CRIMINAL JUSTICE SYSTEM IN PAKISTAN: A

CRITICAL ANALYSIS

By
SYED MUHAMMAD NAVEED ABID SHAH
2019-GCUF-06678

Thesis submitted in partial fulfillment of

The requirements for the degree of

Bachelor of Laws
(LL.B)

DEPARTMENT OF COLLEGE OF LAW

GOVERNMENT COLLEGE UNIVERSITY, FAISALABAD

2024
i
 DEDICATION
This thesis is dedicated to my parents, family and teachers.
For their endless love, support and encouragement

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 DECLARATION
The work reported in this thesis was carried out by me under the supervision of
Dr. Fozia Naseem, Assistant Professor, Department of College of Law, Government
College University Faisalabad, Pakistan.
I hereby declare that the title of thesis “CRIMINAL JUSTICE SYSTEM IN
PAKISTAN: A CRITICAL ANALYSIS” and the contents of thesis are the product of
my own research, and no part has been copied from any published source (except the
references, standard of genetic models / protocols etc). I further declare that this work
has not been submitted for award of any other degree/diploma. The University may take
action if the information provided is found inaccurate at any stage.

___________________
Syed Muhammad Naveed Abid Shah
2019-GCUF-06678

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 CERTIFICATE BY THE RESEARCH SUPERVISORY
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and in accordance with the prescribed format. We recommend it to be processed for the
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v
Contents
CRIMINAL JUSTICE SYSTEM IN PAKISTAN: A CRITICAL ANALYSIS...........i

DEDICATION.................................................................................................................ii

DECLARATION............................................................................................................iii

CERTIFICATE BY THE RESEARCH SUPERVISORY COMMITTEE...............iv

CHAPTER 1......................................................................................................................1

INTRODUCTION.............................................................................................................1

What is wrongful conviction?........................................................................................4

Effects of the Wrongful Imprisonment upon Release....................................................4

Other Effects...................................................................................................................5

Pecuniary Losses............................................................................................................5

What is miscarriage of justice?.......................................................................................5

Understanding of Compensation....................................................................................6

Meaning and definition...................................................................................................6

Purposes of Compensation.............................................................................................6

Types Of Compensation.................................................................................................6

Laws Of Compensation In Pakistan...............................................................................7

The Sughran Bibi Case and its Impact on the Criminal Justice System of Pakistan......7

SITUATIONAL ANALYSIS.........................................................................................7

CONTROLLING EFFECT OF THE FIRST INFORMATION REPORT....................8

A factual resume of the mst. Sughran bibi case.............................................................8

Reasoning.......................................................................................................................9

A. Case law.....................................................................................................................9

b. Statutory Law...........................................................................................................11

c. FIR and Power of Arrest...........................................................................................11

POINTS OF LAW DECLARED BY THE JUDGEMENT.........................................11

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 Existing Compensation Statutes/Provisions/Acts In Pakistan......................................13

Legal Framing Documents...........................................................................................13

Constitution Of Islamic Republic Of Pakistan Of 1973...............................................13

Article 4 Of The Constitution.......................................................................................13

Right of Individuals to be dealt with in accordance with law, etc...............................13

Compensation For Wrongful Conviction As A Matter Of Tort Law...........................15

Research Questions......................................................................................................16

Research Objectives.....................................................................................................16

Research Significance..................................................................................................16

Research Methodology.................................................................................................17

Review of Literature.....................................................................................................17

Eyewitness Misidentification.......................................................................................22

Invalid Forensic Science...............................................................................................23

False Confessions.........................................................................................................24

Police Informants..........................................................................................................25

Government Misconduct..............................................................................................25

Insufficient Lawyering.................................................................................................26

Post-Conviction DNA Testing.....................................................................................26

ROLE OF STATE IN UNDO THE HARM CAUSED DUE TO WRONGFUL

CONVICTION.................................................................................................................28

Reasons behind Wrongful Conviction..........................................................................30

How State Undo the Harm...........................................................................................31

Wrongful conviction: a violation of human rights.......................................................32

Hardships faced by under trial prisoners......................................................................32

Onus on the State to Undo the Harm............................................................................33

International Stance on Wrongful Conviction and its aftermath..................................35

Case studies on wrongful convictions..........................................................................35

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 Over one third of death row appeals end in complete acquittal...................................36

Why do wrongful convictions occur?...........................................................................38

CHAPTER 5....................................................................................................................41

CONCLUSION................................................................................................................41

References........................................................................................................................43

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 ABSTRACT
The Criminal Justice System in Pakistan comprises five components i.e. the police,
judiciary, prisons, prosecution, probation and parole. This study discusses and analyzes
the efficiency level of these components by taking into account the work assigned and
disposed of by every component of the criminal justice system during the year 2014.
The scope of the study was limited to the four provinces namely Punjab, Sindh, Khyber
Pakhtunkhwa and Balochistan. Data for cases registered by police, district and superior
judiciary and prisons was obtained. A mix of primary and secondary data was used. It
transpired that during the year 2014, a total of 612,835 cases were registered by police
in four provinces of Pakistan out of which 26 percent were still pending with the police
at the end of the year. Similarly cases taken up by the district courts at trial in the four
provinces were 2,160,752 and 69.2 percent cases were disposed of during the year. The
disposal rate of High Courts collectively was 53.9 percent and the disposal rate by the
Supreme Court was less than fifty percent. The jails were found to be overcrowded as
they were overpopulated by 156 percent and majority included under-trial prisoners.
Even though prosecution has been separated from police, it is still in infancy and no
specialization or workload management system is in place. No credible data as to
probation and parole was available, so it appeared to be a much neglected area. More or
less the performance of criminal justice system is not at its optimal level in Pakistan and
remedial measures like improvement and enhancement of physical infrastructures and
capacity building of existing police, investigators, judges, prosecutors and jail staff is
required along with focus on enhancing the existing strengths of investigators, judges,
prosecutors and jails in order to improve the efficiency level and effectiveness of service
delivery by the criminal justice system as a whole.

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CHAPTER 1

INTRODUCTION
The strength of a strong criminal justice system is to prove the accused guilty beyond a
reasonable shadow of doubt and till then, he would be considered an innocent. But this
is not the case in most of the developing countries, including Pakistan. Wrongful
convictions could be in the circumstances where individuals are detained without having
any charge, charged before trial, and whose conviction has been subdued on request.
Unlike other countries, In Pakistan, a wrongfully convicted person acquitted after a
lengthy trial also does not have a statutory right to compensation. Although, there are
three legal documents that are worth mentioning for compensation: the s. 250 of Cr.PC,
the Constitution of Pakistan 1973 and filing a tortious claim against liable parties under
the law of torts.

These documents are relevant because each of them has recognized the importance of
compensating the victims of a miscarriage of justice. Pakistan became a signatory in
2008 of the United Nations treaty called the International Covenant on Civil and
Political Rights 1966 which guarantees compensation for those who are wrongfully
convicted according to law. But practically, there is no such implementation of the
above rules and treaty. A very famous case of wrongful conviction of Rani Bibi should
be enough to depict the current position of where the criminal justice system stands, is
an eye-opening case in which she was acquitted after spending 19 years in prison. Even
after the miscarriage of justice, she received no compensation, and imprisonment of
almost two decades ruined her teenage and youth years in jail without any crime. This is
not just about Rani Bibi, thousands of other innocents are facing the same and they are
not in any record of being reported. In a recent report of Media for Transparency, there
is no data available in Pakistan for wrongful conviction cases.

As far as fundamental rights of an individual under the constitution are concerned,

Article 4 of the constitution rules rights of individuals to be dealt with by law. Article 9
further talks about the right to live and liberty and Article 10 regarding safeguards as to
arrest and detention. A study by the Foundation for Fundamental Rights found that
almost 78% of the death sentences overturned by the Supreme Court of Pakistan were

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held by the lower courts. According to an estimate, over one-third of Pakistan’s death
row inmates might be completely innocent. But, even if they are innocent, the appeals
process to overturn their sentences might take a decade to complete and that’s why it is
said that delayed justice is denied justice.

The question which is always raised is who will be responsible for the injury/loss
(socially, emotionally, and economically) suffered to an individual due to errors in the
Justice System. Society does not accept the person warm-heartedly even if he is proven
innocent. Miscarriages of justice occur daily through negligence or malfeasance at all
levels of the criminal justice system, from police to prosecutors, jail officials, and
judges in Pakistan. Crime scene investigation is a prime tool in the investigation but the
Local Police in Pakistan are not fully equipped and trained enough to collect evidence at
where the alleged incident took place as the poor handling of evidence leads to a
negative impact on the final verdict. False testimony or perjury is also a gigantic issue,
causing hurdles for access to justice. Under Pakistan Penal Court (PPC), giving wrong
testimony during judicial proceedings can make one liable for the punishment of up to
seven years. Unfortunately, it does not have any effect as implementation is not there
and wrongful testimonies are being heard on a daily basis in courts, leaving the life of
the accused to be in the hands of the witness to decide his future.

A number of accused cannot appeal against the punishment or defend themselves just
because they are not financially strong enough to hire a counselor for themselves.
Therefore, Legal aid should be given to those to defend and prove themselves innocent.
The attorney incentivized by the Government must be experienced enough to lead his
client with full potential. Investigation-related procedures need to be upgraded with
technology, different techniques, and training courses should be organized for the Police
to collect evidence on the crime scene efficiently. A judicial mechanism to hear the
appeal of the accused against the conviction is also of paramount importance to be heard
with immediate effect, steadily and in an effective manner, so the victim may be able to
prove his unlawful detention swiftly. Another thing that is needed at the moment to
make the system prevent these loopholes is to launch awareness campaigns among the
masses to know their rights under the constitution and other substantive laws to prevent
them from these misapprehensions. Also, strong urgency and efforts are required to
make the whole justice system abide by international standards substantively and
procedurally.

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A standout amongst the most disregarded parts of Pakistan's criminal equity framework
is the postponement brought on in the transfer of cases and detainment of the charged
pending trial. These denounced detainees are detents placed in jails predominantly
under non safeguard capable offenses. It is consequence of a capture for associated
offense not took after by stipend with safeguard. Once in a while they are denied equity
for drawn out stretch of time. They are isolated from their family for the best a portion
of their life despite the fact that they may be innocent. Indeed, even they clear after a
delay time of trial or subdued their feelings on request by the judgment of High
Court/Supreme Court; they don't get anything on the name of remuneration by
Criminal Justice System of Pakistan. Even they acquit after a prolonged period of trial
or quashed their convictions on appeal by the judgment of the High Court/Supreme
Court, they receive nothing on the name of compensation by the Criminal Justice
System of Pakistan.

