Our new chief justice is one of the best criminal law judges in Pakistan. He will confront a poor performance record within Pakistan’s criminal justice system.
Pakistan was ranked in the 81st position out of 113 in terms of criminal justice as per the World Justice Project (WJP) Rule of Law Index 2017-18. The non-disclosure of the details of missing persons before the Supreme Court and the trial of civilians allegedly involved in terrorism by military courts indicate a dire need to strengthen our criminal justice system.
The WJP measures whether perpetrators of crimes are effectively apprehended, prosecuted, and punished. It also reviews whether the police, prosecutors, and judges are competent and free from corruption and influence. In addition, the project examines whether the police and judges are impartial and whether they discriminate on the basis of gender, socio-economic status, religion, ethnicity, and place of origin. The WJP assesses whether the basic rights of the accused (presumption of innocence, freedom from arbitrary arrest and detention, and due process of law) are respected.
Our criminal justice system is plagued with corruption, incompetence of lower-court judges, and the delay in the delivery of justice. In Aasia Bibi’s case, the CJP specifically noted that the courts below conveniently failed to advert to contradictions and some “downright falsehood” in the evidence.
Such is the state of Pakistan’s criminal justice that even those acquitted by the courts have died in prison. Our system allows bail in murder cases when a trial is not concluded within two years after the arrest of the accused (Section 497 of the Criminal Procedure Code). The inefficiency of the system is recognised as a ‘statutory ground’ for setting accused persons free on bail.
It is widely known that FIRs (registered under Section 154 of the Criminal Procedure Code) are often used to involve innocent people in criminal cases. For example, both the sessions court and the Lahore High Court relied on a false FIR in Aasia Bibi’s case as well as concocted evidence to award a death sentence.
Our procedures for collecting evidence are outdated and criminal investigations essentially bank on oral witness statements, even though it is common for witnesses to make false statements due to blood relations, enmity, and prejudice. The outcomes of police investigations are sometimes influenced by corruption and political interference. The police lack the resources and skills needed to collect and analyse evidence on a scientific basis.
Further, the police record the statements of witnesses in paragraphs – not in question-and-answer form (Section 161 of the Criminal Procedure Code). The stance of witnesses is neither duly recorded nor truly reflected in these statements. The evidence recorded by the police without full consent, knowledge, and understanding of witnesses is then used to confront them with their statements made in examination-in-chief and cross-examination before the court. This adds further confusion and contradictions in the evidence.
The norms of justice oblige the courts to decide cases on the basis of evidence that is on the record. As a result, evidence collected and recorded in a flawed manner determines the fate of bail or criminal trial. After the evidence collected by the police is brought before the court (Section 173 of the Criminal Procedure Code), trials are delayed by adjournment after another due to various reasons, such as lawyers’ strikes, a judge’s leave, and the absence of witnesses.
Justice is delayed at the convenience of lawyers, judges, and witnesses without any concern for the accused or the complainant. These inefficiencies can be exploited to achieve bail or to procure an out-of-court settlement or a forced compromise.
Lawyers or judges often dictate statements ostensibly given by the accused. For example, judges or lawyers dictate answers to the charges and statements of the accused (Section 342 of the Criminal Procedure Code) and record them in a language that most of the accused are unfamiliar with: English. Women, children and minorities are more vulnerable during police investigations and in the courtrooms.
Our criminal cases are decided on the basis of two established principles of criminal law and the law of evidence: “everyone is presumed innocent unless proved guilty” and that “the prosecution has to prove its cases beyond any reasonable doubt”. Under our criminal justice system, the accused often succeed in creating contradictions within the evidence, entitling them to the benefit of the doubt and then an acquittal. This fails to deter crime, including terrorism.
The solution lies in reforming our criminal justice system, not extending the life of military courts. One hopes that the new CJP will focus on speedy reforms in the judiciary before he seeks to reform other institutions. These reforms may include the review of criminal laws to ensure the speedy disposal and scientific investigation of criminal cases; performance review and accountability of criminal court judges; and punishment for filing wrong cases and providing false evidence in courts.
The writer is a lawyer.