I had the ‘honor’ of being called by the court many times as a police officer. Once a prosecutor was pleading on my behalf. The honorable judge got upset and remarked that he would start contempt proceedings against me. I was stunned when the same prosecutor while observing the mood of the court also turned against me and stated that he would now be arguing against me and I should rather find some other counsel for my defense.
Our justice system is widely criticized by people from all walks of life. Sometimes the reflection is done in good faith, and at others it is tainted by political maneuvering. Nevertheless, many of these condemnations are unwarranted and are being made by people who are unaware of the true facts. No doubt the justice system of our country needs to be reformed which may lead to better interpretation of truths and decisions taken on these platforms.
Currently, the criminal justice system is comprised of five realms, the foremost being the provision of redress of its clientele - the public, which is served by four pivotal institutions: police, prosecution, judiciary, and prisons. Even though these institutions have their own manacles, the flaws in prosecution catch little attention.
Solving a crime is hard but proving the same in the court is the real challenge. ‘Prosecution has an ethical responsibility not just to indict the defendant when he is guilty, but also to safeguard to get a verdict, which means fair trials both for defence and prosecution’.
In some jurisdictions, police and prosecutors work closely and prosecutors are even supposed to supervise and guide the police throughout the investigation process. Practically this liaison is a formality. Generally, neither prosecutors are involved in the investigation process, nor do they ever visit the scene to support the preparation of case files.
After the police conclude their investigation and decide to arraign the offender, only then the prosecutors get involved. Even though the prosecutors are consulted for their opinion regarding the availability of evidence during the remand stage, their role begins mainly once they receive a challan from the police.
In fact our prosecution department is predominantly carrying the legacy of colonial era and could be compared to present British system. One major distinction from the Crown Prosecution of England is that our prosecutor formally cannot drop a case at the pre-trial stage. Though few pragmatic prosecutors have the courage to accept only those cases that can be contested, discarding others and then proceeding independently. However, in countries like Germany, USA, and others the prosecutors legally are empowered to decide whether a case should proceed to trial or not.
In our country the authority is practically limited to magistrate and sessions judges under sections 249A and 265K of Code of Criminal Procedure (CrPC), 1898 respectively. Unfortunately these powers are mostly exercised after wasting years of precious time, which is a contempt of law. Police investigators have given up exercising Section 169 CrPC, to release the accused even when evidence is insufficient to excuse themselves from legal responsibility, thereby overloading the work of the prosecutors.
In the given legal framework under CrPC sections of 1898, the prosecution department has been limited to act as a post office between the police and judges. Therefore, laws concerning prosecution along with section 173 and 494 CrPC 1898 must be revised so that prosecutors may have freedom to drop a case if they see no probability of conviction. The ongoing legal conundrum faced by common men and even political leaders could have been different if an independent prosecution had the proposed authority and say in the matter.
Prosecutors and judges are appointed after going through the strenuous competitive exams with distinctive academic backgrounds. The failure to provide them with such necessary powers is tantamount to crushing talent and presuming they are not capable or competent. An amendment would assist judges in sharing their workload and in improving the country’s conviction rate at the same time.
It is disappointing that prosecution department is miserably understaffed. On one hand, state-owned enterprises like PIA facing continuous losses, have the highest employee-aircraft ratios in the world, while on the other hand, the most critical part of the criminal justice system is suffering from acute shortage of human resources. The dearth of necessary infrastructure and basic logistics further worsens the plight.
The department’s high-volume workload is mainly a result of power elites and daredevils filing false and engineered FIRs knowing they will be able to get away. The background usually is either to take out some personal vendetta or to show off their unbridled power to vulnerable segments of society. The effectiveness of the entire system is weakened due to such untrue complaints and litigations that eventually result in low conviction rates.
A solution to this problem is already lies in the current legislation since misrepresentation before public officers is criminalized under section 182 and 211 of the Pakistan Penal Code 1860. The need is to muster up the will to use it more often.
The fact that the salary of prosecutors is too low to maintain a reasonable living, forcing many to look for some other legitimate means as they compete with highest paid and high-profile defendant counsel cannot be underrated. Frequent travelling, lack of accommodation, and transportation are the factors that aggravate their misery.
Though Article 10A of the Constitution provides that every citizen has a constitutionally protected right to a fair trial and the constitution also requires the state to provide affordable and expeditious justice to its citizens under Article 37. In many cases, this leaves the common man without competent legal representation, while the defendant somehow gets advantage of it. Until and unless skilled legal brains are not recruited and retained with fringe benefits, the essence of the institution won’t be preserved and the entire department will continue to slide.
No doubt that the role of prosecution is equally crucial as of judges, and their security is of paramount importance. Nevertheless, prosecutors are left at the divine mercy and are not provided with any reasonable arrangements. The assassination of the lead prosecutor for the murder of the former prime minister is a brutal act that cannot be forgotten.
The only way forward is to eliminate these ailments from our system by regularly evaluating administrative and procedural factors that lead to poor prosecutions. Law-abiding societies arrest and try suspects fairly. A fair trial is a right that everyone deserves. By simply building capacity, providing logistics and having ‘will’ we can ensure that no innocent person is ever deprived of their right to a safe and protected home. ‘Only our mindset not our propensity will define our elevation’.
Dr Syed Kaleem Imam and Hammad Rohila
Dr Syed Kaleem Imam is PhD in Politics-IR and Ex-Federal Secretary-IGP and Hammad Rohila is a corporate commercial lawyer.
@KaleemImam and @H_Rohila.