Poor prosecution plays havoc with judicial system

In August 2011, the SC had ruled it was actually poor prosecution that ‘lets terrorists
off the hook’; conviction rate in Pakistan less than 10pc, in India 45.1pc, in Bangladesh more than 38pc; in Malaysia more than 80pc, while Indonesia boasts of 100pc conviction; in US this rate is 93pc and is around 86pc in UK; conviction rate in
Punjab in 2014 was 26.78pc while it was 28.76pc in Sindh; magnitude of political appointees in police stunned Nawaz during a visit to Karachi

LAHORE: There is no doubt that successful prosecution is an important step in prevention and control of crime and acquittal in court leads to waste of effort, but one hardly finds a country--developed or under developed---where military or para-military forces have been allowed to set up their own police station with all discretionary powers, research conducted by the “Jang Group and Geo Television Network” shows. The Pakistan Rangers have now moved the Supreme Court of Pakistan to allow them to run their own lock-ups, grant annual extensions and timely posting of prosecutors.

Geo News reported on Thursday that Justice Azmat Saeed of the Supreme Court has remarked that the Rangers had fulfilled their responsibility and the matter was now between the government the province. The honourable judge has ordered the federal and provincial government to sit down with the Apex committee and resolve the matter. Global experts on the subject say that one of the most significant performance indicators of any criminal justice system was the rate of conviction.

Having said that, Karachi certainly needs a very effective police force and honest-cum-efficient prosecutors who could help courts bring criminals to justice. The Pakistani port city is today gripped by mafias, criminals, extortionists, kidnappers and murderers---many of whom are even patronised by mainstream political parties, whose slates are not seemingly clean at all. And it is due to these dishonest police personnel and coward-cum-inefficient prosecutors, that the conviction rate of those arrested in Karachi and whole of Pakistan is very low.

Corruption in bureaucracy and the justice system has also allowed many criminals to go scot-free. It was primarily owing to the tainted police reputation and the performance record of the state prosecutors that the Supreme Court of Pakistan bench headed by Chief Justice Anwar Zaheer Jamali had yet again rejected a report submitted by the Sindh Police chief Ghulam Haider Jamali a couple of days ago, observing that it was just a piece of paper studded with statistics.

The rejected report had “revealed” that at least 159 targeted killings had been reported in Karachi during 2015, out of which 83 cases had been lodged with different police stations. The report had noted that while 39 accused of killings were arrested, 15 were killed in encounters and 63 were still absconding. The Supreme Court observation had come in the wake of the Rangers’ request for the grant of policing powers through which the paramilitary force could register FIRs,  prosecute heinous suspects involved in terrorist activities, submit challans to the courts and establish their own police stations. The Rangers’ lawyer had submitted that the paramilitary force had arrested dangerous criminals, but more than 1,100 accused were later released due to defective investigation of the police.

 He had submitted that the Rangers be allowed to set up their own police station with all necessary powers which were available to the police stations.

Well, as research shows, this was not the first time the Apex Court had expressed its displeasure over police performance and poor prosecution.

In August 2011, the Supreme Court had ruled it was actually poor prosecution that “lets terrorists off the hook.”

As far as poor conviction rates in the country are concerned, former Inspector General Police Sindh, Dr Shoaib Suddle, had told a Senate Committee on August 20, 2015 that Pakistan only had a conviction rate of only 10 percent and that too, through bribe and influence.

Former judge of Supreme Court of Pakistan Justice (R) Nasir Zahid had also stated once that the conviction in the country was less than 10 per cent.

However, the Pakistan Institute of Legislative Development and Transparency (Pildat) had cited much higher conviction figures for Punjab and Sindh at least in its October 2015 report.

The Pildat had noted: “The budget of the Punjab Prosecution Service for the year 2014-15 was Rs. 1,215,078,000, of which Rs.1,149,766,000 was spent on the salaries [including various allowances] of the members of the Prosecution Service. Divided over the 712,888 cases dealt in 2014 by the Prosecution Service of Punjab, the average amount spent per case was Rs.1, 704. In Punjab, the total number of cases disposed off in 2014 was 247,827. The total number of convictions in 2014 was 66,378, which is a “success” rate of 26.78 per cent. In 2014, 30,642 cases were disposed of due to backing off of the witnesses). In addition, in 22,416 cases, the accused were acquitted due to a compromise. Therefore, it can be seen that 53,058 cases were uncontested in which the role of the Prosecutor in these acquittals is limited.”

This Pildat report was authored by Ayesha Hamid, Advocate Lahore High Court.

