CRIMINAL JUSTICE SYSTEM

Criminal justice is the system of practices and institutions/organizations of governments directed

at maintenance of social control, deterring (discourage (someone) from doing something by

instilling (imparting) doubt or fear of the consequences) and mitigating (make (something bad)

less severe, serious, or painful) crime, or sanctioning those who violate laws with criminal

penalties and rehabilitation efforts. Those accused of crime have some protections against abuse

of investigatory and prosecution powers.

The term “Criminal Justice” refers to an area of knowledge devoted to controlling crime through

the scientific administration of Police, Court and Rehabilitation/Correctional agencies. It is an

interdisciplinary field making use of the knowledge basis of criminology, sociology, psychology,

law, public policy and other related fields.

Criminal Justice is essentially an agency of social control, society considers some behaviors so

dangerous and destructive that it chooses to either strictly control their occurrence or outlaw them

outright. It is the job of the agencies of justice to prevent these behaviors by apprehending and

punishing transgressors or deterring their future occurrence. While society maintains other forms

of social control, such as parental and school-based discipline, they are designed to deal with moral

and not legal misbehavior. Only the Criminal Justice System maintains the power to control crime

and punish criminals.

A number of academic disciplines have been drawn upon to develop insights into the causes and

prevention of criminal behavior. After taking information from various disciplines and

consolidated as the knowledge base for a new era of study. Understanding what knowledge is

represented in this field helps us to reach a working definition of Criminal Justice study.

“The study of criminal Justice may be defined as the use of the scientific method to understand the

Administration Procedures and policies of those agencies of Government charged with enforcing

the law adjudicating crime and correcting criminal conduct. The study of Criminal Justice involves

analyzing how their institutions influence human behavior and how they are in turn influenced by

law and society.”

COMPONENTS OF CRIMINAL JUSTICE SYSTEM AND ITS PROCESS

The criminal justice system consists of three main components:

(1) Law Enforcement;

(2) Adjudication (courts which include judges, prosecutors, defense lawyers); and

(3) corrections (jails, prisons, probation and parole).

In the criminal justice system, these distinct agencies operate together both under the rule of

law and as the principal means of maintaining the rule of law within society.

1. Law Enforcement

The wheels of law enforcement start grinding when a crime is detected. Detection takes place when

the concerned law enforcement body (police force or specialized agency) receive a report from the

victim or a witness, or catch the crime perpetrator. Thereafter, the law enforcers verify the

information furnished and proceed with the investigation.

Law enforcement duties include: arresting suspected offenders, gathering and preserving evidence,

establishing the motive, and completing police/arrest reports by stating results of the investigation.

Responsibilities include: upholding the rights of offenders, victims, and witnesses; and conducting

police procedures within rules prescribed by law.

At the federal level, there is a law enforcement body designated to cover particular areas of

criminal law for example FIA.

Meanwhile, Federal and Provincial government; police organizations vary in structure, as well as

in names. However, the mission is the same as the others': to enforce laws, maintain peace and

order in the communities they serve, and provide their constituencies safety and security.

2. Adjudication

The adjudication of a criminal case involves court processes. In plain terms, adjudication refers to

the legal process by which a judgment is pronounced by the court to the parties in a case. As with

the law enforcement component of the criminal justice system, the courts are organized at federal,

Provincial, District and special-jurisdiction levels.

Pretrial services- The adjudication process starts when the law enforcement body has submitted

the police/arrest report to the prosecutor. The prosecutor, in turn, determines whether or not the

incident will prosper into a criminal case, in which the suspected offender will be charged with the

crime. It is not uncommon for the prosecutor to drop or dismiss charges altogether, for reasons that

include: lack of evidence and weak police investigation. It is the prosecutor that takes the side of
the victim and, accordingly, the state (society or community), which the crime has also affected.

Arraignment (prosecution)- If the prosecutor decides to press charges against a suspected

offender, the adjudication process advances to arraignment. During arraignment, the suspect is

read the charge/s filed against him or her. With the aid of a legal counsel, the suspect (now a

defendant) enters a plea of either guilty or not guilty.

Trial- The arraignment progresses into trial to determine the guilt of the suspect (if the not-guilty

plea was not entered). In the event of a guilty verdict, the offender is convicted and the court will

determine the sentence.

A trial is characterized by an argument that has two sides: the prosecution and the defense. On the

one hand, the prosecution represents the interests of the victim and in effect, the society (or state)

that the offender is suspected to have violated. On the other, the defense asserts the innocence of

the offender and labors to get the offender acquitted.

A trial often results in an appeal, in which the disadvantaged side (prosecution or defense) will try

to shift the advantage. In this instance, the case is elevated in a higher court, which either upholds

or overturns the earlier decision.

Sentencing- A court conviction corresponds to a sentence, which is the penalty imposed on the

offender who has been found guilty as a result of the preceding trial. The sentence is meted out by

the judge, who follows prescribed guidelines, standards, and limitations in punishing convicts.

Death Penalty- Generally, the death penalty for convicts who have committed heinous crimes,

although the practice of capital punishment is on a case-by-case basis.

3. Corrections

The third component of the criminal justice system is corrections. While it implies reform and

rehabilitation, correction encompasses all sentenced offenders, including those who are on death

row.

Criminal justice systems hold “corrections” as the replacement for “penology” that many find

harsh and unforgiving. In any case, the corrections component manages imprisoned convicts and

those who are conditionally released, as well as those who are merely slapped with punishments

that do not require imprisonment but who need supervision anyway.

The corrections network includes publicly run and privately operated institutions, along with the
personnel and other stakeholders, and its administration must adhere to lawful standards. The

process involves reform and rehabilitation programs to prepare eligible convicts for reentry and

reintegration into society as free individuals.

Probation officers supervise adult and juvenile offenders who are being monitored by the courts

in lieu of serving a sentence in jail. Probation officers also conduct presentence investigations for

the courts, giving recommendations for sentencing to a judge with compilation of information.

Presentence investigations involved gathering criminal history, interviews of friends, family and

colleagues of the convicted and offering a recommendation of sentencing to the court. They also

continually report progress of the probationer to the courts and make recommendations of possible

revocation.

Parole officers provide supervision of individuals released from prison early on parole, conducting

home visits, drug tests and enforcing adherence of parole terms, also making recommendations of

revocation when terms are broken.

Each of these three aspects of the criminal justice system is essential to the effective functioning

of the larger system as a whole.

POLICE IN PAKISTAN

A police force is a constituted body of persons empowered by the state to enforce the law, protect

property, and limit civil disorder. Their powers include the legitimized use of force. The term is

most commonly associated with police services of a sovereign state that are authorized to exercise

the police power of that state within a defined legal or territorial area of responsibility. Police

forces are often defined as being separate from military or other organizations involved in the

defence of the state against foreign aggressors; however, gendarmerie are military units charged

with civil policing.

Law enforcement, however, constitutes only part of policing activity. Policing has included an

array of activities in different situations, but the predominant ones are concerned with the

preservation of order. In some societies, in the late 18th and early 19th centuries, these developed

within the context of maintaining the class system and the protection of private property. Many

police forces suffer from police corruption to a greater or lesser degree. The police force is usually

a public-sector service, meaning they are paid through taxes.

Alternative names for police force include constabulary, gendarmerie, police department, police

service, crime prevention, protective services, law enforcement agency, civil guard or civic guard.

Members may be referred to as police officers, troopers, sheriffs, constables, rangers, peace

officers or civic/civil guards.

As police are often interacting with individuals, slang terms are numerous. Many slang terms for

police officers are decades or centuries old with lost etymology.

Etymology

First attested in English in the early 15th century, initially in a range of senses encompassing

'(public) policy; state; public order', the word police come from Middle French police ('public

order, administration, government'), in turn from Latin politia, which is the Latinisation of the

Greek politeia, "citizenship, administration, civil polity". This is derived from polis, "city".

HISTORY AND DEVELOPMENT OF POLICE

PRAETORIAN GUARD

The Praetorian Guard was the bodyguard of the ancient Roman emperors. By the 2nd century BC

the bodyguard of a Roman general was known as the praetorian cohort, but Augustus (63 BC –

AD 14), the first Roman emperor, in 27 BC instituted the Praetorian Guard as a separate force by

organizing 9 cohorts, each consisting of 500 men, under the command of a prefect, called the

praetorian prefect.

SIR ROBERT PEEL’S FOUNDATION (Father of Modern Policing)

In 1829 AD, Sir Robert Peel laid the foundation of that organization on which is based the existing

metropolitan police system; it became the world's first modern organized police force. At first it

encountered much opposition and was denounced as an insidious attempt to enslave the people by

arbitrary and tyrannical methods. This unfavorable impression, however, soon diminished,

especially as the conviction of criminals and speedy reduction in the number of offences evidenced

the efficiency of the new force

The Police Act 1856 AD made the existence of an adequate force compulsory throughout England

and Wales, while in Scotland the Police Act 1857 AD and the Burgh Police (Scotland) Act 1892

AD provided and regulated a satisfactory and sufficient police force throughout its counties and

burghs.
POLICE FORCE DURING EARLY PERIOD OF ISLAM

• To keep law and order in the state, Hazrat Umar Farooq RA was the first Muslim Head of

State who established police department for the first time in the known shrines of human

history.

