KARACHI, May 8: Over 70 per cent convictions involving capital punishment handed down by trial courts are set aside by superior courts of law mainly on account of defective and inefficient investigation techniques employed by police and flaws in the prosecution system.

Sources in the office of the provincial advocate-general told Dawn that the quality of police investigations in high-profile cases, such as bomb blasts and sectarian killings, was not up to the mark and most sentences awarded to the accused by the trial courts were either set aside or commuted by the Sindh High Court.

They said that in some cases improper identification parades by judicial magistrates, who left loopholes in the collection of such significant evidence, were behind setting aside of convictions.

Defence attorneys had a different story to tell. They said investigators in Pakistan were in the habit of ‘creating and fabricating’ evidence instead of collecting it honestly.

“As a rule, the quality of a police investigation is very poor and investigation officers almost always fail to find direct evidence against defendants. Consequently, they create and set up evidence, shattering their own case,” said M.R. Syed, a leading lawyer of criminal cases, who claims that the Sindh High Court set aside convictions of his clients, belonging to outlawed sectarian outfits, in as many as 15 cases over the past 16 months.

He said there must be direct evidence of eye-witnesses — known as ocular evidence in technical parlance — in the cases involving capital punishment as merely circumstantial evidence and judicial confession were not enough to establish the case of the prosecution.

In Pakistan, three types of evidence are generally admissible in a court of law: ocular evidence, circumstantial evidence and judicial confession.

“It is really hard for an investigation officer to find a real and independent eyewitness to a crime as people do not come forward to record their evidence,” he conceded.

“Even I, despite being an attorney myself, would avoid becoming a witness for the prosecution since there is no witness protection programme in our country,” he explained.

Mr Syed said police investigators were not properly trained and unacquainted with modern investigation techniques.

“Lack of knowledge on their part is one of the main reasons of flawed prosecution,” he said.

When asked why the Sindh High Court was often not impressed by the evidence that generally found such favour with the trial court that a conviction was handed down, he said the superior court had to see what type of evidence was produced by the prosecution before the trial court.

Elaborating his point, Mr Syed said that under the law there were three types of evidence — “wholly reliable, wholly not reliable and partly reliable or not reliable”.

“A conviction can be awarded on the basis of wholly reliable evidence only, but the accused has to be acquitted if the evidence is wholly or partly not reliable,” he said, adding that the benefit of the doubt had to be given to defendants under the law.

Mushtaq Ahmed, another lawyer, said that at least seven appeals filed on behalf of his clients belonging to Lashkar-i-Jhangvi were allowed by the Sindh High Court which set aside the capital punishment earlier awarded by an anti-terrorism court.

He said the trial judges usually did not consider the cross-examination of prosecution witnesses by defence attorneys while making judgments. “Numerous contradictions in the case of the prosecution are pointed out during the cross-examination which is otherwise enough to create reasonable doubt.”

A prosecution lawyer, who did not wish to be named, said: “Since a trial court judge himself tries the accused, his opinion is influenced by the behaviour of the defendants and witnesses who appear before him during the trial. He sometimes overlooks prosecution flaws. But High Court judges examine the record of the trial very minutely and eventually detect the flaws that favour defendants.”He said “wrongful confinement” of the accused by police also dealt a severe blow to the prosecution’s case in a court of law. He explained that quite often police picked up a suspect without declaring his arrest.

“In the meanwhile, the suspect’s family reports the matter to the press or files a petition in the high court. The defence successfully disputes the time and place of the suspect’s arrest, which is enough to create doubts about the prosecution’s case.”

He said delays in the holding of an identification parade of the accused also adversely affected the prosecution’s case.

“Similarly, a delay in the recording of a judicial confession of the accused creates doubt in the mind of a judge,” he added.

The prosecution lawyer said police officials were generally interested in arresting the accused because they got pre-mature reward for their work in the form of promotions. “But they make little efforts to establish their cases in courts,” he added.Former Supreme Court judge Nasir Aslam Zahid attributed poor investigations to rampant corruption and political appointees in the police department.

“The conviction rate of anti-terrorism courts is high because when a high-profile case is brought to a low-ranking judge, he comes under immense psychological pressure. But when the same case goes to experienced judges of the high court, they find hardly any evidence in convictions,” he explained.

“The criminal justice system in on the brink of collapse in this country. Crimes are being committed all the time and convictions handed down by trial courts are being set aside by superior courts. So, the question is: where have the real culprits gone?”