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Woes in pakistan criminal justice system

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
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
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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.
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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.

Pakistan's flawed forensic investigation in rape cases is the

weak link in the justice system
Aamir Jafarey | Sualeha ShekhaniUpdated January 02, 2018
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Observing the low rates of reported rapes in Pakistan, a recent Dawn editorial rightly points towards
the gross “inadequacies of investigators and prosecutors…” as a key contributor to this issue.

The role of medical examiners holds immense importance in investigations for rape, since their report can
often make or break the case.

Despite this, the investigational techniques utilised by our medicolegal system tend to rely upon crude,
insensitive, and often brutal methods.

Newsreels of crime scenes being mobbed by curious onlookers, rescue volunteers, and reporters, the place
being hosed down and precious evidence washed away or trampled on, is nothing new to us.

Our methods are unprofessional, to say the least, in sharp contrast to the meticulous, and methodical
approaches being adopted by investigators that impress us on TV shows like CSI Miami.

Advancements in forensic investigations have come a long way but have yet to reach our shores.

Lack of career opportunities

The domain of the medical examiner unfortunately does not present a very rosy picture either. Medical
forensic is an orphan specialisation in this country with the brightest minds choosing more lucrative fields.

The forensic departments in medical colleges exist due to requirements laid down by the Pakistan Medical and
Dental Council, the governing body for undergraduate medical education in Pakistan.
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While the subject is taught in all medical colleges as a compulsory course, it is treated by students as no more
than a necessary irritant to be endured, rather than a discipline to be learnt and understood, since very few
people want to make a career out of it.

Read next: Women doctors don’t choose to leave work; they are forced out of their careers

This is not surprising since the only employment that forensic specialists get in Pakistan are in understaffed,
under budgeted police surgeon offices in casualty departments of government hospitals.

The medicolegal officers are the underpaid, unrespected and entirely unacknowledged foot soldiers of our
medicolegal system that is known more for its failings rather than its accomplishments.

The necessary close linkage with the law enforcement system also exposes this cadre to corruption that is rife
in our police force.

Hence we have very few people in this field, out of whom many are there due to a lack of alternatives rather
than out of choice.

This dismal state of affairs translates into limited progress in the field, the result of which is the suffering
endured by the hapless victims seeking justice.

Systemic backwardness
A prime example of this was highlighted by a recent Dawn articlelamenting the use of the archaic and useless
two-finger test used to establish ‘consent’ in a sexual assault case.

This legal requirement for a two-finger test to determine the veracity of the complaint of a rape victim resides
within the dusty archives of law books, as a relic of the medieval precedence on which British law of that time
was often structured, and is not in practice in any modern legal system across the world.

Same topic: It's time Pakistan banned the two-finger test for decoding consent in rape trials

Yet, the legal and judicial system of this country seeks the results of this humiliating and unnecessary
examination, to be conducted on a victim who summons enough courage to seek justice from a system not
renowned for its sensitivity.

Not only is this test regarded as scientifically invalid, it does nothing but to doubly curse the woman.

After getting brutally violated once by the perpetrator of the crime, her recourse for justice lies in submitting to
what amounts to nothing less than the most dehumanising and humiliating invasion of a woman’s privacy.

And this is done at the hands of a medical practitioner, a messiah whose hands are supposed to heal.

Resource constraints
The Dawn editorial rightly applauds the Peshawar High Court’s decision to make it mandatory to include DNA
evidence in rape investigations.

Whereas DNA forensic has been an established field across the world for years, enabling accurate linking of
cells found at the site of the crime to the person they belong to, this technology has been introduced in Pakistan
primarily to deal with cases of terrorism and has been very useful in identifying both victims and perpetrators.

Public sector hospitals can access these specialised labs to investigate rape investigations. However, the
presence of a facility does not mean it will be used optimally.
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Even though specimen collection using rape kits is no rocket science, and any trained person can do so, the
lack of availability of trained staff often results in the loss of the window of opportunity to collect appropriate
samples.

Due to the social taboo associated with rape and the psychological trauma, the victims may understandably
present themselves to the investigation officer late.

Once this narrow window of opportunity is lost, there will be no second chance at collecting appropriate DNA
samples.

Read next: How Pakistan can save more lives at the site of bomb blasts

Even if the samples are collected and preserved within the designated time frame, lack of appropriate
transportation to the labs presents another challenge.

The samples sitting on the dashboard of a van on a hot summer afternoon, while the driver stops for lunch
and namaz on the way from Karachi to Hyderabad, where the DNA lab is located for the province of Sindh, is
not the recommended way to handle these delicate specimens.

Another challenge is the costs involved in the examination. While the service lies within the public sector
domain, there is a cost attached to every procedure.

The lack of budgetary allocations precludes free availability of this investigation.