• The police force at that time was known as ‘Ahdath’ and the Police Officer as the “Sahibul

Ahdath”. He introduced the System of Patrolling and INN-Type of Cantonments

(Chawkiyan) for the first time.

• System of Jails

• The Central Police

• Hazrat Ali RA was responsible for instituting the office of the Central Police and brought

the concept of Policeman. He designated the Policeman as ash-Shurtah and the Police

Officer as Sahibu’sh-Shurtah

POLICE FORCE IN SUB CONTINENT

Ancient India

• In ancient India the existence of police was found much earlier. The Dharm-Sutras

prescribed use of force in the day to day administration as an important duty of the king.

• Maha Bharta calls the village headman Gramdhipati. In Budhist literature he is called

the Gram-Bhojka

• Kautaliya’s Arth-Shastra mentioned a regular police hierarchy, namely Snagrahna

During Mughol Era

• It was in the era of Akber (1556 – 1605 AD) that administration was divided on functional

basis. The Kotwal was thus a city magistrate but his authority did not coincide with Kazi.

• Katub-ud-Din Aibeck (1206-1210) became the first Muslim ruler of the India and took

steps to consolidate the Muslim rule and the institution of police force. He introduced the

symbol of Police as “Horse with a Robust Soldier on Its Back”.

POLICING IN BRITISH PERIOD

• The British subdivided the army into soldiers and police as they had formally subdivided

the Imperial Service into Civil Military. The police system really began with Cromwell

(1599-1658 AD). He appointed a Superintendent of Police (SP) for Calcutta in 1791 AD

and extended this system to the level of districts in the next year. A ‘Daroga’ or

Superintendent was allocated to each district and the Zamindars were relieved of their

police duties.

• The police that the East India Company had created was far from being a protection to the

people. If a robbery was committed, the police were prevented from making any inquiry

into it, except upon the requisition of the person robbed, that is to say, the shepherd is more

revenue beast of prey than the wolf.

• In 1858 AD, after the suppression of the War of Independence of 1857, the British

Government decided to directly shoulder the responsibility of maintaining the

POLICE ACCOUNTABILITY

In all countries, the police are accountable to the line of command within the police force and also

to external authorities, usually, at a minimum, the minister of the interior and/or the prime minister

(who can command the police), the judiciary (whose verdicts and other orders the police have to

comply with) and the legislature (which drafts laws and approves the police budget); and there is

often a national human rights institution that plays a role in police oversight. Offices of the auditor-

general may also exercise financial oversight over the police. Additionally, in some countries, the

police have to report to and cooperate with independent and civilian oversight bodies.

Accountability is in fact a “conglomerate of processes” in which different actors share

responsibility:

1. Internal accountability is assured through an effective internal chain of command that

includes the reporting system and internal disciplinary system.

2. Accountability to the State can be divided among the three branches of Government:

• The executive. The police are accountable to the government department responsible,

usually the Ministry of the Interior, and to the auditor for spending the police budget and

resource allocation.

• The judiciary. The police are accountable to the law and to judges and prosecutors (this is

also known as legal accountability).

• The legislature. The police are accountable to the public through their representatives in

parliament and the city council (also called democratic or political accountability).
3. Public accountability is any mechanism through which police are accountable to the public

either directly or indirectly, including community policing forums, civilian oversight

boards and the media (use of such mechanisms is also known as “civilian oversight”).

4. Independent accountability refers to any mechanism that does not represent a particular

entity, State or civilian, and whose prime concern is the quality and non-arbitrariness of

policing, such as a national human rights institution, ombudsmen, police complaints

commissions and bodies (this is also known as civilian oversight).

5. International accountability refers to the international scrutiny that police may be

subjected to by international human rights treaty bodies such as the Human Rights

Committee or regional treaty bodies such as the European Committee for the Prevention

of Torture, and in some instances also to specific agreements on oversight laid down in

peace accords and other agreements.

Police accountability involves numerous actors before, during or after police actions and

operations. These usually include:

Police, Ministry, Police inspectorate, Prosecution, Judges, Parliament or parliamentary

committees, Municipal, district and provincial administration (for example mayor, city council,

governor, prefect), National human rights institution or ombudsman, Police complaints bodies,

Independent police oversight bodies, Non-governmental organizations and civil society

organizations, Academics, Media, Individual members of the public, International treaty bodies,

Specific bodies set up under peace agreements.

Sir Robert Peel

Considered a “father” of modern Policing

Sir Robert Peel’s Nine Principles of Policing

1. The basic mission of the police is to prevent crime and disorder.

2. The ability of the police to perform their duties is dependent upon public approval of police

actions.

3. Police must secure the willing cooperation of the public.

4. The degree of cooperation of the public that can be secured diminishes proportionally to

the necessity of the use of force.

5. Police seek and preserve public favor.

6. Police use physical force to the extent necessary.

7. Police at all times should maintain a relationship with the public.

8. Police should always direct their actions strictly toward their functions.

9. The test of police efficiency is the absence of crime and disorder.

Community Policing

“Community policing is a philosophy that promotes and supports organizational strategies to

address the causes of crime, to reduce the fear of crime and social disorder through problem-

solving tactics and community-police partnerships.”

The Eight “P”s of Community Policing

1. A PHILOSOPHY of full service,

2. PERSONALIZED

3. POLICING, where the same officer

4. PATROLS and works in the same area on a

5. PERMANENT basis, from a decentralized

6. PLACE, working in

7. PARTNERSHIP with citizens to identify and solve

8. PROBLEMS

Introduction of Community Policing

The central premise of community policing is that the level of community participation in

enhancing safety and social order and in solving community related crime should be raised since

the police cannot carry out this task on their own. In order to achieve such partnerships, the police

must be better integrated into the community and strengthen their legitimacy through policing by

consent and improving their services to the public. They should therefore:

• be visible and accessible to the public;

• know, and be known by, the public;

• respond to the communities’ needs;

• listen to the communities’ concerns;

• engage and mobilize the communities;

• be accountable for their activities and the outcome of these activities.

situation of human rights in Pakistan is complex as a result of the country's diversity, large

population, its status as a developing country and a sovereign, Islamic republic as well as

an Islamic democracy with a mixture of both Islamic and secular laws. The Constitution of

Pakistan provides for fundamental rights, which include freedom of speech, freedom of

thought, freedom of information, freedom of religion, freedom of association, freedom of the

press, freedom of assembly and the (conditional) right to bear arms. The Clauses also provide for

an independent Supreme Court, separation of executive and judiciary, an independent judiciary,

independent Human Rights commission and freedom of movement within the country and abroad.

However, it is debatable how much these clauses are respected in practice.

CIVIL LIBERTIES

Civil liberties are personal guarantees and freedoms that the government cannot shorten, either by

law or by judicial interpretation without due process. Though the scope of the term differs amongst

various countries, some examples of civil liberties include the freedom from torture, freedom from

forced disappearance, freedom of conscience, freedom of press, freedom of religion, freedom of

expression, freedom of assembly, the right to security and liberty, freedom of speech, the right

to privacy, the right to equal treatment under the law and due process, the right to a fair trial, and

the right to life. Other civil liberties include the right to own property, the right to defend oneself,

and the right to bodily integrity. Within the distinctions between civil liberties and other types of

liberty, distinctions exist between positive liberty/positive rights and negative liberty/negative

rights.

POLICE POWER AND CIVIL LIBERTIES

Any consideration of the practical problems involved in administering criminal law must, of

necessity, take into account the conflict between police power on the one hand and maintenance

of civil liberties on the other.

Status and Duties of a Police Officer

The strange status of a police officer is out of date in present day society. Subject to certain

qualifications, a person employed by another is considered an agent of the employer.

Under the police laws, the position of police officers is that they are holders of office of trust,

whose primary purpose is to exercise the rights and discharge the duties conferred or imposed

upon the holders of that office by governmental laws.

The main problem created when an individual officer has engaged in tortuous activity, he alone is

personally liable for any damages.

Police protection is a benefit accruing to the community at large and it is only just that the costs

should be bear by the persons receiving the benefits. Secondly, many police officers are virtually

judgment-proof. If the applicant in a tort action were restricted to the individual as a source of

satisfaction, in many instances his claim would be frustrated. Thirdly, the provisions place a

responsibility not only on society but also on police off

Arrest and Other Related Problems

A police officer's power to arrest is closely associated with his status. As previously indicated, his

rights and duties are co-terminus with those of an ordinary citizen unless expressly altered by law.

In order to justify an arrest on reasonable and probable grounds it is necessary to prove a state of

facts which would lead a man of ordinary care and prudence to believe or entertain an honest and

strong suspicion that the person is guilty of an offence.

Theory v. Practicability

In the light of what is actually the law, if no confession had been take out from the accused youth,

the officers could have been subject to an action for false arrest or imprisonment. Would this same

course of action be taken today? All that can be said in answer to such a question is that it might

be taken. Police departments have been under such severe criticism for violation of civil liberties

that most officers are aware of the unstable ground they are entering upon in effecting an arrest in

such circumstances. It would probably depend on the zeal of the particular officers involved.

