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  • Friday, 12 July 2024
DELAY DEFEATS CRIMINAL JUSTICE IN PAKISTAN

DELAY DEFEATS CRIMINAL JUSTICE IN PAKISTAN

“Delay defeats justice” is a phrase repeatedly used by the judges in Pakistan in their judgments but hardly addressed. Inexpensive and expeditious justice is a constitutional mandate as per Article 37(d) of the Constitution of the Islamic Republic of Pakistan 1973. The dispensation of criminal justice in Pakistan takes a long recourse from the court of first instance until the final disposal of a case by the apex court of Pakistan i.e., the Supreme Court. Parties to the litigation remain entrenched in criminal litigation for excruciating long time. The Supreme Court of Pakistan in the case of State versus Gulzar Muhammad[1] observed that the delay of 15/16 years in cases after the submission of challan in the trial court in the conclusion of the trial could not be explained away on any hypothesis. It is a good ground for quashment of the proceedings. In this study I have tried to discuss major causes of delays in the criminal matters in courts in Pakistan in the light of the decisions of the Supreme Court of Pakistan. Part I deals with the brief introduction about criminal justice system of Pakistan. Part II highlights various causes and hurdles which taint the criminal justice process with protracted litigation and leave the parties, police, prosecutors and even courts in limbo for sufficient length of time. Part III deals with the recommendations to curb delays and adoptive measures for improvement and refinement of the criminal justice system. PART I CRIMINAL JUSTICE SYSTEM IN PAKISTAN. Criminal justice system in Pakistan is the legacy of British Colonial Rule. The Code of Criminal Procedure (Cr.P.C) promulgated in the year 1898 in the pre-partitioned India is still applicable in Pakistan.  It is the procedural law that regulates the mechanism of dispensation of criminal justice while the Pakistan Penal Code 1860 contains substantive provisions. The criminal justice aims at minimizing crimes and protecting life, liberty and property of the people. There are three main parts of the criminal justice system which are law enforcement including police, courts and prosecution, prisons and probation.[2] All these three parts operate together as the principal means of maintaining the rule of law within a society. These three main parts have institutional deficiencies, procedural flaws and technical irregularities which adversely affect and hamper the fair operation of the dispensation of criminal justice and upholding the rule of law principles in Pakistan. Crime is partly condoned when justice is postponed.[3]Delayed justice is a marked feature of our judicial system due to sluggish processes, practice and procedure of courts dealing with criminal matters in Pakistan. The process of criminal trial initiates from the court of first instance which is usually the Court of Magistrate[4] and reaches up to the Supreme Court of Pakistan for its ultimate adjudication. Criminal matters are heard by various courts which are classified in the following order starting from the lower forum. Sub-ordinate Courts including the Court of Sessions, Court of Additional and Assistant Sessions Judges and the Court of Magistrates). High Courts (in each province and in Islamabad Capital Territory) and The Supreme Court of Pakistan. PART II CAUSES OF DELAY IN CRIMINAL MATTERS IN THE LIGHT OF DECISIONS OF THE SUPREME COURT OF PAKISTAN. Delay In Submitting Charge Sheets, Challans and Interim-Challans in Court. Section 173(1) of the Code of Criminal Procedure 1898 makes it mandatory for the police officials to complete investigation without unnecessary delay and to submit investigation report(challan) through the public prosecutor before the relevant court within a period of fourteen days after the registration of FIR.[5]However, delay in the submission of report under section 173(1) has become a common practice in criminal trials and police in most cases seeks more time to complete the investigation after submission of incomplete investigation report(interim report/challan). This delay in the timely submission of challan in court allows the justice process to rot and allows star witnesses to escape, die or vanish; thus, frustrating the justice system and aggrieved parties to achieve their goals timely. In the case of Adnan Prince v The State[6], a matter involving the grant of bail to the accused charged under Sections 295-A, 295-B & 295-C Penal Code (XLV of 1860), for desecration of the Holy Quran, the Supreme Court of Pakistan observed in paragraph no 9 of the judgment that it is too late but we are constrained to give a wake-up call to the prosecution/State that in criminal cases involving capital punishment, the Investigators and Prosecutors, consisting of large fleets who are being sustained and maintained at the cost of tax payers money of the poor