The criminal justice system entails a set of laws and principles that aim to provide protection to life and property of citizens in order to ensure order in society. Article 37(d) of the Constitution prescribes that for the promotion of social justice and eradication of social evils, the state shall ensure inexpensive and expeditious justice. The system of imparting justice using tenets of criminal law roughly spans over three phases: investigation conducted by the police, the trial conducted by Courts, and the execution of Court’s verdict by jail authorities. The procedure of a criminal trial is contained in the Code of Criminal Procedure 1898 (CrPC). The process is set in motion by filing of a first information report (FIR) as per guidelines set out in Section 154 of CrPC. This is followed by an investigation, after which an officer sends a report to the relevant magistrate and/or sessions judge (Final Report or chalan). Following the final report, the Court starts the proceedings of a trial, which includes the establishment of the charges and the role of the prosecution. After the conclusion of a trial, in reference to the Pakistan Penal Code 1860 (PPC), the Court will award the subsequent punishment if it applies.
It is crucial that the justice system of any state responds and caters to the needs and demands of the citizens and how they perceive justice, legal rights and morality. In order to understand the criminal justice system of Pakistan it is necessary to study and analyze agencies of the government which are charged with enforcement of law, the investigation of suspects, prosecution of those in judicial custody, or on court remand and the adjudication of criminals.
“The Police play a vital role. Society for its defense needs a well-led, well-trained and well-disciplined force of police whom it can trust: and enough of them to be able to prevent crime before it happens, or if it does happen, to detect it and bring the accused to justice.” – Lord Denning
Police are the most visible agent of the justice process and street peacekeepers. The police are the Executive organ of the State, and must work within the framework of the law – the Constitution and statutory laws as interpreted by the courts. What they do, that is, empowered to do, affects the life, liberty and property of the citizens and by Article 9 and 24 of the Constitution, no person “shall be deprived” of them “save in accordance with law.”
The 2002 Order repealed the Police Act 1861 which was a relic of the colonial era, consisting of strategies, powers and rules which were made according to the time. However, The Police Order 2002 provides the institutional setting in which the Police operates in only the province of Punjab and the Islamabad Capital Authority. Section 4 of the Police Order 2002 aptly describes the duties of Police officials.
In the Code of Criminal Procedure 1898 the two terms most commonly used to refer to the officials, include ‘officer in charge of a police station’ and ‘police officer’.
The objectives of the Police Order 2002 as stated in the preamble are:
- To ensure that the police performs its functions according to the constitution, law and democratic aspirations of the people.
- To ensure that in the performance of its function, it is professional, service-oriented and accountable to the people.
- To redefine the police role its duties and responsibilities and
- To reconstruct the police for efficient prevention and crime and maintenance of law and order.
Some agencies are merely watch and ward type while others are responsible to investigate a variety of levels of government local law. The basic duty of the executive police is the watch and ward, peacekeeping, deterring potential criminals and apprehending law violators. The police conduct surveillance and maintain order in public streets and highways, respond to calls for assistance, investigate crimes and identify criminal suspects. Their role has been expanded into human services, including handling juveniles, directing traffic, resolving family conflicts, preserving civil rights of the minorities, providing emergency care, and improving police-community relations.
Without the police, other components of the criminal justice system would be unable to execute their functions effectively. Under the criminal justice system the police perform the following functions amongst others:
- Prevention of crimes,
- Detection of criminal activity and identifying the culprits,
- Apprehending criminal offenders,
- Charging, investigation and completion of challans and submission in Distt. Attorney
- Protecting constitutional guarantees such as life, respect, liberty, honor, dignity and t
- Protection of persons, premises and property,
- Enforcement of all laws, ordinances and provisions of the administrative codes over which the Police department has jurisdiction,
- Recovery of lost and stolen property,
- Regulation of anti-social conduct and creating and maintaining a feeling or security in the community,
- Assisting those who cannot care for themselves or who are in danger of physical harm,
- Controlling traffic,
- Participating in court proceedings,
- Preparation of cases for presentation in Courts
- Protection and after-care of victims,
The police force in Pakistan is required to detect and investigate the crime, arrest the offender, collect evidence against him so as to prosecute him in the court of law. Police officials face a variety of difficulties in carrying out their duties and for this reason it is imperative that they are well-versed in their duties, safety measures that they must take and are familiar with locals and their traditions. The police officials are entrusted with a lot of power which requires impeccable knowledge, training and sound character.
