Justice Sarmad Jalal Osmany
The Hon’ble Chief Justice of Pakistan, Hon’ble Judges of the Supreme Court, Hon’ble Chief Justices of the High Courts and the Federal Shariat Court along with their companion Judges, Attorney General for Pakistan, Law Officers, Judicial Officers, Ladies and Gentleman Aslaam-oalaikum.
1. I have been asked to speak on the Criminal Justice System in Pakistan. Indeed I do not consider myself to be an expert in this area but I shall endeavor to share some thoughts with this August gathering.
2. The Criminal Justice System in my opinion means the entire state machinery which is channelized in order to control crime in society. It consists firstly of: –
(a) The legislature which makes laws defining various crimes and prescribes punishments for the same. It also legislates on criminal procedure which regulates how an accused is tried in a criminal court for any offence;
(b) the second branch of the criminal justice system is the executive which appoints police officials who detect and investigate crimes and the prosecutors who prosecute the accused in the courts of law;
(c) the third branch are the courts which try an accused;
(d) fourth is the lawyers who defend the accused; and
(e) finally is the prison system where convicted and under trial prisoners are lodged.
3. Starting with the legislature, to say the least, criminal laws in Pakistan are numerous and are contained mostly in the Pakistan Penal Code but then there are special laws enacted to proscribe specified crimes. For example the Anti-Terrorism Act is designed to curtail terrorist activities, the Accountability Act for corruption etc., the Control of Narcotics Substance Act is designed to curb the menace of narcotics in society. Similarly there are various other enactments which provide for specific crimes in the field of customs, income tax, copyright etc.. To say the least our country in its short history started out as a republic and then became an Islamic Republic and then went into the hands of various military dictators which have resulted in deviation from the Constitution and the usurpation of the rule of law. Such deviation particularly during the time of General Zia-ul-Haq has resulted in the alteration of the basic structure of parliamentary democracy which has introduced religious, sectarian and gender bias in our legal system hence eroding fundamental rights of the citizens. As a result Pakistan moved further and further away from international standards of justice. However thankfully the current Parliament has through the 18th Amendment reversed all these distortions and added new provisions that, if implemented, may indeed strengthen the Constitution and political stability. In this regard we must not rest on our laurels but must strive earnestly for reform in order to uphold the rule of law and fundamental rights which have been guaranteed by our Constitution.
4. The next area is the appointment of law and police officers. In this regard it has been seen that besides the merits of such appointments the training of police officers/investigators as well as prosecutors is poor which results in a very low rate of conviction. I believe that this does not exceed more than 10%. Modern techniques of investigation have to be introduced both in the field of forensic medicine and finger printing technology etc.. Insofar as forensic medicine is concerned even the medico legal officers have very little knowledge as to what sort of injuries are caused by which fire arms. In this regard let me share with you the facts of a very recent case which I came across wherein the medico legal officer was a competent one and he opined that the injury on the deceased’s body was caused by a bullet which entered the outer side of the left arm and exited on the inner side and then re-entered the chest cavity damaging the left lung and heart which resulted in death. In the FIR however two accused had been nominated, one having fired at the left arm of the deceased and the other at the left side of the chest. The Trial Court reached the correct conclusion by appreciating the fact that only a single bullet was fired and convicted the accused who had done so and sentenced him to death. However the co-accused who was nominated as having caused the fatal injury was also convicted on the ground of common intention and sentenced to life imprisonment as he was present at the scene armed with a pistol. Strangely enough the High Court reduced the sentence of the Accused who had caused the fatal injury to that of life and maintained the conviction of the co-accused. Not a single question was asked of the medico legal officer under cross-examination as to whether the deceased only had one bullet injury or two bullet injuries and this was not even argued by the learned counsel who assumed that there were two bullet injuries. This is a glaring example of the lack of knowledge insofar as forensic medicine is concerned. I can only stress that this branch of the law needs our urgent attention and all the stakeholders i.e. Judges, Lawyers, Investigators as well as the Prosecutors need to fully acquaint themselves of the same. Similarly, most postmortem reports do not specify whether the injuries suffered by the deceased were pellet injuries or bullet injuries and this is most important in any criminal case because pellets are normally associated with a shot gun whereas bullets are fired by pistols and rifles. If a medico legal officer is careful while performing the postmortem he can easily distinguish between the two but as observed above normally this is not done resulting in miscarriage of justice. The second aspect which needs to be highlighted viz a viz investigation are modern techniques which are now very common all over the world i.e. analysis of finger prints and DNA etc.. I do not think that investigating officers in this country are up to date in this area and other modern methods of investigation.