This study mainly focuses on a prevalent shortcoming of Pakistan’s criminal justice

system of lengthy trial procedure and poor compensation for innocent individuals who
were wrongfully imprisoned. After serving time in prisons both during trial and after
conviction for crimes that they did not commit, these individuals often do not have
anywhere to go. Familial relationships and friendships have gradually deteriorated, by a
criminal record the ability to find decent work has been caught up, and a chance at
having a sustainable source of income has been lost.

It's an acknowledged guideline of reasonableness in our general public to repay

nationals who have endured misfortunes through no flaw of their own. They get
satisfactory reimbursement when a man's property has been seized for open use, in all
nations‟ wrongdoing casualties and their families get budgetary pay. Yet, peculiarly, the
wrongfully detained, who lose family, companions, freedom, notoriety, property,
employments, life exercises and more don't get remuneration in everywhere throughout
the world.

For quite a long time, a few individuals, criminal equity capable included, didn't
perceive the degree of blunder in the criminal equity framework or that wrongful
detainment or wrongful feelings happened. They put in by and large 13 years and
upwards of 31 years, in jail. Numerous more got just an insignificant sum that missed
the mark regarding reimbursing their misfortunes or offering them some assistance with
getting re-built up in the free world and forty percent of them have not got any pay.

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Mental investigation of the wrongfully detainment demonstrates that their years of
imprisonment are amazingly terrifying. Numerous experiences the ill effects of sadness,
post-traumatic anxiety issue, and some were abused themselves in jail physically, they
have matured in front of their companions, and frequently their wellbeing has
experienced years of sub-standard jail human services.

What is wrongful conviction?

The term 'wrongful conviction' could incorporate circumstances where individuals are:

Captured and kept yet discharged without being charged. Kept and charged however
whose charges are dropped before trial. Attempted and cleared. Indicted however
whose conviction has been subdued on request.

So a person will begin to lose the approval and support of his law-abiding family and
friends when once a man is convicted of an offence, and particularly once he goes to
prison. His ties to them will be cut or weakened.

Upon their release, to compensate them for all the time that they spent unjustly
incarcerated some of these persons have received considerable amounts of money from
the provincial government. The reason why these persons are being compensated for
their respective wrongful convictions is because of the unfortunate consequences that a
miscarriage of justice wreaks on their lives.

Effects of the Wrongful Imprisonment upon Release

Discharge from jail is not generally a happy event, as it is regularly joined by sentiments
of tension about such things as family, funds and job. Investigations of detainee reentry
have presumed that the "snippet of discharge," and the hours and days quickly taking
after discharge, are basic to the move to life outside of jail.

Notwithstanding money related issues they confront in the wake of being discharged
from jail, wrongfully detained people additionally experience a large group of
interesting and entangled non-fiscal snags upon their discharge. [7] To date these issues
have gone to a great extent unaddressed by existing compensation mechanisms in
Criminal Justice System of Pakistan. This is in spite of the way that the effect of jail life
on detainees who are really guiltless is significantly more inconvenient than for
different detainees.[8] Here study has a diagram of a portion of the adverse effects of
detainment on an individual's mental wellbeing, openings for work, lodging, and

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physical wellbeing. These hardships are as taking after.

Other Effects

Numerous detainees additionally encounter trouble with adapting to social changes and
conventional errands because of changes in innovation in the home, work environment,
and social environment that may influence ordinary living.

Losses are in respect of the period following wrongful imprisonment & convictions are
as follows:

Non-pecuniary losses:
 Loss of freedom;
 Loss of notoriety;
 Misfortune or interference of family or other individual connections; and
 Mental or enthusiastic damage.

Pecuniary Losses

 Loss of work, including loss of profit, with conformities for money charge and for
advantages got while imprisoned;
 Loss of future acquiring capacities;

Loss of property or other important budgetary misfortunes coming about because of

confinement or detainment; and Expenses caused by or for the benefit of the individual
in acquiring an exculpation or vindication.

What is miscarriage of justice?

An unnatural birth cycle of equity has been characterized as a blunder of equity which
signifies "mistakes in the translation, technique, or execution of the law regularly,
blunders that disregard due procedure, frequently bringing about the conviction of
blameless individuals." In Fanjoy v. The Queen 10 McIntyre J. characterized an
unsuccessful labor of equity as take after. "A man accused of the commission of a
wrongdoing is qualified for a reasonable trial as indicated by law. Any blunder which
happens at trial that denies the blamed for that qualification is an unnatural birth cycle
of equity”

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Understanding of Compensation

Meaning and definition

“Ubi jus, ibi remedium” is the fundamental standard in the tort that expresses that there
is no wrong without a cure and the tenet of law requires that wrongs ought not to
remain unredressed. In tort law the pay constitutes a vital healing measure and the
standards identifying with the determination of harms and remuneration in tort are
entrenched. There are a few measurements to the issue of installment of harms and
remuneration in the law identifying with torts incorporates the measure of harms,
expectation of the wrongdoer, quantum of harms, and closeness of the reason and so on.

Purposes of Compensation

The fundamental reason for remuneration is reparation. Reparation implies cash that
is paid to casualty by a nation with a specific end goal to demonstrating that you are sad
for anguish that you have brought on. So Reparation might render equity by removing
so as to anticipate and preventing infringement and or changing the results of the
wrongful demonstrations. Reparations should be proportionate to the gravity of the
infringement and the subsequent harm and might incorporate compensation, restoration,
fulfillment, pay, and ensures of non- redundancy.

Types Of Compensation

There are four classifications of compensation, split into two pairings; remedial and
redistributive pay on one hand and identical and substitute/comfort pay on the other.

Restorative pay; speaks to the demonstration of returning a petitioner to the position

they were in preceding the demonstration whined of;

Redistributive pay; expects to take the petitioner back to the position delighted in by
other individuals, e.g. Government managed savings reserves.
Equivalent pay; Equivalent remuneration additionally incorporates forward- attempting
so as to look change to represent future misfortunes.
Substitute/comfort pay; are utilized as gadgets to monetarily remunerate a non-
monetary misfortune. Substitute pay is focused at supplanting fulfillment precluded by a
misfortune from securing enhancement, comfort remuneration at giving the inquirer
with solace to disagreeable encounters which don't really bring about lost luxury.

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Laws Of Compensation In Pakistan

The center of the study is essentially to cover the object of "Remuneration" for cleared
or Exonerees in Criminal Justice System of Pakistan. This Chapter with a specific end
goal to look at the current Provisions/Statutes/Acts as remuneration for wrongful
conviction and posing the questions: 1) Are existing procurements a suitable solution
for Acquitted and exonerees? 2) Does the Justice System have a commitment to
exonerees to give review to the harm or misfortune they encounter from their
detainment? 3) If existing pay under segment 250 CRPC is not a satisfactory measure,
why may this be the situation? 4) What might Pakistan do to address the needs of the
wrongfully detained and sentenced post-absolution?

The meaning of a 'wrongful detainment' may cover numerous circumstances, it is

utilized as a part of this section to allude to situations where persons have been absolved
after extensive trial by Court of First Instance, sentenced to a term of detainment and
have had their sentences subdued on request; were cleared at retrial.

The Sughran Bibi Case and its Impact on the Criminal Justice System
of Pakistan

SITUATIONAL ANALYSIS

The Constitution of the Islamic Republic of Pakistan 1973 adheres to the principle of
the rule of law. Accordingly, it provides for the treatment of every citizen, including any
person within its jurisdiction, to be in accordance with the prescribed law. Despite
record-keeping by most of the components of the criminal justice system in the country,
the rule of law is not officially measured. No statistics are collected to present a holistic
view of the situation. Organizational data, like that of the judiciary, prosecution, or
police, is, however, available.

In the absence of official data, one is constrained to use unofficial data. In this regard,
the Rule of Law Index for the Year 2017-18, compiled by the World Justice Project,
shows that out of the 113 countries that were studied in terms of the overall
performance, Pakistan ended up in the lower bracket at 105. In the regional terms, it
stood second last, only above Afghanistan. In the category of ‘Order and Security
Factor’, Pakistan ranked at the bottom, at 113. In the category of ‘Civil Justice’, it stood
at 107, and under ‘Criminal Justice’, the ranking was 81. The purpose of these rankings

7
is to provide the context and situational analysis of Pakistan’s justice sector, and its
perception in relation to the rule of law.

CONTROLLING EFFECT OF THE FIRST INFORMATION

REPORT

The situational analysis above, makes it abundantly clear that there is a strong case for
legal and administrative reforms. Within the domain of the criminal justice, a key
component of the legal reforms is to minimize the centrality and primacy of the
document called the First Information Report (FIR). For jurisprudential purposes, it
may be noted that it is only a procedural device for recording and preserving
information; in practice, however, it has assumed overwhelming significance by all the
components of the criminal justice system. The police treat it as biblical, and thus it
controls their investigation. Prosecution is then stymied by whatever work has been
undertaken by the police, in view of the controlling effect of the FIR. On its part, the
judiciary, on the strength of the precedent on criminal justice, is hamstrung to evaluate
the evidentiary value of the FIR.

The superior judiciary in Pakistan has tried to take stock of this controlling effect of the
FIR in its latest judgement in Mst. Sughran Bibi case; the FIR shapes all the subsequent
proceedings in a criminal matter, and have bearings even on the outcomes of trials; it
virtually controls the criminal proceedings. Before discussing the law points, it will be
apposite to first briefly highlight the facts of the case, in which the judgement has been
delivered.

A factual resume of the mst. Sughran bibi case

In brief, Mst. Sughran Bibi filed a human rights case in the Supreme Court of Pakistan,
under Article 184(3) of the Constitution of Pakistan. This case prayed for an issuance
of direction to the local police to register a second FIR against the police officials who
had killed her son, Mohsin Ali, in an encounter on 21-03-2008. These police officials
had also registered the first FIR. Prior to this, on 12-01-2010, as an alternate remedy,
she had filed a private complaint in the court of the Additional Sessions Judge, Lahore
(ASJ, Lahore). This had remained pending till 18-06-2015, when the ASJ, Lahore
summoned 16 accused police officers for trial, on the basis of prima facie evidence. The
trial was on, but Mst. Sughran Bibi wanted ‘arrest’ of the accused police officers, and
therefore, she filed an application in the Human Rights Cell, housed in the building of

8
the Supreme Court of Pakistan. The case must have been placed before a judge of the
Supreme Court of Pakistan who, after going through the material in the case and the
conflicting judgements of the superior courts, in the matter of the registration of
multiple FIRs, requested the Chief Justice of Pakistan to constitute a larger bench.
Thereby, the present case was initiated and heard by a bench of seven honorable judges
of the Supreme Court of Pakistan. The bench was headed by Mr. Justice Asif Saeed
Khosa, who is known to have rendered many important judgements on criminal law.
The Attorney General of Pakistan, along with Advocate Generals of the provinces and
the Islamabad Capital Territory (ICT), assisted the honorable judge. Barrister Salman
Safdar, a renowned defence lawyer, was appointed as amicus curiae.

