The Woes of Criminal Justice System in Pakistan

The civil and criminal justice system in Pakistan has historically been confronted with complaints of inefficiencies, serious legal and procedural lacunas and inordinate delays. All these challenges in litigation of civil and criminal cases have, over time, become chronic and proverbial. These challenges in the law and justice system of Pakistan, however, need to be seen against the backdrop of the fact that these are inherent in every judicial system which meticulously guards against any injustice being done to an individual, in a civil dispute or criminal prosecution. A paramount principle of the criminal justice system is that an accused is punished only after his guilt is proved beyond a shadow of a doubt. Similarly, justice demands that in the trial of a civil case, the dispute must be decided strictly in accordance with the law and on the principles of equity, justice and fair play. The issue, therefore, cannot be seen as an outlier; it is rather historical and universal.

Criminal justice system is defined as the set of agencies and processes established by governments to control crime and impose penalties on those who violate laws. This system has various components which have to work in harmony, and support each other to provide justice not only to the victim but also to the accused. A good and reliable system of criminal justice not only caters for speedy remedy to the victims of crime but also safeguards and protects the legitimate rights of the accused, i.e. fairness to all. Criminal Justice System has three constituents namely: (i) Police (law-enforcement), (ii) Courts (adjudication/trial), (iii) Prisons (corrections/probation and parole).

The major and important flaws and weaknesses of the criminal justice system of Pakistan are inaccurate reporting of crime to the police, mal-practices and flaws in investigations, delayed submission of challans to the courts by the public prosecutors, lopsided and long duration of trial of the cases where accused is considered to be the favorite child of the court, overcrowding of jails due to large number of under trial prisoner, under developed system of parole and probation, and capacity issues. These weaknesses, especially the capacity issues, are not restricted to a particular constituent; rather they are pervasive throughout the criminal justice system. Scepticism around the criminal justice system is neither new nor limited, it has been discussed, vouched for and admitted to have certain weaknesses at almost all levels, including the highest fora of the system itself. Supreme Court of Pakistan once observed, “… people are losing faith in dispensation of criminal justice by ordinary criminal courts for the reason that they either acquit the accused persons on technical grounds or take a lenient view in awarding sentence.” This loss of faith has manifested in a number of ways – from continued reliance on traditional conflict-resolution methods like Jirga and Panchayat, to personal vengeance to street justice like incidents of lynching of criminals.

The legal basis of the criminal justice system are the Code of Criminal Procedure (CrPC), 1898, Pakistan Penal Code (PPC), 1860, and the Qanun-e-Shahadat Order (QSO), 1984, which lay out the foundations, procedures and functions of all components of the system; starting from reporting of the case to and its registration by the police, its trial, appeal and review by courts, and punishment/correction at jails. These laws have undergone amendments from time to time so as to cater for new requirements as times change; however, there has been an incessant debate as to whether these laws, together with other major laws governing the criminal justice system, require a major overhaul because halfhearted amendments, that too in bits and pieces, have not yielded the desired results.

Criminal justice begins with the lodging of an FIR at a police station. It has been observed and usually complained that police avoid registering the crime when reported by employing delaying tactics. This delay is due to a number of reasons, the foremost being the non-willingness of police because higher number of FIRs reflects poorly on their performance. The other reasons may include extraneous pressures and corruption. The second stage is apprehension or arrest of the accused. We often hear that police did not take swift action on FIR, allowing the accused enough time to flee or avoid arrest. Failure to use modern methods and technology to trace the accused and connivance from within the ranks of police also result in a large number of criminals avoiding arrest. To provide relief to general public in registration of FIR and to counter for delays in its registration, an amendment was made to the CrPC and ‘Justices of Peace’ were introduced by inserting new Sections 22 A & B. However, still the police have to register the FIR as a ‘Justice of Peace’ can only pass an administrative order to the concerned SHO for registration of FIR. No separate register for registration of such FIRs was prescribed which police did not register at first.

On the other hand, there have been reports that these new sections are being misused. After introduction of Sections 22 A & B, the number of false FIRs has increased, as the complainants whose FIRs were not registered by the local police on suspicion of being false and fabricated, obtained orders under Section 22A of CrPC from the concerned Justice of Peace directing the local police to register the same.

