FIR
- What is an FIR?
- First Information Report (FIR) is a written document prepared by the police when they receive information about the commission of a cognizable offence. It is a report of information that reaches the police first in point of time and that is why it is called the First Information Report. It is generally a complaint lodged with the police by the victim of a cognizable offence or by someone on his/her behalf. Anyone can report the commission of a cognizable offence either orally or in writing to the police. Even a telephonic message can be treated as an FIR. It is a duty of police to register FIR without any delay or excuses. Non-registration of FIR is an offence and can be a ground for disciplinary action against the concerned police officer. Cognizable Offence: A cognizable offence is one in which the police may arrest a person without warrant. They are authorized to start investigation into a cognizable case on their own and do not require any orders from the court to do so. Non-cognizable Offence: A non-cognizable offence is an offence in which a police officer has no authority to arrest without warrant. The police cannot investigate such an offence without the court’s permission.
- Why is FIR important? An FIR is a very important document as it sets the process of criminal justice in motion. It is only after the FIR is registered in the police station that the police start investigation of the case. According to Articles 21, 22, 23, 25, 49, 50 of Qanoon-e-Shahadat Order 1984, FIR is a relevant fact.
- Who can lodge an FIR? Anyone who knows about the commission of a cognizable offence can file an FIR. It is not necessary that only the victim of the crime should file an FIR. A police officer that comes to know about a cognizable offence can file an FIR himself/herself. You can file an FIR if:
- You are the person against whom the offence has been committed.
- You know yourself about an offence, which has been committed.
- You have seen the offence being committed.
- The police may not investigate a complaint even if you file an FIR, when: First Information Report. The case is not serious in nature;
- The police feel that there is not enough ground to investigate;
- The police resources are already over-committed in investigating more serious offences. However, the police must record the reasons for not conducting an investigation and in the latter case must inform you (Section 157 of the Code of Criminal Procedure, 1898).
- . What is the procedure of filling an FIR? The procedure of filing an FIR is prescribed in Section 154 of the Code of Criminal Procedure, 1898. It is as follows:
- When information about the commission of a cognizable offence is given orally, the police must write it down.
- It is your right as a person giving information or making a complaint to demand that the information recorded by the police is read over to you.
- Once the police have recorded the information in the FIR Register, the person giving the information must sign it.
- You should sign the report only after verifying that the information recorded by the police is as per the details given by you.
- People who cannot read or write must put their left thumb impression on the document after being satisfied that it is a correct record.
- Always ask for a copy of the FIR, if the police do not give it to you.
- It is your right to get a copy of FIR free of cost.
- . What should you mention in the FIR?
- Your name and address;
- Date, Time and Location of the incident you are reporting;
- The true facts of the incident as they occurred, including the use of weapons, if any;
- Names and description of the persons involved in the incident;
- Names and addresses of witnesses, if any. (Format used by the police for the registration of FIR is attached). VI. Things you should NOT do:
- Never file a false complaint or give wrong information to the police. You can be prosecuted under law for giving wrong information or for misleading the police (Section 182 of the Pakistan Penal Code, 1860).
- Never exaggerate or distort facts.
- Never make vague or unclear statements.
- One who refuses to sign his statement of FIR can be prosecuted under section 180 of Pakistan Penal Code, 1860.
- One who lodges a false charge of offence made with intent to injure a person can be prosecuted under section 211 of Pakistan Penal Code, 1860.
- What can you do if your FIR is not registered?
1 You can meet the District Police Officer (DPO) or Capital City Police Officer (CCPO) or other higher officers like Deputy Inspector General (DIG) of police and Provincial Police Officer (PPO) and bring your complaint to their notice.
2 You can send your complaint in writing and by post to the DPO, CCPO, DIG or PPO concerned. If the DPO, CCPO, DIG or PPO is satisfied with your complaint, he shall order the registration of FIR.
3 You can file a complaint to the District Public Safety and Police Complaints Authority in your district.
4 You can file a private complaint before the court having jurisdiction. VIII. Disputes as to Jurisdiction of Police Station As soon as the police receive the first information about the commission of an offence, it is its responsibility to immediately act and investigate the case. In some cases, however, there may emerge a dispute between two the police stations about their territorial jurisdiction about the spot where the reported offence occurred. In such a situation, the police are required to follow the following procedure:
- If there is any confusion about the jurisdiction of the police station and if each one of the SHOs contends that the territory under dispute does not fall in his area of jurisdiction, it is the responsibility of each SHO to stay on the spot and keep on investigating into the case. The case record in such a case shall remain with the SHO who reaches the spot earlier until the question of jurisdiction has been decided (25-5 of the Police Rules, 1934).
