OVERVIEW OF CRIMINAL JUSTICE SYSTEM IN PAKISTAN

Criminal Justice refers to the agencies of government charged with enforcing law, adjudicating crime, and correcting criminal conduct. The criminal justice system is essentially an instrument of social control: society considers some conducts so dangerous and destructive that it either strictly controls their occurrence or outlaws them outright. It is the job of the agencies of justice to prevent these behaviours by apprehending and punishing transgressors or deterring their future occurrence. Although society maintains other forms of social control, such as the family, school, and church, they are designed to deal with moral, not legal, misbehaviour. It is only the criminal justice system in a legal system which has the power to control crime and punish criminals.

The main objectives of the criminal justice system can be categorized as follows:
Prevent the occurrence of crime.
Punish the transgressors and the criminals.
Rehabilitate the transgressors and the criminals.
Compensate the victims as far as possible.
Maintain law and order in the society.
Deter the offenders from committing any criminal act in the future.

Of late, the relevance of our criminal justice system- both substantive and procedural is under cloud and open to grave skepticism. The system is unquestionably founded in laws that are arbitrary and operate to the disadvantages of the vulnerable and the poor. They have always come across as law for the poor rather than law of the poor. It operates on the weaker sections of the community, notwithstanding any constitutional guarantee to the contrary.

Even after six decades of independence, no serious effort has been made to redraft penal norms, radicalize punitive processes, humanize prison houses and make anti-social and anti-national criminals etc. incapable of escaping the legal coils.

Even though Pakistan is flooded with statutory laws pertaining to criminal justice system, most of these were legislated during the earlier British colonial period; that being between 1860 and 1910. The Penal Code defining the penal offences and the their punishments was enacted in 1860, while the Criminal Procedure Code dates back to 1898, Prisons Act, Prisoners Act, and The Reformatory Schools Act have been in force since 1894, 1900, and 1897 respectively. Given the nineteenth century influences on the ideas of crime and punishment, the principles revolving on deterrence rather than a reformatory view, coupled with the expected sensitivity of a colonial rule was dominant in the minds of the legislators, should be no surprise to any critic. Some of these laws enacted fell squarely within the natural scheme of the desired coercive legislation.

The protection of society as an objective of punishment has been universally accepted and this can be achieved through reformation and the rehabilitation of offenders. While taking due note of the need to keep out of circulation for a longer time harmful, habitual, dangerous recidivist prisoners, a progressive prison system has to operate keeping in view the protection aspect as much as correctional and rehabilitation aspects.

Any study on criminal justice system must address these two basic issues. And it is in the context of these same two basic issues that various aspects of human rights have also to be examined.

Unless there is comprehensive reforms of the criminal justice system in it’s entirely, there is unlikely to be decisive change. Various commissions and committees have examined problems relating to different elements of the criminal justice system. But what is required is a detailed look at the system as a whole. Such an effort is long overdue and would be an essential and urgent step towards reform of vital spheres of public administration affecting human rights and human dignity. There are problems concerning such issues right from the stage of recording the FIR, during investigation (which often involves search, seizure, arrest, detention and interrogation), prosecution, trial, sentencing, jail life, parole, review, remission and rehabilitation, not to mention recidivism and relapse. Unless the government agencies dealing with specific aspects of these processes and matters work in co-ordination and their efforts are complementary to each other, there cannot be harmonious and purposeful results. In the current processes severe damage is caused to basic humanitarian considerations, the rule of law and public confidence in the credibility of the entire system has been shaken. The results can be and in fact are very disturbing the Society is losing faith in the system of justice. Sensitivities in regard to human sufferings and the inescapable disregard of law have been dulled. It can with all conviction be said that failure of criminal justice system is one of the players due to which people have lost faith in the administration of justice, and the rule of law has seriously eroded.

The obvious and immediate impediments facing the litigants, specially the under trial prisoners can be narrowed to three categories:

  1. The need for measures to lessen the population of the prisons through reforms in the jail administration and restorative justice programmes
  2. Delay at the investigation levels
  3. Delay in the trial proceedings

Each of these requires independent enquiry to ascertain and point out the problem areas, and the possible solutions by which each category responsible for the decay of prison and judicial system may be attended to.

Categories ii and iii both overlap and inter sync in what is termed as Delay in Proceedings.

