Thursday Sep 02, 2021
The inadequacies of the criminal justice system were witnessed in the recent past when a woman was molested in the vicinity of Minar-e-Pakistan.
The police have arrested more than a hundred culprits, making use of video clips and other forensic tools. The court has sent these accused persons to jail on judicial remand for the identification parade. How absurd that the victim/survivor is required by law to identify all accused persons to ensure their conviction because the law of evidence in Pakistan depends mostly on ocular evidence instead of forensic or circumstantial evidence.
In another case, a famous television artist was booked for allegedly carrying two bottles of liquor and it took her nine long years to complete the proceedings and secure her acquittal. Yet in another instance, the principal of a medical college in Lahore had lodged an FIR against a company which he said had committed fraud in the supply of equipment to the college. Nothing happened in the next two years – till the incumbent principal retired from service. A year later, he was summoned by a magistrate for hearing but every time the defending lawyer would seek an adjournment on some pretext.
After the seventh hearing, the retired principal got frustrated and did not appear on the next date of hearing. Two months later, he was surprised to find the police at his gate with warrants of arrest for not attending the proceedings. The case is still pending after seven years of it being lodged. This is the sad state of a case of embezzlement, where the sufferer is the one who points out the fraud and tries to pursue the case.
The mockery of justice is also evident in trial and conviction in cases of crime against property which include the offences of theft, burglary, robbery, dacoity, extortion and house trespass etc. The prescribed punishment for these offences in the Pakistan Penal Code ranges from three to fourteen years of rigorous imprisonment depending upon the gravity of the offence. The law has also stipulated a minimum punishment of three years in jail for the heinous offences of robbery and dacoity.
The status of the accused persons involved in crimes against property remains as undertrial prisoners till the final decision of their cases. A requirement of the criminal procedure code is to produce all undertrial prisoners before the court of jurisdiction on every fourteenth day for the extension of their judicial remand till the framing of the charge in a particular case. Unlike convicts, undertrial prisoners have certain facilities – they can wear their own clothes, get food from their homes or cook their own food in jail and are not required to perform hard labour.
Normally, those involved in crimes against property are involved in multiple cases and they manipulate their appearance in the court every other day to fulfil the legal obligation of their production on every fourteenth day. A large number of police personnel and vehicles are detailed daily to bring the undertrial prisoners to the courts and take them back just for the extension of their judicial remand. This practice provides an opportunity to undertrial prisoners to have frequent city tours on state expense. The worst part is they do not make a physical appearance in the court which is the intended purpose of their trip. They loiter around in the court premises to mark their presence and meet their family, friends and former or future accomplices and return to jail in the evening.
While the judicial process goes on, witnesses are called in for appearance on each date of hearing. Ultimately the inconvenience, expense and stress of coming to the courts discourage most of them from attending the proceedings. Even if they do, some of them are either won over or coerced to cooperate. Some witnesses who are added to the case as a police malpractice of ‘padding’ during the investigation stage do not appear at all. Such impediments result in the large-scale acquittals of the culprits. The hardened criminals involved in heinous offences of robbery and dacoity, on approaching the third year of their period as undertrial prisoners, manage to get the charges framed against them from the court. Such cases are normally pursued vigorously by police and prosecution. To avoid a regular trial, the defending lawyers make the accused persons plead guilty. The courts thus usually impose a sentence of three years or a little more of rigorous imprisonment.
The time spent by the accused in judicial custody as an undertrial prisoner up to that point is counted in lieu of the sentence and, practically, the day of the judgment becomes the day of freedom for the criminal. They are released the same day only to return to their old ways along with new gangs and the benefit of relationships developed with criminals during the undertrial period. Culprits convicted in multiple cases get another relief of concurrent application of sentences. As a result, hardened criminals never spend their time in jail as convicted prisoners where one feels the pinch of punishment.
During the year 2020, more than 11,000 accused persons arrested by the Punjab Police for offences of crime against property were acquitted by the courts due to faulty investigations and a cumbersome judicial process. A little over 3,000 culprits were convicted, leaving behind more than 90,000 arrested accused persons languishing in jails as undertrial prisoners. Surprisingly, only a little more than 400 are undergoing their sentence as convicted prisoners out of 3,000 accused persons. The rest were released soon after the announcement of judgment because they had completed the duration of conviction as undertrial prisoners.
As a quick remedial measure, instead of moving thousands of undertrial prisoners to the courts – daily employing hundreds of policemen and scores of vehicles – perhaps a few judges may visit the jails to carry out this necessary routine judicial work. This will relieve a large number of police personnel and vehicles for other law and order duties, and reduce the burden on the exchequer of the huge cost incurred on this activity.
Excursion to city courts on state expense of undertrial prisoners will also come to a halt by this administrative action. In case of hardened or repeat offenders, the undertrial period of a prisoner should not be counted towards conviction and the sentence be commenced from the day of announcement of judgment. Simultaneously, concurrent sentences awarded in multiple cases for such offenders are also required to be replaced with serial and cumulative sentences to create a meaningful deterrence.
Access to swift and inexpensive justice is a universally accepted right of every human being. Our criminal justice system is ineffective because it is lengthy, expensive, outmoded, tardy and devoid of deterrent value. All extremist organizations target the weaknesses of the criminal justice system as a rallying slogan to appeal to the public. The failure of the criminal justice system led to support in the past for extremist religious elements in Swat and these days for the Afghan Taliban in Afghanistan.
Contrary to what enlightened citizens think, most people like the idea of speedy justice propagated by extremists. In the wake of a looming tsunami of religious extremism because of the expected blowback from Afghanistan, reforming our criminal justice system is no longer just a requirement but an urgent necessity. It must go up in the government’s priority list. To achieve this goal we need to address the inadequacies of police, prosecution, prison department and courts or be ready to face the wrath of the public influenced by religious extremists.
Meaningful changes in our criminal and civil laws may be considered on an immediate basis. While ensuring justice, preference to outcome over cumbersome procedural niceties is necessary to revamp the criminal justice system which is also one of the important points of much publicised National Action Plan.
The writer is a retired inspector general of police and former caretaker home minister for Punjab.
This article originally appeared in the September 2 edition of The News. It can be accessed here.
Originally published in The News