Reasoning

The judgement authored by Mr. Justice Asif Saeed Khosa is concise and erudite, and the
honorable judge dealt with the matter in a systemic manner. Chiefly, he did three things
in his reasoning. First, he analyzed the case law on the subject; secondly, he interpreted
the relevant statutory law; and thirdly, he deliberated on the nexus between the
registration of an FIR and the power of an arrest entrusted to the police under the law.
The three are, therefore, discussed here in the same order:

A. Case law

In the case law, the honorable judge took note of three categories of the judgements.
The first category of judgements allowed only one FIR for an occurrence, and clearly
provided that all the subsequent statements to the police were to be recorded under
section 161 of the Code of Criminal Procedure 1898 (Cr.P.C), and that the police
officials were free to investigate the case. The net result of this category was that only
one case was to be handled by the police, and consequently, only one trial had to take
place (1st category).

The second category provided that the police were bound to register FIRs under section
154 Cr.P.C, hence multiple FIRs could be registered. The outcome of this approach was
that it allowed the multiplication of criminal proceedings. Hence, multiple FIRs meant
multiple cases, and multiple cases meant multiple trials (2nd category).

The third category left the matter to the circumstances of the case, thereby resulting in
affirming the position of the 1st category, as a general rule, while treating the 2nd

9
category as an exception (3rd Category). Tracing back case law from colonial times,
Justice Khosa quoted from a Privy Council (PC) case, in which the judges repelled the
propensity to treat each statement as a separate information report, and thus established
that only one FIR of an occurrence was permissible under the law. He quoted:

The argument as their Lordships understood was that the only information report under
Ss. 154 to 156, Criminal P.C., was that recorded on 31st August 1941, that the
allegations recorded at a later stage of 5th September were not an information report,
but a statement taken in the course of an investigation under Ss. 161 and 162 of the
Code, that there was therefore no reported cognisable offence into which the police
were entitled to enquire, but only a non-cognisable offence which required a
Magistrate’s order if an investigation was to be authorized. Their Lordships cannot
accede to this argument. They would point out that the respondent in his case treats each
document as a separate information report and indeed, on the argument presented on his
behalf, rightly so, since each discloses a separate offence, the second not being a mere
amplification of the first, but the disclosure of further criminal activities.

The law remained trite afterwards, and was also adhered to in the judgement of the
Supreme Court case of Kaura v The State. The law was by and large followed in letter
and spirit for some time thereafter. However, it started changing with Mrs. Ghanwa
Bhutto Case that dealt with the murder of Mr. Murtaza Bhutto (brother of the then
sitting Prime Minister of Pakistan Benazir Bhutto) in Karachi. Mrs. Ghanwa Bhutto
Case was endorsed in Wajid Ali Khan Durrani Case, by the Supreme Court of Pakistan.
Subsequent decisions of the Supreme Court of Pakistan cited Wajid Ali Khan Durrani
Case as a precedent, and the practice continued.

Justice Khosa must be credited with distinguishing the precedent cases by taking pain in
gauging the reasons employed by the earlier judgements. He noted with concern:

The confusion gripping the issue, we observe so with great respect and deference, is
because of the fact that in none of the precedent cases detailed above the actual scheme
of the Code of Criminal Procedure, 1898 and the Police Rules, 1934 regarding
registration of a criminal case through an FIR and its investigation by the police had
been examined in any detail….

He, therefore, undertook to examine the scheme of the Code of Criminal Procedure and
the Police Rules 1934 – the statutory law – on the point in issue.

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b. Statutory Law

As noted before, Justice Khosa decided to examine the scheme of the Code of Criminal
Procedure and the Police Rules 1934. He commented on the purport of the statutory
law, starting from section 154 read with sections 156, 157, 159, 160, 161, and 173 of the
Cr.P.C. By interpreting the law in its literal sense, he distinguished ‘information’ from a
‘case’ and declared that in a single case, different hues of the information could be
processed by a police officer. Besides interpreting the primary legislation, he also
supplemented his interpretation of the primary legislation through delegated legislation
as per 24.1, 24.5, 24.17, and 25.1 of the Police Rules 1934.

c. FIR and Power of Arrest

Finally, Justice Khosa tried to delink an FIR from an ‘arrest’. He illustrated this point by
asking Mst. Sughran Bibi about her insistence to get a ‘second FIR’ registered, despite
the fact that she had availed the alternate remedy of the private complaint. As was
expected, her response was that she wanted that the police officers accused of the
‘murder’ of her son to be arrested. The response led Justice Khosa to note that “[s]uch
understanding of the law on the part of the petitioner, which understanding is also
shared by a large section of the legal community in our country, has been found by us to
be erroneous and fallacious.”

He, then, went on to dilate upon the legal position that clearly mitigates the control of
the FIR on an investigation and a prosecution, by separating the registration of a
criminal case from the power of arrest, which has to be reasoned. He cited in detail from
his own judgement in Khizer Hayat case.

POINTS OF LAW DECLARED BY THE JUDGEMENT

The following points of law were declared by the judgment:

“(i) According to section 154 Cr.P.C. an FIR is only the first information to the local
police about commission of a cognizable offence. For instance, an information received
from any source that a murder has been committed in such and such village is to be a
valid and sufficient basis for registration of an FIR in that regard.

(ii) If the information received by the local police about commission of a cognizable
offence also contains a version as to how the relevant offence was committed, by whom
it was committed and in which background it was committed then that version of the

11
incident is only the version of the informant and nothing more and such version is not to
be unreservedly accepted by the investigating officer as the truth or the whole truth.

(iii) Upon registration of an FIR a criminal “case” comes into existence and that case is
to be assigned a number and such case carries the same number till the final decision of
the matter.

(iv) During the investigation conducted after registration of an FIR the investigating
officer may record any number of versions of the same incident brought to his notice by
different persons which versions are to be recorded by him under section 161, Cr.P.C. in
the same case. No separate FIR is to be recorded for any new version of the same
incident brought to the notice of the investigating officer during the investigation of the
case.

(v) During the investigation the investigating officer is obliged to investigate the matter
from all possible angles while keeping in view all the versions of the incident brought to
his notice and, as required by Rule 25.2(3) of the Police Rules, 1934 “It is the duty of an
investigating officer to find out the truth of the matter under investigation. His object
shall be to discover the actual facts of the case and to arrest the real offender or
offenders. He shall not commit himself prematurely to any view of the facts for or
against any person.

(vi) Ordinarily no person is to be arrested straightaway only because he has been

nominated as an accused person in an FIR or in any other version of the incident
brought to the notice of the investigating officer by any person until the investigating
officer feels satisfied that sufficient justification exists for his arrest and for such
justification he is to be guided by the relevant provisions of the Code of Criminal
Procedure, 1898 and the Police Rules, 1934. According to the relevant provisions of the
said Code and the Rules a suspect is not to be arrested straightaway or as a matter of
course and, unless the situation on the ground so warrants, the arrest is to be deferred till
such time that sufficient material or evidence becomes available on the record of
investigation prima facie satisfying the investigating officer regarding correctness of the
allegations levelled against such suspect or regarding his involvement in the crime in
issue.

(vii) Upon conclusion of the investigation the report to be submitted under section 173,
Cr.P.C is to be based upon the actual facts discovered during the investigation

12
irrespective of the version of the incident advanced by the first informant or any other
version brought to the notice of the investigating officer by any other person.”

Existing Compensation Statutes/Provisions/Acts In Pakistan

Compensation for wrongful convictions in Pakistan is a legal issue that is uncertain and
complex. Unfortunately, to provide an efficient response to this matter our legal
system does not contain any mechanism and therefore, in our legal framing documents
the principles set out are not complied with as expected.

A significant portion of the Constitution of 1973 is devoted to protecting the general

legal rights of Pakistan‟s citizens and the specific procedural rights of accused persons.

In the following section study will analyze the particular relevance of the main sources
of law of our legal system with respect to the recognition and development of
compensation for the wrongfully convicted.

Legal Framing Documents

In Pakistan, Acquitted after lengthy trial & wrongfully convicted individuals do not
have a statutory right to compensation. There are three legal documents that are worth
mentioning to this topic: the 250 of CRPC and the Constitution of Pakistan 1973 and
filing a tortious claim against liable parties under law of torts. These documents are
relevant because each of them has recognized the importance of compensating the
victims of a miscarriage of justice.

Constitution Of Islamic Republic Of Pakistan Of 1973

The first „legal framing document‟ is the Constitution of 1973. Constitution contained
provisions in its articles 8 to 28 are intended to preserve the most fundamental rights
and freedoms of every person in Pakistan from illegal actions of the government.
Particularly, criminal law is an area where these provisions are imaginary to have strict
application.

Article 4 & 10 of the Constitution of the Islamic Republic of Pakistan are relevant:

13
Article 4 Of The Constitution

Right of Individuals to be dealt with in accordance with law, etc

To enjoy the protection of law and to be treated in accordance with law is the
inalienable right of every citizen, wherever he may be, and of every other person for the
time being within Pakistan.
In particular (a) no action detrimental to the life, liberty, body, reputation or property
of any person shall be taken except in accordance with law;
No person shall be prevented from or to be hindered in doing that which is not
prohibited by law; and
No person shall be compelled to do that which the law does not require him to do.
Article 10: Safeguard as to arrest and detention No person who is arrested shall be
detained in custody without being informed, as soon as maybe, of the grounds for such
neither arrest, nor shall he is denied the right to consult and be defended by a legal
practitioner of his choice.
Every person who is arrested and detained in custody shall be produced before a
magistrate within a period of twenty four hours of such arrest, excluding the time
necessary for the journey from the place of arrest to the Court of the nearest magistrate
and no such person shall be detained in custody beyond the said period without the
authority of a magistrate.

Nothing in clauses (1) and (2) shall apply to any person who is arrested or detained
under any law providing for preventive detention.

