ISLAMABAD: In an astonishing observation, the Islamabad High Court (IHC) has said the existing criminal justice system “fails to prevent and prosecute crime” as the system is “perpetuating miscarriages of justice and... appears to be on the brink of collapse”.

Chief Justice Athar Minallah made the observation on Monday, when he acquitted the accused in seven different murder cases. In most of the cases the accused remained behind bars for about 10 years.

In its verdict, the court said: “Before parting, we feel morally and professionally obliged to record our observations regarding the alarming and abysmal state of the criminal justice system in the Islamabad Capital Territory. The case in hand is only the tip of the iceberg because in most of the cases serious crimes go unpunished.

“The purpose of the criminal justice system ought to be to punish the guilty so that crime could be effectively controlled.”

Holds all pillars of state responsible for the pathetic state of affairs

The high court went on to say: “We have no hesitation in stating that in the current circumstances this faith [on criminal justice system] would be totally misguided. Notwithstanding and conceding the weaknesses and shortcomings of the judicial branch, it is dependent on the integrity, quality and professionalism of the other most important stakeholder, i.e. the police, the prison authorities and the prosecution.

“Whether due to corruption, complacency or sheer incompetence and lack of professionalism, the criminal justice system is definitely not serving its purpose; rather it is perpetuating miscarriages of justice and appears to have become a source of grave injustice,” the order read.

“In the case in hand, incompetence, outdated and obsolete techniques used for investigating the gruesome murder and, prima facie, lack of probity and professionalism, are floating on the surface of the record,” the court observed.

“Regretfully, this is not an isolated case, but a general pattern observed in most of the cases. It has been observed that, invariably, the investigating officers either appear to be complacent, compromised or totally incompetent.”

The court noted that “the low-paid investigating officer does not have sufficient resources to visit the crime scene when a crime is reported, let alone transporting the sealed samples and arranging the payment of the fee to the official laboratory for conducting chemical examinations. It is not a secret that parties, invariably the victims, are asked for money because sufficient official resources for conducting investigations are not available.”

Moreover, “the investigating officers are not trained nor employed or selected for this purpose. There is no independent, separate investigation branch and it appears that this is not a priority,” the court’s order said.

Chief Justice Minallah pointed out that the “Police Order, 2001 has been enforced in the Islamabad Capital Territory but its implementation is being resisted. It is also ironic that, despite the creation of the Islamabad Capital Territory more than three decades ago, the prosecution branch has yet to be established.”

He added that “trial courts have been set up in rented shops in a commercial area where conditions are deplorable and degrading. The procedures and laws have become outdated and a cause for delays”.

In such circumstances, the citizens and society also had a role to play because, for various reasons, witnesses of a crime are not willing to testify and, as an alternative, the investigating officer fabricates false evidence. The witnesses also have no hesitation in falsely deposing under oath, the order said.

All the pillars of state are equally responsible for the system’s failure, the court said. “In a nutshell, the present state of the criminal justice system is not serving its purpose and appears to be on the brink of collapse. All the branches i.e. the executive, the judiciary and the legislature are equally responsible for the prevailing conditions that definitely encourage corruption and perpetuate grave miscarriages of justice.”

The verdict said: “It is a glaring reality that the state has neglected this most crucial part of the governance system for the past seven decades because it is obvious that the criminal justice system was never a priority…We have no hesitation in acknowledging that the prevailing criminal justice system does not guarantee protection against miscarriages of justice. It fails to prevent and prosecute crime effectively and is vulnerable to [exploitation] by the powerful against the underprivileged.”

The criminal justice system does not appear to guarantee the fundamental right to a fair trial and justice to every citizen. The system is thus a classic example of a grave violation of the constitutionally guaranteed rights of every citizen, because it fails to achieve its fundamental objective to protect the victims, punish the guilty and thus make the society safe for every citizen.

“The present abysmal state of the criminal justice system has not happened in a day, but is a reflection of the apathy, neglect and mis-governance of the past seven decades and no organ of the state can absolve itself from being responsible,” the order said.

The court also directed the registrar’s office to send copies of the verdict to the secretary of interior ministry and chief commissioner and inspector general (police) of the Islamabad Capital Territory.

“They are expected to submit their reports to the registrar of this court regarding measures intended to be taken in the light of our observations in the above paragraphs,” the verdict added.

Published in Dawn, May 5th, 2020