The tactics employed to take out the confession are still used today, with variations, depending

upon the particular circumstances. Whether it was obtained without fear or favour and thus

voluntarily, will not be considered here. It is simply pointed out that in many cases, and this is

particularly true when the suspect is not versed in the law, various tactics are used to extract a

confession. These tactics would have little effect on professional type criminals because they are

well aware of their legal right not to say anything.

In the course of an investigation, an officer had occasion to question a suspect whom the officer

had previously charged with several traffic violations. The suspect used some very common four

and five letter nickname to indicate his sentiments regarding police. This kept up until the officer

lost his temper and struck the suspect. Subsequently, when rationality returned, the officer laid a

charge against the suspect in order to protect himself from a civil action.

POLICE CORRUPTION

Police Corruption is a form of police misconduct in which law enforcement officers break

their social contract and abuse their power for personal or departmental gain. This type of

corruption can involve only one officer, or it can involve a group of officers in a coordinated effort.

Internal police corruption is a challenge to public trust, cohesion of departmental policies, human

rights and legal violations involving serious consequences. Police corruption can take many forms.

Types of Police Corruption

Soliciting or accepting bribes in exchange for not reporting organized illegal activities and

violations of law, county and city ordinances and state and federal laws.

Flouting the police code of conduct in order to secure convictions of civilians and suspects—for

example, through the use of falsified evidence. There are also situations where law enforcement

officers may deliberately and systematically participate in organized crime themselves.

Selective Enforcement

In most major cities there are internal affairs sections to investigate suspected police corruption or

misconduct, including selective enforcement, but there are situations where Internal Affairs also

hides departmental and individual corruption, fraud, abuse and waste by individual officers, groups

of officers or even unwritten departmental policies. There are also Police Commissions who are

complicit in the same cover-ups, often to hide internal and departmental problems, both from

public view, and also from inter-departmental reviews and investigations. Certain officers can be

fired, then rehired by petition after they accrue enough signatures, often from the very criminals

and violators from whom corrupt officers have garnered previous favors in exchange for officers

"turning a blind eye", resulting in selective enforcement of violations being deterred, but actually

promoted.

It is not possible to measure the level of corruption in a country. Surveys of police officers, citizens
and businesses can be used to provide estimates on levels of corruption. These are often inaccurate,

as respondents involved in corruption are reluctant to provide any information implicating

themselves in criminal activity.

Corrupt Acts by Police Officers

Police officers have several opportunities to gain personally from their status and authority as law

enforcement officers. The Knapp Commission, which investigated corruption in the New York

City Police Department in the early 1970s, divided corrupt officers into two types: meat-eaters,

who "aggressively misuse their police powers for personal gain", and grass-eaters, who "simply

accept the payoffs that the happenstances of police work throw their way."

The sort of corrupt acts that have been committed by police officers have been classified as

follows:

• Corruption of authority: When police officers receive free drinks, meals, and other

gratuities, because they are police officers, whether intentionally or unintentionally, they

convey an image of corruption.

• Extortion/Bribery: Demanding or receiving payment for criminal offenses, to overlook a

crime or a possible future crime. Types of bribery are protection for illegal activities, ticket

fixing, altering testimony, destroying evidence, and selling criminal information. Bribery

is one of the most common acts of corruption.

• Theft and burglary Is when an officer or department steals from an arrest and crime

victims or corpses. Examples are taking drugs for personal use in a drug bust, and taking

personal objects from a corpse at the scene of a crime. A theft can also occur within a

department. An officer can steal property from the departments evidence room or property

room for personal use.

• Shakedowns: Can be classified under theft and burglary. Stealing items for personal use

from a crime scene or an arrest.

• "Fixing": undermining criminal prosecutions by withholding evidence or failing to appear

at judicial hearings, for bribery or as a personal favor.

• Perjury: Lying to protect other officers or oneself in a court of law or a department

investigation.
• Direct criminal activities a law enforcement officer engages in criminal activity

themselves.

• Internal payoffs: prerogatives and prerequisites of law enforcement organizations, such

as shifts and holidays, being bought and sold.

• The "frame up": the planting or adding to evidence, especially in drug cases.

• Ticket fixing: police officers cancelling traffic tickets as a favor to the friends and family

of other police officers.

Corrupted Behavior

Corrupted behavior can be caused by the behavioral change of the officer within the department's

"subculture". A subculture is a group of individuals within a culture that share the same attitudes

and beliefs. Police officers within the department share the same norms and that new behavioral

development can be attributed through psychological, sociological, and anthropological

paradigms.

• Psychological paradigm: The psychological paradigm suggests that behavior is based and

structured through an individual's early stages of life. Those attracted to the police

occupation tend to be more "authoritarian". The authoritarian personality is characterized

by conservative, aggressive, cynical, and rigid behaviors. Corruption may involve profit or

another type of material benefit gained illegally as a consequence of the officer's authority.

Psychological corruption can be a part of a department's culture or from the certain

individual.

• Sociological paradigm: The sociological paradigm focuses on individual exposure to a

police training academy, regular in-service training, and field experience all shape

occupational character. Police learn how to behave, discretion, morals and what to think

from their shared experiences with other police officers. New recruits develop definitions

with their peers either positive or negative. These definitions are then reinforced, positively

or negatively, by the rewards or punishments (either real or perceived) that follow their

behavior.

• Anthropological paradigm: When an individual's social character is changed when an

officer becomes part of the occupational culture. The term culture is often used to describe
differences among large social groups where they share unique beliefs, morals, customs,

and other characteristics that set them apart from other groups. Within the police culture,

ISLAMIC VALUES OF EVIDENCE/WITNESSES IN PAKISTAN

The Qanun-e-Shahadat Order 1984 is very important piece of legal document in Pakistan. It

repealed the Evidence Act of 1872. Qanun-e-Shahadat Order was made law by President Zia-ul-

Haq in 1984. It governs the law related with evidence in all law courts of Pakistan. The Qanun-e-

Shahadat 1984 is an objective law. It is the collection of rules of procedure/practices according to

which the court is to record evidence of the parties. It prescribes rules, methods with regard to

evidence of parties. This order except with few exceptions, and the repealed Evidence Act, 1872

are subjectively the same but objectively they are poles apart. It is an admitted position that all

Articles or the Order 1984 are substantially and subjectively mere reproduction of all sections of

the repealed Act with exceptions of Article 3, Article 4 to 6(with reference to Hudood), addition

of Article 44 and addition of a proviso to Article 42 if compared with corresponding sections of

the repealed Act. Similarly, the term “Qanun-e-Shahadat” is only an Urdu or Arabic translation of

English term “Law of Evidence”.

The significant change made in the Qanun-e-Shahadat is that “Courts-Martial” covered under

the Army Acts besides a tribunal or other authority exercising judicial or quasi-judicial powers or

jurisdiction have been included. The repealed Evidence Act, 1872 was applicable to “affidavits”

but in the Qanun-e-Shahadat Order, 1984, affidavits are not immune from its application. Only

the proceedings saved are the proceedings before an Arbitrator, the reason thereof is obvious that

award, if any, announced by the Arbitrator is subject to strict scrutiny under the Arbitration Act,

1940.

The Object of Qanun-e-Shahadat Order is evident from its preamble which has never been the

object of the repealed Evidence Act. With reference to the preamble, Intention of object of

introduction this Order, as stated therein, is to bring the all laws of evidence in conformity with

the injection of Islam as laid down in the Holy Quran and Sunnah. As interpretation of all articles

of Qanun-e-Shahadat must be done in conformity with the injection of Islam as laid down in the

Holy Quran and Sunnah instead of adopting old interpretation of the repealed Evidence Act, 1872.

However, principles of Islamic Law of evidence so long as they are not codified or adopted by
Qanun-e-Shahadat, 1984 are not per se applicable Order apply to all judicial and quasi-judicial

proceedings. All technicalities have to be avoided and callas for doing substantial justice between

parties are to be heeded.

The Tribunals especially in cases where they are required to adjudicate upon the civil rights of the

parties are under an obligation to act judicially and are bound to follow the fundamental rules of

evidence and fair play which are embodied in the principles of natural justice. They are required

to give an opportunity to the party affected, make some kind of inquiry, and give a hearing and to

collect evidence, if any. Considering all the facts and circumstances bearing on the merits of the

controversy before any decision is given by them. There are the essential elements of a judicial

approach to the dispute. Prescribed forms of procedure are not necessary to be followed provided

in coming to the conclusion these well-recognized norms and principles of judicial approach are

observed by the tribunal. Jurisdiction of a court within whose territorial limit, cause of action or

part thereof would arise cannot be contracted out by parties.

Kinds of Evidence Under Qanun-e-Shahadat Order 1984

Introduction

Evidence is the most important part of procedural law. Term “evidence” has been derived from

Latin term, and this Latin term is evident or evidere, which means to show clearly, to discover, to

ascertain or to prove. Evidence refers to anything, which is necessary to prove a certain fact. In

short words, evidence is a mean of proof. There can be different kinds of evidence.

Definition of Evidence

(i) According To Salmond

“Evidence may be defined as any fact which possesses probative force.”

Meaning of Probative force

A probative force means the quality by virtue of which the Court presumed that one fact is evidence

of another fact.