- When one of the two police officers is relieved after the determination of area of jurisdiction by senior police officers, the relieved officer shall record a report of all that he has done in a case diary and sign it, giving the date and hour of his relief. Such case diary shall be handed over to the other police officer, who shall certify thereon that he acknowledges the case to have occurred within his station limits or to be one which he is empowered to investigate, as the case may be (25-6 of the Police Rules, 1934).
- When a case is transferred from one police station to another, after determination of area of jurisdiction, the offence registered in the original police station shall be cancelled by the Superintendent of Police and an FIR shall be submitted in the police station in the jurisdiction of which the case occurred (25-7 of the Police Rules, 1934).
[Section 154, Cr.P.C.]
No preliminary inquiry is permissible before registration of FIR. Legal machinery is set in motion only after registration of FIR. Refusal or negligence by a police officer to register FIR exposes him to attach u/S. 29 of Police Act 1861. SHO directed to register FIR and investigate the case. PLR 1998 Lah 214, Qazi Muhammad Javed v. S.S.P. Gujranwala, etc.
Promptly made FIR eliminates possibility of fabrication. (SC) 1975 SCMR 442. Khalil Ahmed.
FIR lodged promptly, P.S. 18 Kilometers away and FIR lodged within one hour of occurrence, held no time available to complainant to fabricate a false case against the accused/appellant. (DB) PLJ 1989 Cr.C. (Lah.) 403. Ghulam Razzaq.
FIR recorded within one hour of occurrence of murder, proves FIR as genuine document. It can safely be used for corroboration of its maker. (DB) NLR 1989 Cr. 424. Muhammad Ashraf etc.
Prompt FIR. FIR made within less than half an hour of the incident entirely eliminates the possibility of fabrication or false implication. (SC) PLD 1976 SC 53 Yaqoob Shah.
Promptly made FIR giving detailed account of the occurrence cannot be considered a fabrication. (SC) PLJ 1975 SC 170 Abdur Rashid v. Umaid Ali.
FIR promptly made rules out possibility of consultation to concoct a false case against the accused persons. (DB) 1975 P.Cr.LJ 44 Moharram etc. (DB) 1976 P.Cr.LJ 584. Abdullah.
Immediately made FIR eliminates all chances of concocting a false story. (SC) PLJ 1974 SC 134 Abdul Sattar v. M. Anwar (SC) 1972 SCMR 591 Mesan (DB) 1971 P.Cr.LJ 1187 Abdus Sattar.
FIR made with utmost expedition. The FIR even though lodged with utmost expedition cannot by that circumstance alone, acquired higher value in law as to its weight as a substantive piece of evidence or the correctness of the facts mentioned in it. PLD 1977 Kar. 235. Tariq.
Prompt FIR does not guarantee that innocent persons have not been implicated. Delay not always fatal. (DB) PLJ 1981 Cr.C. (Pesh.) 74. Haji Mir Aftab.
Promptitude only in lodging FIR is not enough where on analysis of evidence on record prosecution fails to prove its case beyond reasonable doubt. (DB) PLJ 1990 Cr.C. (Kar.) 435 Muhammad Achar = NLR 1990 Cr. 282.
Delay or promptness in lodging FIR cannot in all cases lead to the inference that the case set up in FIR is necessarily true or false. However, it is a relevant circumstance to be considered. LJ 1990 Cr. C. (Kar.) 340 G ullan = NLR 1990 Cr. 525.
Inordinately delayed FIR has chances of adulteration of the true account which becomes very luminous. (DB) 1995 P.Cr.L.J. 459, Astam Khan.
Delay in lodging FIR. Complainant lodging FIR after spending one hour at the spot. Wasting of that much of time held not free from suspicion. Possibility of some suspicion about the identity of the accused not excluded. (DB) 1976 P.Cr.LJ 17 Raham Ali.