Criminal investigation commences when the police come to know of the commission of a crime. The Cr.P.C. classifies crimes into two groups, cognizable offenses and non-cognizable offenses. Cognizable offences are generally heinous offences like murder, rape, kidnapping etc., whereas non-cognizable offences are not serious offences. In case of cognizable offenses the police have power to start investigation without the orders of the magistrate, while in non-cognizable offenses the investigation is started on the orders of the magistrate. It is also provided by the law that the police can arrest a person for the commission of a cognizable offense without a warrant issued by the court, but cannot do so in case of a non-cognizable crime. Information given to a police officer with regard to the commission of a cognizable crime should be in writing and in case it is given orally it should be reduced into writing and this report whether it is given orally or in writing it is called first information report. The First Information Report is a very important piece of evidence and its object is to start investigation of a case. Having regard to the importance of an FIR, police officers tend to be extra careful in preparing it. It is not their duty to seek conviction only but to see justice is done.
As defined in Black’s Law Dictionary, prosecution is a proceeding instituted and carried on by due process of law, before a competent tribunal or court, for the purpose of determining the guilt or innocence of a person charged with a crime. As the chief law enforcement official of the community he or she works in the courthouse but is part of the executive branch of government in the legal wing, and independence from the judiciary is vital for proper functioning of the system. The job of the prosecutor is to basically represent the executive branch of the government who prosecutes a citizen involved in the crime.
As per Section 492 of the Cr.P.C. a Public Prosecutor is any person appointed under and includes any person acting under the direction of Public Prosecutor. The prosecution represents the state, playing a pivotal role to find truth and whether or not the suspect has committed the crime he has been accused for. The officials working in the prosecution department are known as District Attorneys, Government Pleaders, or Public Defenders. The police registers the case and then investigates, prepares and presents the case to the District Prosecutor for prosecution. Prosecution presents the victims case to the court, questions witnesses and provides valid evidence to support prosecution. During investigation, the prosecutor may also have to act as a legal advisor to the police. He or she has the duty to ensure that no innocent man or woman is prosecuted, and that no man or woman is prosecuted on the basis of insufficient evidence. At the judicial phase, the prosecutor must represent the party in a manner that he is representing the society at large and therefore has the duty to uphold a high standard of fairness and impartiality.
It is the duty of the prosecution departments to serve as independent agencies at district and local levels. They are particularly charged with the duty to see that the criminal codes are faithfully executed by police who should impartially maintain rule of law. Prosecutor is a liaison between police and the court between the defense Counsel and the Court. Prosecutor is the backbone of the process of adjudication. The importance of cooperation between the police and the prosecutor is essential for optimum efficiency in the preparation and conduct of prosecutorial decision making.
The Attorney General is the Federal Chief Officer in the Pakistan Supreme Court. Advocates General are the Principal Chief Law Officers at High Court of each province. The Prosecutor General is chief provincial prosecutor. Advocate General, Prosecutor General, and the deputies are appointed by the Chief Minister from amongst the advocates of good standing as political favor. Assistant Attorney General, Assistant Advocates General, in turn is appointed by the consultation of the top political administrators subject to approval of the Federal or Provincial Chief Executives. NAB (National Accountability Bureau) has their own Prosecutor General and his duties. To sum up, the role of Public Prosecutor is that of a government lawyer who instigates the prosecution of the accused and represents the state at the trial-spans over the entire course of the criminal justice process.
The roots of the current judicial system stretch back to the medieval period and even before. The current judicial system is a product of a hundred years of evolution, as it has passed through many eras, the Hindu Period, Mughal Empire, the British colonial period and post-independence. These changes and development contributed to the formation of the current judicial system. There are quite evident influences and inspirations from foreign doctrines, norms/practices, concepts, in the form of courts structure, their hierarchy and the decision making processes. Courts have with time become more reliable and developed and the people have become more inclined to resort to them for the resolution of their conflicts, and this reflects a great deal of acceptance and legitimacy in the system.
Just as police is detailed to a geographical division, courts also have their own jurisdictional levels. The court of each jurisdiction is assigned to hear cases according to the nature of the offense and the amount involved in each category of charges. Courts at lower level may preside over the local cases in initial hearing or preliminary hearing to determine the charges and to set the amount of bail in bailable cases. Trials are held by the appropriate courts that have jurisdiction according to the nature of the offence and the territory where the crime was committed. There are courts that hear only civil cases, while others are authorized to hear both civil as well as criminal cases. Some courts have exclusive jurisdiction to preside over criminal cases. High courts and the appellate courts can hear cases on original jurisdiction as well as review cases on appeal, while Supreme and High Courts have dual jurisdiction (original as well as appellate), and can take suo-moto notice in certain matters.
