For the first time since Pakistan’s inception, the incumbent government proposed nearly 700 amendments pertaining to the criminal justice system. In the new proposed framework, the Ministry of Law and Justice suggested amendments to the Code of Criminal Procedure (CrPC), the Qanoon-i-Shahadat, 1984 (QSO), Pakistan Penal Code (PPC) and other relevant laws in a bid to improve efficiency and delivery of justice. Prime Minister Imran Khan has emphasized that these amendments will ensure justice is accessible to vulnerable sections of the society, particularly women, children, and those suffering from mental illnesses.[1] Amendments introduced in procedural law aim to dispense speedy justice by reducing the backlog of pending cases before the country’s judiciary. As reflected in Prime Minister’s statement, the amendments also hope to sensitize law for vulnerable groups of society in addition to providing them with adequate safeguards. The amendments have also been proposed in consideration of changing times, this is incapsulated in provisions permitting the admissibility of evidence obtained via modern devices. Court intervention to deter absconders from justice has also been introduced to prevent miscarriages of justice. Fairly new concepts such as plea bargain have also been made part of the law to discourage lengthy litigation.
Judicial backlog
These amendments are welcomed with enthusiasm since Courts in Pakistan are plagued with endless delays, lengthy rounds of litigation, and increasing financial burdens on citizens. In June 2021, it was revealed that 51,387 cases were pending before the Supreme Court, this number escalated to 51,766 cases in December. The number of overall pending cases to be disposed of by Pakistan’s judicial system was calculated to be 2,160,000.[2] Among the most salient features of the proposed amendments is the nine-month deadline for the completion of criminal trials. In case of failure of meeting this deadline, the trial Court will be required to provide an explanation and if accepted, fresh timelines will be provided by the High Court. Where difficulties hinder the timely conclusion of a trial, the High Court will require the Provincial or Federal Government to remove obstacles.[3] Moreover, section 344 of CrPC which contains the power to postpone or adjourn proceedings has also been amended to reflect that no criminal trial is to be adjourned for more than three days, unless in cases determined exceptional by the trial Court.
It is hoped that these provisions would solve Pakistan’s long-standing problem of judicial overburden. The backlog of cases is especially detrimental to criminal cases since roughly two-thirds of jail inmates are under-trial prisoners,[4] this inevitably contributes to overcrowding in prisons. Moreover, as per international human rights instruments, detainees possess the right to have a trial within a reasonable time or to be released while the trial is pending.[5] This is mainly because confining an accused person without trial interferes with their fundamental right to liberty. In an attempt to prevent unnecessary litigation, Section 250 of the CrPC has been amended to increase fines payable for false, frivolous, or vexatious accusations from twenty-five thousand rupees to five hundred thousand rupees.[6] This hefty sum is proposed to reduce the judicial overburden by ensuring only necessary suits are instituted before Courts.
Admissibility of evidence obtained through Modern Devices
To further expedite justice, audio and video recordings of testimonies have been made admissible in situations where it is not possible for a witness to attend Court in person. Where it is not possible to record evidence via audio/video recordings, the police officer must document reasons in writing. The audio/video recording is to be transcribed verbatim in the language in which the evidence is recorded, followed by an English translation.[7] Amendments have also been made to Article 164 of the QSO to allow evidence that is obtained or becomes available through modern devices. Prior to this amendment, Article 164 reflected archaic provisions by restricting the admissibility of evidence obtained through modern devices and placing significant reliance on ocular testimonies which often proved to be unreliable or were simply not available.[8] The amendment is especially helpful in the present era of technology since videos made on mobile phones and circulated on social media serve as the primary proof of a crime.
Plea bargain
A new chapter XXIIB has been inserted in the CrPC which introduces the concept of a “plea bargain”. This arrangement entails that an accused may file an application for a plea bargain at the trial Court, the Court upon receiving this notice shall issue notice to the public prosecutor in addition to the accused and the complainant. If the Court is satisfied that the accused has filed their application voluntarily, the Court will allow all parties to work out the disposition of the case. However, if the Court can discern that the application has not been filed voluntarily by the accused or that he was previously convicted by a Court where he had been charged with the same offence, then the Court shall proceed with the case from when the application for a plea bargain was first made. It is important to note that a plea bargain will not apply to offences that impact the socio-economic state of the country or when an offence has been committed against a woman or a child below the age of 18.[9] It is important to note that plea bargain does not mean that the penalty for the committed crime can be bargained since decisions pertaining penalty fall within Court’s sole privilege. Plea bargain essentially develops into an agreement between the prosecutor and the defendant, wherein the defendant agrees to plead guilty in return for concessions from the prosecutor. This arrangement prevents a lengthy trial, and it may allow the defendant to avoid a more serious penalty. The concept of plea bargain is fairly common in UK, USA and Canada.