An interesting observation comes from Michael Anderson[1] in his paper on Access to Justice in the First Judicial Colloquium on Access to Justice, which is reproduced to emphasize the issue under discussion:

Justice in its current form is part of the problem. Second, the poor see the institutions of justice (especially the police, but also court officials and others) not as a source of protection, but as entities to be avoided. Where justice institutions are seen not as the solution but as part of the problem, it is hardly surprising that access to them is not especially attractive. Poor people rarely mention a lack of legal aid as their critical justice problem; partly this is because they see lawyers and courts as part of the problem to be avoided rather than the solution to their difficulties. In this context justice institutions might take a page from the medical profession, where the primary rule is “First, do no harm” — in other words, make certain that the medical intervention is not going to make the patient worse off. Improved access to courts will be of little use if it means greater access to delay, harassment, bribe-taking, and unresponsive systems. In this context, the question for judges becomes: how to ensure that justice institutions are not themselves sources of injustice before offering them as weapons against the injustice of others?”

Delay in criminal justice negates several fundamental rights including the right to freedom of movement and dignity of man. The problems of delays are neither new nor unique in the context of Pakistan only, even most advanced countries lament of heavy arrears. It is an old and chronic problem of global dimension caused partly by cumbersome and technical provisions of procedure and partly because of non-observance of provisions. It was observed:

“Delay haunts the administration of justice. It postpones the rectification of wrong and the vindication of the unjustly accused. It crowds the dockets of the courts, increasing the costs for all litigants, pressuring judges to take short cuts, interfering with the prompt and deliberate disposition of those cases in which all parties are diligent and prepared for trial, and overhanging the entire process with the pall of disorganization and insolubility. But even these are not the worst of what delay does. The most erratic gear in the justice machinery is at the place of fact finding and possibilities for error multiply rapidly as time elapses between the original fact and its judicial determination. If the facts are not fully and accurately determined, then the wisest judge cannot distinguish between merits and demerits. If we do not get the facts right, there is little chance for the judgment to be right[2].”

Ever since the creation of Pakistan, the need to reform the administration of justice always remained on top of agenda of the successive Governments. There was constantly search for new and alternative ways and means to overcome the problem of delays and to remove hurdles and obstacles in way of speedy and fair dispensation of justice. Soon after independence, these problems attracted the attention of the Government of Pakistan and a Law Reform Commission, headed by Mr Justice S. A. Rahman, then a Judge of the Supreme Court of Pakistan, was constituted in the year 1958, to examine the causes of delay in the disposal of cases by the courts and to suggest remedies for the better and more speedy disposal of both civil and criminal cases. This Commission made several recommendations out of which only a few were accepted. Thereafter, another Law Reform Commission was established in 1967, under the Chairmanship of Justice Hamoodur Rehman, the then Chief Justice of Pakistan, to ascertain the causes of delay and to recommend efficacious remedies for the removal of such causes and suggest measures to simplify the court proceedings. The Commission submitted an exhaustive report in 1970, recommending legislative as well as administrative reforms to eradicate inordinate delays in disposal of cases.[3]

Again, in 1978, a Committee was set up under the Chairmanship of the Chief Justice of Pakistan, with the Attorney General, the Chief Justices of High Courts as members. The Committee submitted its report suggesting appropriate measures in the light of recommendations already made by the preceding law reform commissions. Its recommendations requiring legislative action were accepted and implemented through an Ordinance in 1980.

In the year 1993, a special Commission on Reform of Civil Law was constituted, headed by the Chief Justice of Pakistan and the Chief Justices of the provincial High Courts as its members.[4]

The efforts of all previous law reforms were mainly focused on civil law reforms and the field of criminal justice system was however, not given due attention. There was a dire need to give special attention to reform the criminal justice system. Consequently, in 1997, the Law and Justice Commission on its own motion took an exhaustive study to propose reforms in the criminal justice system. The report prepared by the Secretariat was placed before the Commission in its meeting held in 1997. The Commission after thorough discussion and deliberations unanimously approved the proposals, recommending inter alia:

(1) strengthening the judicial system;

(2) increases in number of judicial officers;

(3) provision of court rooms and allied facilities;

(4) restructuring the service condition of judicial officers;

(5) timely submission of challans;

(6) taking effective measures to ensure attendance of witnesses;

(7) liberalizing the provisions of bail;

(8) to check and control frequent adjournments;

(9) separation of the functions of civil and criminal courts; and

(10) strict supervision on court management.

