Vibrant criminal justice system need of the time
PAKISTAN has inherited the colonial criminal justice system and despite independence we are still following the Pakistan Penal Code-1860 and of Criminal Procedure Code-1898. Criminal justice system in a country comprises the legislature, the enforcement agencies, the courts and the correctional services. Criminal justice has the objective to provide protection to life and property of citizens and to ensure order in the society. The primary and main aim of the criminal justice system is to ensure that the innocent are acquitted and the guilty are punished; respecting the basic theme of the criminal jurisprudence that no offence should go unchecked while no offender should go unpunished. However, Pakistan’s ranking in the criminal justice system does not have a respectable place both in terms of legislation and execution among the world community.
A criminal case in Pakistan has four stages: pre-investigation stage, investigation stage, inquiry or pre-trial stage and the trial stage. There is also a provision for direct complaint before the Court under Cr.P.C and it more or less involves similar trial procedure with difference of inquiry/investigation stage.
Police are under statutory duty under section 154 Cr.P.C. and have statutory right conferred under section 156(1), Cr.P.C. to investigate into cognizable offences. In case of investigation into non-cognizable offences, the police by virtue of section 155, Cr.P.C., will be required to obtain permission from Magistrate by making an entry into concerned book as per Police rules and then to investigate the case; they can neither register a case under section 154, Cr.P.C nor can they arrest the accused without a warrant.
The arrest process is also described in Section 46, Cr.P.C that as to how arrest is to be made. Section 54, Cr.P.C provides for various situations in which a police officer may arrest without warrant. Section 55, Cr.P.C speaks of arrest of vagabonds etc. Section 57, Cr.P.C. provides for a situation when any person who, in the presence of a police officer, has committed or has been accused of committing a non-cognizable offence, refuses, on demand of such officer, to give his name and residence or gives a name or residence which such officer has reason to believe to be false, such person may be arrested by such officer in order that his name or address may be ascertained. Section 59, Cr.P.C. provides for power and procedure of arrest by private persons.
There are different stages of criminal trials under Criminal Procedure Code which starts after submission of report under S.173 of the Criminal Procedure Code-1898 or through filling of a reference to the trial court which either could be a Magistrate Court or Sessions Court, and after, receipt of such report submitted by the prosecution, the accused is summoned for his attendance and copies are supplied to him for his information and defense.
The next step after supply of copies by the trial court, a formal charge is framed on the next date of hearing and the accused is asked whether he has committed the alleged crime, and upon his refusal if, the framing of charge marks further commencement of a regular trial. Thereafter, the prosecution is summoned for its evidence and witnesses under section 265F CRPC, which are later, cross-examined by the defence or the accused. It also says that during the pendency of proceedings the accused can file an acquittal application under 249A or 265K CrPC before conclusion of trial court proceedings.
Once the prosecution has made out its case, the accused has a right under section 340 Cr.P.C to give evidence on oath in disproof of the charges or allegations made against him and finally the accused is examined by the court by being asked certain questions before being provided with an opportunity to present evidence under section 342 of CrPC. It finally explains that the trial is then concluded and final arguments are heard of both sides, after which a judgment is pronounced by the trial court either culminating the proceedings on acquittal or conviction under 265H of CrPC, and in both cases either side has a right to challenge such before the appellate court.
The courts in Pakistan function under the adversarial system. This implies that in criminal trials, the Court is only to decide upon the accused being guilty or otherwise of an accused of alleged offence. It is not the job of the court to find out the real culprit if the court is satisfied that the accused being prosecuted before it stands either innocent or not guilty beyond reasonable doubt. There are two relevant principles on the basis of which criminal cases are decided, which are including the presumption of innocence and the burden of proof whereby the prosecution has to prove its case beyond reasonable doubt as opposed to civil cases where the burden of proof is based on a balance of probabilities.
Pakistan cannot become a prosperous country until we have a new and vibrant Criminal Justice System and have implementation of rule of law in its real spirit across the board by all state institutions.
