It is necessary that prosecutors are made accountable and the immunity they enjoy for misconduct, negligence, etc, be withdrawn
Prosecution is an integral part of the criminal justice system. It is the duty of the prosecutors to prove the accused guilty in courts. The police carry out the required investigation and submit challans against the accused and leave it to the prosecutors to fight the legal battle in courts.
The courts cannot award punishment on their own to anyone unless their crime is proven by facts and witnesses according to the Law of Evidence (Qanoon-e-Shahadat). So, in criminal cases, this task is performed by the prosecutors who try to prove the allegations against the accused in the light of the investigation done by the police and with the help of circumstantial as well as ocular evidence managed mostly by the police.
Historically, the role of prosecutors at the time of registration of an FIR, framing of charges and collection of evidence has been limited as they would not usually be involved by the police at this stage. They would be involved at the time of contesting the case in the court, regardless of how weak and faulty it was and however unreliable the witnesses could be.
If the prosecutors are made to sit with police officers during investigations and filing of the challan, it is believed, they can advise the police on how to prepare the case in a way that the charges can be proven in the court. But what happens is that prosecutors have no option but to defend the cases without their participation and knowledge.
This results in a sheer lack of preparedness on their part and consequently low conviction rate in cases they contest. Ideally, the prosecutors should have the right to drop a case if they think it is not trial-worthy.
In Pakistan, the prosecution services used to be part of the police until 2002 and each province had its own prosecution wing, comprising of law graduates of the rank of sub-inspector, inspector or deputy superintendent. Under the Police Order 2002, these services were separated from the police and brought under the respective law departments of the provinces.
Within the next few years, all the four provinces had passed their Criminal Prosecution Service Act(s).
Since then there are claims by different provincial governments that the situation is improving, though slowly, and that the prosecutors have started playing their due role from the very day of filing of the FIR. On the other hand, there are quarters that challenge this claim and say the prosecutors are still considered unworthy of being involved during these phases by the investigators.
Advocate Sarmad Ali, states the duty of the prosecutors appointed by the state is to establish beyond reasonable doubt that the accused brought to the court of law are guilty of the crimes they are being tried for. But the issue "is that they have to rely on the work of the investigators and build on the investigation, however faulty it may be. If the evidence is not strong or the witnesses are planted by the police or are unreliable, they find it hard to get the accused convicted."
Ali says it is a well-known maxim that "the accused is the favourite child of law," meaning the courts are inclined to favour the accused until and unless the charges against them are established beyond doubt. "This makes the task of the prosecutors even more difficult because they are on a weak footing and court officials are aggressive." Based on his experience in courts, he says, "the perception about prosecutors (sarkari wakeel) among lawyers is that they are not skilled, can be bought out and made to refrain from pursuing the case the way they should."
Another major reason cited for weak prosecution in the country is the overwhelming dependence on ocular evidence and the tendency among witnesses to retract from statements. The fact that witnesses are often planted by the Law Enforcing Agencies (LEAs) also weakens such cases because they are likely to make contradictory statements during cross-examination sessions by defence lawyers.
According to the Punjab Prosecution Department’s data, a large number of acquittals are attributed to witnesses withdrawing their statements. The Supreme Court of Pakistan has also termed poor prosecution the main reason why terrorists win acquittals. A suggestion for the government is to introduce a foolproof witness protection system and revision of the Law of Evidence to make forensic evidence admissible even in the absence of ocular one.
Rana Maqbool Ahmad, who has served as Advisor to the Punjab Chief Minister on Prosecution Service Reforms, insists there has been a marked improvement in the performance of prosecutors in the province, especially in cases of terrorism.
He says in the post-2014 phase, the rate of conviction in terrorism cases in the province has been above 80 per cent and the reason is that only those cases are filed that prosecutors think can be proved in the court of law. "Extreme care is also taken to ensure that no innocent person is charged for terrorism and in the absence. Even if such a person is acquitted by the court after sometime, he has to go through unbearable pain and misery during the trial."
In addition to the inherent weaknesses of the prosecution system, there are allegations that prosecutors do not take their work seriously and are not concerned about the outcome. In either case, they get their salaries in time and are not made accountable for their performance. And it is easy also for them to shift responsibility of their failures to the investigators.
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Intazar Mahdi, an advocate, endorses this perception, saying it is quite common that complainants hire their own lawyers when they find prosecutors inactive or showing negligence in their work. "This is a burden on them as not everybody can hire lawyers in criminal cases. The state has the responsibility here to convict criminals."
Mahdi says it is necessary that "prosecutors are made accountable and the immunity they enjoy for misconduct, intentional negligence, non-appearance, etc, be withdrawn. Their role is even more important where there is no complainant other than the state because the burden of proof in evidence proceedings is always on the prosecution."