ANALYSIS OF ADVERSERIAL VERSUS INQUESTORIAL WITH REFENCE TO

HUMAN RIGHT

The status, welfare and prosperity of a society are dependent upon the rule of law and systematic
dispensation of justice to all its citizens indiscriminately. The Judiciary is not only responsible
for effective administration of justice (both criminal and civil), but also for its speedy and
economical dispensation to all citizens of the state. When there is a matter of dispensation of
justice there are two systems that works for it, one is adversarial and other is inquisitorial system
of justice. In an adversarial system, the role of the judge is that of a neutral umpire, unruffled by
emotions, a judge is to ensure fair trial (based on the principle of presumption of innocence until
proven guilty) between the prosecution and the defense on the basis of the evidence before him.
Adversarial system is to determine the facts in the adjudication process. The prosecution and
defense compete against each other. In contrast an inquisitorial system is a legal system in which
the court, or a part of the court, is actively involved in investigating the facts of the case. More
investigating powers envisaged to judges. While in adversarial investigation power given to
police and investigating agencies.

The adversarial system is a two-sided structure under which Justice is done when the most
effective and rightful adversary is able to convince the judge or jury that his or her perspective
on the case is the correct one. Pakistan adopted adversarial system from the British legacy. The
concept of adversary system is looks like perfect and accordance to the Montesquieu theory
(where there is a separation of powers between judiciary, executives and legislator) so the organ
of the states perform their function according to the law. But in Pakistan this system is much
more abused by the investigating agencies, police or by lawyers itself to serve their own interest.
Lawyers were on strike on every fourth day, as a result of which half of the cases before different
districts courts had to be adjourned. Lawyers drag on cases for their financial means. When we
are talking about the reason of the failure of adversarial system then the police are at the top of
the list that completely destroyed the case because they are prima facie body who conduct
investigation about the matter. Unfortunately in Pakistan there is no modern method of
investigation our police is very slow to conduct investigation and until they gathered evidence or
submit their reports to magistrate evidence from the crime scene are vanished and at last there is
nothing in the case remains on which victim’s claim and accused benefitted from the reasonable
doubt. And here judges can’t use their own prudence and expertise to give advice to the one of
the party and this is not the matter that what judge find to be true but here evidence play their
vital role on which judges give their judgments.1The Supreme Court (SC) set aside an order of
the Lahore High Court (LHC) which had directed authorities to obtain fresh samples of an
alleged intoxicating substance in a narcotics case and to prepare a fresh report of the chemical
examiner. The SC said the LHC went beyond its lawful powers under section 423(1) (a) CrPC

1
Hasnan shah versus state SCMR
when it directed to conduct re-investigation or further investigation of the case, which was not
permissible under the law. The court cannot allow one of the parties to fill lacunas in their
evidence or extend a second chance to a party to improve their case or the quality of the evidence
tendered by them. Such judicial intervention is opposed to the adversary principle and offensive
to the fundamental right of fair trial and due process guaranteed under the Constitution.

In adversarial system there is grave violation of human rights. In this system where police is
more powerful and in cognizable cases police may arrest without warrant a suspected person, if
there is any political influence than police easily shut down the case by destroying the evidence
or when there is ulterior motives than police torture such suspect for extracting out evidence and
used against him but here rules of evidence plays important role and inadmissible all such
admissions or confessions which are extract out by any pressure, torture or where evidence may
obtain by any other illegal means2 from the suspect and conviction can’t upheld until and unless
there is other circumstances or corroborative evidences weight the confessions of accused.
People lose their confidence on courts in Pakistan they can’t come forward and give testimony
because they know they are exposed to danger their lives poor witness cannot give testimony
against influencers, landlords or political persons and in that way there is no accountability of
such kinds of criminals who grown up in our society as a most respectful persons just because
our system cannot provide appropriate witness protection. Witnesses are essential part in any
proceedings so it is duty of the court to gain necessary confidence of the witnesses that they
would be protected from the wrath of the accused in any eventuality. For that purpose courts
should adopt international human rights protection methods in which identity of the witness hide
from the accused person, witness give testimony through video link or any other appropriate
means or if necessary witness send to any other place for some time until the matter has been
decided.

Our system of justice is mixture of both systems (adversarial or inquisitorial). In fact, there are
provisions both in the C.P.C and the CrPc strongly militating against the system followed by the
courts in Pakistan being purely adversary system. The indications are that it is a mixture of
adversarial and inquisitorial systems or at least there is nothing in our procedural laws to prevent
the courts from making it so. For example, section 24 of the Code of Civil Procedure empowers
the High Court or a District Court “of its own motion” to transfer any suit or appeal from one
court to another. As regard the criminal trial the parties are the State and an ordinary citizen and
their position is so unequal that it will be wholly inapt to describe the criminal system of trial as
adversarial in nature. Thus, there is compelling evidence in the Codes themselves showing that
the rules of procedure are not masters but servants. Justice khuwaja 3 also came out in support of
invoking the suo motu jurisdiction under Article 184(3) of the Constitution for the enforcement
of citizens’ fundamental rights. This is the most effective way of implementing the fundamental
rights of the people, he said more than 300 suo motu notices were taken by the Supreme Court in

2
Justice Qazi faiz isa judgment
3
Dawn Article justice khuwaja argues that the judicary is to be fearless
any judicial year, as opposed to about 20,000 cases filed every year. One of the great examples
of inquisitorial system is sou motu action regarding law and order situation in Karachi 4. Where
judges use their own prudence and power and emphasis provincial/federal government to work
in their full capacity without any political discrimination and separate themselves from being
part of criminals who are getting financial and political support from political parties. And police
force being principal law enforcing agency has to be de-politicized and strengthened so that they
could, with full commitment perform its bounden duty. And SC also directs to police officials
and rangers to clean no go areas in Karachi conduct operations against criminals. So here one
thing is proved that when judiciary is completely free from any pressure and they have right to
give their opinion and use their expertise that system works more efficiently and effectively and
dispensation speedy justice to aggrieved citizens of the state. The time had come for an
inquisitorial system of justice running side-by-side with the current adversarial system, to
promote the swift dispensation of justice as seen in the developed world.

4
Karachi badamni case judgment