These recommendations were not given due effect and were generally ignored. The Supreme Court in Liaquat Hussain’s[5] case took serious note of it and observed that the system of administration of justice in the country is confronted with caseload, at all levels of judicial hierarchy. The Court further observed that unless the requisite legal/judicial remedial measures are timely adopted, the situation will further deteriorate. The Court went on to mention certain reports of the Pakistan Law Commission, namely, Report on Criminal Justice System, and Report on Reform of Juvenile Justice System, and bemoaned their non-implementation.[6]

The causes and factors responsible for the delays in trial of criminal cases may briefly be identified. These include lack of proper supervision of courts, unsatisfactory service of processes, lack of proper working conditions in the court, lack of transport facility for process serving staff, lack of court/residential accommodation for judicial staff, lack of libraries, lack of record rooms in the courts, shortage of ministerial staff and necessary equipments in the courts, non-observance of the provisions of procedural laws, shortage of judicial officers, shortage of stationery and furniture, delay on the part of investigating agencies, non-attendance of witnesses, delay in writing and delivering judgments, frequent adjournments, dilatory tactics by the lawyers and the parties, frequent transfer of judicial officers and transfer of cases from one court to another, interlocutory orders and stay of proceedings and un-attractive service conditions of subordinate judicial officers, etc.[7]

Courts have to follow procedural laws i.e. the Code of Criminal Procedure, 1898 and Cr.P.C is more than hundred years old and time-tested, yet need to be reformed to meet the present-day requirements. It may also be pertinent to mention that our neighbouring country (India) has exhaustively revised both these laws. The time is ripe to thoroughly revise our procedural laws in order to bring them in conformity with modern needs. This exercise though time consuming will produce positive and far-reaching results in eradicating courts delays, both in civil and criminal justice system. There is also a need to improve judicial system through administrative measures for eliminating defects that exist in the system.

It is therefore proposed that the process of law reforms be carried through:

(i) introducing legislative reforms through amendments;

(ii) administrative reforms; and

(iii) introducing means of alternate dispute resolution.

In view of the importance of the subject matter, it is proposed to explain in brief some of the important areas of the criminal justice system that have attracted the attention of the courts in the sub-continent in recent years. These are:

  1. Bail
  2. Prison justice.
  3. Compensation to the victims.
  4. Legal aid and legal services.

Bail is a generic term used to mean judicial release from custodia legis. The right to bail- the right to be released from jail in a criminal case, after furnishing sufficient security and bond- has been recognized in every civilized society as a fundamental aspect of human rights. This is based on the principle that the object of a criminal proceeding is to secure the presence of the accused charged of a crime at the time of the inquiry, trial and investigation before the court, and to ensure the availability of the accused to serve the sentence, if convicted. It would be unjust and unfair to deprive a person of his freedom and liberty and keep him in confinement, if his presence in the court, whenever required for trial, is assured.

Justice delayed is justice denied. This is more so in criminal cases where the liberty of an individual is at stake and in jeopardy. The irony of fate is that in all such cases, it is the poor and the week who are the victims of the criminal justice system, and not the rich who are able to get away.

The plight of under trial prisoners for the first time came to the notice of the Supreme Court of India in the landmark case of Hussainara Khatoon v. State of Bihar[8] in 1979, wherein it was disclosed that thousands of under trial prisoners were languishing in various jails in the State of Bihar for periods longer than the maximum term for which they could have been sentenced, if convicted. While granting a character of freedom for under trials that had virtually spent their period of sentences, the court said their detention was clearly illegal and was in violation of their fundamental rights guaranteed under Art.21 of the Constitution of India. The court further said that speedy trial is a constitutional mandate and the State can’t avoid its constitutional mandate and its constitutional obligation by pleading financial or administrative inability.

In Sanjay Suri v Deli Administration, DELHI & ANR.[9], a trainee newspaper reporter initiated public interest litigation by moving a writ petition in the Supreme Court of India to gather information about seven juvenile prisoners locked up in Tihar Jail, Delhi, whose conditions were reported miserable. The Court, after getting a thorough investigation conducted of the matter, came to know that the prisoners were living in pathetic conditions in prison and there was overcrowding in jail. The court accordingly issued a number of directions to the jail administration under the provisions of the Indian Prison Act, 1884 to undertake corrective measures, so that the prisoner could be provided with facilities available under the law and were not put to harassment and inhuman torture.

There is however, hardly any change in the condition of the jails and the attitude of the jail administration, and in spite of constitutional mandate for speedy trial, there are over two lakh prisoners, convicts and undertrials who are endlessly awaiting an early hearing of their cases.

It may be noted that the liberal remissions and grant of frequent paroles to the prisoners to spend time with their families would help to inculcate self confidence in prisoners and reduce the intensity of some of the prison vices.

As Kuldeep Singh and B.L. Hansaria, JJ said:
Unless there is introspection on the part of all concerned with the criminal justice system, issues relating to jail reforms, improvement in the prisoner’s condition, and better administration of justice will continue to remain on paper. It is possible to reduce the backlog of criminal cases if the judiciary and lawyers together resolve to refrain from unnecessary and repeated adjournment.

Criminal law, which reflects the social ambitions and norms of the society, is designed to punish as well as to reform the criminals, but it hardly takes any notice of byproduct of crime- i.e. its victim.