The report author had gone on the write: “In 30,642 cases handled by the Punjab Prosecution Service in 2014, many of the witnesses had backed off. In 2012, 290 cases in Punjab ATCs resulted in acquittals due to backed-off witnesses [total number of cases pending in 2012 were 1,065. In 2013, 181 cases in Punjab ATCs had resulted in acquittals due to backed-off witnesses. The total number of cases pending in 2013 was 1,052.”

The October 2015 Pildat report had more to say: “In 2014, 91,261 cases were consigned by the Courts on account of the fact that the accused had absconded. Therefore in 2014, as many as 121,937 cases were disposed of by the Courts on account of lack of evidence and/or on account of the accused having absconded. The total number of criminal cases disposed off in the 27 District Courts of Sindh between January 20157 and July 2015 was 15,981. The number of convictions was 4,596. The number of acquittals was 11,385. The per cent age of convictions was 28.76 and the per cent age of acquittals was 71.24. The number of cases still pending rests at 71,276.”

Pendency of court cases and insufficient number of court judges are huge issues too.

On December 10, 2015, a Full Court meeting held in the Supreme Court of Pakistan, under the Chairmanship of Chief Justice Anwar Zaheer Jamali, had deliberated on the issue of institution and disposal of cases in Supreme Court.

The Full Court had noted that during the period from October 4, 2015 to December 5, 2015, the Court had decided 3,147 cases against the institution of 2,603 cases, leaving total pendency of 26,599 cases.

In January 2015, Justice Asif Saeed Khosa of the Supreme Court of Pakistan had deplored that 2,400 judges had the daunting task of clearing a backlog of 1.7 million cases in different courts.

In October 2015, Chief Justice of Pakistan Justice Anwar Zaheer Jamali, while talking to an 87 member delegation of PN Staff Course, Pakistan Navy War College, Lahore, had revealed that there were 60 judges working in Lahore High Court, 40 in Sindh High Court, 11 in Balochistan High Court and 20 in Peshawar High Court and 7 in Islamabad High Court.

Other main causes of poor prosecution in Pakistan and hence the dismal conviction rates are: Absence of professional autonomy, poor training, lack of access to basic data, inadequate tools to investigate in the Police Department, delay in registration of FIRs due to the reluctance of police, totally ineffective witness protection mechanism, lack of initiative on the part of state prosecutors due to insufficient financial rewards, political appointments of blue-eyed police personnel and prosecutors, un-ending reliance on old conventional tactics and barbaric sources to investigate the crime and criminal reluctance in using scientific sources for probe etc.

As far as the menace of political appointments in police is concerned, it has engulfed the whole country since its birth.

In September 2013, the magnitude of political appointees in police had stunned Premier Nawaz Sharif during a visit to Karachi.

Coming back to Nawaz Sharif September 2013 visit to Karachi, the issue of thousands of political appointments made in Sindh police since 2002 had prominently figured at the meeting Pakistani Prime Minister had chaired to decide the launch of a targeted operation led by Rangers against criminals in the metropolis.

Remember, in September 2011, the then Sindh Advocate General had told the Supreme Court that 40 per cent of the police force had political affiliations.

Earlier in January 2011, reports had surfaced that merit had been set aside in the recruitment process of the police department, with the two major coalition partners (PPP and MQM) in the Sindh government having worked out a formula to fill the seats of constables with people said to be close to them.

According to the agreed formula, the PPP and the MQM had enjoyed the liberty of inducting 777 and 676 people respectively from amongst their loyalists into the police force.

Research shows that in November 2012, the Supreme Court had announced its judgment in politicisation of bureaucracy case filed by Anita Turab (a mid-career bureaucrat) and had directed the government not to politicise the civil service.

Meanwhile, in January 2016, participants of a Pildat consultative session had viewed that in Pakistan, the crisis of lack of access to justice had worsened to a point where the justice system had failed to reach the doorsteps of people who were languishing below the poverty line.

The report had observed that accused persons were often acquitted in Pakistan due to weak investigation and lack of evidence.

The participants had opined that the mechanisms of Alternate Dispute Resolution should be encouraged to reduce the excessive burden of litigation on country's criminal justice system, besides demanding amendments in laws for improving the prosecution service, Punjab Forensic Science Agency’s access to Nadra database and improvement in the code of conduct for prosecutors.