people, shall diligently perform their statutory duties/obligations otherwise, they will be guilty of violating the mandatory statutory provisions of the Cr.P.C., the Constitution and Law relating to the prosecution branch. It is a universal principle of law that to have a speedy trial is the right of every accused person, therefore, unnecessary delay in trial of such cases would amount to denial of justice. The Supreme Court further observed that in order to correct the criminal justice system, the police force was bisected into preventive/detective, investigation and prosecution wings. The said bifurcation placed a huge burden on the public exchequer, however, that costly exercise could not improve the system as the supervising officers of various wings of the police failed to streamline the working of each wing, in utter disregard of the mandatory provisions of law. Lack of efficiency and police failure had resulted in delayed submission of charge sheets and challans before the criminal courts thus protracting the litigation process. In the case of Amjad Khan v the State [7]the Supreme Court of Pakistan observed that the British colonial rulers had enacted the Code in 1898 and had bound themselves to submit investigation reports (challans) promptly. In 1992 the Code was amended and a proviso specifying certain time periods was inserted after section 173(1) to ensure further expeditious submission of the reports, but these time periods are mostly observed in the breach. It is now over 73 years since we attained independence, with a great many sacrifices, but even the standard set by foreign rulers is not met and the betrayal of the people continues. And, it seems that with every passing day the situation deteriorates further. It is a rare case in which the investigation report (challan) is submitted within fourteen days from the recording of the FIR. The Supreme Court further observed that we are constrained to observe that this unjustifiable delay in the submission of investigation reports (challans) also vitiates the Fundamental Rights of 'fair trial and due process' which the Constitution of the Islamic Republic of Pakistan guarantees in its Article 10A. Inefficiency and Criminal Negligence of Police. The question of inefficiency and criminal negligence of police arises where the police maliciously fails to register FIR under section 154 of Cr.P.C as well as conduct faulty investigation in flagrant violation of Section 173 of Cr.P.C .In  Human Rights Case No.19526-G of 2013[8] under Art. 184(3) of the Constitution concerning murder of daughter-in-law of an Inspector General of Police, the Supreme Court of Pakistan observed that prima facie the facts are sufficient to establish that police of KPK abused their powers in not registering of F.I.R. on 19-5-2013 as in view of principles discussed in the judgments and the law on the subject under section 154, Cr.P.C. The IGP, KPK and his subordinates had no lawful authority to deny access to justice to petitioner. This is nothing but clearly a case of either inefficiency or criminal negligence of the police for the reasons best known to them, including external pressure on all of them but a law-abiding officer is not supposed to deny due process of law to victim party. In Human Rights Case No.3212 of 2006,[9] the Supreme Court of Pakistan observed that non-registration of a criminal case wherein a murder has taken place for a period about 2-1/2 years clearly demonstrates inefficiency, and gross negligence on the part of the concerned Police Officers. It is well-settled that during the investigation it is always better to collect evidence if available, as early as possible. We are not in a position to understand that in such a case where murder has taken place what would be the result of the same and particularly poor lady Mumtaz Bibi who has appeared and is complaining against the police attitude saying that she had been approaching them again and again for the purpose of registration of the case but no one had listened her and at the end of the day D.P.O. came to her rescue and directed the registration of the case and entrusted investigation to S.P. Investigation. The Supreme Court showed concern that the matter will be investigated and evidence will be collected, sufficient or otherwise for the purpose of submitting challan but what would be the recompense to the lady whose son has been killed in a gruesome manner. Lack Of Cooperation Between Police and Prosecution In the case of Haider Ali v DPO Chakwal [10] the parties to the litigation highlighted various issues including the lack of cooperation between the police and prosecution. The Supreme Court observed that at least in Punjab, more than 65% of criminal cases do not result in conviction. In this case the Prosecutor General Punjab himself stated that even in those cases where a person has been convicted by the trial court, a substantial number are acquitted by the appellate forums. The Supreme Court categorically observed that these figures are indicative of weak investigation and gathering of evidence, but are also a result of serious deficiencies in our prosecution system.  