Safeguards for vulnerable groups
Provisions aimed at safeguarding women have also been introduced, section 354B has been inserted to PPC which makes stalking of women an offence, the quantum of sentence and fine has also been proposed for deterrence. The term ‘stalking’ has been defined to mean, “any man who: (i) follows a woman and contracts or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or (ii) monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking.”[10]
This provision is a much-needed intervention by the government given the recent upsurge in crimes against women. Although the Prevention of Electronic Crimes Act 2016 (PECA) introduced a set of laws to curb the harassment of women online, the Federal Investigation Agency (FIA) tasked with the implementation of PECA suffers from a lack of resources. As per FIA officials, blackmailing and harassment over social media were the most common complaints received and only 19.5% of these complaints were investigated due to lack of resources.[11]
Article 46 of CrPC elaborates over the manner in which an arrest is made by a police officer. This section has been amended with a proviso regarding the arrest of women, it states that a woman’s submission to custody on oral intimation of arrest is to be presumed and unless the circumstances require or unless the police officer is a female, the police officer shall not touch the person of the woman when making her arrest. The amendment essentially means that a woman being arrested is not to be manhandled by male police officers, and that her voluntary submission to arrest is to be presumed when terms of her arrest have been vocally conveyed to her. Section 160 of CrPC which pertains to a police officer’s power to require the attendance of witnesses, has been amended to state that the police may require the attendance of any person acquainted with the facts of the alleged offence. However, anyone under the age of 15, over the age of 65, mentally or physically disabled or female will not be required to attend at any place other than the place in which such male person or woman resides.
Provisions have also been inserted to safeguard the rights of female prisoners. Rule 358 of the Pakistan Prison Rules 1978, has been amended to state that, “(ii) In case of a female being executed, no male shall attend her execution without her explicit consent.” The term “consent” used here gives a degree of autonomy to the convicted in deciding the terms of their execution. It also aligns with the right to dignity enshrined in Article 14 of the Constitution, by freely consenting to the presence or absence of a man at the time of execution, the female prisoner retains her dignity in exercising autonomy.
In light of the judgment in Safia Bano vs. Home Department, Section 4(1)(mb) has been inserted into the CrPC which constitutes a medical board comprising of qualified and experienced psychologists, psychiatrists and any other medical officer as per Federal Government’s or Provincial Government’s directive.[12] Safia Bano’s husband, Imdad Ali was charged with the murder in 2001 and was sentenced to death by a trial Court in the following year. During his 18-year imprisonment, he was repeatedly diagnosed with paranoid schizophrenia, which was subsequently proven by several medical reports. He was referred to as “a treatment resistant case”, this meant that his condition could not be cured. When death warrants were issued for his execution after the moratorium was lifted in 2016, Safia Bano filed a writ petition in the Lahore High Court Multan bench to delay Imdad’s hanging till he recovered from schizophrenia. The plea was rejected by the High Court on August 23, 2016. Safia Bano proceeded to seek justice from the apex Court which upheld the decision of the High Court. The Supreme Court maintained that a mental illness does not warrant a delay to execution of a death sentence. Attempts were made by human rights organizations and senior lawyers to delay the execution of Imdad. In response of vehement criticism, the Punjab Government filed a review petition against the judgment. After rounds of litigation, on February 10, 2021, the Supreme Court of Pakistan commuted the death sentence of Imdad Ali to life imprisonment and issued comprehensive guidelines to uphold the rights of mentally ill defendants in the criminal justice system.[13]
Mentally ill prisoners have suffered for years due to medical negligence and a lack of resources; the guidelines issued in Safia Bano judgment aim to mitigate these concerns. The language of Section 198 of CrPC has been amended to replace the word “lunatic” with “mental disorder.” Amendments have also been made to Section 464 of the CrPC which states that if at any stage of the trial, it appears to the Court that the accused is suffering from mental illness, the Court shall order the accused to be examined by the Medical Board. During such examination, the accused may be released on bail, or if not, ordered to be kept in safe custody. These provisions aim to safeguard the rights of mentally ill convicts to prevent miscarriages of justice from repeating themselves. The formulation of a medical board will ensure timely diagnosis of mentally ill convicts, so they can be treated and sentenced accordingly.