Various kinds of Evidence

Following are most prominent kinds of evidence

1. Original Evidence

Original evidence means production of documents in their original forms.

Explanation

Following points are important for explanation of original evidence

(i) Original evidence is, in fact, primary evidence.

(ii) Original evidence relates to documents

(iii) In most of cases, original evidence is given more importance over oral evidence.

(iv) Written documents, which can be public or private documents, are usually produced as original

evidence.

2. Un-original Evidence

Un-original evidence means production of copy of document in place of original document.

Explanation

Following points are important for explanation of un-original evidence.

(i) Secondary evidence

Un-original evidence is, in fact, secondary evidence. Secondary evidence is a report or an oral

account of the original evidence or copy of a document or a model of the original thing. It is always

given under certain circumstances, in the absence of that better evidence which the law requires to

be given first. Public documents are generally provable by the production of secondary evidence.

• Certified copies. It means an attested copy obtained from the custodian of public record in

his official capacity.

• Copies made by mechanical process i.e. photocopy.

• Copies made from or compared with the original.

• Evidence against the non-executing party in case of conterparts.

• Evidence of a person who has himself seen the original document.

(a) Reasons for giving secondary evidence

Secondary evidence should not be accepted without a sufficient reason being given for non-

production of the original. Such reason must come strictly within the ambit of law.

(b) Right of waiver

Whenever secondary evidence is presented before a court it is the right of the adverse party to

object the same in the court of first instance. Otherwise this right will not be available in the
appellate court. In this case that right would be deemed to be waived.

(c) Rule of preference and its exceptions

A document must be preferred to be proved by Primary Evidence. It is because the contents of a

document can best be proved by the document itself. However there are certain exceptions to the

above rule, mentioned as under;

When the original is in the possession of opposite party, or person beyond the reach of court or

person not subject of law or person failing to produce the same after the notice of court.

• When the original is lost or destroyed

• When the original is voluminous document

• When the production of original is physically impossible.

In the following instances certified copies of document is admissible;

• When original is public document.

• When the law has allowed it be produced.

• When original consists of numerous accounts.

• When original is part of judicial record.

(ii) Insufficient Evidence

Usually un-original evidence is considered insufficient evidence. Therefore, it is not relied upon

in most of cases. It is only relied upon when it is proved through other evidence that production of

original document has become impossible and therefore, its copy has been produced.

(iii) When can un-original evidence be given?

Un-original evidence can be given when original document is not available or is lost or is destroyed

or is in possession of some person, who does not produce. There can also be other reason due to

which un-original evidence can be given.

3. Direct Evidence

Direct evidence means that evidence, which relates to real disputed question of case and which is

sufficient to determine responsibility.

(i) Direct evidence can be oral evidence. In fact, Qanoon-e-Shahadat Order has provided that oral

evidence should be direct in all cases.

(ii) Even direct evidence can be documentary evidence too.

(iii) Direct evidence is based on personal knowledge or observation.

(iv) Direct evidence cannot be based in inference or presumption.

4. Real Evidence

Real evidence usually takes from of some kinds of material object, which is produced be before

court.

Explanation

Following points are important for explanation of real evidence

(i) Material or physical evidence

Real evidence is also termed as material or physical evidence.

(ii) Purpose of Real evidence

On purpose of real evidence can be to prove existence of some material object and real evidence

can be to make inference about use of some material object in commission of some offence. And

also to prove presence of any material object at some place or possession of some person can be

purpose of real evidence.

5. Circumstantial Evidence

Circumstancial evidence means that evidence, which is based on inference and which is not based

on personal knowledge or observation.

6. Personal Evidence

When some person himself sees any incident or situation and gives statement about it in court,

such statement is called personal evidence.

Conclusion

To conclude, it can be stated that concept of evidence is an old concept. Inquisitorial principle and

adversary principle played important role in development of concept of evidence. According to

inquisitorial principle, judge was to search for facts, listen to witnesses and experts, examine

documents, and order to take evidence. Contrary to this, parties and their counsels are primarily

responsible for finding and presenting evidence and judge does not investigate facts according to

adversary principle. Need of evidence: Court has to arrive on truth. Court does not know the actual and
factual position

of the facts in issue. How a court may arrive to truth? It is only evidence, which brings court to
truth. Only evidence concludes such statement, which is given orally and admissible.

Role of police in judicial proceedings: Statement given before Police Officer, does not amount

evidence admissible in court. It is just investigation and proceedings which court conduct is called

enquiry. Police just collects evidences but does not record evidence.

Confession: Confession made before Police Officer is not admissible actually and particularly

when names of other persons are mentioned. Police may investigate against them but this

confession cannot be used against them as evidence. Confession is used only against him who

makes it but not against others.

The test of the judicial authority is that officer empowered takes evidence on oath. Executive

officer may also use quasi-judicial powers. Statement is not termed as evidence as it is not taken

under the Qanun-e-Shahdat Order. Both Code of Civil Procedure and Code of Criminal Procedure

are different but the evidence has same relevance.

There may be certain facts of issues in pleadings. Some of them may be admitted and rest may be

denied. Need of evidence becomes necessary where facts are denied. Plaintiff has to provide

evidence to establish his claim in pleading. Stay does not need evidence but arguments.

Where wrong or crime is committed, e.g., dacoity, murder, theft, or alcohol consumption etc. there

is need of evidence to prove or disprove the fact in issue. Some offences or wrongs are petty in

nature thus liable of bail. Bail is granted at once. Where there is non bail-able offence and court

thinks that accused shall run away, then court shall not grant bail.

Need of evidence: Evidence in both Code of Civil Procedure and Code of Criminal Procedure is

required at the time of trial. It is not allowed at appellate level. For example, a case of murder is

tried in Session Court and court gives death penalty to offender. Appellate court does not require

evidence. Evidence provided at trial level rests sufficient. Accused goes in appeal in High Court

and his lawyer establishes that a new piece of evidence has been discovered which if applied in

trial court, accused must be acquitted. If there is probability of reversal or acquittal lies in evidence

then Appellate Court decides the return back the case to trial court for retrial.

Fact: We know that all evidences are adduced before court of law either relating to fact in issue

or relevant to fact. A person may be habitual of sleepwalking. He may inflict slap to other during

sleepwalking. Trespassing is also an offence in the eyes of law. Trespasser may think that he is
entering in his home but actually it is not his home. This is state of mind. Offender makes his mind

to commit crime. Negligent person may also commit offence. Anything existence or non-existence

of which can be perceived is fact. State of mind is also fact, which can be perceived and proved.

Probable consequence of stoning is grievous hurt or injury however its knowledge constitutes fact.

In another example, A, kills to B. Prosecution has to prove murder of B. It requires evidence thus

it is fact. Fact may either require its proof and disproof. When the evidence is adduced in court

and court considers it is proved that is fact.

Presumption of fact: Some time court presumes whether certain thing or fact exists or not. It must

be kept in mind that presumptions are always rebut-able. If party proves that fact does not exist,

court shall conclude that fact does not exist.

Competency of witness: There are certain qualifications for the competency of the witness. Law

imposes the following restriction on competent witness:

1. Age limit: Law does not provide any age limit for the competency of witness but he should

know and retain in his memory the facts.

2. Understanding capability: Competent witness must understand what court of law wants to

enquire. He must have capability to answer the questions of court.

3. To whom court thinks competent: Satisfaction of the court is another essential element for

the competency of witness. If court does not consider witness as competent he cannot appear as

competent witness even witness is person of sound mind or generally considered competent.

4. True Muslim: In certain cases only true Muslim is competent witness particularly in

Hudood crimes. He must be person of those qualifications which Quran and Sunnah prescribe for

a witness.

5. Islamic rules

6. All persons

7. Tazkia

8. Eyesight

9. Hearing

10. Perception
11. Smelling

12. Communication skill

13. Honesty

14. Male (only in hudood cases)

Incompetent witness: Law has debarred some persons to appear as competent witness. Detail of

those is as follows:

1. Incapacity of rational response: Person who is incapable to understand the question put to

him or who cannot give rational answers of court is not competent witness.

2. Young age factor: Although no age limit is prescribed for the competency of witness but it

does not mean that person of every age can appear as competent witness. Person who due to young

age factor cannot understand the requirement of evidence is not considered competent witness.

3. Old age factor: Old age does not matter but it matters a lot. Person who due to old age factor

could not understand the rationality of the questions and answers put to him in court is not

competent witness.

4. Bodily infirmity: Person who is bodily infirm is not competent witness.

5. Mental infirmity: Person of unsound mind is debarred to appear as competent witness, i.e.,

who was person of unsound mind at the time of occurrence of incident.

6. Conviction in false evidence: Person is not competent who has been convicted in false

evidence except where he has been repented and mended his ways.

7. Unable to understand

8. Lunacy

9. Slander

10. Where is interest11. Habitual liar

12. Female in hudood

Number of witnesses: As a general rule, only one witness either male or female is sufficient for

conviction. But as far as Hudood crimes are concerned Quran and Sunnah determine the number

of witnesses.

In all other matters than of Hudood crimes, mere one witness is sufficient for conviction.

Financial and future obligations need two males or one male and two females witnesses for
conviction.