Bail
A Court considering a bail application has to tentatively look to the facts and circumstances of the case and once it comes to the conclusion that no reasonable ground exists for believing that the accused has committed a non-bailable offence, it has the discretion to release the accused on bail. In Order to ascertain whether reasonable grounds exist or not, the Court, should not probe into the merits of the case, but restrict itself to the material placed before it by the prosecution to see whether some tangible evidence is available against the accused which if left, unrebutted, may lead to inference of guilt. Mere accusation of non-bailable offence would not be sufficient to disentitle an accused from being bailed out. There should be reasonable grounds as distinguished from mere allegation of suspicion. However, strong the suspicion may be, it would not take the place of reasonable ground. The words “reasonable grounds” are words of higher import and significance than the word “suspicion”. It is for the prosecution to show reasonable grounds to believe that the accused has committed the crime. If the Court is not satisfied with the material placed before it that there exist reasonable grounds to believe that the accused is guilty, then the Court has the discretion to grant bail.
Where the liberty of a citizen is involved, the action initiated by the police/prosecution is found to be mala fide and intended to extract evidence or information from the detenu the superior Courts should not be reluctant to step in and grant relief to the citizen. 1994 SCMR 1283, Govt. of Sindh v. Reesa Farooq and 5 others.
—-S. 498—Pre-arrest bail, grant of—Principles—Grant of pre-arrest bail was a remedy rooted into equity, at a cost to hamper the investigation—Such judicial protection was extended solely to save the innocent from the horrors of abuse of process of law with a view to protect his dignity and honour—Said remedy could not be granted in every run of the mill criminal case, particularly to an accused facing prima facie charges structured upon material/evidence, warranting custody, that too, on the basis of positions/pleas, verification whereof, was consequent upon recording of evidence. 2020 S C M R 249
PRINCIPLES FOR GRANT OF BAIL IN NON-BAILABLE OFFENCES:
Bail should never be withheld as a punishment. In cases of non-bailable offences grant of bail is primarily in the discretion of the Courts to be exercised with due care and caution taking into account the facts and circumstances of each case. Orders on bail application should not be considered as routine orders, as the liberties of the citizens are involved. They must be carefully balanced and weighed in the scales of justice and requirements of relevant law as laid down in sections 496, 497 and 498 Cr.P.C. In cases punishable with death, life imprisonment and imprisonment exceeding 10 years the accused shall not be released on bail if there appear reasonable grounds for believing that he has committed such an offence. “Reasonable grounds” is an expression which connotes that the grounds be such as would appeal to a reasonable man for connecting the accused with the crime with which he is charged. “Ground” is a word of higher import than “suspicion.” However, strong a suspicion may be, it would not take the place of reasonable grounds. Grounds will have to be tested by reason for their acceptance or rejection. The reasonableness of the grounds has to be shown by the prosecution by displaying its cards to the Court as it may possess or is expecting to possess as demonstrating evidence available in the case both direct and circumstantial. If such grounds exist tending to connect the accused with the crime, bail should be refused, without going into deeper appreciation of the merits of those grounds and the evidence on which they are based which functions are to be assumed at the trial stage. If the charge is found to be groundless; not supported by evidence; and instead of grounds being reasonable their absurdity stands exposed on a plan view, or the charge on its face appears to be a minor one which is not punishable with death or life imprisonment, as for example, where it is a case of accidental or unintended death caused by simple hurt, the limitation on the Court’s discretion is removed which must then be freely exercised in favour of the accused for the grant of bail. Similarly, where reasonable grounds are not disclosed but the grounds do exist for further investigation and inquiry into the guilt of the accused the case will fall u/S. 497 (2) Cr.P.C. in which case bail should not be withheld.
Even for the purpose of bail, the law is not to be stretched in favour of the prosecution and any benefit of doubt arising in the case must go to the accused. 1995 SCMR 387, Sikandar A. Karim.
Matters to be considered for grant of bail:
(1) Whether there are reasonable grounds for believing that the accused has committed the offence.
(2) Nature and gravity of the charge.
(3) Severity of punishment in case of conviction.
(4) Apprehension of abscondence when released on bail.
(5) The character, the means and the standing of the accused.
(6) Danger of witnesses being tampered with.
(7) Opportunity to the petitioner to prepare his defence.
(8) The period for which the petitioner has been in jail and when the trial is likely to conclude.
(9) Whether the petitioner is named in the FIR or his description is given in it.
(10) Time taken in lodging the FIR, whether prompt.
(11) Whether the accused is a previous convict.
(12) Whether reasonable possibility of false implication of the accused/petitioner cannot be ruled out. PLD 1997 Kar. 165, Sajjad Hussain.