For effective prosecution of criminal cases, it is essential that the cooperation between the law enforcement and the prosecution should be enhanced and improved. It is a dilemma that at the investigation stage the relationship between prosecutors and police officers is not regulated by Standard Operating Procedures and therefore, they cannot aid each other in the fair and timely investigation of the case. Lack of Training of Police. In the case of Haider Ali Supra, the Supreme Court of Pakistan emphasized that the registration of FIR is mandatory under the law, however, initiation of an investigation is not. The officer in charge of a police station shall proceed to initiate investigation of a case only where, inter alia, from information received, he has reason to suspect the commission of an offence.[11] Where there is no sufficient ground for entering on an investigation the officer in charge is not bound to investigate the case. However, the relevant police officer without application of mind directly proceeds to arrest the accused merely on the basis of registration of a FIR. In the case of Muhammad Bashir v Station House Master Okara Cantt[12]  the Supreme Court of Pakistan observed that the police should not move for the arrest of the accused nominated in the FIR unless sufficient evidence is available for the arrest. The Supreme Court of Pakistan expressed dismay that the superior courts have to deal with such matters on a daily basis; and perhaps, the issue lies in the fact that there are no real guidelines available to the police which would channel their discretion and judgment. This coupled with their lack of training, makes defective investigation almost a near possibility. Particularly in murder cases, even today an officer investigating a case has no concept of securing the scene of the crime which results in the loss of substantial evidences. Crime scene and surrounding area is often trampled and invaded by the general public before the investigation officer has had an opportunity to collect evidence from the place of occurrence. Moreover, lack of forensic training is a major element to taint the investigation process as the relevant officer is unaware of the techniques of securing incriminating articles, like pieces of cloth, blood, fingerprints etc. Until and unless, all incriminating articles are properly secured from the spot, they cannot be delivered promptly to a forensic laboratory or fingerprints expert in safe custody. This affects the credibility of the reports and results obtained from the forensic laboratory. Training and emphasis on the development of specialized investigation officers and facilities lapses are perhaps indicative of the weak administration of policing in Pakistan. The dominant political regime and powerful wealthy citizens still largely use the police to secure their personal interests in order to disrupt the furtherance of rule of law in Pakistan. As a result, the focus of police diverts from official responsibilities to getting bribes and discharging the accused at investigation stage. In such a debilitating environment, the work and integrity of honest and competent investigation officer is thwarted and shattered. Lack of Training of Prosecutors. In criminal justice system the real decision makers are not police and judges but the prosecutors. An independent and properly functioning criminal prosecution service is necessary for getting desired results in the criminal justice system. Investigation and prosecution are two important and distinct stages of a criminal case. The investigation process is solely in the hands of police whereas the prosecution in the hands of a prosecutor. Prosecutors face a myriad of challenges which impact their court room skills and decision-making power. Well groomed, experienced and knowledgeable persons employed in prosecution department can lead a criminal case promptly to its logical end while inexperienced prosecutors without legal expertise may blight the whole process.  In Haider Ali’s supra the Supreme Court observed that the prosecutors are not provided proper training and facilities. In addition, competent prosecutors because of lack of incentives resign from their service for better opportunities. There also appears to be no effective quality review system in place to check underperforming prosecutors. As a result, the best prosecutors are not being retained in service.