Law as to the Public Prosecutors in Pakistan: Cases and Materials [Part Ix, Ch. Xxxviii, Ss. 492-495 of the Code of Criminal Procedure, 1898]

20 Pages Posted: 11 Sep 2014

Date Written: September 10, 2014

Abstract

According to section 492 Cr.P.C, Public Prosecution is the function of such officers who are appointed by the executive authority of the province. The executive authority of a province is the Governor but such authority is to be exercised by the Governor through the Chief Minister as per Article 129 of the Constitution of Pakistan 1973 which reads as under:

129. The Provincial Government: (1) Subject to the Constitution, the executive authority of the Province shall be exercised in the name of the Governor by the Provincial Government, consisting of the Chief Minister and Provincial Ministers, which shall act through the Chief Minister. (2) In the performance of his functions under the Constitution, the Chief Minister may act either directly or through the Provincial Ministers.

Thus, the executive authority of the province can be used in the name of Governor through the Chief Minister in the matter of appointment of an officer to be called Public Prosecutor.

The subject of the Public Prosecutor is mentioned in the Cr.P.C. in Part IX of the said Code with the heading “Supplementary Provisions” and it has only four sections. The text of the Chapter IX is reproduced for ready reference and discussion in the succeeding paragraphs of this paper:

492. Power to appoint Public Prosecutors (1) The Provincial Government may appoint, generally, or in any case, or for any specified class of cases, in any local area, one or more officers to be called Public Prosecutors.

(2) Officer Incharge of the Prosecution in the District may, in the absence of the Public Prosecutor, or where no Public Prosecutor has been appointed, appoint any other person, not being an officer of police below such ranks as the Provincial Government may prescribe in this behalf to be Public Prosecutor for the purpose of any case.

493. Public Prosecutor may plead in all Court in cases under his charge; Pleaders privately instructed to be under his direction. The Public Prosecutor may appear and plead without any written authority before any Court in which any case of which he has charge is under inquiry, trial or appeal, and if any private person instructs a pleader to prosecute in any Court any person in any such case, the Public Prosecutor shall conduct the prosecution, and the pleader so instructed shall act therein, under his directions.

494. Effect of withdrawal from prosecution. Any Public Prosecutor may, with the consent of the Court, before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and upon such withdrawal:

(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;

(b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences.

495. Permission to conduct prosecution. (1) Any Magistrate inquiring into or trying any case may permit the prosecution to be conducted by any person other than an officer of police below the rank to be prescribed by the Government in this behalf but no person, other than the Advocate-General, Standing Counsel, Government Solicitor, Public Prosecutor or other officer generally or specially empowered by the Provincial Government in this behalf, shall be entitled to do so without such permission.

(2) Any such officer shall have the like power of withdrawing the prosecution as is provided by section 494, and the provisions of that section shall apply to any withdrawal by such officer.

(3) Any person conducting the prosecution may do so personally or by a pleader.

(4) An officer of police shall not be permitted to conduct the prosecution if he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted.

Under section 492 Cr.P. C. it is a part of the executive authority of the province to make appointments to the post of Public Prosecutor and that, the executive authority of the province being vested by Article 129 of the Constitution of Islamic Republic of Pakistan, 1973, in the Governor who is entitled to appoint the Advocate General, a Public Prosecutor.

The Punjab Government has enacted the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 (III of 2006).

Suggested Citation

Mughal, Munir Ahmad, Law as to the Public Prosecutors in Pakistan: Cases and Materials [Part Ix, Ch. Xxxviii, Ss. 492-495 of the Code of Criminal Procedure, 1898] (September 10, 2014). Available at SSRN: https://ssrn.com/abstract=2494632 or http://dx.doi.org/10.2139/ssrn.2494632

Munir Ahmad Mughal (Contact Author)

Punjab University Law College ( email )

(Res.)125-B, Judicial Colony, Lahore
Lahore, Punjab 54000
Pakistan
042-35304847 (Phone)
042-35311498 (Fax)

Superior Law College

(Res.)125-B, Judicial Colony
Lahore, Punjab 54000
Pakistan
0092-42-35304847 (Phone)
0092-42-35311498 (Fax)

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