Considerations for grant of bail.
(1) Every accused presumed not to be guilty. (2) Process of trial should not be allowed to be defeated. (3) Possibility of commission of further offences to be safeguarded. PLD 1963 Lah. 279 Iqbal.
Factors to be considered at bail stage: In cases of offences, punishable with death, imprisonment for life or imprisonment for ten years: (1) Benefit of reasonable doubt, (2) Identity of the accused, (3) Part allegedly played by the accused in the occurrence, (4) His presence at the spot and question of vicarious liability would be considered at bail stage. PLD 1995 SC 34. Tariq Bashir etc.
While deciding bail application the Court should consider:
(1) Allegations made in the FIR,
(2) Statements made in the FIR,
(3) Other incriminating material against the accused.
(4) Plea raised by the accused.
PLJ 1997 Shariat Court (AJK) 23, Muhammad Sadiq v. Muhammad Arshad.
Supreme Court for bail. Supreme Court is primarily a constitutional Court and is not expected to go into matters concerning grant of bail by High Courts (SC) PLD 1977 SC 642. Sultan Khan v. Amir Khan etc.
Discretion of Supreme Court in bail matters: It is not a rule that if High Court has exercised its discretion in granting or refusing bail to a party Supreme Court would not interfere. Any discretion exercised in violation of recognised principles of justice is liable to be set a side. Discretion should not be based on whims, inferences, suspicions and mere allegations. When High Court did not exercise discretion properly because inferences were drawn by enumerating allegations without even prima facie examining facts tentatively, the order was set aside, and bail allowed. PLJ 1995 S.C. 396, Ch. Shujat Hussain 1995 SCMR 1249.
Bail not to be withheld as punishment. Orders on bail applications should not be considered as routine orders; involving as they do the liberty of the citizens. They must be carefully balanced and weighed in the scales of justice. However, strong a suspicion may be, it would not take the place of reasonable grounds. The reasonableness of the ground has to be shown by the prosecution by displaying its cards to the Court. Where grounds exist for further inquiry into the guilt of the accused bail should not be withheld. In order to ascertain whether reasonable grounds exist under section 497 (2), Cr.P.C. the Court has of necessity to look into the material available (e.g.) FIR statements under section 161, Cr.P.C. medico-legal report, recoveries etc. (SC) PLD 1968 349 Abdul Malik v. State.
Punishment. Save in grave offences refusal to admit a person to bail means punishment without trial. Custody is never meant to be a punishment; it is designed to facilitate investigation or trial by making the accused available. PLJ 1976 SC 371 Zahoor Elahi.
Allegations in FIR and the evidence collected to be given due weight in deciding bail matter and the nature of the offence and the punishment of it is to be considered. 1994 SCMR 1964, Muhammad Nawaz Khan v. Ghulam Ahmed etc.
Meaning of bail. Bail is release of a person from the custody of police and delivery into the hands of sureties, who undertake to produce him in Court whenever required to do so. (FC) PLD 1953 FC 170 Crown v. Khushi Muhammad.
Criminal Trail
The criminal justice system entails a set of laws and principles that aim to provide protection to life and property of citizens in order to ensure order in society. Article 37(d) of the Constitution prescribes that for the promotion of social justice and eradication of social evils, the state shall ensure inexpensive and expeditious justice.
The system of imparting justice using tenets of criminal law roughly spans over three phases: investigation conducted by the police, the trial conducted by Courts, and the execution of Court’s verdict by jail authorities.
The procedure of a criminal trial is contained in the Code of Criminal Procedure 1898 (CrPC). The process is set in motion by filing of a first information report (FIR) as per guidelines set out in Section 154 of CrPC.
This is followed by an investigation, after which an officer sends a report to the relevant magistrate and/or sessions judge (Final Report or chalan). Following the final report, the Court starts the proceedings of a trial, which includes the establishment of the charges and the role of the prosecution. After the conclusion of a trial, in reference to the Pakistan Penal Code 1860 (PPC), the Court will award the subsequent punishment if it applies.
It is crucial that the justice system of any state responds and caters to the needs and demands of the citizens and how they perceive justice, legal rights and morality. In order to understand the criminal justice system of Pakistan it is necessary to study and analyze agencies of the government which are charged with enforcement of law, the investigation of suspects, prosecution of those in judicial custody, or on court remand and the adjudication of criminals.