Relevancy of facts: There are two kinds of facts for which evidence is adduced in court, i.e., facts

in issue and relevant facts. Facts in issue are those which are alleged by one party and denied by

the other on the pleadings, in a civil suit; or alleged in the charge and denied by the plea of “not

guilty” in a criminal case, so far as they are in either case material. On the other hand, the relevant

facts are all those facts which are in the eyes of law so connected with or related to the fact in issue

that they render the latter probable or improbable or roughly throw light upon them.

Relevancy of facts forming part of same transaction: All the facts, which are so, connected with

the same transaction immediate or later, proximity or remote, or direct or indirect are relevant facts

thus they form single fact. For example, delivery of goods involves several intermediaries who

successfully deliver the goods. Each delivery constitutes relevant fact. Prosecution in Pakistan

History of the Prosecution Services Article 37(d) of the Constitution of the Islamic Republic of

Pakistan, 1973, [hereinafter the 'Constitution'] as part of the Principles of Policy, enjoins the State

to ensure inexpensive and expeditious justice.

The Code of Criminal Procedure, 1898 [Act V of 1898] [hereinafter the 'Cr. P. C.'] governs the

conduct of and the procedure pertaining to criminal cases. Prosecutorial services are governed by

the provisions of Sections 492 to 495 of the Cr. P. C.

Under the provisions of Sections 492 to 495 Cr. P. C., earlier the Prosecutors were police officers

of the rank of inspectors and above, who had a legal background. The Police Service(s) were under

the command of the 1 Home Department(s).

In 2002 the Police Order was promulgated [which repealed the Police Act, 1861] as part of the

restructuring of the Police Service(s).

The Sindh Criminal Prosecution Service (Constitution, 2 Functions and Powers) Ordinance, 2006

placed the services of all district attorneys, public prosecutors and deputy public prosecutors under

the newly formed Prosecution Service.

The Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006

established an independent service for the prosecution 3 of criminal cases.

History

Historical Perspective The history of development of legal system in the sub-continent can be
divided into three main parts which formed basis of the Criminal Justice System in Pakistan. These

three periods of the history are briefly discussed below:

i) Ancient Period

The first period is from 1500 BC to 1500 AD which pertains to the Hindu dynasty. The information

in respect of the judicial system during this period is not very clear. It has been ascertained from

the ancient books like Dharamshastra, Smiritis and Arthashastra, and commentaries of the same

by historians and jurists. According to these sources, the king used to be the Fountain of Justice

who also discharged judicial functions. In this task, judges as well as his ministers assisted him.

He was the final judicial authority and court of ultimate appeal. The court of Chief Justice existed

in the Capital in addition to the Court of the King. This Court was next to the King’s Court and

appeal against its decisions lay to the King’s Court.

In the villages, local level courts used to provide justice, through the assembly of the village

consisting of the caste or the family. The village Headman acted as Judge / Magistrate for the

community. Decisions by such tribunals were usually through conciliation. The decisions of

village / town courts / tribunals were appealable in the higher courts and final appeal lay before

the King’s Court. Besides, judgments by the Courts, the system of arbitration was also invoked.

The law applied in these village courts was customary and moral as no formal rules existed. In that

system, the aggrieved party used to lodge its claim and the opposite party was supposed to submit

its reply. The parties at dispute had to produce their witnesses in support of their claims. After the

trial the case was decided and decision was implemented.

ii) Mughal Period: The Muslim period began in the subcontinent in the 11th century A.D. In the

beginning several Muslim Kings ruled India which continued till 1526 A.D. After that the Mughals

came and ruled till the middle of 19th century. All these Muslim rulers had their own way of

administering justice in their empire. During the period under reference, the Islamic Law was

generally applied in the administration of justice but the rulers gave sufficient space to operate the

customs and traditions of the local population in settling the secular matters. In fact, they were not

very religious minded and had a tendency to use Islamic laws along with the local customs and

practices as far as possible. The courts were set up at different levels in the empire such as Tehsil,

Distict, Provincial and the Central levels. All these courts derived their authority from the King
who was also the highest court of the time. The King was administrative as well as judicial Head

and used to exercise original and appellate jurisdiction, both in dealing with judicial matters. It is

a credit of the Mughals that they improved the system and set up various levels of administrative

units. They retained the “Hindu Panchayat System” which consisted of elders of the Hindu

community. They used to settle their petty issues by mutual consultation and mediation at their

own level. However, at the town level and above the courts were set up. The courts of Qazis were

established at district and provincial levels. It is interesting that the system during this period was

so primitive in nature that neither territorial jurisdiction of each court was defined, nor there was

a clear cut distinction between the Revenue and Criminal courts. Similarly, no pecuniary

jurisdiction was fixed and the plaintiffs could file their suits / cases in any court of any town or

district. Same was the case in respect of appeals and a complainant had an opportunity to lodge his

complaint before another court if he was not satisfied with the decision of a court.

Javaid Aslam (1994) in his book, “Deputy Commissioner in Pakistan” has stated that “in 1784,

Pitt’s India Act was introduced which paved the way for far-reaching administrative reforms in

India. The office of District Collector was established and he was entrusted with the collection of

land revenue and had practically no other duty. Under the provisions of the Regulation Act 1784,

the office of the District Judge was established, the judicial and magisterial work of the district

was entrusted to newly appointed Judges.” He has further highlighted that “the Commissioners

supervised the work of Collectors and judge-magistrates. They possessed wide executive

discretion, also acted as Sessions Judges and held assizes within their jurisdiction. In 1831, the

Sessions work was transferred from Commissioner to District Judges while the magisterial work

of the District Judges was transferred to the Collectors. The District Judge thus became the District

and Sessions Judge while the District Collector assumed the added powers of District Magistrate.”

(Aslam, 1994:19)

iii) British Period:

When the British rule was established in the sub-continent and the role of East India Company

changed from a trading company to a territorial power then it was authorized to decide the cases

of its subjects in addition to its own employees. Naturally the Britishers applied English Laws in

deciding their own cases in English Courts. Initially, they established courts in Bombay, Calcutta
and Madras. The native subjects were governed under separate courts known as Sadar Dewani

Adalat and Sadar Nizamat Adalat, which dealt with civil and criminal cases respectively. These

courts applied local laws in their proceedings.

In the Annual Report of the Lahore High Court, 2013 it has been stated that “Prior to 1830, the

conditions prevailing in the Principalities, ruled by independent Chieftains in the Punjab, were

deplorable. Crime was rampant and had become a hereditary profession. Neither there were any

judicial courts nor written laws nor any established authorities to maintain or enforce them. The

cases were decided by Chieftains according to their own caprices.” (Lahore High Court Annual

Report, 2013:23). It has been further highlighted that “For the first time in 1849, a Board of

Administration was constituted and Punjab was divided into Divisions, Divisions into Districts

and Districts into Tehsils. The Divisions were under the charge of Commissioners, Districts were

controlled by Deputy Commissioners and Tehsils were supervised by Assistant and Extra Assistant

Commissioners. By 1864, the necessity of expanding judicial machinery was keenly felt. A bill

for the formation of the Chief Court of the Punjab was introduced on 16th February 1866 and the

Chief Court Act-IV of 1866 was promulgated by the Governor General. On 17.02.1866, two

Judges were appointed. In the same year a Civil Procedure Code was made applicable to the courts.

In 1884, the following classes of courts, subordinate to the Chief Court were constituted

The Divisional Court.

The Court of the District Judge.

The Court of the Subordinate Judge.

The Court of Munsif.” (Lahore High Court Annual Report 2013 at p. 13)

The Code of Civil Procedure, 1908 created principal civil courts, namely, the Court of District

Judge, the Court of Additional District Judge, the Court of Civil Judge and the Court of Munsif.

Their territorial and pecuniary jurisdictions were also defined. Similarly, criminal courts were

established under the Code of Criminal Procedure, 1898 and substantive penal law was also framed

in the form of Indian Penal Code (I.P.C.)

Historical Background

After independence in 1947, Pakistan inherited British system of criminal justice. Under section

492 of Code of Criminal Procedure, 1898, Provincial Government is empowered to appoint

generally or for any class of cases in any local area one or more Public Prosecutors. The provisions

of section 495 (4), Cr.P.C. impose a specific bar to an officer of police to conduct the prosecution

if he has taken any part in the investigation into the offence with respect to which the accused is

being prosecuted. In the light of above provision, the Punjab Government appointed Law Officers

(Deputy District Attorneys and Assistant District Attorneys) from Law Department to conduct

prosecution of cases before the Sessions Courts, whereas Legal Inspectors of Punjab Police were

allowed to conduct prosecutions as Public Prosecutors before the Courts of Magistrates. In superior

courts, prosecution in criminal cases was being conducted by the Law Officers of Advocate

General and State Counsels. Whereas prosecution in Anti-Terrorism Courts was conducted by the

Special Public Prosecutors, appointed by the Punjab Government on contract basis. Prior to 2006,

the prosecution service was scattered into different segments and authorities without uniformity

which destructed the effective role of prosecution in criminal justice system. A comparative

analysis of administrative set up of criminal prosecutions is given below;

COURT PROSECUTING OFFICER DEPARTMENT

Magisterial Courts Police Prosecutors/Inspector Legal Police Service

Session Courts District Attorney/ Deputy District

Attorney

Law & Parliamentary Affair

Department Government of

the Punjab

Special Courts (Anti-

Terrorism, Anti

Corruption, Drug

Courts, Environmental

Tribunal, Special

Judicial Magistrate,

Consumer Courts)

Special Prosecutors Law & Parliamentary Affair

Department Government of
the Punjab / Home

Department

Lahore High Court Advocate General/ Additional

Advocate General/ Assistant

Advocate General/ State Counsel

Office of Advocate General

Punjab

Federal Shariat Court of

Pakistan

Advocate General/ Additional

Advocate General Assistant

Advocate General

Office of Advocate General

Punjab

Supreme Court of

Pakistan

Advocate General/ Additional

Advocate General

Office of Advocate General

Punjab

Hamood-ur-Rehman Law Commission Report published in 1971 emphasized separation of

prosecution from the Police Establishment but it was not until 2006 that prosecution under the

control and supervision of the Police and was separated and brought under one umbrella of an

independent and effective Prosecution Service at all the tiers of the judicial hierarchy in Punjab.