These Pildat session participants had asserted: “The existing annual budget allocation for Punjab Police is US $0.79 billion for a population of approximately 101 million which is about 6 per cent of the province's total budget. Out of this, 80.13 per cent goes to pays and allowances, 7.57 per cent to fuel charges, 2.08 per cent to trainings, and 10.22 per cent to miscellaneous expenses. The situation is quite similar in other provinces. The strength of police should be increased by 10 per cent annually. The police to population ratio in London was 1:155; it was 1:291 for New Delhi, 1:337 for Lahore, 1:850 for Karachi and 1:625 for Islamabad.”

It is also a common fallacy that the Pakistani police are unaware of modern probing techniques like forensics etc, and that only the developed West has been enjoying a monopoly over the application of science to criminal and civil laws.

In his book “The criminal investigation in Pakistan: Trends and reality,” eminent lawyer Imdad Hussain Sahito has traced the policing roots in sub-continent.

He writes: “The name Criminal Investigation Department was first used for the detective branch of the Metropolitan Police London in 1878, when it was reorganised for proper recording and dissemination of information. In Punjab the department was setup in 1905, with Sir Edward Lee French as its first Deputy Inspector General. In Sindh, the criminal investigation department came in to being as a small branch under an Assistant Superintendent of Police in 1911.”

His research reveals: “The credit for finger prints for identification of persons, however, goes to the provincial government of Bengal. For the first time in the world, they utilised finger prints in 1858, for authenticating contract deeds and obviating chances of cheating.”

Lawyer Imdad Hussain Sahito had added that in Punjab, finger prints system was introduced in 1896. By 1903, several finger print bureaus had sprung up in British India and the first forensic laboratory was established in Lahore in a photographic section of the criminal investigation department in 1930.

In India, although the conviction rate has surged to 45.1 per cent in 2014 from 40.2 per cent the previous year, criticism of police, its ineffectiveness, influence of politicians on law enforcers, corruption within the system, lack of interest on part of state prosecution teams and massive pendency of court cases etc have been cited as the key reasons for the drastic fall in administration of criminal justice.

Despite an increase in the number of cognizable crimes in India during 2014, the rate of conviction rose as well. Charge-sheeting rates were high for rape (95.6 per cent) and low for theft (35.6 per cent).

There were over 0.94 million cases under the Indian Penal Code pending investigation at the end of 2013 (over a third from Assam, Maharashtra and Tamil Nadu alone), to which 2.8 million cases registered during 2014 were added.

While theft accounted for the largest number of pending cases, rash driving added the most new cases in 2014. In over one lakh cases, the final police report found the complaints false; these included over 2,500 rape cases and nearly 10,000 abduction cases.

In India, according to the National Judicial Data Grid, there were 19.4 million pending cases out of about 27 million cases in district courts, except those in Madhya Pradesh and Delhi, where case data was being migrated to national version of case information software.

(Reference: The August 20, 2015 edition of “The Hindu”)  

In the past four decades, the rate of conviction in crimes committed under Indian Penal Code (IPC) has dropped miserably. From 62.7 per cent in 1972, conviction rate in IPC crimes has dropped to 45.1 per cent in 2014.

(Reference: The Indian National Crime Records Bureau)  

A March 1, 2014 report of the “India Today” states: “Successive ruling parties have regarded the police as their strong arm rather than as an independent force governed by the law and the Constitution. Political interference by party functionaries and legislators has contributed to creating, sub-consciously at least, a nexus between political power and police power rather than impartial law-enforcement machinery. In other words, the police have come to be regarded - and to regard themselves - as a limb of the executive branch, which is subordinate to the party in office, and not as part of the judicial process which is essentially what it is and should be. The force has not expanded with the tasks entrusted to it with the result that beats and patrolling are seldom possible, especially in the larger cities, while few men or talents are available for investigation and detection. Political pressures and poor pay and conditions of work result in deviations, corruption, cynicism and indifference.”

In its December 16, 2012 edition, the “Indian Express” had noted: “The Indian Supreme Court has issued a slew of guidelines to the Central and state governments. These include constitution of national and state security commissions to prevent undue and unwarranted pressure on police forces by the political executive, greater transparency in selection of state police chief and senior officers and their fixed minimum tenure, separation of law and order and investigation functions within the police forces and creation of police establishment boards in the states to decide all transfers, postings and promotions of police officers below the rank of deputy superintendent. All the state governments must implement the apex court’s directives without delay.”

In its June 27, 2014 edition, “The Hindu” had reported: “The Kerala High Court has expressed concern over the politicisation of the police force.”

In Indonesia, the largest Muslim country in terms of population, the police force is corrupt, brutal, and inept in the eyes of the public.

Even seeking a police officer’s job costs millions in Indonesia. According to the Indonesian Police Watch head, interested applicants have had to pay up to Rupiah 90 million for the job.