Criminal court as subordinate judiciary in districts of Pakistan is considered to be the core element in the administration of justice. It is the judiciary that determines the criminal liability of criminal defendants and attaches sanctions. Court’s duty is to recognize that the rights of the individuals are protected at all times.
Detention facilities are maintained at each judicial jurisdiction for felons to spend their time on public expense in state controlled imprisonment. Following the criminal trial the offender enters prison (correctional system). Prisons are charged with administering the post-arrest judicial lock-ups for the under-trials, post adjudicatory care, and custody and control of the offenders and treatment of the convicted criminals. The offenders depending upon the seriousness of the crime and individual needs of the offender get prison programs ranging from being casually monitored in community to solitary confinement to a maximum security prison. There are different types of institutions to hold different types of convicted offenders trials, children, women and political prisoners.
Categories of Courts & Jurisdiction
The composition, jurisdiction, powers and functions of the courts have all been addressed through elaborate provisions in the Constitution of Pakistan. The Constitution promotes the concept of the “separation of judiciary from executive” and the “independence of judiciary”. It also discusses the required qualifications of Judges, their mode of appointment, service, conditions, salary, pension etc. along with the grounds and procedure for the removal of judges of the superior courts. The Constitution ensures the freedom, independence and impartiality of the superior judiciary.
Judicial Structure of Pakistan
Supreme Court of Pakistan (Apex court)
The Supreme Court is the apex court of the land, exercising original appellate and advisory jurisdiction. It is the Court of ultimate appeal and therefore final arbiter of law and the Constitution. Its decisions are binding on all other courts. The Court consists of the Chief Justice and other Judges appointed by the President. An Act of Parliament has determined the number of Judges. The number fixed at the moment is 17. Currently, the Court is working with full strength. Further 2 Ad hoc judges have also been appointed for a year. A person with 5 years’ experience as a Judge of high court or 15 years’ experience standing as an advocate for high court is eligible to be appointed as a Supreme Court Judge. The standing practice is that the Chief Justice recommends a list of names to the President and the President selects judges from the said list. The Court appoints its own staff and determines their terms and conditions of service. The Supreme Court (Appointment of Officers and Servant and Terms of Service) Rules 1982 prescribe the qualification for and mode of appointment and promotion of staff together with penalties and procedure for disciplinary proceeding against them. The Supreme Court Rules 1980 laid down detailed procedure for the filing petitions and appeals and their processing though the Court.
The Court exercises original jurisdiction in the inter-governmental disputes, be that dispute between the Federal Government and a provincial government or among provincial governments. The Court also exercises original jurisdiction (Concurrently with the High Court) for the enforcement of fundamental rights, where a question of public importance is involved. The Court has appellate jurisdiction in civil and criminal matters. Furthermore, the Court has advisory jurisdiction in giving opinions to the Government on a question of law.
Federal Shariat Court of Pakistan
The Federal Shariat Court consists the Chief Justice and 8 Muslim Judges. These Judges are appointed by the President from amongst the serving or retired judges of the Supreme Court or a High Court or from amongst persons possessing the qualifications of a Judge of the High Court. Of the 8 Judges, 3 are required to be Ulema who are well versed in Islamic law. The Judges hold office for a period of 3 years and the President may further extend such period. Appeal against the decision lies to the Shariat Appellate Bench of the Supreme Court, consisting of 3 Muslim Judges of the Supreme Court, 3 Muslim Judges of the Supreme Court and not more than 2 Ulema, appointed by the President.
The Court also exercises appellate revisional jurisdiction over the criminal courts, deciding Hudood cases. The decisions of the court are binding on the High Courts as well as subordinate judiciary.
High Courts of Pakistan (one in each province and also in federal capital)
There is one High Court in each Province, and one in the Federal capital Islamabad, including:
- Lahore High Court, Lahore Punjab,
- Sindh High Court, Karachi, Sindh
- Peshawar High Court, Peshawar, Khyber Pakhtunkhwa
- Islamabad High Court, Islamabad ICT
Each High Court consists of Chief Justice and other puisne judges. The strength of Lahore High Court is fixed at 50, High Court of Sindh at 28, Peshawar High Court at 16 and High Court of Baluchistan 9. The Chief Justice is appointed by the President in consultation with the Chief Justice of Pakistan, Governor of the Province and the Chief Justice of the concerned High Court. Qualifications mentioned for the post of a judge are 10 years’ experience as an advocate of a High Court or 10 years’ service as a civil servant including 3 years’ experience as a District Judge or 10 years’ experience in a judicial office. The standing practice for the appointment of judges is that initially the Chief Justice of the concerned High Court prepares a list of candidates which is submitted to the President through the Governor of the province and Chief Justice of Pakistan. The President finally selects judges from the said list.