While the test ought to be provided for free to the victims, the cost which typically amounts to Rs20,000 is
generally passed on to the victims’ families.

This may serve as a further deterrent for low income families who may still want to seek justice but find
themselves in a bind because of their economic situation.

With so little faith in the legal system, many may understandably choose to forgo this added expense.

Failing education system

Perhaps even worse than ignorance and poor training is apathy of those who matter: the medical practitioners.

While our medical system may train our students in the modern methods of medical care, there is hardly any
attempt to inculcate within them the values of empathy, compassion and caring, all part of the largely ignored
multidimensional field of bioethics.

Our students are not trained in communication skills, which form an essential part of a physicians’ work,
particularly for a medicolegal officer who deals with highly sensitive cases including rape and attempted
suicide, to mention a few.

Related: Pakistani medical codes weren't violated in sending friend request to Sharmeen's sister – and that's a
problem

Most of our medical colleges either entirely ignore teaching bioethics, and even when it is included in the
curriculum, according to a study conducted by one of the authors, the students believed that there was a
disconnect between what was being taught and what they experienced in real life.
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Another study has also previously indicated that a vast majority of the medical students expressed concern that
instead of strengthening their moral values during medical schooling, the realities of the work environment
may actually lead to erosion of their preexisting values.

In such a situation, easy availability and accessibility of advanced investigational techniques may not be
enough.

Dealing with rape victims requires compassionate practitioners, equipped not only with advanced forensic
knowledge and skills, and access to technology, but also armed with appropriate bioethics training with a focus
on enhancing professionalism and communication skills.

A humane and ethical professional will make the best use of whatever technology is available and will provide
the victim with the best chance at justice.

Issues impeding administration of justice discussed

Malik AsadJune 05, 2016
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ISLAMABAD: The ‘ineffective’ self accountability mechanism within the superior judiciary and
substandard legal education are impeding the administration of justice to the public at large and
promoting corruption and corrupt practices.

These were the views of legal experts at a discussion organised by the Legal Aid Society at a local hotel on
Saturday.

Mohammad Shuaib Shaheen, chairman, legal education committee of the Pakistan Bar Council (PBC) accused
the government and private sector universities of extending affiliation to second-rate and third-rate law
colleges.

‘Ineffective self accountability, substandard legal education promote corruption in

judiciary’

He claimed that less than 10pc of total enrolled students attend regular classes whereas 90pc get law degree
without attending a single class.

After getting LLB degree, these ‘virtual’ students start practicing law and hence make a mess of the profession,
he said, adding that these amateur lawyers develop relations with corrupt judges and get relief for non-
deserving litigants, he alleged.

“This is how the corruption is penetrating within the lower and superior judiciary,” claimed Shaheen.

He also criticised the senior judicial authorities for being lenient towards corrupt judges.

“Since 1973 not a single time Article 209 has been invoked against corrupt judges,” he claimed.

He said 90pc of the references filed against the judges of the superior courts became infructuous as they went
on retirement without facing the charges and enjoyed the post-retirement perks and privileges.
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According to him, a judge becomes entitled to pension after serving only five years in the superior judiciary,
whereas a civil servant needs minimum 25 years service to enjoy pension and other post-retirement benefits.

Expressing gratitude for the incumbent Chief Justice (CJ), Anwar ZaheerJamali, for activating the otherwise
‘defunct’ Supreme Judicial Council (SJC), Shaheen said though he had assured the legal fraternity of taking
action against the corrupt judges in November last year, the judges facing allegations of corrupt practices were
still functioning with all the authority.

Mr Shaheen said the Pakistan Bar Council (PBC), the apex regulatory body of the black-coats, had passed five
consecutive resolutions demanding action against the ‘corrupt’ judges but nothing substantial came from the
higher judiciary.

Shaheen said that lack of self-accountability was a reason that people were losing faith in the judicial system
and subsequently the parliament as well as the superior judiciary let the military people to run parallel courts to
maintain law and order.

Tariq Mehmood Jahangiri, president Islamabad High Court Bar Association, said that since the criminal justice
system had failed to deliver timely justice, the people turned to alternative forums like Jirgas and Penchayat,
etc.

According to Jahangiri, the scope of legal education should be enhanced and certain amendments in the
century’s old Criminal Procedure and Evidence Act should be introduced to upgrade it. The law enforcing
agencies used this act to prosecute the criminals.

Additional attorney general Mohammad Waqar Rana said there was a need for research bodies’ academic
review on the judgment passed by the courts. Earlier, Mahwush Malik, legal education project consultant, said
the state of legal education in Pakistan had declined.

She said the path to improve quality of legal education in Pakistan would not be easy and would require strong
leadership.

According to her, the challenge of reforming legal education in Pakistan has to be undertaken collectively by
all stakeholders.

Published in Dawn, June 5th, 2016