Deterring absconders from justice
Existing provisions have been tweaked to provide for the stricter treatment of absconders from justice. Section 88 of CrPC which deals with attachment of property of a person absconding has been amended to empower the Court to block Computerized National Identity Cards (CNICs), and other identity and travel documents belonging to the proclaimed person. If a proclaimed offender appears before the Court, the Court shall order de-blocking of the aforementioned documents.
Death penalty
The amendments also embody the objectives of human rights activists seeking to lift the death penalty in Pakistan. Pakistan has constantly faced backlash by human rights organizations for its disproportionate application of the death penalty.[14] Presently, 27 crimes in Pakistan are punishable by death, while international law dictates that capital punishment must only be reserved for the most serious crimes. Pakistan’s disproportionate use of the death penalty has come under scrutiny for being violative of human rights and contributing to miscarriages of justice. Amendments have been made to Section 9(c) of the Control of Narcotics Substances Act, 1997 where the punishment of death has been substituted for life imprisonment. This marks a positive step for Pakistan in meeting its international obligations.[15]
In summation, the set of amendments introduced by the Federal Minister for law and justice embodies an evolution from the archaic and outdated laws that were inherited by Pakistan from the colonial era. These amendments mark a progressive change towards protecting the rights of vulnerable groups in the society, at the root of all these amendments is consideration of human rights. Concerns have been raised by President Ahsan Bhoon of the Supreme Court Bar Association (SCBA). These concerns pertain to lack of consultation with representatives of legal fraternity since procedure indicates the necessity of consultation before proposing amendments. However, the imminent need for these amendments can be judged from the fact that criminal justice system is being reformed for the first time in Pakistan’s history.[16] These amendments commemorate need of the hour provisions by attempting to counter structural issues that have hindered justice.
References
[1] Asad M, ‘Govt, Legal Fraternity At Odds Over Criminal Law Reforms’ (DAWN.COM, 2022) <https://www.dawn.com/news/1671872>
[2] ‘Backlog In Courts’ (DAWN.COM, 2021) <https://www.dawn.com/news/1632089>
[3] Criminal Procedure Code Section 265N
[4] http://www.ljcp.gov.pk/Menu%20Items/Reports_of_LJCP/03/22.pdf
[5] ‘Article 5: Right To Liberty And Security | Equality And Human Rights Commission’ (Equalityhumanrights.com) <https://www.equalityhumanrights.com/en/human-rights-act/article-5-right-liberty-and-security>
[6] Reference Art 250 of CRPC
[7] ‘700 Amends to Overhaul Legal System’ (Thenews.com.pk, 2022) <https://www.thenews.com.pk/print/928637-700-amends-to-overhaul-legal-system>
[8] Qanoon-e-Shahadat Article 164
[9] ‘Govt Plans to Insert Chapter Of Plea Bargain In Crpc | The Express Tribune’ (The Express Tribune, 2022) <https://tribune.com.pk/story/2322720/govt-plans-to-insert-chapter-of-plea-bargain-in-crpc>
[10] Pakistan Penal Code Section 354B
[11] ‘Online Harassment Of Women In Pakistan’ (Human Rights Watch, 2020) <https://www.hrw.org/news/2020/10/22/online-harassment-women-pakistan>
[12] Safia Bano vs. Home Department PLD 2021 SC 488
[13] ‘The Madness Of Sanity | The Express Tribune’ (Tribune.com.pk, 2021) <https://tribune.com.pk/story/2290483/the-madness-of-sanity>
[14] ‘A “most serious crime” Pakistan’s unlawful use of the death penalty’ (Justice Project Pakistan, 2016)
< https://www.jpp.org.pk/wp-content/uploads/2016/11/2016_09_23_PUB-DP-Report-1.pdf>
[15] Ibid
[16] ‘An Unnecessary Controversy’ (Brecorder, 2022) <https://www.brecorder.com/news/40150934/an-unnecessary-controversy>
