Proper rule of law is a salient principle of the Pakistan’s Constitution. Various provisions put emphasis on the importance of proper rule of law. For instance, Article 4 guarantees every citizen the right to be dealt with in accordance with the law, while article 5 makes it mandatory for every individual to obey the law of the land.[1] Despite the emphasis on ensuring proper rule of law, the current situation in Pakistan hardly matches the aspirations of the framers of the Constitution. The World Justice Project has consistently ranked Pakistan as one of poorest performers on its Rule of Law Index.[2]According to the 2020 rankings, Pakistan is the ninth worst performing state globally, and the second worst performing state in South Asia.[3]
While analysing a state’s measure of Rule of Law, one must be cognizant of the fact that it is a complex phenomenon which is impacted by factors such as civil justice, criminal justice, incidence of corruption, fundamental human rights etc.[4] Therefore, the existence or absence of the rule of law in any state cannot be pinned down to any single factor. This article, however, focuses on the role of Pakistan’s Criminal Justice System (CJS) with regards to establishing rule of law, with an emphasis on two oft-stated issues – delays in the registration of First Information Reports (FIRs), and poorly implemented witness protection programs. In addition to highlighting the causes and effects of the aforementioned issues, it also sheds light on the apparent failure of recent interventions that were made to mitigate these problems, before concluding with possible suggestions to resolve these issues.
Delayed Registration of FIRs
A criminal investigation begins with the registration of an FIR. To ensure proper rule of law, the police are bound to register an FIR impartially and instantaneously.[5] This, in theory, would enable the provision of justice through prompt investigation of the reported matter. However, facts on the ground do not align with the legal obligations of the police. Police often delay registering FIRs.[6] Considering that a police officer is accountable for investigating a cognizable offence upon the registration of an FIR, officers tend to delay or avoid registering FIRs to avoid additions to their workload.[7] Similarly, some officers also delay FIRs to conceal their poor performance.[8] Since a higher number of FIRs reflects a deteriorating law and order situation, Station House Officers (SHOs), who are accountable for high crime rates, avoid registering FIRs to avoid accountability. Lastly, there are also occasions when the police are forced into delaying or avoiding the registration of FIRs. These cases often involve the abuse of power by politically and socially connected individuals who use their connections to shield themselves from criminal proceedings.[9] All of the highlighted issues with the FIR registration process have a detrimental impact on the efficiency of the criminal justice sector, and subsequently, the status of rule of law in the country.
Delayed registration of FIRs has many negative consequences on criminal proceedings. In Sindh v Khalil Ahmed (1994), the Supreme Court held that unexplainable delays in the registration of FIRs introduce the possibility of fabrication.[10]Although the courts take into account relevant circumstances, frequent delays usually make it very difficult for the prosecutor to prove the offence beyond reasonable doubt.[11] Hence, prompt registration of FIR is ideal for ensuring effective criminal justice.[12] However, it should be noted that there are situations where the prompt registration of FIRs also has some drawbacks. For instance, it is a common practice, particularly in political, religious or feudal feuds, to register FIRs against rivals in order to put them through the tiring and humiliating process of a criminal investigation.[13]As a result, innocent people can end up with a criminal record which can lead to their stigmatization and ostracization in society.[14] Such blatant misuse of legal provisions for personal gains amounts to a miscarriage of justice, and acts as an added burden on an already resource-starved CJS.
As noted above, both delayed registration and impartial or instantaneous registration can amount to negative consequences. The police are in a pivotal position where they are essentially assessing whether a matter brought before them is worthy of registering an FIR or not.[15] The Government of Pakistan has introduced various reforms that seek to provide relief to the people and hold the police accountable for delaying the registration of FIRs. However, most of these interventions have not produced the desired results. An example of such an intervention was the addition of Section 22 A and B to the Code of Criminal Procedure, 1898 (Cr.P.C).[16] These provisions authorized an ex-officio Justice of Peace (JoP) to pass administrative orders for the arrest of an accused and the registration of FIR. At the same time, however, Section 22 A 6 (i) of the Cr. P.C restricts the powers of a JoP by mandating that the JoP can only direct the SHO to register an FIR if the offence is cognizable, while also curtailing their liberty to ascertain the veracity of information presented before them.[17] Hence, the orders that a JoP gives are non-binding and fail to change the status quo that gave the police the exclusive decision-making power regarding the registration of FIRs.