The May 10, 2010 edition of the “Sydney Morning Herald” had reported: “The going rate to join the Jakarta police force, for example, can amount to 80-90 million Rupiah ($9750 to $11,000), according to the head of Indonesia Police Watch, a non-government group that monitors corruption.”

In June 2010, a popular Indonesian news magazine “Tempo” had published a report on “fat bank accounts” held by senior police officers containing billions of Rupiah.

When the magazine went on sale in the evening, groups of men had gone to the newsstands with piles of cash to try to buy all the copies before they could be sold.

Amnesty International has also accused the Indonesian police of widespread torture and other abuses of arrested individuals.

Amnesty had viewed: “Police in Indonesia shoot, beat and even kill people without fear of prosecution, leaving their victims with little hope of justice.”

Research shows that despite all the police misdeeds, the conviction rate in Indonesia had rested at around 51 per cent between 2005 and 2009.

But the conviction ratio had gradually improved by 2013.

In its January 13, 2015 edition, the “Bloomberg” had stated: “Indonesia’s anti-corruption agency named the police officer chosen by President Joko Widodo to be the next head of the force as a suspect in a graft investigation. Naming someone a suspect is a formal step in Indonesia’s legal system that means investigators have assembled enough preliminary evidence to consider filing charges against them. In the decade after the anti-graft agency was formed in 2003, it boasted a 100 percent conviction rate and prosecuted 72 members of parliament, six central bankers and dozens of CEOs.”

Sri Lanka, according to the Asian Human Rights Commission, is among the countries where the presumption of innocence has received constitutional recognition in addition to its being recognised as a legal principle in criminal law

This is what the Hong Kong-based Asian Human Rights Commission had reported a few years back: “It is said that several years ago the conviction rate of criminal cases in Sri Lanka stood at around 40 per cent, whereas today it has fallen to below 10 per cent. Yet police assaults are on the increase. If torturing were an effective way to tackle crime, then obviously the crime rate would come down and the conviction rate would go up under the current circumstances. But this has not happened.”

The conviction rate in Malaysia is also fairly satisfactory, despite all the complaints and criticism against the police.

In one of its April 2015 reports, the “Daily Mail” had reported: “The Malaysian Anti-Corruption Commission’s conviction rate has increased to more than 80 per cent from 60 per cent previously, the anti-graft agency’s head has said.”

As far as accusations against the police are concerned, a February 7, 2016 report of the “Reuters” had shed light on how the Malaysian police were targeting the Twitter critics of the scandal-hit Prime Minister Najib Razak.

The “Reuters” had reported: “Digitally savvy Malaysian police have been taking to social media to issue warnings to critics of scandal-hit Prime Minister Najib Razak in an unusual online campaign that critics say is unlikely to work. Najib is facing the biggest political crisis in his seven-year premiership over a multi-billion dollar scandal and over deposits of $681 million in his private bank account.”

In its October 28, 2015 report, the Sydney Morning Herald had viewed: “Malaysia's government has embarked on a “binge” of prosecutions against its critics, using criminal laws to crush peaceful expression, according to Human Rights Watch. In a new 145-page report, Human Rights Watch documents the arrests of scores of people with critical views, including opposition politicians, activists, journalists and ordinary citizens, as well as the suspension of two critical newspapers, the blocking of websites and the declaration that peaceful protests were unlawful.”

The conviction rate in Bangladesh was more than 38 per cent in 2013.

(Reference: The January 3, 2014 edition of “The Telegraph India”)

In one of its reports about the character of the Bangladeshi police, the Human Rights Watch had opined: “Torture has long been a familiar and widespread problem in Bangladesh. It is a routine feature of criminal investigations, used by the police to obtain confessions. And it is used for politically motivated purposes against alleged national security suspects, government critics, and perceived political opponents to obtain information, to intimidate, or to convey more broadly a message of fear. Of particular concern is the use of torture by Bangladesh’s military intelligence agency, the Directorate General of Forces Intelligence (DGFI).”

The Human Rights Watch had held: “The DGFI was established in 1978 under the dictatorship of General Ziaur Rahman and modeled after Pakistan’s Inter-Services Intelligence (ISI) agency.”

Bangladesh Police has long been criticised for having political influence in all levels, and the major decisions are taken under political conditions. The law enforcers have also been accused of being involved in crime including rape and murder.

Corruption is widespread among the law enforcement, with custody deaths and torture being prevalent.

Even journalists have been detained and sent to prison for publishing criticism of the ruling Awami League government.