Federal Government as a policy initiative under Access to Justice Program, directed the Interior

Division on 16th January, 2002 to ensure establishment of an independent prosecution service in

each Province. Previously in Punjab, the functions of criminal prosecution were performed under

the administrative control of the Law Department, Government of the Punjab in Session Courts

and Superior Courts, whereas prosecution in the Magisterial Courts was conducted by the Police
Prosecutors. In order to implement the directions of the Federal Government, initially the criminal

prosecution was placed under the administrative control of the Home Department on 21.07.2004

and subsequently Public Prosecution Department was established on 18.10.2005.

Departmental Structure

Public Prosecution Department (PPD)

consists of two attached departments as follows:

i. Prosecutor General Punjab.

ii. Directorate General of Inspection.

Core Functions of the Department are:

i. Legislation, policy formulation and planning for Public Prosecution Service.

ii. Inspection and monitoring of the working and the service. delivery of criminal Prosecution

Service through Directorate of Inspection.

iii. Administration of the “Punjab Criminal Prosecution Service Act, 2006.

• Recruitment and Promotion

• Transfer / Posting of Officers BS-16 and above

• Training / Capacity Building of Human Resource • Budgetary and financial control etc

Prosecutor General Punjab

Prosecutor General is head of the Prosecution Service. The Prosecution Service has the following

functions:

Core functions of Prosecution Service are:

i. Conduct prosecution of all criminal cases before criminal courts, i.e. Trials, Appeals, Writs,

Revisions, etc. on behalf of the Government:

• Scrutiny of Reports submitted by the police under section 173, Cr.P.C.

• Submits result of scrutiny in writing to the court as to the available evidence and applicability of

offence against all or any of the accused as per facts and circumstances of the case.

ii. Administration of prosecutorial work:

• Distribution of prosecutorial work

• Maintenance of records

• Reporting
Directorate of Inspection

Directorate of Inspection was established on 28.02.2008 but it became functional on 17.04.2009.

Sole function of the Directorate of Inspection is to conduct inspection of the offices of prosecution

service established at district level for ensuring effective prosecutorial work in accordance with

the Act / Rules and the directions/guidelines issued by the Office of Prosecutor General

Punjab/Department.

Prosecution Offices

Presently the Punjab Criminal Prosecution Service comprises 2800 employees. The existing

strength of 800 Prosecutors and 2000 employees are stationed in 142 offices of the Service

throughout the province of the Punjab.

A precise list of offices is as follows:

i. Prosecutor General Punjab, Head Office, Lahore

ii. Prosecutor General Office Supreme Court of Pakistan / Federal Shariat Court, Islamabad

iii. Camp Office Prosecutor General Punjab, (LHC) Lahore iv. Prosecutor General Office, (LHC),

Rawalpindi Bench, Rawalpindi

iv. Prosecutor General Office, (LHC), Multan Bench, Multan

v. Prosecutor General Office, (LHC), Bahawalpur Bench, Bahawalpur

vi. 09 Prosecution Offices, Anti-Terrorism Court

vii. 07, Prosecution Offices, Drug Court

ix. 36 Prosecution Offices, District Head Quarter

x. 84 Sub-Divisional Prosecution Offices.

Prosecution Officers

Prosecution Service became functional in January, 2007. The initial inductees in Prosecution

Service were the former officers performing the functions of prosecution in Police and Law

Departments. They were given one time option to join newly established Criminal Prosecution

Service. The induction of regular employees were followed by prosecutors on temporary contracts

as stop gap arrangement till the arrival of regular Prosecutors selected through Punjab Public

Service Commission. As a result of judgment of the August Supreme Court of Pakistan and

initiative of the Government of the Punjab, the process of replacing prosecutors working on
contract basis with regular ones selected through the Punjab Public Service Commission has

almost been completed and more than 700 prosecutors selected on merit based policy of the

Government are now functioning in the Service.

Functions and Operational Mechanism Of Prosecution Service

Main function of a Public Prosecutor under Prosecution Act is to conduct prosecution of criminal

cases on behalf of the State. Prosecutor performs prosecutorial work at both, the administrative

stage of criminal process (Scrutiny of Police Reports) and at the judicial stage (Trials and Appeals).

Prosecution in the Superior Courts

Administration of the Prosecution Service vests in the Prosecutor General, Punjab. The Public

Prosecutors, Additional Prosecutors General and Deputy Prosecutors General shall perform their

functions under the control and supervision of the Prosecutor General whereas all the Prosecutors

in the districts are under his general control. He distributes prosecutorial work to different

Prosecutors in the Supreme Court, Federal Shariat Court, High Court and Special Courts of

criminal jurisdiction (Anti-Terrorism Courts, Anti-Corruption Courts, Drug Courts, etc.). He has

right of audience and representation on behalf of the Government in all the concerned Courts. He

may delegate any of his functions to an Additional Prosecutor General or Deputy Prosecutor

General. He is empowered to issue guidelines to Prosecutors and Investigation Officers of Police

for better and efficient prosecution of criminal cases. He can recommend initiation of disciplinary

proceedings against any public servant connected with investigation or prosecution of criminal

cases for defective investigation or prosecution. He is authorized to withdraw from prosecution of

any person with permission of the court, where punishment is up to seven years and stop

prosecution in any case on behalf of the Government. The Prosecutor General submits an Annual

Report of the Service and keeps the Government informed about the performance of the Service.

Prosecution in the District Courts

The District Public Prosecutor is the administrative head of the Prosecution Service in the district

under the overall supervision of the Prosecutor General. The important function of a District Public

Prosecutor is to distribute prosecutorial work to the subordinate Prosecutors in Session and

Magisterial Courts in a district. He also supervises prosecutorial work of the subordinate

Prosecutors and exercises authority over administrative and financial functions of prosecution in
the district.

FUNCTIONS, POWERS AND DUTIES OF PROSECUTORS

Prosecutor General

Administration of the Prosecution Service vests in the Prosecutor General. The Additional

Prosecutors General, Deputy Prosecutors General and Public Prosecutors in Special Courts are

under direct supervision of the Prosecutor General whereas all the Prosecutors in the districts are

under his general control. He distributes prosecutorial work to different Prosecutors in the Supreme

Court, Federal Shariat Court, High Court and Special Courts of criminal jurisdiction (Anti-

Terrorism Courts, Anti-Corruption Courts, Drug Courts, etc.). He has right of audience and

PROBLEMS WITH THE PROSECUTION OF CASES

Section 154 Cr. P. C

A First Information Report [FIR] is the initiation of a criminal case. Section 154 Cr. P. C. provides

that information given to an Officer In-charge of a Police Station relating to the commission of a

cognizable office, whether given in writing or so reduced into writing by him, shall be signed by

the person giving it.

In addition, the substance of the FIR is separately entered in the book known as the FIR register.

The provisions of Section 154 Cr. P. C. appear to be simple and straightforward. However, this

seemingly simple provision has and continues to create multiple problems which have, inter-alia,

a direct impact on the effectiveness and performance of the Prosecution Services. If we seek to

measure the performance of the Prosecution Services in terms of conviction rate(s) then the FIR

takes on critical importance.

We would have to look at the number of FIRs registered in a particular district, for instance, and

compare the figure to the number of convictions eventually achieved as the comparison thereof

would indicate what number of criminal cases initially registered eventually reach a 'successful'

outcome from the point of view of the victim, complainant and the general public.

It is for the same reason that often the officer in charge of a police station refuses to lodge an FIR.

Senior Police Officers are keen to demonstrate that crime has fallen under their command; an

indication whereof is the fall in number of FIRs. For the victims of crime, the selfsame failure of

the police to lodge an FIR is a galling obstacle in the quest for justice. They are often forced to
approach a Justice of Peace [an Additional Sessions Judge as persona designate] under Section 22-

A(6) Cr. P. C. to seek direction(s) to the police to register an FIR.

The machinery of investigation of a crime is put into motion once the FIR is registered under

section 154 Cr. P.C. The plain reading of the law (Section 154 Cr. P. C.) shows that this is meant

to be just the first/initial report regarding occurrence of a criminal offence.