5 Categories of Courts & Jurisdiction
5.1 Judicial Structure of Pakistan
5.2 Supreme Court of Pakistan (Apex court)
5.3 Federal Shariat Court of Pakistan
5.4 High Courts of Pakistan (one in each province and also in federal capital)
5.5.1 Civil and Criminal Courts
5.6 District and Sessions Courts
5.7 Civil Judge/Judicial Magistrates Courts
Police
“The Police play a vital role. Society for its defense needs a well-led, well-trained and well-disciplined force of police whom it can trust: and enough of them to be able to prevent crime before it happens, or if it does happen, to detect it and bring the accused to justice.” – Lord Denning
Police are the most visible agent of the justice process and street peacekeepers. The police are the Executive organ of the State, and must work within the framework of the law – the Constitution and statutory laws as interpreted by the courts. What they do, that is, empowered to do, affects the life, liberty and property of the citizens and by Article 9 and 24 of the Constitution, no person “shall be deprived” of them “save in accordance with law.”
The 2002 Order repealed the Police Act 1861 which was a relic of the colonial era, consisting of strategies, powers and rules which were made according to the time. However, The Police Order 2002 provides the institutional setting in which the Police operates in only the province of Punjab and the Islamabad Capital Authority. Section 4 of the Police Order 2002 aptly describes the duties of Police officials.
In the Code of Criminal Procedure 1898 the two terms most commonly used to refer to the officials, include ‘officer in charge of a police station’ and ‘police officer’.
The objectives of the Police Order 2002 as stated in the preamble are:
- To ensure that the police performs its functions according to the constitution, law and democratic aspirations of the people.
- To ensure that in the performance of its function, it is professional, service-oriented and accountable to the people.
- To redefine the police role its duties and responsibilities and
- To reconstruct the police for efficient prevention and crime and maintenance of law and order.
Some agencies are merely watch and ward type while others are responsible to investigate a variety of levels of government local law. The basic duty of the executive police is the watch and ward, peacekeeping, deterring potential criminals and apprehending law violators. The police conduct surveillance and maintain order in public streets and highways, respond to calls for assistance, investigate crimes and identify criminal suspects. Their role has been expanded into human services, including handling juveniles, directing traffic, resolving family conflicts, preserving civil rights of the minorities, providing emergency care, and improving police-community relations.
Without the police, other components of the criminal justice system would be unable to execute their functions effectively. Under the criminal justice system the police perform the following functions amongst others:
- Prevention of crimes,
- Detection of criminal activity and identifying the culprits,
- Apprehending criminal offenders,
- Charging, investigation and completion of challans and submission in Distt. Attorney
- Protecting constitutional guarantees such as life, respect, liberty, honor, dignity and t
- Protection of persons, premises and property,
- Enforcement of all laws, ordinances and provisions of the administrative codes over which the Police department has jurisdiction,
- Recovery of lost and stolen property,
- Regulation of anti-social conduct and creating and maintaining a feeling or security in the community,
- Assisting those who cannot care for themselves or who are in danger of physical harm,
- Controlling traffic,
- Participating in court proceedings,
- Preparation of cases for presentation in Courts
- Protection and after-care of victims,
The police force in Pakistan is required to detect and investigate the crime, arrest the offender, collect evidence against him so as to prosecute him in the court of law. Police officials face a variety of difficulties in carrying out their duties and for this reason it is imperative that they are well-versed in their duties, safety measures that they must take and are familiar with locals and their traditions. The police officials are entrusted with a lot of power which requires impeccable knowledge, training and sound character.
Criminal investigation commences when the police come to know of the commission of a crime. The Cr.P.C. classifies crimes into two groups, cognizable offenses and non-cognizable offenses. Cognizable offences are generally heinous offences like murder, rape, kidnapping etc., whereas non-cognizable offences are not serious offences. In case of cognizable offenses the police have power to start investigation without the orders of the magistrate, while in non-cognizable offenses the investigation is started on the orders of the magistrate. It is also provided by the law that the police can arrest a person for the commission of a cognizable offense without a warrant issued by the court, but cannot do so in case of a non-cognizable crime. Information given to a police officer with regard to the commission of a cognizable crime should be in writing and in case it is given orally it should be reduced into writing and this report whether it is given orally or in writing it is called first information report. The First Information Report is a very important piece of evidence and its object is to start investigation of a case. Having regard to the importance of an FIR, police officers tend to be extra careful in preparing it. It is not their duty to seek conviction only but to see justice is done.