The JoP’s powers are also restricted in light of the latest directive of the National Judicial Policy Making Committee (NJPMC).[18] The NJPMC has directed that any case under section 22 A is not admissible in the court until the aggrieved has exhausted all complaint redressal centers.[19] Resultantly, an aggrieved people must now submit a complaint to Superintendent of Police (SP) Complaints before taking the case to the court.[20] The High Court Bar council has stated that this has added an unrequired bureaucratic layer to the process that further delays the provision of justice.[21] Lawyers have registered their concern against this measure through protests against these counterproductive reforms.[22]
Witness Protection Measures
Another issue plaguing the CJS in Pakistan is the poor implementation of witness protection measures. The police in Pakistan lack the requisite expertise and resources to collect appropriate circumstantial or forensic evidence during investigations. This results in an overreliance on ocular evidence by the police, as well as the judiciary and prosecutors.[23] However, in the absence of proper witness protection programs, reliance on ocular evidence does not ensure convictions as witnesses often resile when influenced or threatened.[24]
Although Pakistan has both provincial and federal witness protection acts, all have performed poorly due to lack of proper implementation. Punjab, Balochistan and Sindh have their separate witness protection mechanisms under provincial legislation.[25] Similarly, The Witness Protection, Security and Benefit Act, 2017, as well as some provisions in the Anti Terrorism Act, 1997, regulate the witness protection programs. These laws make it mandatory for respective provincial and federal governments to provide suitable assistance to individuals testifying in cases of heinous offences. Assistance can include relocation, change of identity, and protection of the witness and those associated with them. However, proper implementation of these acts is still an unaccomplished aspiration and there have been several incidents that support this claim. For example, in 2015, the only witness to the Sabeen Mahmud murder case was killed.[26] Similarly, two key witnesses in the famous Naqeebullah Mehsud murder case also retracted their statements in 2020.[27]
The immediate effect of poor witness protection programs is low conviction rates and lack of public trust in the CJS as people are unwilling to testify, and help in the criminal process.[28] Resultantly, the inalienable right to a fair trial promised in the Constitution is also compromised.[29]
Proposed Reforms
In order to improve the state of Rule of Law in Pakistan, it is essential that the government undertakes reforms to mitigate the detrimental impact of the aforementioned issues on Pakistan’s CJS. One possible solution could be the addition of a mandatory requirement before the registration of FIR whereby an aggrieved person should register a written, verbal or online complaint that could be followed by a preliminary investigation.[30] If the police find any evidence appropriate to register a case, an FIR should be registered. Such a measure could help in addressing two possible challenges. Firstly, it would help the police in identifying false and malicious complaints. Secondly, it would deter the police from suppressing or destroying the evidence in order to protect the accused. Moreover, there is a need of a paradigm shift in jurisprudence. Judges should not infer fabrication of facts on the basis of a delay in FIR registration or give it undue importance. As held by the Supreme Court in Sughran Bibi Case, an FIR should only be treated as a version of the complainant and the investigator is bound to find out the truth.[31] Hence, FIRs should only be considered as documents having a narration of the act committed and they must not influence the CJS as much as they currently do.[32]
Alongside reform to enhance the FIR registration process, efforts must be made to properly implement witness protection programs. For this to happen, provincial and federal governments must increase capacity by adding to the human resource and allocating funds appropriate for relocating and protecting witnesses.
Conclusion
The importance of rule of law can be gauged from the fact that it is embedded within many constitutional provisions. However, rule of law cannot be achieved without an effective CJS. Enhanced cooperation and communication over hurdles in the CJS between Federal and Provincial actors can help alleviate some challenges. However, improvements will only be possible if legislative reform is accompanied with capacity building, human resource development within the government institutions. While change is expected to be gradual, it will eventually help in ensuring the presence of rule of law in the country.