[13] Lack of Protection of Witnesses. In Muhammad Ejaz v State[14] , the Supreme Court observed that while an accused is certainly entitled to "Due Process of Law" and a meaningful opportunity to contest indictment with a view to vindicate his position, the prosecution and its witnesses also deserve protection of law so as to prosecute the case with least inconvenience and without unnecessary hardship; equality before law without equal protection is a travesty; scales must be held strictly in balance. In Imran Abbass v, State[15] , the Supreme Court observed that it goes without saying that for effective and meaningful administration of criminal justice, witness protection is a sine qua non and as such a bounden responsibility is cast upon the State to be discharged through its functionaries to safeguard vulnerable witnesses in order to ensure that stream of justice runs pure and clean with scales strictly held in balance. Further in the case of Watan Party v. Federation[16] it was observed that it is for the Government to ensure that cogent evidence to support prosecution is collected and presented in the Court. It is for the legislature to provide processes for the protection of witnesses, policemen and judges. Adjournments Requested by Lawyers. In order to protract criminal trial, the lawyers defending criminal case request adjournment even on flimsy grounds and courts often grant such adjournments without taking into account the irreparable loss caused due to mismanagement of time.  In Haider Ali supra the Supreme Court observed that the defendant's lawyer deliberately at times delays resolution of cases. In Anti-Corruption Establishment, Punjab v National Accountability Bureau[17], the Supreme Court observed that the party had a right to be heard and be represented by counsel, but it could not be permitted to defeat the cause of justice by indefinite procrastination. Condonation of Delay by the Superior Courts. Condonation of delay by superior courts in criminal cases and appeals not instituted within the statutory time is a dangerous practice which has been protected and safeguarded by the superior courts as a principle of law under the garb of inherent powers available to them. In Muhammad Nawaz v, State[18] the delay of 145 days in filing the petition for leave to appeal was condoned by the Supreme Court on having been satisfied that the conviction of accused was illegal and also because that Supreme Court generally condoned delay in criminal cases. However, the impact of condoning delay has noxious impact on the overall dispensation of criminal justice. No Statutory Time Limit for Fixation and Disposal of Criminal Cases by The Apex Court. It is a dilemma that the fate of criminal cases lying in superior courts including High Courts and the Supreme Court kept lingering on for decades as there is no time limit for fixation and disposal of criminal appeals, applications and matters within a stipulated period of time. The High Courts’ Rules[19] as well as the Supreme Court Rules[20] are silent to this effect. The Supreme Court Rules 1980 sets out no statutory time limit for the fixation of a criminal case instituted under original or appellate jurisdiction as well as its decision thereof. Role of Judges. It is the duty of the presiding officer or a judge to ensure that the law is properly followed in a criminal case. In the case of Chairman Nab v. Muhammad Usman[21], it was observed by the Supreme Court of Pakistan that one cannot ignore the fundamental principle relating to administration of justice that law is written on the sleeves of the Judges and it is the primary duty of a Judge to apply the correct law to a case before it and even the party is not bound to engage a counsel for telling the Court how a particular law is to be applied and how the jurisdiction is to be exercised. No doubt the prime responsibility of conducting a fair criminal trial within a reasonable time lies on the judge himself. It is he who can control unjustified adjournments, compel the appearance of witnesses and timely recording of cogent evidence, enforce the correct application of law and complete the trial without unnecessary delay in lower as well as appellate forums. Four Tier System: The criminal trial in Pakistan mostly initiates from the Court of Magistrate and once decided, it becomes appealable to the Court of Sessions Judge or Additional Sessions Judge. When the Sessions Judge gives his verdict, the decision is challenged in the Provincial High Court and after its decision by the High Court, the case reaches the Supreme Court of Pakistan. This four-tier system overburdens the public exchequer, judiciary, parties, law enforcement agencies as well as the prosecution. Part III Recommendations: In order to address the deficiencies, slowness and inefficiency of the criminal justice system, following measures may be adopted for mending the same in Pakistan. There is a dire need for replacing the prevalent obsolete and redundant system with a new, up-to-date and effective system through promulgation of new procedural and substantive laws. The centuries old Code of Criminal Procedure 1898 and Pakistan Penal Code 1860 of pre-partitioned India do not augur well for dispensation of fair justice. In Pakistan the criminal justice system