From the provisions of the Constitution we can appreciate that it is intended that every
sentence convicting a person is guaranteed by enough evidence to support the verdict of
guilty, and that no violations are made in prejudice of the accused. But these provisions
only cover the subject of prohibitory arrest; that no person can be deprived from liberty,
life and freedom on the basis of suspicion. But when person is once arrested and later on
acquitted or quashed his sentence in appeal and declared innocent than what will be the
plan for his compensation to reduce his injury/ loss which he has suffered/ caused due to
Criminal Justice Systems‟ errors? Who will responsible for his loss/injury? Because a
person who has spent years of his life behind bars or whose reputation and name has
been affected for being convicted of a crime of which he was not responsible, the sour
experiences are not finished yet. These people who have been socially, emotionally and

14
economically affected by the accusations that they faced, the imprisonment, the judicial
procedures, pursuing the procedures proving their innocence, they now will have to seek
compensation for all the damages that these events have brought to their lives. But on
what basis he claim compensation from his system? Because Constitution provides
nothing for compensation of miscarriage of justice, Studied analyzed above that it is
totally mute on the concerned issue.

Since the present study‟s objective and centre of this research work is to find a legal
alternative to which compensation has been denied, and to the persons who have been
wrongfully convicted, study will also analyze the perspectives of the tort law for the
victims of a miscarriage of justice to find out a suitable structure of a remedy.

Compensation For Wrongful Conviction As A Matter Of Tort Law

As we have discussed in the previous paragraph of this chapter there is no legal

formation or precedent to enlighten us on how to give life to the provision of our legal
framing documents that invoke compensation of victims of miscarriages of justice.
Consequently, if the persons who have been wrongfully convicted decide to pursue the
payment of compensation they would have to seek a remedy under tort law for possible
liability suing the public authorities.

For the wrongfully convicted this new challenge is complex because notwithstanding
the fact that to achieve their goal of obtaining compensation tort law represents a legally
viable resource; to successfully obtain a verdict consistent with their interests there is a
lot of work to do.

“The purpose of the tort law is to adjust these losses and to afford compensation for
injuries sustained by one person as the result of the conduct of another. Such statement
of the problem indicates that the law of torts must constantly be in a state of flux, since
it must be ready to recognize and consider new losses arising in novel ways”.

15
Research Questions

Following questions shall be discussed,

1. What is the biggest factor contributing to wrongful convictions? What are

remedies for this Problem?

2. What impact do wrongful convictions have on victims and their immediate

family Members?

3. How a state can undo the harm caused due to wrongful conviction?

Research Objectives

The objective of this paper. is to deeply analyze the,

i. The basic factors which causes wrongful conviction.

ii. The impact of wrongful convictions on victims and their immediate family
members

iii. The role of state in undo the harm caused due to wrongful conviction.

Research Significance

This paper shall shed some light on wrongful conviction as how an innocent person due
to lack of resources or evidence got convicted wrongfully. This paper shall help the
readers in better understanding of the wrongful conviction that how an innocent person
who convicted wrongfully can become a mentally unstable person or an actual criminal
person. One of the purpose of Judicature is to provide the substantive justice but
sometimes in doing so there happens the miscarriage of justice and wrongful conviction
is one of those situations which sometime cause the miscarriage of justice by sentencing
an innocent person for an offense he never convicted, this pave the way of him towards
crime.

This paper shall help the readers to better understand these concepts and how a state can
help different institutes or organs for undoing the harm caused to a person who spend
some span of his precious life behind the bars, without doing any crime but only due to
lack of resources.

16
Research Methodology

This section provides an overview of the methodology. It begins with a description of

the hockey terminology was defined, followed by a discussion of the exploratory study
design. For the purpose of this study, the term wrongful conviction is defined as a case
in which a government entity has determined that the originally convicted individual
factually did not commit the crime. The term exoneration refers to the process by which
a government entity, by way of a pardon or judicial order, concedes that a convicted
person is indeed innocent. Researchers conducted a review of known cases, a survey of
service providers,2 and 11 in- depth case studies to ascertain information regarding the
range and frequency of issues victims face as they proceed through the exoneration
process.

Review of Literature

The English criminal justice system was regarded as virtually infallible until the
emergence in the late 1980s of high profile miscarriages of justice such as the cases of
the Birmingham Six, the Guildford Four and Stefan Kiszko. Miscarriages of justice –
whether by error or malfeasance – have thus become a recognised feature of the system,
which the Court of Appeal and the Criminal Cases Review Commission seek to correct.
The reasons for miscarriages of justice are multifarious (Walker and Starmer, 1999;
Huff and Killias, 2013; Naughton, 2013). Some of the factors which can contribute to
the conviction of an innocent person include: confirmatory bias in police and
prosecution investigations; non-disclosure of exculpatory evidence; false confessions;
dishonest or mistaken witnesses; inadequate legal defence; improper interventions or
summing up by a judge; cognitive biases and prejudices of juries; and the influence of
media reports and populist opinion on the decisions made by juries. In a social climate
where it is believed that certain crimes are rife and where there is a moral and political
agenda to secure conviction for them, the dangers of miscarriages of justice are higher.

It was in such conditions of disquiet – indeed, in conditions which constitute ‘moral

panics’ (Cohen, 1972; Garland, 2005; Cree et al, 2015) – that a series of wrongful
arrests and prosecutions occurred in the final decades of the last century in response to
allegations of paedophile rings and organised child sexual abuse. Following similar
scares in North America and other parts of the world, it became commonly believed that
Satanic ritual abuse was occurring in some communities and in day care nurseries.

17
Notable examples of supposed Satanic abuse emerged in the Orkney Islands and
Nottingham, and it was only after many months that it became clear that no such ritual
abuse had taken place (Thorpe et al., 1990; Clyde, 1992; La Fontaine, 1994) 11. An
example of chimerical abuse at a nursery was the case of Shieldfield on Tyneside
(Rozenberg, 2002).

Finally, there was the Cleveland scandal, when a misleading diagnostic test based on
socalled anal dilation led to the unjustified removal of dozens of children into local
authority care (Butler-Sloss, 1988). Of particular relevance to the present study are the
investigations into the abuse of children in care and residential schools in North Wales
and Northern England in the late 1990s. After some former staff were convicted of non-
recent offences, there were widespread claims published in the media that abuse in such
settings had been systemic, the work of ‘paedophile rings’ that sometimes ‘farmed out’
victims to outsiders (Sawyer, 2012; Dobson, 2012; Tozer, 2013). According to Webster
(2005), between January 1998 and May 2001, 34 of the 43 police forces in England and
Wales undertook investigations of nonrecent institutional child abuse. However, no
organised paedophile rings in care homes were identified.

February 2000 saw the publication of Lost in Care, the report of the judicial inquiry led
by Sir Ronald Waterhouse into abuse in North Wales. On a BBC Newsnight programme
that discussed the findings, Sir William Utting, the former Her Majesty’s Chief
Inspector of Social Work, commented: ‘It may be that innocent people are being
convicted, but we ought to be more worried about the guilty who might get away’. This
baleful remark implied that the abuse of children, no matter how long ago, was such a
serious matter that it merited a reversal of the legal principle of the presumption of
innocence in order to increase the prospects of securing convictions. In this first wave of
historic abuse cases, some were prosecuted but acquitted and others mounted successful
appeals. The football club manager, David Jones, who had earlier been a residential care
worker on Merseyside, was one of those who were tried but acquitted. In his
autobiography he wrote of the lasting psychological damage of being prosecuted for
such an offence, even after the jury returned a verdict of not guilty: ‘What those who
sought to convict me did was take away something that I will never get back; my
dignity.

The whole experience felt like a dagger being continually stabbed through my heart.
[…] What I can never correct is the period of my life that was wrecked by the most

18
horrific allegations any loving father could possibly face.’ (Jones, 2011, p.221) In the
months he spent awaiting trial, he had been suspended from his position at Southampton
FC, and feared he might never work again. Other cases of staff members and their
families being traumatised by dawn raids, protracted periods on bail, or prosecutions
and convictions which were later quashed on appeal, were reported by journalists and
researchers. Figures obtained from the Association of Chiefs of Police show that by
May 2001 police forces in England and Wales had received allegations from about
5,750 former residents of care homes.

According to Webster (2005) at least 10,000 former residents of care homes had made
complaints by the end of 2004, with between 7,000 and 9,000 care workers having had
accusations made against them: ‘Most of these care workers have not been charged with
any offence, but many … had their lives blighted by false allegations. And in the last 15
years, as many as a hundred may have been wrongly convicted.’ (Webster 2005, p.550,
and fn. 605). Some of the families affected by these cases contacted their MPs. An All-
Party Parliamentary Group for Abuse Investigations was set up, led by the MP Claire
CurtisThomas. Meanwhile, the House of Commons Select Committee on Home Affairs
conducted an inquiry of its own. Its report, The Conduct of Investigations into Past
Cases of Abuse in Children’s Homes (HASC, 2002), looked critically at the methods
police used in seeking corroboration for victims’ claims – that of ‘trawling’ for
witnesses. It stated that this, and the concomitant reliance on corroboration by numbers
had led to ‘a new genre of miscarriage of justice’ (para.2), adding: ‘Set in the context of
a growing compensation culture and a shift in the law of “similar fact” evidence, the
risks of effecting a miscarriage of justice in these cases are said to be unusually high’
(para.2).

‘‘Trawling’ is not a technical term, rather it is a convenient label used to describe the
police practice of making unsolicited approaches to former residents from many of the
institutions under investigation. In any investigation, including those into past
institutional abuse, the police will contact persons named by the complainant in his or
her statement of complaint. Trawling, as we understand it, refers to the process when the
police go one step further and contact potential witnesses who have not been named or
even mentioned. In a trawl, the police will contact all, or a proportion of, those who
were resident at the institution under investigation during the period when the abuse was
alleged to have occurred.’ (HASC, 2002, para.12).

19
What is in effect the same method is now usually termed ‘dip sampling’ by police
services. Whatever the nomenclature, the essence of the technique is to contact former
residents and pupils of institutions who have not made spontaneous complaints in the
hope of gathering further complaints, so enabling prosecutions based on ‘corroboration
by volume’ - the inclusion of two or more uncorroborated claims of separate incidents
which count as mutually corroborative, according to the principles of ‘similar fact
evidence.’ The law in this area has steadily evolved, and though it is supposed to protect
the innocent against the introduction of prejudicial testimony, these safeguards have
been weakened (Webster, 2002). Originally, ‘similar fact’ testimonial evidence was
permitted only if there were ‘striking similarities’ between provable facts. This was
extended by a Court of Appeal ruling in 1946 to include similar allegations. Two further
judgments by the House of Lords in the early 1990s weakened the safeguards further. In
1991, in DPP v P, the court rejected the requirement that allegations, in order to be
admissible, should be ‘strikingly similar’. In 1994, in DPP v H, it held that, in ruling on
the admissibility of a series of similar allegations, the judge should generally assume
that the allegations in question were true (Webster, 2002).