In practice, at the time of final arguments in any criminal case the FIR takes on a critical

importance. The defense relies heavily on the contents of the FIR. In case an accused has not been

attributed a comprehensive 'starring' role in the commission of the offence and in the event that

the Prosecutor is unable to prove all the contents of the FIR, the defense often successfully argues

for acquittal. This has led to a culture where the prosecutor is unwilling to suggest or pursue a line

of enquiry which differs in material particulars (or at all!) from the version of events recorded in

the FIR which indicate that a particular offence has been committed. For example, if an FIR records

that the accused, 'A' viciously stabbed and killed 'B' and that an offence under Section 302 Pakistan

Penal Code (PPC) has been committed; the Prosecutor becomes “trapped” by this version of events

and would find it difficult to build a case wherein the accused “A” is said to have killed “B”, but

in self-defense.

Late Provision of FIR by Police Officers to Public Prosecutors

Section 12 of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act

2006 sets out the responsibilities of police towards prosecutors. This includes the duty to immediately
report to the District Public Prosecutor the registration of each criminal case by

sending a copy of the FIR.

In practice this prompt provision of FIR is honored more in the breach than the observance thereof.

The failure to promptly provide the Prosecution Service with a copy of the FIR limits the ability

of the Prosecutor to play a guiding role in the investigation of the purported crime.

Defective Investigation by Police Officers

It is axiomatic that a prosecution based on defective investigation by the police is almost certain

to fail. A defective investigation takes many forms and includes but is not limited to the following:

1. The FIR records a version of events which is not related to what actually occurred but the

Investigating Officer (IO) makes determined efforts to 'prove' the FIR version;
2. There are no witnesses found willing to give evidence;

3. The evidence gathered does not adequately prove the offence purportedly committed especially

in cases involving cases of fraud(s) relating to banks or commercial frauds or cybercrimes as the

nature of the crimes is technical, sophisticated and beyond the reach of the average IO;

4. Failure to gather and make use of the latest methods of forensic evidence relating to DNA,

fingerprints, trace materials, ballistics, photography, CCTV footage, wire taps, and others.

The Prosecution Service of Punjab may (and does) issue guidelines to the IO in terms of what

evidence may be useful, etc. However, this 'advice' is not binding on the IO. It depends on the

discretion of each individual Prosecutor whether or not he chooses to offer such advice and its

'usefulness' depends on whether the IO chooses to be guided by it. In short, there is no formalized

systemic coordination and cooperation between the prosecutors and the police.

Reports under Section 173 Cr. P. C.

Within 148 days of recording of the FIR the police are required to submit a report under the

provisions of Section 173 Cr. P. C. setting out:

1. Names of the parties;

2. Nature of information;

3. Names of persons acquainted with the case; and

4. Whether the accused (if arrested) is in custody or released

This report is submitted to the Prosecutor for onward submission to the Court. Section 9(5) of the

Punjab Criminal Prosecution Service (Constitution, Functions & Powers) Act, 2006 empowers the

Prosecutor to return the report to the IO if he finds the same to be defective for removal of such

defects. However, it is not binding on the police to remove such defects and there are, in practice,

no penalties or consequences, for the failure of the police to do so. This leads to a situation in

which, more often than not, the Prosecutor is a 'post office' for purposes of the report under Section

173 Cr. P. C. The Court frames charges against the accused on the basis of said report and the trial

commences.

The Prosecutor is entitled to submit to the Court his own assessment of said report stating therein

his opinion of the evidence and applicability of offences against the accused. This report,

assessment or scrutiny by the Prosecutor is not binding. In practice Prosecutors are loathe to submit
a negative report as the Court may commence to put the accused on trial anyway and then the

Prosecutor is in the unenviable position of prosecuting a case where he is on record as stating that

no case or a weak case is made out.

Friction and Lack of Co-operation between the Public Prosecutors and Police Officers

/Investigation Officers

The following acts and/or omissions lead to friction between the prosecutors and police.

1. Late provision of FIR by Police Officers to Public Prosecutors.

2. Defective investigation by Police Officers.

3. Non-submission of reports under Section 173 Cr. P. C. within the statutory period.

4. Non-production of record requisitioned by the Public Prosecutors.

5. Non-furnishing of information by Police Officers when required by the Public Prosecutors

during the prosecution of the case.

6. Failure of police officers to appear as witnesses.

7. Failure of police officers, bound by the Court to do so, to produce witnesses.

Lack of Training

In 2014 the Punjab Prosecution Service handled 712,888 cases. Against the sanctioned strength of

1251 members of the Punjab Prosecution Service [including the Prosecutor-General himself] only

1,067 were actually serving, whilst there were 184 vacancies. The entire case-load [712,888]

divided across the 1,067 serving Prosecutors means that the average case-work load per Prosecutor

is 668 cases per annum. This is a huge number of cases and results in a situation where Prosecutors

are unable to prepare extensively for each case and do not have their own copy of the file with

which to take ownership of the case.

The demands of this punishing workload are exacerbated by the fact that Prosecutors are thrown

in at the deep end so to speak. There is no induction course or no mandatory training to prepare

them for their role as Prosecutors. They especially require training in the field of forensics to

acquaint them with the possibilities offered by the technological and scientific advances in terms

of physical evidence. Better training and knowledge in this regard would allow them to present

physical evidence in Court with more regularity and confidence.

Lack of Independence
The Prosecutor-General Punjab is appointed by the Government of Punjab while the

administration of the Prosecution Service vests in the Prosecutor-General. He is appointed for a

period of 3 years. In practice he reports to the Secretary Prosecution who is a government

appointee. This compromises the independence of the Prosecutor-General Punjab and leaves the

door open to political influence in the working of the Prosecution Service.

In the case of the Prosecutor-General Sindh, under the Sindh Criminal Prosecution Service

(Constitution, Functions & Powers) Act, 2009, whereas he originally had security of tenure for 3

years, even this has been amended vide Sindh Criminal Prosecution Service (Constitution,

Functions & Powers) (Amendment) Act, 2014 and now the Prosecutor-General Sindh shall hold

office at the pleasure of the Sindh Government. This seriously compromises the ability of the

Prosecutor-General Sindh to make independent decisions without reference to political

considerations.

Forensic Evidence and Police Rules 1934

The Police Rules 1934 are still in the field. Chapter XXV thereof governs the manner in which the

investigation is to be carried out. The Police Rules 1934 are badly out of date. Rule 25.13 requires

the police officer(s) investigating the scene of the crime to make two plans of the scene. Due to

this, photographs of the scene of the crime, which would be a more graphic and useful tool in terms

of showing the Court the scene of crime, are not produced in evidence by the prosecutors often as

they should be.

Section 174(3) of the Cr. P. C. read with Rule 25.36 of the Police Rules 1934 provide that

postmortem examinations are conducted by the nearest medical officer authorized by the

Provincial Government. These medical officers do not always have the requisite expertise in

conducting postmortems. The equipment available to them at the district hospitals is often

inadequate.

The Police Rules 1934 describes procedure whereby the police, when collecting evidence are to

seal the same in cloth bags and/or bundles. The 'seal' is molten wax which when it hardens is liable

to break/shatter and is not tamper proof.

The Punjab Forensic Science Agency (PFSA) was established vide the Punjab Forensic Science

Agency Act, 2007. It was set up at the cost of US Dollars 37 million. It is an unparalleled facility
with highly trained staff and state of the art equipment.

The PFSA has DNA and Serology, Forensic Toxicology, Firearms and Tool Marks, Questioned

documents, Narcotics, Latent Fingerprints, Forensic Pathology and Histology, Polygraph,

Computer Forensic trace evidence and Audio Visual Analysis Departments.

The PFSA has highly trained experts who are able to conduct postmortems but their expertise is

not fully availed for the reason that the requisite changes have not yet been made to Section 174(3)

of the Cr. P. C. read with Rule 25.36 of the Police Rules 1934. The PFSA reports are verified and

rechecked by peers and supervisors before the same are issued on security paper. At every point

when data pertaining to the examination of evidence is entered by the scientists or technicians the

same time is stamped and stored in the data system of the PSFA in two separate locations in order

to ensure that no change and/or tampering thereof is possible.

Resiling Witnesses

In 30642 cases handled by the Punjab Prosecution Service in 2014 the witnesses resiled. During

the course of investigation, the police is empowered to examine and record the statement(s) of

witnesses.

However, such statement, under the provisions of Section 161 Cr. P. C. does not have to be signed

by said witness. Therefore, it is often the case that witnesses resile from their statements once trial

commences. There are a number of reasons for this including the number of dates of hearing that

witnesses are called upon to attend which occasion loss of time and money. Witnesses may be

intimidated by the accused and are offered little or no protection. This problem is especially acute

in the ATCs.

In 2012, 290 cases in Punjab ATCs resulted in acquittals due to resiling witnesses [total number

of cases pending in 2012 were 1065]. In 2013, 181 cases in Punjab ATCs resulted in acquittals due

to resiling witnesses [total number of cases pending in 2013 were 1052].

Adversarial System of Prosecution in Pakistan

The adversarial system or adversary system is a legal system in which two advocates represent

their parties' positions before an impartial person or group of people, usually a jury or judge, who

attempt to determine the truth of the case.