Investigation is the second most important function performed by the police. After the registration of FIR, the matter is assigned to a police officer for investigation. Investigation is carried out under the procedure given in CrPC as well as the guidelines given in Chapter 25 of the Police Rules, 1934. Investigation is the process of collecting evidence to establish the commission of an offence and the roles played by individuals involved. Once evidence is collected and grounds of involvement or innocence of the accused are established, the Investigating Officer (IO) prepares challan for submission to the court. CrPC provides powers to the IO to acquit any accused against whom no evidence of involvement is found under Section 169 and ideally all accused against whom no evidence is received should be released by police. However, in the backdrop of malpractices and faulty investigations, this practice is usually disliked by the courts and they insist that police should challan the accused under Column No 2 of the challan. This causes delay in justice and puts the falsely-implicated persons under undue torture and delay in getting relief and being acquitted.

Quality of investigation by police and its timely completion is of vital importance for dispensation of justice and effective operation of the criminal justice system. Under the law, an IO is bound to submit challan before the court within 17 days. As it is practically not possible to collect all pieces of evidence in such a short time, hence, mostly interim challans are submitted and investigations, at times, take months to complete and bring accused to book.

Much has been talked about reforms in police system, but oftentimes the reforms introduced have proved only cosmetic. No real focus has been put on the root causes of the problems. Only amendment in laws will not yield the desired results. Police powers under Sections 54 and 169 of the CrPC are largely criticized by judiciary for misuse. It needs to be duly considered, however, that police and judiciary are from the same society and share similar moral values and integrity benchmarks. If law has given a power to police officers, they should exercise it in a transparent, unbiased and judicious manner in the interest of time and justice. You do not chop the head for a headache. The solution to faulty investigation or mishandling of cases by police is not to stop them from using their legal powers rather action should be taken against those who misuse those powers.

Police stations are also inadequately equipped, even sometimes lacking proper premises. Police budgets do not cover individual stations. Instead, allocations for arms and ammunition, transport, maintenance, stationery and other necessary items are centralized in provincial police budgets and then distributed to stations. Many stations do not have their basic requirements met and their monthly expenditures outpace their allocation. Most stations are self-financed to a significant extent, sometimes required to pay for their own stationery, maintenance of vehicles and fuel, creating a situation where corruption and malpractices become a necessity rather than a choice. The Police Order, 2002, made the police force more top-heavy, further weakening police stations’ operational independence and efficacy.

The performance of other two constituents of the Criminal Justice System, judiciary and prisons, also leaves much to be desired. Subordinate judiciary’s inefficiency, beyond capacity number of court cases, negative and delaying tactics by lawyers including growing trend of going on strike and boycotting court proceedings every now and then don’t at all help the cause of timely disposal of cases in courts. Prisons in the country have so miserably failed in discharging responsibilities as confinement and correctional facilities that even a minor offender comes out as a hardened criminal after serving time in prison, leading to a multiplier effect in spread of crimes.

Actions on multiple fronts with vigor and unswerving commitment are required to address these woes. To start with, necessary amendments in laws need to be made for rationalizing police powers and responsibilities. For quick disposal of criminal cases, it may be considered to fix time frame for the courts to conclude the trial once challans is submitted by police. Amendments in Qanoon e Shahadat should be made by including confession before a police officer and modern technology based evidence as admissible evidence and giving more weightage to circumstantial evidence as compared to eye witness account. Infrastructure development at Police station level as well as trial courts level is also a pressing need, including facilities such as video conferencing to not only save time of travel to produce accused physically before courts from police station or jail but also to avoid attacks on prisoner vans and courts hearing cases of high profile terrorists. Cost of investigations should be realistically calculated and budget given accordingly. Empowerment and capacity building of police and judiciary is essential for timely and efficient dispensation of justice and quick disposal of cases. Enhancement in human resource i.e. number of investigation officers, judicial officers is required for timely investigation and trials to reduce the pendency of cases. Establishment of separate prisons for under trial and convicted prisoners and more organized system of probation and parole is also the need of time to reduce the burden on existing jails.

Production of witnesses, both prosecution and defense, should be ensured and mechanism developed to record their evidence in one sitting. Process serving mechanism requires major improvements. All courts may be made accountable of their performance and increasing highhandedness of lawyers be checked through initiatives by and within the judicial system. All state institutions are financed by the tax payers’ money so they should be accountable for their actions.