The poor victims of crime are entirely overlooked in misplaced sympathy for the criminal. The guilty man is lodged, fed, clothed, warmed, lighted, and entertained in a model cell at the expense of the state, from the taxes that the victim pays to the treasury. And, the victim, instead of being looked after, is contributing towards the care of prisoners during his stay in the prison. In fact, it is a weakness of our criminal jurisprudence that the victims of crime don’t attract due attention.

The (amended) Indian Code of Criminal Procedure, 1973, sec. 357 and Probation of Offenders Act, 1958, sec.5; empowers the court to provide compensation to the victims of crime. However it is noted with regret that the courts seldom resort to exercising their powers liberally. Perhaps taking note of the indifferent attitude of the subordinate courts, the apex court the case of Hari Krishan directed the attention of all courts to exercise the provisions under sec. 57 of the Cr.P.C. liberally and award adequate compensation to the victim, particularly when an accused is released on admonition, probation or when the parties enter into a compromise.
Criminal Justice System in Pakistan requires a strong second look.
The criminal investigation system needs higher standards of professionalism and it should be provided adequate logistic and technological support. Serious offences should be classified for purpose of specialized investigation by specially selected, trained and experienced investigators. They should not be burdened with other duties like security, maintenance of law and order etc., and should be entrusted exclusively with investigation of serious offences.

The number of Forensic Science Institutions with modern technologies such as DNA fingerprinting technology should be enhanced. The system of plea-bargaining (as recommended by the Law Commission of India in its Report) should be introduced as part of the process of decriminalization.

The greatest asset of the police in investigation of crimes and maintenance of law and order is the confidence of the people. Today, such public confidence is at the lowest ebb. The police are increasingly losing the benefit of this asset of public confidence. Hard intelligence in investigations comes from public cooperation. If police are seen as violators of law themselves or if they abuse their powers for intimidation and extortion, public develop an attitude of revulsion and the onerous duties and responsibilities that the police shoulder become more onerous and difficult.

In order that citizen’s confidence in the police administration is enhanced, the police administration in the districts should periodically review the statistics of all the arrests made by the police in the district and see as to in how many of the cases in which arrests were made culminated in the filing of charge-sheets in the court and how many of the arrests were ultimately turned out to be unnecessary. This review will check the tendency of unnecessary arrests.

On 14th January 2005, Secretary Law, Justice and Human Rights, Islamabad made a reference to the Chief Justice of Pakistan forwarding therewith a Bill, namely, the Law Reform Bill 2005, seeking comments and suggestions thereon. The Chief Justice of Pakistan convened a meeting of the Law and Justice Commission of Pakistan on 12-2-2005 to consider the proposed Bill.[10] The recommendations were to be formally encapsulated as a law reforms act, through legislation. Unfortunately the same never came to light, and remain only as deliberations.

The recommendations made by different law reforms committees during their tenure are important, and provide a definite and focused guidance which have not only guiding principles, but persuasive value.

To conclude, the arbiters of Criminal Justice system must reorient the thought that severity of sentence is a deterrent; in fact it is the certainty of conviction which co-relates with the degree of crime. Unless the latter is focused upon the failure of the criminal Justice System cannot be reversed. To show how the correlation works, the following comparative chart is produced below. The table below compares the effectiveness of prosecution in Pakistan against other countries:-[11][12]

 

Countries Conviction Average Rates (%)
Pakistan 2003 11.66
India 37.4
South Africa 39
England (Lower Courts) 98
England (Crown Courts) 90
Australia 1995 85
US (Federal) 1995 85
US (States)1995 87
Japan (Dist) 1995 99.9

[1] Michael Anderson. Director of Studies. British Institute of International and Comparative Law; First South Asian Regional Judicial Colloquium on Access to Justice, New Delhi

http://www.humanrightsinitiative.org/jc/papers/jc_2002/background_papers/anderson.pdf

[2] Providing Speedy and Inexpensive Justice by Mr. Justice ® Mian Mehboob Ahmed, Chief Justice, Lahore High Court.

[3] http://www.asianlii.org/pk/other/PKLJC/reports

[4] http://www.asianlii.org/pk/other/PKLJC/reports

[5] PLD 1999 SC 504

[6] http://www.commonlii.org/pk/other/PKLJC/reports/60.html#fn6

[7] http://www.commonlii.org/pk/other/PKLJC/reports

[8] http://www.judis.nic.in/supremecourt/qrydisp.aspx?filename=4792 1980 SCC (1) 115

[9] http://www.judis.nic.in/supremecourt/qrydisp.aspx?filename=8486 1988 SCC Supl. 160

[10] http://www.asianlii.org/pk/other/PKLJC/reports/69.html#Heading1157

[11] http://www.sindhcpsd.gov.pk/prosecution.htm

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