The timing of these judgments was significant, because police services were then just
beginning to investigate claims of abuse in residential schools and care homes. Hence,
‘the newly created weakness in the law was almost immediately seized on by police
forces in order to successfully push through a number of prosecutions which could
never have been brought prior to the decision in DPP v P’ (Webster, 2002, p.5).
Meanwhile, there was also widespread contact between the police and personal injury
solicitors, gathering clients for large-scale civil actions against those allegedly
responsible for abuse. These, it is argued, created opportunities for the exchange of
descriptive detail, pollination of rumours and confabulation of memories (Webster,
1998, 2005; IPCC, 2007; Rose, 2012, 2016, 2016 in press). Some solicitors even
advertised for supposed victims using the prisoners’ newspaper, Inside Time (Rose,
2012). The risks here were self-evident. By definition, many of those responding to such
advertisements had been convicted of crimes of dishonesty. They were also likely to
come into contact behind bars with others who had been in care and approved schools,
creating a further danger of collusion. In prison, it was also possible that some
disadvantaged or vulnerable people who were not motivated by malice or greed were

20
erroneously persuaded that they had been victims of physical and sexual abuse (Gunn,
2013).

From his wealth of experience defending such cases, the solicitor Mark Newby has
described the pattern whereby individual testimony can become contaminated: ‘After
the first allegation the trawl will then commence almost uniformly… The witnesses will
find themselves appointed a Liaison officer who will also act as a conduit for
information they should not receive. Most significantly the evidence of one complainant
will be introduced into the evidence of the next, either in a purposeful action but most
probably by innocent contamination. Think about it: if one officer is told a sexual
offence took place in a certain way it is almost human nature when he or sees another
witness to enquire or direct the questioning to see if the same happened to this person.
The act of contamination has been committed and is then perpetuated as the enquiry
continues. [Later, without knowing how they arose, it is possible for the Prosecution
and] the Judge to make those sort of comments we have all heard to the jury, suggesting
that it is implausible that all could come up with allegations which share the same
features.’ (Newby, 2012, p.5).

Understanding how these injustices may occur is important to appreciating why the
same factors may continue to place more people at risk of wrongful arrests and
prosecutions (HMIC, 2013; Levitt, 2013b). The number of people who are falsely
accused of these abhorrent offences expands considerably once civil proceedings are
taken into account. While a proportion of those accused whose cases are dropped by the
police or CPS as ‘unfounded’ or ‘unsubstantiated’ are likely to be guilty, it stands to
reason that a proportion were innocent all along, and possibly the majority of them.
Nonetheless, some will be subject to ‘punishments’ in the civil justice system.

Hence, in any consideration of the impact of false accusations, it is of critical

importance to include civil cases, involving disciplinary hearings or employment
tribunals, which can result in suspension and dismissal from work and other significant
harms, as the present study shows. Some lessons were learned from the late twentieth
century ‘moral panics’ over satanic ritual abuse and overblown claims of
institutionalised abuse in children’s care homes. The unnecessary arrests, prosecutions
and damage to families led to recognition of false allegations of abuse as a distinct
category of miscarriages of justice. Recently, however, those lessons seem to have been
undermined by a new moral panic over allegations of ‘VIP’ and ‘celebrity’ abuse. Of

21
particular note is the Metropolitan Police inquiry into claims of abuse by a ‘ring’ of
paedophiles in Parliament, Operation Midland, stoked by a series of interviews by a
man known as ‘Nick’ on the Exaro News website, widely reported by the BBC. Even
after the Metropolitan Police Service admitted in 2015 that this had been ‘wrong’, its
statement – which is still available on its website – added: ‘Our starting point with
allegations of child sexual abuse is to believe the victim until we identify reasonable
cause to believe otherwise.’ (Peachey, 2015).

The Innocence Project (2019) reports that 70% of wrongful convictions are caused by
eyewitness misidentification, 44% by invalid forensics, 28% by false confessions, and
17% by police informants. There are five issues that should be analyzed in-depth to
better understand the causation of wrongful convictions. First, jurors do not have an
understanding of how memory works and place far too much credence on eyewitness
testimony. Second, forensic science testimony by prosecution experts are occasionally
invalid due to a misunderstanding or misrepresentation of data. Third, interrogators
contaminate confessions in various ways, such as providing evidence to interviewees,
which can induce an incriminating confession. Fourth, police informants can be
incentivized to provide testimony that incriminates the defendant. Fifth, government-
appointed defense counsels are often underpaid and underprepared to properly defend
their clients. Altogether, the factors that these theories describe drastically increase the
occurrence of wrongful convictions in the Pakistan

Eyewitness Misidentification

Eyewitness misidentification is the most frequent contributor to wrongful conviction

cases. In the fall of 2003 and early winter of 2004, Hart Research worked together with
attorneys at the Public Defender Service for the District of Columbia and Dr. Elizabeth
Loftus to prepare a survey to test average jurors’ understanding of which eyewitness
testimonies are more or less reliable than others (Schmechel, O’Toole, Easterly, &
Loftus, 2006). It consisted of twenty questions regarding the jurors’ opinions on
eyewitness identification, as well as their opinions on which factors make eyewitness
testimony more or less reliable. In late February of 2004, Hart Research conducted the
survey by phone using randomly chosen residential phone numbers with a District of
Columbia area code, which ultimately resulted in 1,007 potential jurors completing the
survey. The survey results suggest that jurors generally do not understand how memory
works or how certain factors affect memorization (Schmechel et al., 2006).

22
These jurors were not aware of the selectivity of human memory, or of how memory
can be greatly altered by information—it receives after the initial event due to its
reconstructive nature. Memories can also be altered during the questioning process,
when information that has been stored blends with what is provided.

Not only is the issue of wrongful convictions by way of witness misidentification born
from human error, but it is allowed to progress because of the system’s historical
preference of eyewitness testimony and because of a lack of studies that rightly
discredit eyewitnesses with false information. The best solution to rectifying these
wrongful convictions is perhaps tripartite: allowing expert testimony when the only
evidence against the defendant is eyewitness testimony; improving procedures for
collecting eyewitness evidence; and properly educating the principal participants in a
trial about the effects of eyewitness factors (Wise, Dauphinais, & Safer, 2007).

For the first component, an expert witness would be asked to explain to jurors how
memory works and what factors may have affected the testimony’s reliability. This
would occur before the eyewitness statement, so jurors do not internalize the elements
of the testimony before considering its probative value. The second component would
rectify the three types of errors that police officers generally take during procedures for
collecting eyewitness evidence: they do not obtain much of the information that an
eyewitness knows about a crime; they contaminate the eyewitness’ memory of the
crime; and they accede to the motivational bias that comes from pro-prosecution
culture. Wise et al. (2007) state that psychologists propose two solutions to improve
the procedures of collecting eyewitness evidence. First, the police officer who
conducts the eyewitness interview should not know the identity of the suspect to
prevent unconscious or subconscious incrimination. Second, defense attorneys should
be present during the interviews so members of the court can be informed of any
improprieties that may have occurred. The third component involves educating the
principal participants in trials. In a survey of 160 judges, 57 law students, and 121
undergraduates, Wise et al. (2007) found that most people in these groups had limited
knowledge of eyewitness factors. The more knowledgeable subjects of these studies
believed that reducing eyewitness errors could include being less willing to convict
defendants solely on the basis of eyewitness testimony, giving more accurate
information about wrongful convictions based on witness misidentification reporting
greater skepticism about jurors’ knowledge of eyewitness factors, and becoming more

23
willing to permit legal safeguards (Wise et al., 2007). Educating the principle
participants in a trial could mean the preemptive screening of witness testimony for its
probative value before it is presented to the jury.

Invalid Forensic Science

The second most frequent contributor to wrongful convictions is perhaps unexpected

for some people because science is often found to be the most reliable. That is why a
study was conducted to determine how frequently forensic evidence provided at trial
was later proven to be invalid; it found that sixty percent of wrongful conviction cases
were influenced in part by a misstatement or misrepresentation of scientific evidence
by forensic experts (Garrett & Neufeld, 2009). This evidence included serological
analysis, microscopic hair comparison, and the analysis of bite marks, shoe print, soil,
fiber, and fingerprints. In 137 exonerates’ trials, the trial transcripts in which forensic
scientists were called to testify by state or local law enforcement were obtained and
analyzed for misstatements or misrepresentations of scientific evidence. Such
misstatements or misrepresentations include non-probative evidence being presented
as probative; exculpatory evidence being discounted; inaccurate frequencies or
statistics being presented; statistics being provided without empirical support; non-
numerical statements being provided without empirical support; and conclusions that
evidence originated from the defendant (Garrett et al., 2009). These misrepresentations
are largely the fault of the scientist, who should not only ensure that all statements are
supported with accurate data but also clarify the probative value of the evidence and
avoid making conclusions on the likelihood of a defendant’s involvement.

False Confessions

The next most frequent contributors to wrongful convictions are false confessions.
These are confessions wherein any element is untrue, but usually end in the
interviewee falsely identifying a suspect, confessing to a crime, or providing other
incorrect information. In contrast to a more general focus on psychological techniques
that would cause a person to give a false confession, Garrett’s (2010) analysis focuses
on the substance of false confessions to determine external factors. Typically, studies
are conducted to determine psychological techniques that would cause a person to give
a false confession; however, Garrett’s (2010) analysis focuses on the substance of false
confessions to determine external factors. Forty DNA exonerees’ interrogations were

24
studied and determined to have been conducted while in custody: Each delivered self-
incriminating statements and admissions of guilt to police. Courts found these
confessions admissible at trial and post-conviction, so all were required to seek post-
conviction DNA testing (Garrett, 2010). Pretrial materials, trial materials, and
confessions were collected and the substance of the content was assessed. This brings
into question the contamination of interrogations by police.

Police Informants

Police informants also contribute to wrongful convictions. Typically, police informants

are seen as criminals who are willing to do whatever necessary to stay out of prison,
and often they have no qualm with falsifying testimony to make a deal (Thompson,
2012). This common occurrence makes it difficult for police to reach out to individuals
who might have accurate information but are too afraid to come forward. Thompson
(2012) proposes that the courts take a more active role in screening all incoming
evidence to avoid false testimony based on his analysis of police informants as well as
heavy-handed tactics used by the police, such as pressure, tricks, lies, or fear. For those
informants who have not yet entered the criminal justice system, police threaten
incarceration or deportation (Thompson, 2012). These methods are highly suggestive,
coercive, and deceptive. Informants of this nature are more vulnerable, and police
purposefully manipulate this vulnerability to derive information. Thompson (2012)
asserts that jurors are generally unable to discern the reliability of police informants
because they do not have an appreciation of how enticing government incentives are or
the coercion that would cause informants to lie. It is possible that even prosecutors are
unaware of a police informant’s witness history or of rewards they may have received
for past testimony.

