British-born Islamic militant Ahmed Omar Saeed Sheikh is surrounded by armed police as he arrives at a court in Karachi, March 29, 2002 | Reuters
British-born Islamic militant Ahmed Omar Saeed Sheikh is surrounded by armed police as he arrives at a court in Karachi, March 29, 2002 | Reuters

It took three months for the trial of Omar Saeed Sheikh to conclude and 18 years for the appeal to be heard. This highlights the only two speeds at which our criminal justice system moves: with lightning efficiency (in our legal vocabulary sometimes referred to as “unholy haste”), or barely at all.

Another obvious example of the justice system working (or not working) in extremes is a contrast of conviction rates: ordinary courts and anti-terrorism courts seem to be unable to convict anyone and military courts convict almost everyone.

The Supreme Court is still hearing issues connected to the case; hence, detailed comment on the specific case should be deferred. However, much of the discourse surrounding this case and other high-profile cases operates at abstract and, sometimes, elusive levels of lack of will to reform, structural problems and laments.

The solutions are kinetic and specific. Special courts are set up to unburden special courts. The spotlight on the high-profile case and the crisis at hand is, however, surrounded by an ocean of darkness. Policy-making, commentary, conspiracy theories and outrage are focused on the failure to deal with a particular case, specific issue and our desire to create islands of efficiency.

The Omar Saeed Sheikh case is a unique one for several reasons, almost all soul-bruising. However, beyond elevated questions of policies, it yet again lays bare a less conspiratorial, less glamorous reality of the criminal justice system: it is broken. This is not an argument against focused attempts to deal with specific problems, but only to say that dilapidated ground floors must be dealt with, regardless of the cutting-edge floor plan for the top floor.

The victim, the alleged perpetrator, the shocking brutality of the crime in cases such as the Daniel Pearl case distinguish it from ordinary cases. However, all cases in the criminal justice system end up having more commonalities than points of difference. For starters, the criminal justice system is formally triggered by a First Information Report (FIR). The FIR was meant to record what (the alleged crime committed), when and where, and FIRs from 50 years ago contained just this information in a couple of sentences. Over decades, however, the FIR has become an elaborate document of not only basic information available but of intricate details of the names of the accused, witnesses, the role of the accused and other incidental details.

The Supreme Court decision acquitting the alleged mastermind of journalist Daniel Pearl’s abduction and killing has drawn much criticism. While issues around this specific case are still in appeal and should not be commented on, the process itself indicates much about the broken criminal justice system in Pakistan

As an example, in an overwhelming number of murder and assault FIRs in rural Punjab, when the alleged crime is committed in the evening, there is always a “100-watt bulb” nearby. The 100-watt bulb is present in FIRs about alleged crimes committed in desolate fields and on deserted highways; an odd, pervasive detail on first look. It is only when, during trial, “eye-witnesses” are cross-examined about how they could recognise the accused in the dark, often from a distance, that the utility of the solitary, out-of-place bulb becomes evident — the witness could apparently recognise the accused because of the light from the bulb.

FIR drafting is a niche, unrecognised genre of prose writing, with wizened old hands taking in the requirement of a complainant and producing the text and the details. If a muharrar [clerk] of a police station mixes the alphabet and diacriticals and a “chharri ka waar” [blow from a stick] becomes a “chhuri ka waar” [attack with a knife] or vice versa, it will often take several years and a Supreme Court intervention to rectify, if at all.

The fundamental problem of the FIR is that, at the first step of the process, it straightjackets a story, which the investigation and prosecution must prove or fail to prove. This leads to a situation where the investigation of criminal cases is conducted backwards, i.e., first the perpetrator is identified, and then evidence is “found” to legitimise that finding.

Often accused caught after months, and even years, of absconding are found to be carrying the weapon used in the offence, or other incriminating evidence, on their person at the time of arrest. The consequence of this is a situation where, in legal terms, the criminal justice process must filter through varying degrees of factually incorrect statements and falsehoods to arrive at one version of the “truth”.

This is exacerbated by the absence of genuine witnesses. The lack of witness protection programmes in anti-terrorism cases, coupled with a general mistrust in the criminal justice system for all cases, acts as deterrent for independent witnesses to come forward. This results in the usual farce of a cousin of the victim or the complainant from Khushab visiting Lahore and “chancing” upon the crime. Hence, quite often, in even open and shut cases, the witnesses are lying or, at the very least, relaying information witnessed by someone else.

The false FIR (of varying degrees) with the real perpetrator is a staple of our legal system. We are as trustworthy or not, as any other people; however, we operate in a system which not only incentivises embellishment and misrepresentation, but makes it unavoidable.

The lack of investment in technological and forensic investigation has resulted in our criminal justice system being largely testimony-based. In practice, it often results in obtaining a non-admissible confession by the police and then constructing evidence based around the confession. This, apart from efficiency and transparency concerns, also provides an enabling environment for torture and mistreatment.

For the longest time, our courts held that the common law principle of “falsus in uno, falsus in omnibus” [false in one thing, false in everything] — meaning that if it is proved that a witness testified falsely on one aspect, he or she is not credible on any other aspect and his or her testimony has to be disbelieved as a whole — could not be applied to criminal cases in Pakistan. The ostensible reason for this was that if the criteria were applied, almost all prosecutions would fail. In 2019, however, the then Chief Justice, Asif Saeed Khosa, held that there is no reason for Pakistan to be exempted from the application of this evidentiary principle. The ruling is binding but it is not really complied with given the landscape.

The prosecution, as an independent pillar of the criminal justice system, has never really developed and, hence, the role of the prosecution is that of a mere post office, communicating the investigation findings to the court.

The shaky testimony-based system of investigation and prosecution allows an almost unfettered discretion to the courts in choosing which evidence to believe and rely upon and, in case of conviction, what sentence to hand out. The Pakistani courts term the process of selecting reliable evidence as “sifting chaff from the grain”, perhaps aptly a reference to an old agricultural method rather than a modern, reason-based one.

This, coupled with the absence of sentencing guidelines and wide discretion in awarding sentences (within the upper and sometimes lower boundaries of prescribed punishment), leads to inequitable decisions, inefficiency and confusion. Widely disparate sentences in cases involving identical facts makes the system a rigged lottery, with lives depending on which judge someone gets on which day.

Pakistan does not have sentencing hearing. In simple terms, this means that, when a court reaches the conclusion that someone is guilty, the court proceeds on deciding the punishment in the same process. In several other jurisdictions, the two decisions are made separately. One fundamental confusion often plagues the sentencing process in Pakistan, namely that the courts — particularly trial courts — end up linking the court’s degree of certainty of the accused’s guilt with the sentence the accused ends up receiving.

The more certain the court is, the higher the sentence. This strikes at the foundation of a functioning justice system; if the court is unsure, the accused should be acquitted, not given a lighter sentence in “abundant caution.” On the flipside, in cases of offences carrying sentences “up to seven years”, the accused are sometimes given 14 days as punishment.

This is not an exhaustive accounting of the dysfunction of the criminal justice system. Solutions are complex and require a hard, long slog rather than flairs of inspirations and intervals of maniacal, focused energy. Special cases and challenges can only receive special attention once the floor for all cases rises to a minimum level.

The legitimacy of the criminal justice system, as it is, rests on no real legal or ethical principle; it is predicated on sheer coercive capacity. However, the structural violence of the system, while being unpredictable, is not completely random; there is some degree of method to the madness. At least, in so far as the victims remain the most marginalised and vulnerable sections of the population.

The writer is a lawyer

Published in Dawn, EOS, February 14th, 2021

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