Bangladeshi opposition parties accused the police of being used to suppress the political foes of the ruling regime.

(References: The New Statesman, Committee to Protect Journalists, the Dhaka Tribune and the Daily Star)

In its June 01, 2015 edition, a Bangladeshi newspaper “Daily Star” had stated: “Filing of false cases, lack of evidence, out of court settlements and weak police investigation are some of the main reasons for low conviction rate under the Women and Children Repression Prevention Act 2000, according to a research. The study shows that from 2009 to 2014, the overall conviction rate of the Women and Children Repression Prevention Tribunals of Dhaka, Comilla and Pabna was only 0.86 percent. This means, no one was convicted in 99.14 percent cases. During the same period, 37,915 cases were filed in the three districts under the law, 22,073 (58.22 percent) cases were disposed of, 21,492 cases saw acquittal, dismissal or out of court settlements and 186 cases saw conviction.”

A study conducted by the “Jang Group and Geo Television Network” shows that all over the world, especially in technically developed countries, criminologists and detectives keep adopting innovative methods to beat the crime through latest criminal investigation techniques. But in the country like Pakistan the sources of criminal investigation are mostly the same as were in the past.

In developed nations, a prosecutor is looked upon as the strict eye of the state.

In the United States, the Federal police had employed approximately 120,000 full-time law enforcement officers, who were authorised to make arrests and carry firearms in the country.

The 2012 Bureau of Justice Statistics' Census of State and Local Law Enforcement Agencies had found there were 17,985 state and local law enforcement agencies employing at least one full-time officer or the equivalent in part-time officers.

(Reference: US Department of Justice)

In 2010, the FBI had estimated that law enforcement agencies had made 13,120,947 arrests (excluding traffic violations). Of those persons arrested, 74.5 per cent were male and 69.4 percent of all persons arrested were white, 28 per cent arrested American citizens were black, and the remaining 2.6 percent were of other races.

(Reference: FBI Uniform Crime Reports)

In the American federal court system, the conviction rose from approximately 75 percent to approximately 85 per cent between 1972 and 1992. For 2012, the US Department of Justice had reported a 93 per cent conviction rate. The conviction rate is also high in the US state courts.

In France, prosecution is a public function conducted by officers of nation service, a branch of the civil services.

While the defence and plaintiff are both represented by common lawyers, sitting on the ground in the courtroom, the French prosecutor sits on a platform as the court does, although he doesn't participate in deliberation. Judges and prosecutors are trained in the same school, and regard each other as colleagues.

The German and Italian prosecutors are bound by the “legality principle,” which means that they are obliged to initiate action whenever they can in a case in court.

In Germany, the prosecutor is a life-tenured public official in the senior judicial service belonging to the same corps as judges.

He heads pre-trial criminal investigations, decides whether to press a charge or drop it, and represents the government in criminal courts. He not only has the professional responsibility not to withhold exculpatory information, but is also required by law to actively determine such circumstances and to make them available to the defendant or his/hers defence attorney.

In Italy, prosecutors are judicial officers just like judges and are obligated under the Constitution to initiate preliminary probe once they are informed or take personal notice of a criminal act.

In Britain, the prosecutor should prosecute cases unless there is more than 50 per cent chance of conviction.

(Reference: Renowned Indian lawyer and a prosecutor in Rajasthan, Jasraj Jasawat's book “Role of public prosecutor in criminal administration of justice”)

In United Kingdom, the Crown Prosecution Service had undertaken more than 800,000 prosecutions in 2012–13, approximately 700,000 of which were in the magistrates’ courts and 100,000 in the Crown Court. The conviction rate was 86 per cent in the magistrates' courts and 80 percent in the Crown Courts.

(Reference: UK Crown Prosecution Service)

The convictions for violence against women had increased to 78,773 in 2014, up 16.9 per cent in 2013, data released by the Crown Prosecution Service shows.

But those figures also showed the conviction rate for rape fell to 56.9 per cent.

About 107,100 cases concerning violence against women and girls were prosecuted over the 12 months, a rise of 18.3 per cent on the previous year.

There were increases in the number of successful prosecutions for sexual offences, child sex abuse, domestic violence cases and honour-based violence, while more people were charged with rape than ever before in 2014.

(Reference: The June 25, 2015 edition of The Guardian)

In Japan, public prosecutors have considerable powers of investigation, prosecution and superintendence of criminal execution. They can direct police for investigation purposes, and sometimes investigate directly. The criminal justice system of Japan has a conviction rate that exceeds 99 per cent, including guilty plea cases.