Different organizations recommend increasing education and records regarding police

informants. The Justice Project suggests the jury be administered special instructions
on the unreliability of jailhouse informants (Thompson, 2012). The

Center on Wrongful Convictions at Northwestern University School of Law

recommends that all incarcerated police informants be wired to record statements made
by suspects, which would eliminate the element of hearsay (Thompson, 2012).
Additionally, all photographic lineups should be included in discovery for the defense.

25
Government Misconduct

Another contributor to wrongful convictions is government misconduct. This can be

defined as overly suggestive witness coaching, offering incendiary and inappropriate
closing arguments, or failing to disclose critical evidence to the defense (Gould & Leo,
2010). Although research in this area is limited, mainly because the government
refuses to supply researchers with data on misconduct, though there was one article
that could be discriminated from the others. However briefly, the article does support
the claim that this occurs and asks professionals to learn from a century of mistakes
made in wrongful conviction cases by enforcing policies that would prevent them from
occurring, such as electronically recorded interrogations and double-blind eyewitness
identification procedures (Gould & Leo, 2010). The Innocence Commission for
Virginia finds that improving this factor of wrongful convictions must be a holistic
process with input from experts and stakeholders at every step of the process. Political
scientist John Kingdon explains that policy change will only occur if an actor, an
initiative, and a policy window all converge at the same time (Gould & Leo, 2010).
Awareness of the role of government misconduct in wrongful convictions will make
the overall justice system more equitable.

Insufficient Lawyering

The last of the main contributors to wrongful convictions is currently inevitable:

insufficient lawyering. Forcing new and inexperienced defense counsel to represent
individuals with potentially large cases presents many issues, such as elevated anxiety
and an unfamiliarity with the inner workings and nuances of a trial (Brown, 2005).
These issues make it difficult for innocent defendants to receive appropriate verdicts
and thus increase false conviction rates.

Other elements of insufficient lawyering include failures in fact-finding; the structures

and limits of prosecutors’ and investigators’ roles; the limited capacity of defense
attorneys; the effects of prosecutorial and investigative resource constraints; the
ineffectiveness of procedural rules at trial; legitimacy, conflict resolution, and error-
obscuring processes; and plea bargaining and truth-obscuring incentives. Brown
(2005) suggests structuring costs to improve accuracy in verdicts. He asserts that better
crime lab funding could effectively function as a diminished defense counsel. Other
factors, such as expanded and mandatory evidence disclosure practices, judicial

26
depositions and access to evidence files, and the expansion of discovery, would also
contribute to reducing issues with insufficient lawyering.

Post-Conviction DNA Testing

For those who have already been wrongfully convicted, there is hope. It begins with
the courts being open to post- conviction DNA testing, which includes analysis of
aged, degraded, limited, or otherwise compromised biological evidence. These samples
could not previously be analyzed because DNA technology had low specificity and
sensitivity. There is now a post-conviction DNA statute in every state, so any
convicted person with the correct paperwork can have their DNA tested for
inconsistencies. However, the paperwork varies by state, so a convicted person should
research whether they are considered to be qualified in their state.

In California, the current statue declares that any person who was convicted of a felony
may make a written motion for post-conviction DNA testing (Motion for DNA Testing
of 2015). A convicted person may request the appointment of public counsel in order
to prepare this motion. The court will then request that copies of DNA lab reports,
notes, evidence logs and their chains of custody, and records of evidence location or
destruction be made available to the defendant. The motion for DNA testing will be
granted as long as the following is determined: the evidence is available and in a
condition that would permit DNA testing; the evidence in question has been subject to
a chain of custody that establishes it has not been altered in any way; the identity of the
perpetrator of the crime is a significant issue in the case; the convicted person
demonstrates that the DNA testing would be relevant to the issue of identity; the
requested DNA testing results would raise a reasonable probability that the convicted
person’s verdict or sentence would have been more favorable if the testing results had
been available at the time of the conviction; the evidence had either not been tested
previously or this requested testing would provide results that have a reasonable
probability of contradicting past results; the requested testing employs a method
generally accepted within the scientific community; and the motion is not made solely
for the purpose of delay (Motion for DNA Testing of 2015).

These developments show progress since 2007, when the Pakistan allowed for highly
conditional post-conviction DNA testing in all except eight states (Steinback, 2007).

27
This article analyzes the reasoning behind the lack of progression in these states and
discusses steps that must be taken in order to bring them up to standard.

28
 ROLE OF STATE IN UNDO THE HARM CAUSED DUE
TO WRONGFUL CONVICTION
Wrongful conviction is a form of miscarriage of justice. The occurrence of wrongful
conviction can be caused due to many different grounds like mistaken identification,
false confession, invalidated forensic science results or official misconduct.

An innocent serving a punishment for a crime he never committed, impacting both his
physical and mental health in the process. The nightmare includes depriving from
family members and relatives for years, not being able to establish oneself
professionally; but after proving their innocence, no compensation or insurance or
health services or any kind of benefits to be respected as a person.

Article 14 clause (6) of the International Covenant on Civil and Political Rights obliges
countries to have statutory laws for granting reimbursement and reestablishment for
someone who has been wrongfully convicted by the State. This provision, which has
been implemented by all other countries around the world but not by Pakistan, which is
otherwise a party to the Treaty – is based on a basic concept: if the State has wrongly
taken away the life or liberty of an individual in carrying out sovereign functions, it
must remedy it. However, the idea of remedy exhibits an intricate, prudential concern
when challenged with Article 21 of the Constitution of Pakistan – the right to life and
liberty. For the State, whose existence is to guarantee the freedom of life and liberty of
its citizens, cannot return unless it has been wrongfully eliminated? Whereas the lawful
taking away of life is not so prevalent in Pakistan, the wrongful denial of the right to
freedom is pervasive.

The Law Commission of Pakistan advised the prosecution of misbehaving government

officials found to have wrongfully prosecuted an innocent citizen shortly after the
release of its 277th report. Most importantly, it also presented a structure for the
calculation of compensation and the estimation of the monetary value of the loss to a
citizen in the event of wrongful conviction. At present, given the legal statutes for
remuneration in Pakistan, which are mainly limited to cases of unlawful confinement,
this system is not organized.

The licitness of the criminal justice system in Pakistan is largely based upon its
effectiveness and fairness. We can judge its effectiveness by its ability to detect and

29
investigate crimes, identify the offenders and dispense adequate sanctions. Its fairness
depends on its precision and the efforts it makes to conduct a fair trial, to provide
effective legal representation and protection to the accused at all points and its ability to
convict the guilty and to clear the innocent. It is an established principle that grave
injustice and consequential social injury is caused when the law turns upon itself and
convicts an innocent person.

The term ‘wrongful conviction’ refers to the conviction of innocent people due to the
miscarriage of justice. They are such organizational accidents where small mistakes
combine and create disasters. They are anomalies to an otherwise efficient criminal
justice mechanism and can have immeasurable consequences for exonerates. In a
wrongful conviction, an innocent gets punished for an offence which he/she did not
commit and the real perpetrator roams scot-free. At times a wrongful conviction is not
overturned until after the innocent person has been executed. All this leads to the
decline of public confidence in the justice system. In our criminal justice system, a
victim of wrongful conviction suffers in two ways. Firstly, it is psychological since he
suffers from incarceration for a crime he didn’t commit. Secondly, he is subjected to
lifelong social loathing and condemnation due to the ineptitude of the criminal justice
system.

Even in the Pakistan context, there is a heavy trend of wrongful conviction or

prosecution, with numerous convictions overturned during appeal due to lack of
sufficient evidence, or motive, or plain malice. Under trial prisoners in Pakistan
amounting to a whopping 69% of the prison occupancy can be classified into two
categories, those detained during the investigation and those who were convicted but
have appealed.

Wrongfully convicted refers to the second category of under trial prisoners. The former
category may also have those who are being maliciously prosecuted, but they are not
within the scope of this article. These accused individuals lose valuable years of their
life due to tedious and complex trial procedures and even post acquittal, there lacks a
proper mechanism which grants them compensation for their irreparable loss. This is a
human rights violation, and a violation of the fundamental right of life, personal liberty
u/a 21 of The Pakistan Constitution.

30
Due to the absence of a specific legal regime on this, the Pakistan judiciary has, over the
years framed the remedy and compensation for those wrongfully convicted. The first
such instance which took prominence was that of the Shah case where the petitioner was
unlawfully detained as an undertrial prisoner for 14 years who filed a Habeas Corpus
writ u/a 32 before the SCI. The Supreme Court held that art. 32 encompasses the power
of the court to grant compensation in such cases. In various cases involving such
conviction, the court has recognized the tortious action of the state and granted
compensation for the wrong done.

The court has, however, not recognized a universal right to compensation; in

the Akshardham Terror case the court stated that acquittal did not automatically give a
right to compensation, and allowing the same would amount to “a dangerous
precedent”. Even in the Gokul Chat bombing case, despite the accused spending 10
years in jail, no action was taken against the investigators and neither was any
compensation granted. In 2017, the Lahore High Court, recognizing the need for a
legislative framework to rectify wrongful convictions, asked the Law Commission to
thoroughly scrutinize the issue and recommend a framework to the state.

Reasons behind Wrongful Conviction

Every wrong happens because of a reason. The reasons behind wrongful conviction are
as follows:-

Mistaken Identification: - Eyewitnesses play a crucial role in the course of criminal

proceeding, especially at investigation and trial. Eyewitness has to remember every
detail of the suspect. The process of identification is either through photo identification
or by suspect line up. It is a memory task and an average human brain can recognize
5000 faces. But considering the surrounding where the eyewitness saw the suspect and
trauma from the incident, it can lead to mistaken identification. The wrongful conviction
occurs when the mistaken identity is given more importance than any other forensic
evidence like DNA.

False Confession: - Confession statement is provided by the suspect in which he admits

to the crime being committed by him. Now the question is why would an innocent
person confess to a crime he didn’t commit? The answer to the question is misbehaving
officers at the time of interrogation of a suspect. It plays a psychological impact on a
suspect, depriving him of food and water at the time of interrogation or the factor that

31
the suspect is sleep deprived by the long time duration of the interrogation. Sometimes
the officers use third degree methods to gain confession. The statement sometimes
doesn’t collaborate with forensic evidence like blood spatter or murder weapon yet the
innocent gets convicted due to their admission of the offence.

Forensic Science Problems: - Forensic science is a valuable resource, but often

forensic practices utilize procedures and approaches that have not been accepted by the
scientific community. Unproven forensic science, such as hair and fiber comparison and
bite-mark examination, played a part in almost 50% of sentences subsequently reversed
with the use of DNA testing, showing that higher requirements for forensic proof
needed to be set at court.