The adversarial system is the two-sided structure under which criminal trial courts operate that
depths the prosecution against the defense.

Features of Adversarial System

As an accused is not compelled to give evidence in a criminal adversarial proceeding, they may

not be questioned by a prosecutor or judge unless they choose to do so. However, should they

decide to testify, they are subject to cross-examination (In law, cross-examination is the

interrogation of a witness called by one's opponent. It is preceded by direct examination may be

followed by a redirect/re-examination in Pakistan) and could be found guilty of perjury. As the

election to maintain an accused person's right to silence (The right to remain silent is a legal right

recognized, explicitly or by convention, in many of the world's legal systems. The right covers a

number of issues centered on the right of the accused or the defendant to refuse to comment or

provide an answer when questioned, either prior to or during legal proceedings in a court of law.

This can be the right to avoid self-incrimination or the right to remain silent when questioned. The

right usually includes the provision that adverse comments or inferences cannot be made by the

judge or jury regarding the refusal by a defendant to answer questions before or during a trial,

hearing or any other legal proceeding. This right constitutes only a small part of the defendant's

rights as a whole) prevents any examination or cross-examination of that person's position, it

follows that the decision of counsel as to what evidence will be called is a crucial tactic in any case

in the adversarial system and hence it might be said that it is a lawyer's manipulation of the truth.

Certainly, it requires the skills of counsel on both sides to be fairly equally pitted and subjected to

an impartial judge.

By contrast, while defendants in most civil law systems can be compelled to give a statement, this

statement is not subject to cross-examination by the prosecutor and not given under oath. This

allows the defendant to explain his side of the case without being subject to cross-examination by

a skilled opposition. However, this is mainly because it is not the prosecutor but the judges who

question the defendant. The concept of "cross"-examination is entirely due to adversarial structure

of the law.

Judges in an adversarial system are impartial in ensuring the fair play of due process (Due

process is the legal requirement that the state must respect all legal rights that are owed to a person.

Due process balances the power of law of the land and protects the individual person from it. When
a government harms a person without following the exact course of the law, this constitutes a due

process violation, which offends the rule of law) or fundamental justice (fundamental justice is

the fairness underlying the administration of justice and its operation. The principles of

fundamental justice are specific legal principles that command "significant societal consensus"

as "fundamental to the way in which the legal system ought fairly to operate"). Such judges decide,

often when called upon by counsel rather than of their own motion, what evidence is to be admitted

when there is a dispute; though in some criminal law jurisdictions judges play more of a role in

deciding what evidence to admit into the record or reject. At worst, abusing judicial

discretion would actually pave the way to a biased decision, rendering obsolete the judicial process

in question—rule of law being illicitly subordinated by rule of man (Rule of man is absence

of rule of law. It is a society in which one person, regime, or a group of persons, rules arbitrarily.

The Sovereign exercises absolute authority and is not bound by any law, he as a person stands

outside law) under such discriminating circumstances.

The rules of evidence are also developed based upon the system of objections of adversaries and

on what basis it may tend to prejudice the trier of fact which may be the judge or the jury. In a way

the rules of evidence can function to give a judge limited inquisitorial powers as the judge may

exclude evidence he/she believes is not trustworthy or irrelevant to the legal issue at hand.

All evidence must be relevant and not hearsay (Hearsay evidence is "an out-of-court statement

introduced to prove the truth of the matter asserted therein". In certain courts, hearsay evidence is

inadmissible (the "Hearsay Evidence Rule") unless an exception to the Hearsay Rule applies)

evidence.

THE ADVERSARY SYSTEM of Prosecution in Pakistan

In this system, the parties to a controversy develop and present their arguments, gather and submit

evidence, call and question witnesses, and within the confines of certain rules, control the process.

The fact finder, usually a judge or jury, remains neutral and passive throughout the proceeding.

The adversary system is that it is slow and cumbersome. The judge, acting as a neutral fact finder,

can do little to accelerate a trail, and procedural and evidentiary rules further slow the process.

Likewise, the wide availability of appellate review means that a final determination can take years.

Adversarial trails were discouraged and settlements activity encouraged, litigants still encountered
substantial delays in resolution. And supports of the adversary system maintain that a methodical

system is necessary for protection of individual rights.

It is fair to challenge the ethics of a legal system that places a higher value on winning than on

truth seeking. In this system lawyers spend more time avoiding truth than seeking it. But the

energetic clash of opposing viewpoints eventually yields the truth, and that allowing the sides tof

ight it out under specific rules that guarantee fair play allows the truth to surface on its own.

In Pakistani system the parties control the litigation, they are encouraged to present only the

evidence that is favorable to suppress evidence that is unfavorable.

Defenders of the adversary system are quick to disprove each criticism threw at it. They struggle

that it is necessary for the parties to control the litigation in order to preserve the neutrality of the

judge and jury.

The adversary system counter that unequal access to legal services is the result of economicand s

ocial conditions, not the structure of the legal system, and that changing the way legal services ar

e delivered would donothing to address the root causes of the disparity. They also point out that t

he much criticized contingency feearrangement, by which an attorney is paid a percentage of the

award her or his client receives, opens the courts to membersof the population who could not oth

erwise afford legal representation.

(a) List of Advantages of Adversarial System

1. It is seen as fair and less prone to abuse.

Those who support this system often argue that it is fairer and less prone to abuse than other legal

systems, as it does not allow any room for the state to favor against the defendant. Instead, it allows

private litigants to settle disputes in amicable means through pre-trial and discovery settlements,

where non-contested facts will be agreed upon to try not to deal with them in the litigation process.

2. It properly observes the rights of the defending and prosecuting parties.

In this judicial system, an accused individual is given the right to remain silent, get a lawyer to

help him state the case and remain innocent until proven guilty, which is a crucial aspect in the

outcome of the case. As for the prosecution, they are also allowed to present facts as they interpret

and understand them. Another thing is that the government is advised on all criminal matters.

3. It allows both sides to support their positions.

The adversarial system allows both parties to present witnesses and evidence to support their

positions, where they can cross examine witnesses, independently analyze evidence and challenge

arguments. The objective here is to present all the facts for the benefit of the jury and the judge in

deciding what really happened and who should be held responsible.

4. It provides power to the police.

In this approach, the police play an essential role in the path to justice, where they are the ones

who will run the investigation while adhering to certain conditions, such as presenting a warrant.

They cannot detain an accused individual without proper arrest.

5. It does not promote bias.

The jury and the judge are expected to remain impartial—after all they are chosen using criteria

that are designed to get rid of people who might be biased in a certain case. Basically, this system

presents the contest to individuals who do not have interest in the outcome and can evaluate the

facts objectively. However, this system can become complicated, where lawyers on both sides can

use rhetorical, but legal, strategies to influence opinion that can affect the outcome of the trial.

6. It hears the stories from both sides.

Generally, this system does not allow the Judge to comment until both sides are heard, making

him less biased and lessening the possibility of public protest to the verdict.

(a) List of Disadvantages of Adversarial System

1. It obliges each side to contest with each other.

The adversarial litigation approach is sometimes criticized for setting up a system where sides on

a case are required to contest with each other. This is believed by critics to encourage deception

and other questionable legal tactics, as the objective is to win at all costs, instead of evaluating the

facts to learn the truth.

2. It might lead to injustice.

Critics point out that a lot of cases in an adversarial system, especially in the US, are actually

resolved by settlement or plea bargain, which means that they do not go to trial, leading to injustice

especially when the accused is helped with an overworked or unskilled lawyer. Also, they argue

that this type of system causes the participants to act in perverse ways, encouraging defendants to

plead guilty even when they think otherwise and prosecutors to bring charges far beyond what is
warranted.

3. It might result in judgments compelled by arguments, instead of evidence.

In this system, the discovery with evidence rests upon the lawyers who work for each side, with

the better one having better chances to win the case. But is the jury is involved, the final decision

might be swayed by the most compelling arguments, instead of solid proof.

4. It has issues with accessibility.

One criticism of an adversarial system that is very difficult to refute has something to do with

accessibility. It cannot be plausibly argued that average defendants can enjoy the same access to

legal representation as the wealthy and influential defendants, which is the same with the part of

the plaintiffs. However, supporters explain that such unequal access resulted from social and

economic conditions, not the structure of the judicial system, adding that altering the way of

delivering legal services would do nothing in addressing the root causes of such a disparity.

5. It uses a tedious process.

It is also said that the adversarial form of legal system is slow and cumbersome, where the judge—

who acts as a neutral fact finder—could only do little to hasten the trial process, not to mention

that the evidentiary and procedural rules can slow down the process further. In addition, the wide

availability of appellate reviews would mean that a final decision can be made for years, though

at least one research has shown that some courts discouraged holding adversarial trials and making

active settlements. However, litigants in this approach are still encountering substantial delays in

reaching a resolution. And while this disadvantage is true, supporters still argue that the slow

methodical system is needed to protect individual rights.

The term “adversarial system” might be misleading for some in a way that it entails that it is only

within this system where there opposing prosecution and defense are allowed. By getting an in-

depth knowledge about it and the other legal systems, we will know that it is not the case. Based

on the advantages and disadvantages of adversarial system listed above, what would be your

opinion about it?