The Court exercises original jurisdiction in the enforcement of Fundamental rights and appellate jurisdiction in judgment/orders of the subordinate courts in civil and criminal matters. The High Court’s general authority is laid out in the Constitution of Pakistan, 1973 Article 199.
The subordinate judiciary may be broadly divided into two classes; one, civil court, established under the West Pakistan Civil Court Ordinance, 1962 and two criminal courts created under the Criminal Procedure Code 1898. In addition there also exist other courts and tribunals of civil and criminal nature, created under special laws and enactments. Their jurisdictions, powers and functions are specified in the statutes creating them. The decisions and judgments of such special courts are available before the superior judiciary (High Court/Supreme Court) through revision or appeal.
Civil and Criminal Courts
The provincial governments appoint the civil and criminal judges and their terms and conditions are regulated under the Provincial Civil Servants Acts/Rules. The High Court exercises administrative control over such courts. The civil courts consist of district Judge, Additional District Judge and Civil Judge Class I, II & III. Similarly, the criminal courts comprise of Session Judge, Additional Session Judge, and Judicial Magistrate Class I, II & III. Appeal against the decision of civil courts lies with the District Judge and to the High Court, if the value of the suit exceeds specified amount.
Besides the civil courts there exist revenue courts operating under the West Pakistan Land Revenue Act 1967. The revenue courts may be classified as the Board of Revenue, the Commissioner, the Collector, the Assistant Collector of the First Grade and Second Grade.
The Constitution authorizes the federal legislature to establish administrative courts and tribunals for dealing with federal subjects. Most of these Courts operate under the Ministry of Law and Justice; however, certain courts also operate under other ministries/departments. Such courts include Special Court Custom, taxation and Anti-corruption, Income tax (appellate) tribunal, insurance appellate tribunal, etc. The judicial officers presiding over these courts are appointed on deputation from the judicial cadre.eds specified amount.
As per Article 212 of the Constitution, the Government may set up administrative courts and tribunals for exercising jurisdiction in matters, inter alia relating to the terms and conditions of service of civil servants. Appeal against the decision of the Provincial Service Tribunal and Federal Service Tribunals lies to the Supreme Court.
There are numerous special tribunals such as:
- Banking Courts
- Service Tribunals
- Income Tax Tribunals
- Anti-Corruption Courts
- Anti-Narcotics Courts
- Anti-Terrorist Courts
- Labour Relations Courts
- Board of revenue
- Special Magistrate Courts
- Consumer Courts – drug courts
Amongst the courts and tribunals mentioned above, all the judges must possess the qualifications of the District & Sessions Judges or of having same qualifications.
District and Sessions Courts
District courts exist in every district of each province and have civil criminal jurisdiction. In each District Headquarters there are numerous additional district and sessions’ judges which usually preside over the courts. The District and Session judge has executive and judicial power all over the district under his jurisdiction. The session court is also a trial court for heinous offense such as murder, rape (zina), Haraba offences (armed robbery where specific amount of gold and cash is involved). When hearing criminal cases it is called the Sessions Court and when it hears civil cases the District Court.
Civil Judge/Judicial Magistrates Courts
In every city or town there are numerous civil and judicial magistrates’ courts. A Magistrate with the powers of section 30 Cr.P.C. has the jurisdiction to hear all criminal matters other than those which carry the death penalty (such as attempted murder, dacoity, robbery, extortion etc) but may only pass a sentence up to 7 years imprisonment.
If the court thinks the accused deserves more punishment than seven years in jail then must refer the matter to the higher court. Every Magistrate Court is allocated a local jurisdiction usually encompassing one or more Police Stations in the area. Trial of all non-bailable offenses including police remand notices, accused discharges, arrest and search warrants and bail applications are heard and decided by Magistrate Courts. Most Judicial Magistrates may hear civil suits as well.
The West Pakistan Family Courts Act 1964 governs the jurisdiction of Family Courts. These courts have exclusive jurisdiction over matters relating to personal status. Appeals from the Family Courts lie with the High Court only.
Section 4 of the JJSO authorizes the Provincial Government to establish one or more juvenile courts for any local area within its jurisdiction, in consultation with the Chief Justice of the High Court. However, not a single such court has been established and instead the High Courts have been conferring status of the juvenile courts on the existing courts.