References
[1] Constitution of Pakistan 1973, “Chapter 1 – Fundamental Rights”, available at: http://www.na.gov.pk/uploads/documents/1333523681_951.pdf
[2] World Justice Project, “Rule of Law Index 2020”,, available at: https://worldjusticeproject.org/rule-of-law-index/country/2020/Pakistan/ accessed July 6, 2021
[3] Ibid
[4] Ibid
[5] Centre for Peace Development Initiatives Pakistan (CPDI-Pakistan), “First Information Report (FIR)”, available at: https://www.cpdi-pakistan.org/wp-content/uploads/2013/04/What_is_an_FIR.pdf accessed July 6, 2021
[6] Muhammad Asghar, “Unexplainable delays in registering FIRs affects Prosecution, police study says”, Feb 11, 2019, available at https://www.dawn.com/news/1463021accessed July 6, 2021
[7] Prosecutor General, Government of The Punjab, “First Information Report (FIR)”, available at: https://pg.punjab.gov.pk/first_information_report_fir accessed July 6, 2021
[8] Muhammad Asghar, “Unexplainable delays in registering FIRs affects Prosecution, police study says”, Feb 11, 2019,available at https://www.dawn.com/news/1463021accessed July 6, 2021
[9] Ibid
[10] Prosecutor General, Government of The Punjab, “First Information Report (FIR)”, available at: https://pg.punjab.gov.pk/first_information_report_fir accessed July 6, 2021.
[11] Ibid.
[12] Ibid.
[13] Tariq Rustam, “Some Myths about FIR”, The News, March 29, 2020
available at: https://www.thenews.com.pk/tns/detail/635430-some-myths-about-firs accessed July 6, 2021.
[14] Ibid.
[15] Centre for Peace Development Initiatives Pakistan (CPDI-Pakistan), “First Information Report (FIR)”, available at: https://www.cpdi-pakistan.org/wp-content/uploads/2013/04/What_is_an_FIR.pdf accessed July 6, 2021
[16] Ahmed Tahir, “What To Do If Police Delays or Refuses Registration of FIR”, Courting The Law, November 19, 2020, available at:https://courtingthelaw.com/2020/10/20/faqs/what-to-do-if-police-delays-or-refuses-registration-of-fir/ accessed July 6, 2021.
[17] Ibid.
[18] Ibid.
[19] Ibid.
[20] Ibid.
[21] Ibid.
[22] Ibid.
[23] Atif Uddin and Liaquat Ali, “Absence of Witness Protection is a threat to Fair Trial as envisaged under the constitution of Pakistan”, accessed 2021.
[24] Ahsan Zia, “Problems with Prosecution”, The News On Sunday, December 6, 2020 available at:
https://www.thenews.com.pk/tns/detail/754133-problems-with-prosecution accessed July 6, 2021.
[25] Government of Punjab, “The Punjab Witness Protection Act”, 2018, available at http://punjablaws.gov.pk/laws/2713.html accessed July 6, 2021;
Government of Pakistan, “The Witness Protection, Security and Benefit Act”, 2017, available at:
http://www.na.gov.pk/uploads/documents/1495189375_167.pdf accessed July 6, 2021;
Government of Sindh, “The Sindh Witness Protection Act”, 2013, available at: http://www.pas.gov.pk/uploads/acts/Sindh%20Act%20No.LI%20of%202013.pdf accessed July 6, 2021;
Government of Balochistan, “The Balochistan Witness Protection Act, 2016”, available at: https://pabalochistan.gov.pk/pab/pab/tables/alldocuments/actdocx/2018-10-23%2012:09:48act042016.pdf accessed July 6, 2021.
[26] Famiya Masood, “Witness Protection in Pakistan”, The News, August 07, 2018
available at https://nation.com.pk/07-Aug-2018/witness-protection-in-pakistan accessed July 6, 2021.
[27] Ishaq Tanoil, “Two key witnesses in Naqeeb murder case retract statements”, Dawn, July 22, 2020 available at https://www.dawn.com/news/1570356 accessed July 6, 2021.
[28]Famiya Masood, “Witness Protection in Pakistan”, The News, August 07, 2018
available at https://nation.com.pk/07-Aug-2018/witness-protection-in-pakistan accessed July 6, 2021.
[29] Atif Uddin and Liaquat Ali, “Absence of Witness Protection is a threat to Fair Trial as envisaged under the constitution of Pakistan”, accessed 2021
[30] Tariq Rustam, “Some Myths about FIR”, The News, March 29, 2020
available at: https://www.thenews.com.pk/tns/detail/635430-some-myths-about-firs accessed July 6, 2021.
[31] Ibid 13
[32] Ibid 13
