access to Justice Programme.The establishment of IPI was aimed at improving the quality of prosecution as well as to check the growing complaints against police of manipulating cases.
The framers of this law believed that because prosecution would be an independent body and it would check all the evidence available on record, it would be in a better position to check the highhandedness of police. However, even after the establishment of the IPI, the police department has not abolished its legal branch.
An officer in the home department said that under section 9(4) of the prosecution ordinance, whenever any legal guidance/ opinion is required by the head of investigation, the same should be sought from the district public prosecutor/public prosecutor, and the guidance or opinion so given should be followed.
Through the ordinance, wide-ranging powers have been assigned to the prosecution service. Under Section 9(2), on registration of an FIR the SHO of the police station concerned should send a copy of the FIR to the district public prosecutor/public prosecutor who, on receipt, should inspect the same and issue necessary directions to the head of investigation, and should also inspect, scrutinize and supervise the whole investigation process of various cases so registered in the district.
It is learnt that as these sections end police monopoly and are a check on misuse of their powers, these are not followed. Lawyers dealing in criminal cases said that under section 173 of the Criminal Procedure Code, the final challan (charge sheet) in a case needs to be submitted to the court concerned through public prosecutor.
The prosecution ordinance also empowered the director general and the district prosecutor to keep a check on the investigation officer. Under section 5(e), the district prosecutor may ask the head of investigation in a district to take disciplinary action against investigation officer, where sufficient reasons exist to believe that the investigation officer colluded or has not exercised due honesty in conducting investigation, or misrepresented the facts of the case.
The director general or the district prosecutor may call for disciplinary action against the investigation officer through the competent authority in cases where police officers fail to follow any suggestion or instruction of the public prosecutor under the ordinance.