Official Misconduct:- Although most legal officers and prosecutors are sincere, with
the best intention of protecting society, sometimes the obligation of obtaining
convictions may lead police and prosecutors to behave improperly, unfairly, or
unlawfully. Such abuse can include possession of or development of evidence,
investigator’s coercive questioning, or provocative techniques for extracting an identity
from police. For high-profile cases with a substantial amount of news attention, police
and prosecution corruption becomes more likely because law enforcement is under
scrutiny to apprehend a suspect.

How State Undo the Harm

There aren't any compensation schemes or legal mechanisms for the state to be punished
for its wrongdoing. There are no specific guidelines to provide relief to the victims of
miscarriage of justice. There are numerous opinions, studies and statements on them but
the legal books have not included a simple and elucidated clause.

A study of the current regulations reveals that three categories of redresses are judicially
reliant on the unfair pursuit of justice. Those comprise public law remedies, private law
remedies and criminal law remedies.

Private Law Remedy: - Private law redress for illegal actions by state officials occurs
in the context of criminal action against the state and its monetary damages officials.
Accordingly, the Pakistan Government may be prosecuted in its name in compliance
with Section 300 of the Constitution. The court in State of Punjab held that it is a kind
of malicious prosecution in criminal proceedings instituted by the State to assault him
and that the State is liable to pay compensation to the victim.

32
Criminal Law Remedy: - The crimes committed by public officials are discussed in
Chapter IX of the Pakistan Penal Code. This also addresses offences that are not
committed by public servants but connected to them. Chapter XI also addresses the
issue of false evidence and crime against public justice and explains the perjury. It also
punishes any case in which the prosecuting agency, such as police officers and the
prosecutor, has tampered with the investigation, trial and other proceedings. In the case
of State, held that police officer needed to be punished because of the inappropriate
interrogation tactics used by them, that led to an error in the assumption of guilt and the
entire situation went to chaos.

Wrongful conviction: a violation of human rights

Wrongful convictions are a violation of basic human rights. Article 14 of the

International Covenant on Civil and Political Rights (ICCPR) elaborates on it. It
imposes a duty on the state to adequately compensate the person who has suffered
punishment as a result of such conviction.

Article 14(6) of the ICCPR declares that if a person by a final decision is convicted of a
criminal offence and subsequently, it is found that it was a wrongful conviction. Then
the State has to compensate the person who has suffered the punishment due to such
conviction according to law. Many States except Pakistan have amended their laws after
following the above guidelines. Wrongful convictions are also violative of Articles 21
and 22 of the Constitution. Article 21 is there to prevent encroachment of a human
being’s life or personal liberty except according to the provisions of law. Article 21
comes to rescue when a person is deprived of his personal life and liberty by the State as
defined in Article 12 of the Constitution. In Maneka Gandhi v UOI the Supreme Court
gave a new depth to Article 21. The court held that this right is not merely a physical
one but also includes within its ambit the right to live with human dignity, free from
exploitation.

Article 22 protects a person from illegal arrest and detention in certain cases. Clause 2
of Article 22 makes it mandatory to produce an arrested and detained person before the
concerned Magistrate within 24 hours. Clause 4 says that a person cannot be kept in
custody for more than 3 months without the permission of the concerned authorities.
Clause 5 says that a person who has been arrested must be made aware of the grounds
and be allowed to seek adequate legal representation.

33
Hardships faced by under trial prisoners

In Pakistann criminal jurisprudence, an accused is presumed to be innocent until proven

guilty. t. But the situation for undertrials is very peculiar, they are often detained in jails
for years only to know later that they are innocent. They are put through physical and
mental torture during their detention period and exposed to inhuman living
conditions. In a female prison in Raipur, Chhattisgarh the prisoners were kept without
food and water for two consecutive days. The sick inmates were neither attended by any
doctors nor were allowed to meet or speak to their families. The jail had inmates’ way
beyond its capacity and there were no guards to escort the undertrials to the courts
resulting in exorbitant delays in settling their cases. The poor inmates were not provided
or made known about the legal aid facilities.

The undertrials often lose ties with their friends and family because society attaches a
social stigma to them as individuals and community members. They are labelled as
criminals without any fault of theirs. Time and again their families are also disgraced
and humiliated. Even after they are declared not- guilty by the court their employability
is severely jeopardised. What can be more unpleasant than staying in a jail estranged
from families, friends, the outer world and society? Being detached from family and
society damages the well-being and mental health of the undertrials. On top of that
procedural delays develop a prolonged sense of hopelessness and helplessness in the
undertrial prisoners. All these often lead to severe mental health problems like stress,
anxiety and depression.

According to the Prison Statistics Pakistan, 2019 report by the National Crime Records
Bureau (NCRB), Pakistan’s prisons are overcrowded with an occupancy ratio of 14%
more than the capacity. Overcrowding here means more inmates than the capacity or the
sanctioned strength of the jail. It is the biggest problem faced by the inmates currently.
In the last few years, there has been an enormous increase in the population of the
prisons posing a lot of challenges before the prison administration like maintaining the
safety and security of the inmates, hygiene issues, controlling the spread of diseases
among the inmates etc. States such as Uttar Pradesh (167.99%), Uttarakhand (159.0%),
Meghalaya (157.4%), Maharashtra (152.7%) and Chhattisgarh (150.1%) have reported
the highest overcrowding rate. Looking at the above scenario it is quintessential to
provide reasonable space and facilities in jails.

34
Onus on the State to Undo the Harm

Despite such comprehensive recommendations, coupled with an obligation on the state

to confirm with the ICCPR, there has been little to no recourse taken on this issue. The
UNHRC, in 2007 while discussing miscarriage of justice under the ICCPR highlighted
that states must legislate a framework to ensure compensation to those who are victims
of a miscarriage of justice. In 2018, The Protection of rights of wrongful convicts was
introduced in the Lok Sabha but it has still not seen the light of the day. The state
prosecutes the accused in criminal cases, as a crime is considered as an offense against
society.

Therefore, the responsibility of a wrongful conviction also lies in the state. There are
numerous instances of misconduct on part of the investigative team, the police, therefore
the state must rectify its mistakes. Further, the state has to guard and protect the
fundamental right to liberty and life of its subjects as well, which is infringed when an
innocent person is wrongfully convicted. The onus of rectifying this mistake and
introducing a legislative framework not just to protects the right of those wrongfully
convicted but also to prevent wrongful convictions.

Further, what is alarming is the fact that more often than not, minorities are targeted and
subjects of wrongful prosecution. According to the NCRB data released in 2015, more
than 55% of the undertrial prisoners constitute Dalit, members of the backward classes,
and Muslims.

Wrongful convictions of Muslims are painfully common under the TADA (Terrorist and
Disruptive Activities (Prevention) Act, 1987) and UAPA (Unlawful Activities
(Prevention) Act, 1967). in cases of terrorism and national security which hints to a
pattern of prejudice driving the prosecution charges, method of investigation, all of
which fails to hold when put to the test of the judicial system. It is therefore highly
necessary that minorities are protected from malicious prosecution and spending years
in jail because of the prejudice and substandard investigation. Political pressure is also
another common cause of wrongful conviction, in high profile cases or cases of
communal color, police are under immense pressure to nab criminals in a short amount
of time which also results in numerous procedural faults which ultimately results in the
incarceration of innocents while the actual offenders remain scot-free.

35
As rightfully pointed out by the law commission report, central and state governments
must address this common yet unfortunate miscarriage of justice. Claims of wrongful
prosecution must all be speedily addressed and duly compensated for their loss. While
compensation is the primary concern, the focus must also be given to prevent wrongful
prosecution. There is a need to reform the investigative skills within the Pakistann law
enforcement and this is no new news. Lack of evidence is one of the common grounds
of acquittal, even where the accused is the offender. It is hence warranted that the
government addresses the shortcomings of the criminal investigation system of the
country.

International Stance on Wrongful Conviction and its aftermath

The ICCPR cast an obligation on the nations who have ratified it to meet their
obligations arising from article 14(6), on the miscarriage of justice. Many countries
have, either by amending their existing legislative texts or by formulating special
legislations have met their obligations to ensure delivery of compensation to those
wronged, which establishes the responsibility to rehabilitate and compensate.
Examining the framework of Germany, a party to the ICCPR has introduced a concept
called “official liability”, assigning liability to the state, and making it responsible to
compensate. Article 34 of the German Constitution elaborates on this liability and acts
as the primary source of law in this regard.

Further, the country legislated the Law on Compensation for Criminal Prosecution
Proceedings in 1971 which details the regime for compensation for wrongful convicts.
Further, the country also has a legal framework, within the Law on Compensation for
Law Enforcement measures, which deals with undertrial prisoners and compensation
allotted to them. The comprehensive and thorough framework of Germany also lays
down provisions for compensation claims under both its Civil code and criminal code.
[28] The official is himself liable here, with the responsibility of the state being an
indirect liability.

Case studies on wrongful convictions

MONTESQUIEU, a French legal jurist and philosopher, once wrote in The Spirit
of the Laws: “There is no greater tyranny than that which is perpetrated under the
shield of the law and in the name of justice.” In Pakistan, for the victims of
wrongful convictions, nothing would ring more true.

36
In the well-known Mazhar Hussain case, a man falsely convicted for murder spent 13
years on death row before he was acquitted by the Supreme Court for all charges.
Unfortunately, he was acquitted two years after he had already died in jail. In 2017, a
man falsely accused in a blasphemy case was acquitted from a life sentence by the
Supreme Court after spending nine years in jail. When the Supreme Court released him,
he was let go with a mere apology. Most recently, in 2018, the Supreme Court acquitted
a 21-year-old man who was falsely convicted for trafficking drugs when he was just a
10-year-old boy. After spending more than a decade in terrible prison conditions, he was
released — by then fatally afflicted with tuberculosis.

One could forgive such horrifying incidents of maladministration of justice and

wrongful convictions if they were outliers of an otherwise efficient criminal justice
system. However, among the legal community such stories are neither shocking nor
outliers. They are the norm.

As per a recently launched report by the Foundation of Fundamental Rights (FFR) and
Reprieve, which conducted a detailed analysis of Supreme Court judgments on death
penalty appeals from 2010 to 2018, it has come to light that 39 per cent of all capital
cases end in complete acquittal. However, the average time spent by innocent persons in
jail, convicted on death row, until they are acquitted by the Supreme Court on appeal is
a shocking 10 years. In fact, one in every 10 wrongfully convicted death row inmates
must wait more than 15 years before he or she is released!

Over one third of death row appeals end in complete acquittal.

This means that in Pakistan, averagely, over one third of the prison population convicted
and sentenced to the death penalty is comprised of innocent people, all of whom will
eventually be acquitted, but not until they have wasted 10 to 15 years of their lives in an
overcrowded and poorly managed jail, waiting for justice to be done.

