The criminal justice system of Pakistan comprises four main agencies: the police, the prosecution, the judiciary and the prisons; the first three agencies play ‘active’ role as enshrined in the law for the dispensation of justice while the fourth one plays a passive but reformative role under the regulations of the law of the land. Unfortunately, the criminal justice system of Pakistan is believed to be lethargic, unresponsive and in disarray. The disease of failure of the criminal justice system in the entrails of the system is devouring the society from within. To call a spade a spade, our criminal justice system brackets the complainant with the accused, leaving the parties in a lose-lose situation. Trapped in the quagmire of lengthy, faulty and lethargic procedures and then inordinate delays, the justice seekers often have to compromise with one another.
Pakistan has been ranked 108th out of 139 countries in the World Justice Project’s Rule of Law Index 2021 in the category of ‘Criminal Justice’. Pakistan’s ranking paints a ghastly picture of our justice system.
Many reasons cause the insufficiency of the criminal justice system but the archaic colonial legacy lies at the bottom. Be it the criminal law, its procedural work and rigmaroles of the police and judiciary, the colonial legacy is there. It keeps the well-timed dispensation of justice at bay.
So, there are three main components of the criminal justice system of Pakistan but it is ironic that there seems an atmosphere of inequality even among these very agencies. That is to say, only the judiciary enjoys substantial perks and privileges; the police and the prosecution are denied thaem. It is ridiculous that a judge who just decides a case on a police report— after the collection of evidence under section 173 of the Criminal Procedure Code (CrPC)— in an air-conditioned room is offered a handsome salary package but a police investigation officer (IO) who round the clock investigates a case in the field is denied that much. Even the state does not provide him the expenditures and TA/DA of the case, prompting malpractices. This is a shocking fact that an SHO of a police station has a lower salary than a driver of the High Court. The police services are taken for granted.
The investigation cost and the TA/DA in the police department is a wild goose chase. Can one bear the expenditure of the department from one’s own pocket? Thus, the monetary burden is shifted to the parties concerned. Contrary to the judiciary, the police is underfunded and then the meagre income, politicized environment, and round-the-clock duties have worsened the police work and caused malpractices. Corruption cannot be wiped out in the police unless the axe hits the root.
The experience of direct recruitment of well-educated investigators by the Punjab Police has gone askew and the police’s archaic environment is now prompting the brain drain from the police department. Nearly 100 of 500 sub-inspectors directly recruited through Punjab Public Service Commission in 2014 as part of the drive for ‘change in thana culture’ have already left the department.
A three-pronged reform approach can hit the root cause of corruption and thus offers a solution to the ills of financial woes Ffirst is the substantial funding by the government. Secondly, the monetary burden that is otherwise shifted to the parties by the police should be legalized; that is, the government should charge a fixed fee on the complainant for every case according to the nature and expenses of the case. A similar practice is already being exercised in the civil cases, so why not in criminal cases?
Many governments in the past have been promising to launch reforms in the criminal justice system. Nothing happened. To right the wrongs, the criminal justice system needs a whole-of-government approach. Simultaneous meaningful reforms in the criminal justice system are the need of the hour.
Lastly yet importantly, the criminal law should be amended and a substantial fine imposed on the accused in every kind of the case; nonetheless, the amount of the fine— that would be deposited by the accused once the trial of the case is done— should be transacted in advance directly into the account of the police investigation officer for the convenience of investigation. In this way, corruption-free policing is achieved.
Regrettably, the promising establishment of the Prosecution Department in 2005 to formulate the criminal prosecution service could not turn out to be a benign development. Scrutiny of the challans— police reports under section 173 of the CrPC— is one of its prime functions but, unfortunately, it has prompted the corrupt practices bringing about delays in the submission of challans to the courts. Every IO has to cough up a bribe for every challan so as to get it passed by the prosecution department and then be sent up to the court. As a necessary evil, this monetary burden is shifted to the parties concerned by the IO and in return the police department— and not the Prosecution— earns a bad name. The short history of the department bears out the fact that this department is like an added spice to the boiling cauldron of the rigmaroles of the criminal justice system.
There is a three-pronged solution to this problem: as the prosecution department has turned out to be a wall— and not a bridge— between the police and the judiciary, this wall should be eliminated and the challans should directly be sent to the courts; secondly, the government should merge the Prosecution Department into the police and a prosecutor should be appointed in every police station in lieu of separate independent offices at district and tehsil level ; thirdly, the prosecutor should only pursue the trial cases in the courts and not scrutinize the challans of the cases.
Now the investigation is done. And challan of the case is submitted to the court. Either with or without the prosecution department! Next comes the role of the judiciary that has a huge backlog of work. As of 5 February 2022, over 53, 547 cases were pending in the Supreme Court. A number of instances can be offered to explain the pendency and, hence, delays in the dispensation of justice.
One such example is the ‘left-over’ cases in the courts, especially in the high courts and Supreme Court on a daily basis. That is, the cases scheduled on a specific day and the parties called for hearing on the same day from every corner of the province or the country— and all being there in the courtroom— but not heard at the end for lack of time. Thus, the cases are left over sine die. Justice seems an illusion in such scenarios. William E. Gladstone once famously said, “Justice delayed is justice denied”. One wonders why there are only 17 judges in the Supreme Court in a country of over 220 million? So few judges for such a large country makes a mockery of justice. Enhanced number of judges in the Supreme Court and then a High Court bench at every division would transform the criminal justice system and minimize the pendency and the inordinate delays.
Litigation for the sake of litigation is one the main causes of poverty in Pakistan and another reason behind the huge backlog of cases. Be it a civil case or a family feud or an ancestral enmity, the people resort to registration of fake cases so as to tighten the noose on others. Consequently, pendency soars. Presently, the law and its practice against the registration of fake cases is lenient. The government should amend the criminal law in this regard and there should be severe penalties so as to curb the registration of fake cases.
The government hunt for reforms may go in vain if the criminal law about bail and then the trial is not amended. Judicial history is replete with examples of habitual offenders released on bail. It seems against the law of nature when an offender, especially a habitual one, comes out of jail on bail. The speedy trial should be implemented instead of letting the culprit get bail. In a similar spirit, various sections of the laws are much weaker, humiliating and even against human justice; for example, the laws on hurt and possession of immovable property.
If a man gets injured by an offender and does not have any bone fracture, he cannot get the First Information Report (FIR) registered under non-bailable sections against the latter. Isn’t it humiliating that one necessarily needs Bone Fracture so as to get the FIR registered under non-bailable sections? Put another way, the offender can insult, drag and even injure any decent and law-abiding citizen in broad daylight and the victim finds himself stranded.
Many governments in the past have been promising to launch reforms in the criminal justice system. Nothing happened. To right the wrongs, the criminal justice system needs a whole-of-government approach. Simultaneous meaningful reforms in the criminal justice system are the need of the hour.
