CRIMINAL LAW & LAWYERS IN PAKISTAN
Criminal Law is an extreme field of practice coverning all those aspects that entail crime as its factor. Every act or omission that violates a command, derives its force from legislature or from authority - either political or religious - that has absolute sway over the matters of state is considered to be a crime. This is the reason that state stands as a prosecutor against the alleged culprit. The main intention of criminal law is to maintain the sway of state in all matters involving acts or omissions: no act or omission that challenges the sway of the state can be allowed by the criminal law of the state.
Pakistan has a very detailed criminal law that is though outdated to some extent but it tends to cover all aspects that do constitute a crime. To understand the criminal law in Pakistan one needs to understand the socio cultural phenomena of this country also. Most of the criminal law that has been prevailing in Pakistan was introduced by the British Empire when India was a colony and Pakistan was part of it. Even then a care was taken to understand the social conditions and criminal law was tried to be conditioned according to the cultural circumstances of the colony. This is the reason that it was willfully accepted by India and Pakistan both after their freedom from British Empire. Code of Criminal Procedure (V of 1898) that was implemented in colony is still largely the prescribed criminal procedure followed by the courts in Pakistan. Similarly the Penal Code (XLV of 1860) that was introduced in colony is still largely followed in shape of Pakistan Penal Code.
Criminal courts acts within their prescribed jurisdiction under the law. The territorial jurisdiction of an ordinary criminal court can be tabulated as follows:
Supreme Court being the most apex court of Pakistan has the supreme administrative authority over functionality of all the criminal courts of Pakistan.
When any person is apprehended for committing any crime, after investigation – that is to be completed within 14 days u/Sec. 173 of Criminal Procedure Code (Cr PC) – he / she is subjected to rigorous trial in the prescribed criminal court that has jurisdiction in the said matter. Court before commencement of trial is duty bound to allow an alleged offender to appoint defence counsel of his / her choice under Article 10 of Constitution of Pakistan. Then Court pronounces a Charge against an alleged offender that describes the nature of offence and the nature of act or omission that constitutes a specific crime. Thereafter, prosecution is given an opportunity to present evidence that it has against the alleged offender. The defence counsel of alleged offender is given full opportunity to cross examine and object to the prosecution evidence, within the prescribed limits of law. Though prosecution being the duty of the state is to be conducted by the state appointed counsels but any person who being aggrieved by the offence can appoint his / her own prosecution counsel, in addition to the state counsels already duty bound to prosecute. After the prosecution concludes its evidence the presiding Judge put certain questions u/Sec. 342 Cr PC to the alleged offender. These questions are very crucial as presiding Judge gives an opportunity to alleged offender to explain incriminating evidence against him / her. Alleged offender is also given an opportunity to appear as his own witness. Moreover he / she is also given an opportunity to present documentary evidence and witnesses in his / her defence. After the conclusion of defence evidence the trial is concluded and the Presiding Judge pronounces judgment. Judgment could be of acquittal or punishment. In both cases prosecution and alleged offender has right to appeal against the judgment of the trial court. The appeal is made to the immediate superior court of the trial court.
Punishment is universally accepted mode of retribution and deterrence. Punishment varies with the nature of crime. Different punishment can be given for the same crime. But retrospective punishment and double punishment in any case is specifically prohibited by the Constitution of Pakistan. Article 12 states: “No law shall authorise the punishment of a person for an act or omission that was not punishable at the time of the act or omission”, similarly Article 13 states: “No person shall be punished for the same offence more than once”. Article 13(b) also states: “No person shall, when accused of an offence, be compelled to be witness against himself”.
Constitution of Pakistan specifically demarcates the contours of Criminal Law of Pakistan by stating unequivocally in Article 9: “No person shall be deprived of life or liberty save in accordance with law”. And the Law shall never be against the universally accepted Fundamental Rights, this is specifically and explicitly enshrined in Article 8 of the Constitution of Pakistan.
The fundamentals of criminal law are based on the principle of justice, equity and good conscience. They provide adequate guidelines for the formulation a rational penal policy. In order to be influential the criminal law must have four important elements, that is, politicality, specificity, uniformity and penal sanction. The functioning of the criminal justice system is wide enough to achieve its goals and objectives. Its ultimate goal is undoubtedly to make the society safer for its citizens. Most widely accepted aims of the criminal law include:
- The enforcement of criminal law should reflect the society’s disapprobation for criminal activity through apprehending, convicting and punishing the offenders.
- Deterring criminals from indulging in criminal activities and at the same advising the other people as to how to avoid falling a victim to a crime.
- Criminal law should be beneficially used to rehabilitate the offenders and incapacitating those who might otherwise prove to be a potential danger to the society.
- Ensuring safety and security of people through maintenance of law and order.
- Helping the victims to get adequate compensation from the offender wherever possible.
- Efficient and fair application of law ensuring proper treatment of suspects, defendants, those who are held in custody and witnesses. Also ensuring that the innocents are acquitted without harassment and guilty is duly punished.
- Ensuring that criminal justice system is accountable to the society.
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