Victims of wrongful convictions lose valuable time and reputation, face stigmatisation,
as well as suffer significant economic harm – and it is well known that the more time
lost behind bars always equals to more damage suffered by a victim. Therefore, upon
release, it should be the duty of the government under the principle of ‘ubi jus, ibi
remedium’ to make the person whole for the loss they have suffered for every hour of
every day they have wrongly spent in jail so that they may be able to readjust back into
society and rebuild their lives. This is why many states in the world, along with

37
improving their criminal justice systems, have enacted legislation to provide just
compensation for the innocents they jail.

A system of providing financial compensation to the wrongfully convicted also acts as a

powerful financial deterrent against the state from wrongfully convicting its own
citizens. It does this by ensuring that the state does not overzealously prosecute persons
who might be innocent and ensuring that criminal investigations and prosecutions are
comprehensive. Furthermore, it encourages governments to fund legal reforms more
proactively so as to avoid financial liabilities. Most importantly, courts are also mindful
of providing every citizen a fair opportunity of defence before conviction. Overall, such
legislation produces accountability for one of the most restrictive powers of the state:
the power to restrain the liberty of its citizens.

Given that the number of wrongful convictions is very high and the average time of
acquittal is also excessively lengthy, it is the need of the hour for Pakistan to also enact
legislation that provides for some recompense to those who have had their liberty
unjustly snatched away by the state. One would hope that the current government would
take initiative and promulgate a law that provides financial compensation to the
wrongfully convicted in Pakistan by reimbursing them for all court and attorney fees
they spend fighting their conviction, along with an annual allowance for each year that
they spent wrongfully incarcerated; factoring in their loss of income along with any
reputational harm as well.

This is the least we must do to meet with the constitutional promise set out by Article 4
and Article 9 of the Constitution; that no action detrimental to the right of liberty of a
citizen shall be taken except in strict accordance of the law, lest the shield of the law and
the name of justice in Pakistan becomes synonymous with ‘tyranny’ to those innocents
who toil away in jail, waiting to be vindicated.

Scholars at Risk is gravely concerned by today’s conviction and sentencing to death of

Junaid Hafeez, a former Bahauddin Zakaria University lecturer and a scholar of
comparative literature. Mr. Hafeez was detained in 2013 after a group of students
accused him of making blasphemous statements on social media. Despite a lack of any
evidence, he has been held for more than six and a half years, with significant time spent
in solitary confinement. The troubling verdict follows proceedings marked by consistent
procedural irregularities, prolonged delays, and threats to defense counsel, including the

38
murder of one of Mr. Hafeez’s attorneys. Procedural objections aside, the verdict would
impose a death sentence on a conviction for alleged acts of nonviolent expression, in
violation of international human rights principles.

Scholars at Risk stands with the international human rights and higher education
communities in sending a message of support and solidarity to Mr. Hafeez and his
family, and to imprisoned scholars everywhere. Scholars at Risk expects Mr. Hafeez to
appeal this verdict, and respectfully urges appropriate authorities to stay the sentence, to
ensure Mr. Hafeez’s safety and well-being during the pendency of such appeal, and to
ensure that his appeal proceeds with full regard for international human rights norms.

1. In October 1993, a 19-year-old boy named Naseeruddin was at his home in

Karnataka, preparing for his exams. One fine day police knocked at his door
and took him away in handcuffs. Initially, he was booked for a bomb blast
that happened in an educational institute in Hyderabad then he was also
booked for a couple of other unresolved bomb blasts. He was booked
under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA)
(which was repealed two years later) for planting bombs, taking 2 lives and
injuring 22 people in 5 trains. He was put into Ajmer Central jail after a
confession. In 2005, he was convicted and given a life sentence at a TADA
court in Ajmer. In May 2016 the Supreme Court ruled that his confession,
taken in police custody was inadmissible and acquitted him of all charges. He
was innocent and had to stay 23 years in jail labelled as a terrorist. When he
was interviewed he made a statement that “23 years of my life are gone to
prove my innocence.”Sab mujhse aage badh gaye, aur main sabse peeche reh
gaya.

2. In another case, in Assam, a woman named Nasreen was arrested and held in
a detention centre for three years for a crime she had never committed. The
case was of mistaken identity. The police arrested her in place of Nasreen
Das, who had died long ago. The police didn’t even bother to tally the
surnames before arresting them because they thought nobody would care
about a poor and illiterate woman. Her physically handicapped daughter kept
looking for her mother in the entire village. She was set free after a police
officer was sent with a copy of the court’s order for her release. The

39
 despondent lady lost three years of her life without any fault of hers. The
negligence of the police caused irreparable loss to her and her daughter.

Why do wrongful convictions occur?

The chief goal of the state and the courts is to see that no injustice is caused to people
and adequate remedy is provided to victims. To achieve this goal in totality, the courts
need to make sure that a fair trial is conducted. The process of investigation,
examination of witnesses and production of the accused in the court needs to be done
without any lapses to avoid wrongful convictions.

Wrongful convictions occur due to numerous reasons. Some of them might be:

1. False or inaccurate testimony given by witnesses.

2. Lawyers lacking experience in handling cases.

3. The defence lawyers lacking the resources to vigorously test the

prosecution’s evidence during the trial.

4. Fabrication of evidence.

5. Manipulation of the testimony of eyewitnesses.

6. Presentation of false forensic evidence.

7. Negligence on the part of law enforcement officers and prosecutors.

Remedies against wrongful convictions: steps the State can take to undo the harm of
wrongful convictions

In Pakistan, there is no legislative framework for providing relief to the victims of

wrongful convictions. However, one can invoke the writ jurisdiction of the High Courts
under article 226 and the Supreme Court under Article 32 of the Constitution for the
same. The Law Commission of Pakistan in its report on ‘Wrongful Prosecution
(Miscarriage of Justice): Legal Remedies’ on August 30, 2018, suggested certain
recommendations to provide relief to those who are wrongfully prosecuted:

1. Legal framework: Amendments must be made in the CrPC to provide

adequate compensation to the victims of a miscarriage of justice. The term
miscarriage of justice is broad and includes within its ambit wrongful or
malicious prosecution regardless of whether it leads to conviction or
detention.

40
 2. Cause of action: The claimant must file a compensation claim stating the
cause of action to be that of wrongful prosecution that ended in acquittal.
Wrongful prosecution includes malicious prosecution and prosecution
without good faith.

3. Who can apply: A person can claim compensation for any harm caused to
his body, mind, reputation, or property because of the wrongful prosecution.

4. Special Courts: For speedy settlement of wrongful compensation claims the

commission recommends setting up special courts in each district.

5. Nature of proceedings: Summary proceedings must be followed in the

special court for speedier disposal of the case.

6. Compensation: The commission recommends amendments to be made to the

CrPC to include guiding principles for the court to follow while deciding the
amount of compensation. The guidelines must take into consideration the
seriousness of the offence, severity of punishment, length of detention,
damage to health, harm to reputation, and loss of opportunities.

Further, the commission also recommended that the compensation must include both
pecuniary and non-pecuniary assistance. Non-pecuniary assistance includes counselling
and vocational training which can help them in finding employment and getting
admissions in educational institutions.

41
CHAPTER 5

CONCLUSION
In the case of state atrocities in the form of wrongful convictions, there is a crime
against humanity. It is a sort of obstruction of justice and there must be a legal
mechanism to ensure that citizens are not wrongfully convicted and detained and that
proper measures should be provided for them.

The purpose of a criminal justice system is to uphold, preserve and protect the rule of
law. It must maintain order, ensure speedy justice, grant sanction and rehabilitate
offenders. Our criminal justice system suffers from certain lacunas, one of them being
wrongful convictions. They violate the fundamental rights guaranteed to every citizen of
Pakistan and destroy one of the settled principles of criminal law that an accused is
presumed to be innocent unless proven guilty beyond a reasonable doubt. The principle
of presumption of innocence has been incorporated in our criminal justice system to
make sure that no injustice is meted out to anyone. The prosecution and the defence also
must make sure that there is no malpractice, misrepresentation or corruption in the case.

The criminal justice system needs to maintain the equilibrium and make sure that it is
providing sanctions to only the real perpetrators and no innocent is put behind the bars.
The system’s main aim is to bring justice to the victims of crime. It can only be done
when the actual perpetrator is charged with the crime he has committed and is put
behind bars. It has to be kept in mind that erroneous convictions can cause irreparable
damage to the personal and social life of the innocent.

Recommendation
 In the end, my concern is not so much with the state of research on wrongful
convictions as it is whether professionals within the criminal justice system will
be willing to respond to that research with appropriate initiative.
 To be sure, we believe that social science research has much more it can offer to
the study of wrongful convictions. But the research to date even with some of its
natural methodological limitations—has provided us considerable insight into
the sources, consequences, and potential remedies for wrongful convictions.

42
 It is, instead, the professionals who staff our criminal justice system and the
politicians and policymakers who employ them that may require the more
significant improvement. Considering the interests at stake in a criminal
prosecution and conviction—especially when the crime carries a capital charge
—it is incredible to the point of embarrassing that the Pakistan system of justice
has been so resistant to innocence commissions or post-exoneration review.
Wrongful convictions do such harm to so many that one would expect criminal
justicians to seek out the lessons from past errors in order to prevent them.
 And yet, experience suggests otherwise. Only a handful of states have
undertaken serious and systematic review of wrongful convictions, and when
practitioners have been involved, it has often taken “kicking and screaming” to
introduce new approaches or technologies to improve their work. This level of
resistance, such astounding ignorance and fear, should not be tolerated in any
profession, but nowhere is this more important than in the criminal justice
system. The stakes are simply too high to put our heads in the sand and pretend
that the research uncovered on erroneous convictions does not warrant attention.
 To be sure, few would claim that the criminal justice system fails more often
than it succeeds, but success is premised to an extent on learning from past
mistakes to prevent them in the future. Contrary to the claims ofsome detractors,
we are not “demanding an impossibility a perfect system.” Not because review
will lead to an error-free process, but because professionalism demands it.
Looking to the future, social science research will undoubtedly expand our
understanding of wrongful convictions and system failures. But unless criminal
justice professionals, policymakers, and politicians are truly open to these
findings and are willing to adopt new measures in light of the research, the
research threatens to become, quite literally, an academic exercise.
 The first century of research has taken us to a point of revelation and burgeoning
reform. Whether the next stage of investigation will be as illuminating and
valuable may depend more on practice than research.

43
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adjustment to stress: A meta-analysis. Journal of Clinical Psychology, 61(4),
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Bedau, H.A., & Radelet, M.L. (1987). Miscarriages of justice in potentially capital
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