Prosecution
As defined in Black’s Law Dictionary, prosecution is a proceeding instituted and carried on by due process of law, before a competent tribunal or court, for the purpose of determining the guilt or innocence of a person charged with a crime. As the chief law enforcement official of the community he or she works in the courthouse but is part of the executive branch of government in the legal wing, and independence from the judiciary is vital for proper functioning of the system. The job of the prosecutor is to basically represent the executive branch of the government who prosecutes a citizen involved in the crime.
As per Section 492 of the Cr.P.C. a Public Prosecutor is any person appointed under and includes any person acting under the direction of Public Prosecutor. The prosecution represents the state, playing a pivotal role to find truth and whether or not the suspect has committed the crime he has been accused for. The officials working in the prosecution department are known as District Attorneys, Government Pleaders, or Public Defenders. The police registers the case and then investigates, prepares and presents the case to the District Prosecutor for prosecution. Prosecution presents the victims case to the court, questions witnesses and provides valid evidence to support prosecution. During investigation, the prosecutor may also have to act as a legal advisor to the police. He or she has the duty to ensure that no innocent man or woman is prosecuted, and that no man or woman is prosecuted on the basis of insufficient evidence. At the judicial phase, the prosecutor must represent the party in a manner that he is representing the society at large and therefore has the duty to uphold a high standard of fairness and impartiality.
It is the duty of the prosecution departments to serve as independent agencies at district and local levels. They are particularly charged with the duty to see that the criminal codes are faithfully executed by police who should impartially maintain rule of law. Prosecutor is a liaison between police and the court between the defense Counsel and the Court. Prosecutor is the backbone of the process of adjudication. The importance of cooperation between the police and the prosecutor is essential for optimum efficiency in the preparation and conduct of prosecutorial decision making.
The Attorney General is the Federal Chief Officer in the Pakistan Supreme Court. Advocates General are the Principal Chief Law Officers at High Court of each province. The Prosecutor General is chief provincial prosecutor. Advocate General, Prosecutor General, and the deputies are appointed by the Chief Minister from amongst the advocates of good standing as political favor. Assistant Attorney General, Assistant Advocates General, in turn is appointed by the consultation of the top political administrators subject to approval of the Federal or Provincial Chief Executives. NAB (National Accountability Bureau) has their own Prosecutor General and his duties. To sum up, the role of Public Prosecutor is that of a government lawyer who instigates the prosecution of the accused and represents the state at the trial-spans over the entire course of the criminal justice process.
Judiciary
The roots of the current judicial system stretch back to the medieval period and even before. The current judicial system is a product of a hundred years of evolution, as it has passed through many eras, the Hindu Period, Mughal Empire, the British colonial period and post-independence. These changes and development contributed to the formation of the current judicial system. There are quite evident influences and inspirations from foreign doctrines, norms/practices, concepts, in the form of courts structure, their hierarchy and the decision making processes. Courts have with time become more reliable and developed and the people have become more inclined to resort to them for the resolution of their conflicts, and this reflects a great deal of acceptance and legitimacy in the system.
Just as police is detailed to a geographical division, courts also have their own jurisdictional levels. The court of each jurisdiction is assigned to hear cases according to the nature of the offense and the amount involved in each category of charges. Courts at lower level may preside over the local cases in initial hearing or preliminary hearing to determine the charges and to set the amount of bail in bailable cases. Trials are held by the appropriate courts that have jurisdiction according to the nature of the offence and the territory where the crime was committed. There are courts that hear only civil cases, while others are authorized to hear both civil as well as criminal cases. Some courts have exclusive jurisdiction to preside over criminal cases. High courts and the appellate courts can hear cases on original jurisdiction as well as review cases on appeal, while Supreme and High Courts have dual jurisdiction (original as well as appellate), and can take suo-moto notice in certain matters.
Criminal court as subordinate judiciary in districts of Pakistan is considered to be the core element in the administration of justice. It is the judiciary that determines the criminal liability of criminal defendants and attaches sanctions. Court’s duty is to recognize that the rights of the individuals are protected at all times.
