What ails our justice system?
Our criminal justice system is failing to deliver. Those with resources and connections manage to escape from the process of law due to flawed investigation, forced compromises and procedural loopholes. As per Section 497 of the Criminal Procedure Code (the Code), even the accused of murder case gets entitled to the grant of bail if the trial is not concluded within two years after the arrest of the accused. More often than not criminal trials take more time than two years. Thus, delay in trial helps accused in securing concession of bail. As a result, there is deteriorating law and order situation and the alarming rise of crime in Pakistan.
The first information report (FIR) is lodged after lots of effort by the complainant. When the FIR is registered, the substance of the complaint is often twisted to involve as many people as possible in a criminal case. Further, the procedure for collecting evidence is outdated. Modern investigation techniques are yet to be opted in Pakistan. Many times, parties are supposed to provide or plant the evidence to strengthen their case. The commission of a crime is often proved not through evidence but by taking oath in the mosque. The police consider oath yet the most convenient and effective method of conducting an investigation. It is also an established practice that both the parties are required to bring community members along to support their version. Thus, local influence of the parties plays an important role in determining their role in the commission of crime. Heads are counted to determine guilt of the parties. So, it is the quantity and not the quality of evidence that weighs in the investigation.
The statements of witnesses under Section 161 of the Code are recorded by the investigation officer in his own style. These statements are rarely recorded in the question and answer form. Thus, it becomes hard to determine what was said by a person in response to a particular question. These statements are then used as a foundation of the story of both the parties. The evidence solicited through oath and manured by false statements then forms basis of a criminal case.
The next phase of a criminal trial starts when the evidence collected by the police is placed before the court under Section 173 of the Code. The trial proceeds at the discretion and mutual convenience of judges and lawyers. The lawyers tune their clients keeping in view the evidence recorded by the police. The courts also form the first impression about the role of the parties from the material available on record. So, the record prepared by the police effectively determines the outcome of criminal trials.
The courts usually dictate when answers are supposed to be given by the accused. For example, answers to charge framed against the accused and statement of the accused under Section 342 of the Code are largely dictated by courts. Moreover, the accused are informed as to the charge in an unfamiliar language. The lawyers rarely agitate such drafting and dictation of questions and answers by the courts.
In addition, the environment of our courtrooms is not conducive. The litigants look harassed and confused in courts. The parties and their witnesses get first opportunity to speak during recording of the evidence before the courts. However, before this occasion arises, lots of record gets prepared by the police. At this stage, the witness is confronted with the record which is prepared by the police without full knowledge and comprehension of the witnesses. Thus, confrontation with the record creates confusion and contradictions in the evidence.
The decision in criminal cases depends on the contradictions in evidence. It is an established principle of criminal jurisprudence that the prosecution is to prove his case beyond any shadow of a doubt. There is another principle that the benefit of the doubt is always granted to the accused. In the criminal justice system like ours, anyone can create some contradictions in evidence. Thus, accused get benefit of such contradictions and often acquitted after a mock trial. Thus, the Code should be reviewed considering developments in theory and practice in other jurisdictions. The investigation should be conducted employing modern scientific tools. The investigation officers and the courts should ensure that statements of the witnesses are recorded in their own words without undue harassment, coaching, and dictation. All stakeholders of the criminal justice system i.e., police, courts, and lawyers should ensure that offenders are punished reducing crime in the country.