Written by: Hafiz Ehsaan Ahmad Khokhar
The Khyber Pakhtunkhwa government has recently introduced a set of controversial proposals aimed at amending the Khyber Pakhtunkhwa Prosecution Services Act, 2005, and the Code of Criminal Procedure, 1898. These include changes in Sections 4, 5, 7 and 8 of the provincial statute, the insertion of a new Section 21A, and modifications to Section 427 of the CrPC. While the stated objective is to strengthen the provincial prosecution framework, the political context and design of these amendments strongly suggest that they are intended to create a pathway for the withdrawal of cases arising from the incidents of May 9, 2023.
The Constitution of Pakistan, however, draws a clear line between the legislative authority of the federation and the provinces. Under Article 142(a), Parliament retains exclusive competence to legislate with respect to matters in the Federal Legislative List. Defence and the armed forces, covered under Entry No. 1 of Part I of that list, fall squarely within the federal domain. This means that any prosecution under the Pakistan Army Act, 1952 is entirely a matter for the federation and cannot be altered or interfered with by provincial law. The same position applies to the Anti-Terrorism Act, 1997, a federal statute enacted by Parliament, which governs prosecutions arising out of terrorist activities. In both cases, provincial legislative competence is absent. Article 143 of the Constitution makes the position even clearer by stipulating that where a provincial law is inconsistent with a federal law, the federal law shall prevail and the provincial law shall, to the extent of the inconsistency, be void. This constitutional framework ensures that prosecutions under the Army Act and Anti-Terrorism Act are beyond the reach of provincial amendments.
In respect of prosecutions under the Pakistan Penal Code, the mechanism for withdrawal is already comprehensively laid down in Section 494 of the Code of Criminal Procedure, 1898. This section empowers a Public Prosecutor to apply for withdrawal from prosecution but makes such withdrawal contingent upon the consent of the court. The requirement of judicial approval is not a procedural formality but a substantive safeguard, intended to prevent abuse of prosecutorial power for political or other extraneous purposes. The proposed insertion of Section 21A into the KPK Prosecution Services Act seeks to give the provincial government power to direct withdrawals, but this would be constitutionally and legally redundant. The CrPC is a federal law of general application, and its provisions bind all provinces. Courts will therefore continue to exercise ultimate authority over whether a case may be withdrawn, regardless of provincial legislation.
The proposed amendment to Section 427 of the CrPC presents a similar difficulty. Section 427 governs the running of multiple sentences and provides the court discretion to determine whether sentences run concurrently or consecutively. The suggested provincial amendment appears designed to dilute the penal consequences of multiple convictions, particularly for individuals facing several cases connected to the 9th May unrest. However, sentencing principles under Section 427 are part of the federal criminal procedure framework. A provincial amendment attempting to modify their application would once again fall foul of Article 143. Since the CrPC is a federal law extending throughout Pakistan, its uniformity cannot be undermined by unilateral provincial changes.
These proposals, therefore, are not merely technical legislative adjustments but implicate the very spirit of the criminal justice system. That system rests on three central pillars: the independence of the prosecution, the supervisory role of the judiciary, and the supremacy of federal law in areas linked to national defence and security. By conferring on the executive the power to direct withdrawals, the amendments erode prosecutorial independence. By attempting to dilute judicial consent, they diminish judicial oversight. By encroaching upon matters reserved for the federation, they undermine the constitutional balance of powers.
The proposed amendments, however, do not represent broad-based reforms of the prosecution system; rather, they are narrowly tailored to the circumstances of those incidents. In this sense, they appear to be motivated more by political expediency than by the requirements of law or justice.
Even if passed, the amendments will have limited practical effect. Cases under the Army Act and Anti-Terrorism Act will remain entirely unaffected because they are shielded by the constitutional supremacy of federal law. Cases under the Penal Code will continue to be subject to the judicial consent requirement under Section 494 of the CrPC. Sentencing decisions under Section 427 will remain within the discretion of the courts. At best, the amendments may provide symbolic political comfort; at worst, they risk being struck down for constitutional inconsistency.
In constitutional terms, therefore, the KPK proposals suffer from clear infirmities. They trespass into areas exclusively reserved for the federation under Article 142 and the Federal Legislative List. They are vulnerable to being declared void under Article 143 because of inconsistency with federal statutes. They undermine the principle of judicial supervision that is central to the criminal justice system and politicize the independence of prosecution. While politically motivated legislation may seek to alter the course of accountability, the Constitution ensures that prosecutions governed by federal law, and supervised by independent courts, cannot be undone by provincial experiments.
In the end, the accountability process arising out of the events of 9th May will continue under the authority of federal law and judicial scrutiny. The proposed amendments by the Khyber Pakhtunkhwa government, even if enacted, are constitutionally unsustainable, legally redundant, and incapable of obstructing prosecutions. They represent political maneuvering through legislative means but are unlikely to withstand the test of constitutional scrutiny or judicial review.
Writer is Advocate Supreme Court of Pakistan, Renowned Constitutional and Legal Expert with 35 years’ standing. He can be contacted on 0300-8487161