is adversarial and not inquisitorial. The role of a judge is that of an umpire and he gives verdict on the basis of evidence adduced by the parties. In Pakistan, not only police and the prosecution but also parties are strong enough to influence the trial through vicious means. In inquisitorial processes the emphasis is placed on the discovery of truth at higher pedestal while in adversarial processes the judge is handicapped to discover the truth within evidential and procedural boundaries. Therefore, the role of judge needs to be enhanced through implementation of inquisitorial processes in order to dig out the truth in criminal cases for giving a sound verdict. In adversarial models discretion is applied freely by police, prosecutors and the parties while in inquisitorial models the role of discretion is limited and the prosecution cannot refuse to proceed with the case where there is sufficient evidence to supports the charge. An integrated database must be established at the Federal level through mutual cooperation of legal, software and information technology experts connecting and consolidating all of the data of police stations, investigation agencies, prosecution offices, subordinate and superior criminal courts, prisons and jails, forensic laboratories and the bar councils. This integrated database must be linked with the NADRA Verisys system which is an online verification system.[22] If such a system is established in Pakistan, then the criminal cases from inception till end can be monitored and regulated as the database can automatically store information about criminals, FIRs registered and delayed, identity of witnesses and criminals as well as information about police and prosecution team, lawyers and courts. In order to curb unnecessary adjournments by the lawyers, the courts should not hesitate to impose heavy costs on them. Moreover, the courts shall maintain a list of lawyers who are habitual in seeking adjournments without sufficient grounds. After every six months, the lists shall be circulated among respective bar councils for taking appropriate action against such lawyers. In Pakistan even the lawyer who holds the license of pleading a case in the Supreme Court of Pakistan, doesn’t refuse to take the case of the court of first instance i.e., Court of Magistrate or Sessions Judge. Advocates of the Supreme Court of Pakistan rarely appear in subordinate courts and the cases keep lingering on as the presiding officers out of respect or influence of such lawyers show great leniency in granting adjournments. Therefore, the senior lawyers holding offices in Pakistan Bar Council and Provincial Bar Councils should formulate a policy to ensure that the criminal cases pending in subordinate courts may be conducted and advocated by junior lawyers only. The appointment of prosecution team must be made transparent and void of political influence. Moreover, only those lawyers should be inducted as prosecutors who have sufficient experience of practicing cases on criminal side. After induction the prosecutors should be trained with higher skills at Judicial and Police Academies equipping them with sufficient knowledge and in-depth understanding of criminal justice system, investigation techniques, forensic science and legal intricacies. Police system needs to reformed and renovated from grass root to higher level. Legal and moral grooming is must for all police personnel. The Station House Master registering the first information report must be a law graduate having adequate training and experience of dealing with criminal cases. The investigation team must also be comprised of police officers having legal and forensic science knowledge and experience. Overall, the system needs revamping with inculcation of best practices, trainings and techniques and evidence-based policing. Police should be trained to provide protection to all witnesses as well as parties without fear and favour. The growing rate of crime and inefficiency of Police to control the same is plunging the State towards anarchy and out of court settlements in the shape of bloody retaliation. In developed countries the DNA databases containing genetic records of persons play a vital role in apprehending the culprits timely and serving justice to the victims. Conversely in Pakistan, the situation is getting worse and everyday there are hundreds of cases of criminal atrocities all over Pakistan. In my view the Government can just designate the Government as well as renowned Private hospitals and labs to maintain DNA record of all the persons living within the vicinity of that area where the hospital/lab is situated. Citizens must be obliged to give DNA samples to such designated hospitals/labs and those evading the process must be fined heavily. That database containing DNA record and other genetic information must be linked with the NADRA as well as Police Stations. In the first phase DNA samples of males all over