Jail/Prisons
Detention facilities are maintained at each judicial jurisdiction for felons to spend their time on public expense in state controlled imprisonment. Following the criminal trial the offender enters prison (correctional system). Prisons are charged with administering the post-arrest judicial lock-ups for the under-trials, post adjudicatory care, and custody and control of the offenders and treatment of the convicted criminals. The offenders depending upon the seriousness of the crime and individual needs of the offender get prison programs ranging from being casually monitored in community to solitary confinement to a maximum security prison. There are different types of institutions to hold different types of convicted offenders trials, children, women and political prisoners.
Categories of Courts & Jurisdiction
The composition, jurisdiction, powers and functions of the courts have all been addressed through elaborate provisions in the Constitution of Pakistan. The Constitution promotes the concept of the “separation of judiciary from executive” and the “independence of judiciary”. It also discusses the required qualifications of Judges, their mode of appointment, service, conditions, salary, pension etc. along with the grounds and procedure for the removal of judges of the superior courts. The Constitution ensures the freedom, independence and impartiality of the superior judiciary.
Anti Narcotics & Drugs
Reviewing the Legal Framework on Control of Narcotic Substances in Pakistan
In modern times, one of the challenges for law and order machinery of a state is policing drugs. In its harmful effects, it is as fatal as any climate induced calamity and has the potential of fuelling all other forms of crime that take place in the society. It is particularly pervasive in urban settings. Owing to its importance and the harms it caused to the West, one of the earliest international serious crimes that got imagination of international community in the last part of the twentieth century was drug control in all its manifestations from its consumption to its trafficking and from its production to its laundered crime proceeds. The initiative of the international community was reciprocated by Pakistan and its Ministry of Foreign Affairs shows the status of ratifications with respect to narcotics related treaties on its website[1]; the ratification of these treaties is evidence of Pakistan’s commitment to checking the menace of drugs in society and at international level. In line with its international commitments, it legislated on the subject in 1996 through a temporary legislation in form of an Ordinance[2] and then later on by introducing two legislations in the Parliament i.e. the Anti-Narcotics Force Act, 1997 (ANF) and the Control of Narcotics Substances Act, 1997 (CNSA). These two legislations provided the much needed substantive, procedural and administrative law on the subject. However, due to introduction of new types of drugs and owing to judicial review of the law related to CNSA, there was need to review the legal framework related to criminalization of drugs to cater to new forms of synthetic drugs and psychotropic substances. Catering to these new requirements, on 6th September, 2022, the Control of Narcotics Substances (Amendment) Act, 2022 was enacted, which must be noted by the law enforcement and civil society organizations. But before doing that, it may be noted that essentially the law enforcement part of drugs control is a policing function that is carried out by a federal specialized police organization styled as ANF. Accordingly, the ANF legislation conferred powers of police officers on ANF personnel and also created statutory linkages with police related legislation[3]. Nevertheless, due the perception that policing is a provincial subject and not a concurrent subject as envisioned by articles 142 and 143 of the Constitution of Pakistan, the provinces have initiated provincial legislation on the subject[4] (for example, introduction of KP CNSA, 2019) constraining the federal government to lay a constitutional challenge to the enactment (i.e. KP CNSA, 2019) before the Supreme Court of Pakistan[5]. In this backdrop and till the final determination by the apex court about the constitutionality of KP CNSA, the CNSA, 1997 holds the field as the chief enactment on drugs control in the country. Police in the provinces and the ANF (within its own mandate of checking the sale, purchase and trafficking of drugs) enforce the law by prosecuting criminals under the CNSA, 1997. The latest amendments to the CNSA, therefore, must be reviewed conceptually by exploring its salient features:
Internationalization of CNSA
There are very few legislations in Pakistan that directly refer to international treaties in the text of a statute. Theoretically, international obligations undertaken by the Government of Pakistan, must be written into the municipal legislation to give effect to the obligations undertaken. The latest amendments of the CNSA have added a new sub-section[6] in definitions part of the statute and have developed textual link between the international law and national law on drugs control. The statute now defines ‘International Conventions’ as the Single Convention on Narcotic Drugs, 1961, the Convention against Psychotropic Substances, 1971 and UN Convention on Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988. It also has an enabling clause that links future international treaties with the municipal laws; the future undertaking of international commitments through national legislation is interesting, jurisprudentially, as it is difficult to see how future international obligations can be committed through a national legislation. At any rate, the clarity is good in the sense that it has expressed legislative intent to criminalize narcotics but has also the effect of importing international legal regime (like precursor system of import and export of controlled substances at international level) into the legal framework of Pakistan.