Lastly all the stake-holders need to be conversant with analysis of mobile phone and computer data as criminals now use these modern methods of information and communication technology in cases of kidnapping for ransom and bank fraud etc.. If this is done let me assure you that the rate of conviction will certainly go up. This holds good for everybody not only for prosecutors and investigators but also for judges and lawyers.
5. The next aspect of the matter which I want to dilate upon are the conditions of our courts which sit at the very helm of affairs because judicial authority is supreme. Insofar as criminal justice is concerned. It begins with the criminal Courts i.e. Sessions Court in a murder trial and Magistrates who have jurisdiction to try other crimes. Thankfully the selection and training of judicial officers is now in the hands of the judiciary but again the emoluments offered to judicial officers is meager although these have been increased in the Punjab and K.P.K.. Hence unless a suitable package is offered to judicial officers these positions will not attract the best talent. So I earnestly request the Government to at least bring the packages of all the judicial officers at par throughout the country and also upgrade the Courts which should be equipped with computers, printers and adequate staff etc..
6. The next branch of the criminal justice system are the learned counsel. As stated above the legal community should also strive to learn all aspects of the criminal law including forensic medicine and appreciation of evidence, the technical details about fire arms and other weapons of offence so that they can come up with the best possible assistance to the Courts for a just decision of the case. Indeed the legal profession is a noble one and is not supposed to be a business or a money making machine which holds good for judicial service as well. I can say without any fear or favour that judicial service is a calling for the very best of human beings because all the efforts of the lawyers and judges are, or should, be for the rule of law and a just decision of the case at hand. The learned counsel are officers of the Court who must exercise all their efforts and talents to assist the Court and not to try and get their clients off the hook.
7. Finally the last segment of the criminal justice system in Pakistan is the prisons and other correctional facilities where under trial and convicted prisoners are lodged. To say the least our prisons are overcrowded. Prisoners do not have any access to basic needs i.e. books, television etc. or other recreation in this regard. Immediate attention of the Government is called for to build new prisons and to ensure they contain maximum facilities. In this context I can exchange a very pleasant experience. The other day Justice Sajjad Ali Shah of the Sindh High Court who is now in charge of the Prisons in Sindh informed me that the age hold tradition of handicrafts has now been reintroduced and that cotton cloth (Khaddar) is being sold at the Central Jail Hyderabad at the cost of Rs. 90 per meter only. This step is in the right direction for the inmates to realize their time fruitfully.
8. Ladies and gentlemen, to conclude I would say that our criminal justice system is in urgent need of reform and in this regard the Hon’ble Chief Justice of Pakistan who is the Chairman of the National Judicial Policy Making Committee has been making strenuous efforts. Not only this but the Supreme Court under his Leadership has unearthed a number of scams involving huge amounts of money which have been recovered and which otherwise would have gone undetected. In whichever capacity we are in the criminal justice system we must always ask ourselves whether we are doing our job honestly, efficiently and to the best of our abilities. If one is a Judge he should ask himself whether he is deciding cases according to his conscience and not succumbing to any pressure. If one is an investigator or a prosecutor the same question should be asked and this holds good also for the learned counsel and last but not the least parliamentarians who make the laws. Unless all of us who are responsible for the administration of the criminal justice system realize our obligation with honesty, without fear or favour, efficiently and to the best of our abilities, the system cannot improve. I hope that this brief overview of the criminal justice system in Pakistan would prove useful to all concerned.
Thank you very much.
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