the Pakistan must be collected and maintained and later on the females’ record should also be gathered. This exercise of DNA collection and record maintaining will not burden the Government in terms of expenses as hospitals/ labs are already maintaining the medical records of thousands of patients in Pakistan. The same record may be utilized to connect the offenders with crimes. Moreover, Chairman NADRA who is an expert in information technology field can play an effective role in undergoing all this exercise. In Pakistan, courts’ practices and procedures are slow, obtuse and musty. The Federal as well as the Provincial Governments need to work closely with the Supreme Court and the respective High Courts to digitalize the practices and procedures of all courts through promulgation of new Digitalization Rules and Policies to this effect. Moreover, all the superior courts should fix timespan for hearing and disposal of criminal cases as well as availability of judgment within a reasonable time in order to curb delays in criminal litigation at the higher level. The Supreme Court Rules 1980 and the relevant High Court Rules and Orders may be amended accordingly. Delay in institution of petitions and criminal appeals should not be condoned by the superior courts except in cases of sound grounds. There is a need to abolish four-tier system and after categorizing offences according to their nature jurisdiction should be conferred on subordinate criminal courts by introducing two-tier system. Only one right of appeal to the Provincial High Court may be given to the aggrieved parties in cases of grave nature and in petty offences appeal shall lie to Sessions Judge or Additional Sessions Judge and the decision shall become final. Except those matters involving interpretation of any constitutional provision in criminal matters , no right of appeal should be given to the parties.. Conclusion: Delivery of expeditious and inexpensive justice is the constitutional duty of the State and its organs including the judiciary. No doubt in Pakistan, the judges serving from subordinate to superior courts are highly professional and independent, however, they are bound to deliver justice as per the legal framework provided to them. Judges can only interpret the law and cannot legislate. It is the job of the legislature to revisit and update the laws keeping in view the challenges of the contemporary requirements, modern techniques and trends. The age-old colonial laws applicable in Pakistan for conducting criminal trials and dispensing justice have become redundant and ineffective with the passage of time. There is a dire need for framing a strong legal framework encompassing improvements in judicial, legal, prosecution and police systems for effective and efficient control of crime in Pakistan. It is possible only through promulgation of new, as well as amending the existing substantive and procedural criminal laws, after introducing and amalgamating digital and informational technology techniques with the existing laws. The Government should act promptly to address the delays of the criminal justice system by considering the recommendations given above in Part III. Moreover, it should also collaborate with the Law and Justice Commission of Pakistan as well as the Research Centers of Provincial High Courts as well as that of the Supreme Court of Pakistan for updating as well as promulgating new criminal laws; and making effective policies and changes in the criminal justice to curb unnecessary delays in the criminal trials in Pakistan.     [1] State v Gulzar Muhammad [1998] SCMR 873.  [2] U.S. Criminal Justice System Overview – Correctional Officer accessed on 28 March 2022. [3]  Albert C. Barnes, ‘Causes of Delay in Criminal Cases’ Journal of Criminal Law and Criminology [2013] Volume 7, Issue No 3. [4] Code of Criminal Procedure 1898(Part II, Chapter II). [5] Code of Criminal Procedure 1898(Section 173(6) [6]Adnan Prince v The State [2017] PLDSC 147. [7] Amjad Khan v the State [2021] SCMR 1458. [8] Human Rights Case No. 2013 [2014] SCMR 83. [9] Human Rights Case No.3212[2006] SCMR 1547. [10] Haider Ali v. DPO Chakwal [2015] SCMR 1524. [11] Code of Criminal Procedure (Pakistan) Sections 156 ,157. [12] Muhammad Bashir v. Station House Master Okara Cantt [2007] PLDSC 539. [13] Haider Ali v. DPO Chakwal [2015] SCMR 1524. [14] Muhammad Ejaz v. State [2021] SCMR 387. [15] Imran Abbass v, State [2020] SCMR 1262. [16] Watan Party v. Federation [2011] PLD SC 997. [17] Anti-Corruption Establishment, Punjab v National Accountability Bureau [2016] SCMR 92. [18] Muhammad Nawaz v, State [2002] PLDSC 287. [19] High Court Rules and Orders (Pakistan). [20] The Supreme Court Rules 1980 (Pakistan). [21] Chairman Nab v. Muhammad Usman [2018] PLD SC 28. [22]National Database Registration Authority, E-verisys <https://id.nadra.gov.pk/e-verisys/> accessed on 18 April 2022.  

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