Penal and Sentencing Policy
The new amendments offer new penal and sentencing policy on narcotics, psychotropic substances and controlled substances. The earlier quantity related regime was not sophisticated in the sense that it treated narcotics, psychotropic and controlled substances at par by linking punishment with quantity. This approach has been reviewed and the matrix of quantity and quality has been rationalized. The capital punishment has also been limited to only one instance i.e. when an accused is found to have possession of heroin of more than 6000 grams or more[7]. A good addition is that the new amendment obliges courts to impose maximum punishment in cases where the narcotics is sold in or near educational institutions[8]. In similar fashion, the recidivism or repetition of offences has also been checked by taking away discretion of judges in sentencing and by binding them to impose maximum punishments for repeat offenders. With more nuanced penal and sentencing regime, it is hoped that judges will be imposing punishments in a more systemic manner and this is surely going to strengthen the enforcement efforts to control supply and usage of drugs in the society.
Strengthening the Substantive Law Regime
Third area that must be noted is that new types of narcotics and psychotropic substances have been added to the schedule and made part of the legal framework. Earlier, there were instances when the defence lawyers attacked the prosecution cases on the basis of the type of drugs by stating that the particular drug was not covered in the law. With inclusion of new types of drugs like ‘ice’, the new amendments also provide enabling and delegating powers to the executive/federal government to amend the schedules listing drugs to suitably amend details through delegated legislation.
Money Laundering
The Anti-Money Laundering Act, 2010 declares the offences under CNSA Act, 1997 as predicate offences[9]. This statutory linkage of the two enactments when read with the United Nations Convention against Transnational Organized Crime (UNCTOC) creates intersections between laws related to money laundering, corruption, obstruction to justice, international cooperation and international architecture monitoring international sanctions’ regime. Whole gambit of these legal superstructures have consequences for diplomatic and political diplomacy affecting the international relations, and in this stead, Pakistan has served itself well by updating its legal framework. Crime proceeds of drugs are used for trafficking in persons as well as in smuggling of migrants and this is evident from the typologies of these offences that show how heinous forms of crimes are carried out by organized criminal gangs having partnerships with drug supplying syndicates.
Legal Framework on Drugs
Pakistan is considered a country with a high rate of legislation; most of these legislations were conceptual and administrative in nature leaving much to be desired insofar as their impact on service delivery, protection of human rights and crime control. The latest amendments to the CNSA have, no doubt, added value to the existing legislative framework by strengthening the punitive side of the law. The systems’ approach vis-à-vis rehabilitation, reformation, drugs in prisons and educational institutions requires to be strengthened through budgetary allocations to match the legislative intent. The demand side of drugs is usually checked by law enforcement in Pakistan instead of clamping down on the networks of the supply side. Most of the supply side is pegged into international legal framework that strengthens administrative and prosecutorial regimes to check proceeds of crime i.e. drugs. At the international level, Pakistan must leverage its position to strike partnerships with other countries and international forums to introduce robust international cooperation and mutual legal aid arrangements. At domestic level, the coordination between the federal and provincial police organizations to enforce CNSA needs to be improved drastically to ensure that these organizations do not work at cross purpose and move in one direction by synchronizing their efforts.
References
[1] Pakistan signed the Single Convention on Narcotic Drugs, 1961 in 1971 and ratified it in 1999. Likewise, it ratified the UN Convention on Psychotropic Substances, 1971 in 1977 and signed the UN Convention against Illegal Trafficking of Narcotics and Psychotropic Substances, 1988 in 1989 and ratified it in 1991. Available at: https://mofa.gov.pk/mous-agreements/
[2] Control of Narcotics Substances Ordinance, 1996.
[3] See Sections 4, 6 and 12 of the Anti-Narcotics Force Act, 1997.
[4] Khyber Pakhtunkhawa Control of Narcotics Substances Act, 2019.
[5] https://tribune.com.pk/story/2154920/k-p-narcotics-law-amendment-ordinance-challenged
[6] Section 3 of the Control of Narcotic Substances (Amendment) Act, 2022 adds a new subsection 2 (ob) to the Control of Narcotic Substances Act, 1997.
[7] Section 9 the Control of Narcotic Substances (Amendment) Act, 2022.
[8] First Proviso to Section 9 of the Control of Narcotic Substances (Amendment) Act, 2022.
[9] Section 2(xxvi) read with Second Schedule to the Anti-Money Laundering Act, 2010.
