Criminal Law

When we talk about the right of the accused in a criminal trial, two fundamental and inalienable rights which come to mind are the right to receive proper representation and the right to testify. The corresponding legal provisions covering these rights include the folllowing: Articles 10 and 13 of the Constitution of Pakistan 1973; Articles 15, 16 and 37 of the Qanun-e-Shahadat Order 1984; and Sections 338 to 343 of the Code of Criminal Procedure 1898. A proper understanding and appreciation of such rights is impossible without tracing the history and development of these rights. The history and development of our law is entwined with the history of common law and the history of common law tell us that, for three centuries i.e. between the sixteenth and nineteenth century, the accused was neither allowed to testify nor permitted to engage a lawyer to represent him or her, even if he or she desired to do so. A statute was passed in 1695 to permit the accused to be represented by a lawyer only if he or she had been charged with treason.[1] The accused received the same right for other charges in 1836.[2] However, in the same period, the accused was not allowed to call any other person as a witness on his or her behalf. This only got approved at the end of the seventeenth century when a statute put a compulsory process in place regarding sworn witnesses for the defense.[3] Although the accused was allowed as a witness, the rules of ‘interested witness’ were applied. It was believed that the fear of being…

The competent prosecution of criminal offences is a fundamental term of our social contract. The state investigates, arms the prosecutor, determines and provides the venue for litigation and hands down the sentence to the guilty. In return, citizens are entitled to expect that criminal prosecutions are properly financed and capably litigated. However, the reality bears no correlation to the fundamental terms of our social contract. Pakistan’s legal system is a derivative of the English legal system. However, unlike the latter, the legal system in Pakistan is confronted with an array of problems. A look into our legal framework reflects that the prosecution department is not delivering its full potential. Is it because of the deprivation of funds or shortage of staff? We shall examine the factors that contribute to this underperformance through the course of this article. Until a few years ago, all prosecutions in the High Courts were conducted by the Advocate General’s office. It eventually separated itself from criminal prosecutions when the Punjab Criminal Prosecution department was launched. Administering justice with a designated department to cater to criminal prosecutions was a plausible move indeed. However, the department has been struggling to uphold its true purpose and has not been able to come out of the woods yet. Before homing in to the glitches within the prosecution department, it is important to bear in mind that it is a government establishment. The deprivation of funds have had some serious implications over the performance of public prosecutors trying to establish the guilt…

This article aims to highlight the scope of pre-trial arrest and detention in Islamic criminal law and procedure. The nature and history of Islamic criminal law is an exceptionally intricate subject and requires analysis at a much broader scale. More so, specific sources on the issue of pre-trial detention are scant and reflect the lack of a uniform body of rules and procedures under Islamic criminal law. It is, therefore, pointed out at the outset that while this article has been written with extreme care and thought based on different sources available, it is merely a humble effort to better the understanding of the place and significance of pre-trial detention in Islamic criminal law and procedure with the consequential deduction that pre-trial detention in Islamic criminal law and procedure is justifiable according to the Islamic injunctions in today’s criminal justice system. Introduction The requirement of religious legitimacy for any law in Pakistan is well spelt out in Article 227 of the Constitution of Pakistan, 1973. Therefore, we need not have any other academic reason, of which there are many, to justify making laws for Pakistan that are ‘Islamic’. Why is it significant then to explore religious legitimacy for pre-trial arrest and detention powers conferred upon state officials when there are, arguably, checks and balances in place in the relevant laws, laid out and emphasized through sound and well-reasoned case law? The answer perhaps is that “the Islamic pedigree of any law or legal construct is a crucial source and measure of its legitimacy in Muslim…

Liberty is the lifeline of every human being. Life without liberty is ‘lasting’ but not ‘living’. Freedom of all kinds is considered as one of the most precious and cherished possessions of a human. Therefore, any attempt to deprive a human being of his or her liberties is faced with resistance. Advocates for human rights argue that imprisonment, even if for a limited or indeterminate period, takes away the freedom of an individual. This approach is rebutted with an equally important argument that incarceration, for life or otherwise, potentially serves more sentencing aims than just deterrence, including incapacitation, rehabilitation and retribution. All these ends are capable of being furthered in different degrees, by calibrating one punishment in light of the overarching penal policies. In order to serve justice, where on one end of the spectrum is the liberty argument and on the other hand is deterrence which is important to prevent crime and maintain social peace, courts are faced with multiple issues while deciding and interpreting the sentence of life imprisonment. The honourable Supreme Court of Pakistan in Haroon Rashid alias Shahid vs. The State (Miscellaneous Application no. 843 of 2019 in Criminal Appeal no. 293 of 2001) raised questions of immense public importance. One of them was whether a sentence of life imprisonment passed against the accused meant imprisonment for the remaining biological life of a convict or any period shorter than that. The jurisprudence developed in this area of law raises many questions which remain unanswered and a lot still…

For over half a century, much of modern international law has been based on this cardinal rule: states must not acquire territory through the use of force. With the crisis in Kashmir following on the heels of annexations in Europe and the Middle East, we should examine: are we doing enough to deter populist strongmen from acquiring what territory they want? Although the rule against annexation and conquest of territory is clear, states seeking to vindicate their rights against invasions and annexations contend with inadequate settlement mechanisms. Mired in questions of jurisdiction and admissibility, states may find it hard to adequately hold annexing states to account. Take for instance Russia’s annexation of Crimea. In 2014, Russia enacted a law purporting to incorporate Crimea, an area in Ukraine, into the Russian Federation. Russia’s annexation of Crimea came after a local Crimean referendum indicated a preference for Russia over Ukraine. International observers and rights bodies questioned the results of that referendum. The Council of Europe called the referendum illegal, noting that it was held in the presence of “soldiers under conditions of intimidation of civic activists and journalists, blacking out of Ukrainian television channels and obstruction of civilian traffic in and out of Crimea.” The UN General Assembly and most states refused to recognize Russia’s annexation. The US, European Union and other countries imposed sanctions on Russia as a consequence. Ukraine had to carefully consider its jurisdictional strategy when taking Russia to the ICJ. Put simply, for contentious disputes, the ICJ generally…