NOTHING has caused more damage to the criminal justice system than the maxim ‘accused is the favourite child of law’. There can be little debate that the ‘victim’, and not the ‘accused’, should be the favourite child in such a scenario.
In a system where the accused is the favourite, criminals tend to dominate society. In Pakistan, for instance, the law and order situation has been on a downward slide for long because criminals know there is hardly any probability of them getting convicted.
The criminals involved in narcotics have a panel of their own expert lawyers who manage their cases even from the remand stage.
In murder cases, paid shooters are available. And if nothing else works, just prolong the case, let the memory of the prosecution witnesses fade, or let their interest diminish. The ultimate beneficiary would be the accused.
Even a single dent is sufficient to give benefit of doubt to the accused. In rape cases, there are usually no witnesses.
The medical examination, or DNA test, is only a corroborative piece of evidence. In most such cases, the victim prefers to exonerate the accused instead of going through the tedious and usually unfruitful process of law.
The accused, the victim, the police, the prosecution and even the court knows that the crime has been committed, but it is the ‘due process of law’ which comes to the aid of the accused just as a father comes to the aid of his favourite child.
The ‘due process of law’ has to be above and beyond the technicalities. If a crime has been committed, the law should have the capacity to acknowledge it. Legal mechanisms should be strong enough to crush the spirit of misusing the ‘due process of law’. What we see in the courtrooms on a daily basis may rightly be called the ‘misuse of the process of the court’, which has become the order of the day.
Though relevant sections of both civil and criminal codes provide remedy against misuse of the process of the court, practically speaking, the accused, being the favourite child, somehow manages to use the process to his advantage.
Unless procedural laws are regulated, especially codes of criminal and civil procedures, new laws will limp along only on one leg. It is time for all the relevant stakeholders to think long and hard about devising a mechanism which should work both for the victim and the accused.
If the accused has constitutional rights, as envisaged in the Constitution, the victim, too, has some, or so I would like to believe. Playing favourite is being unjust. Justice should not only be done, but should seem to have been done as well. Just as no one is above the law, no one should be the favourite of the law.
Muhammad Zeeshan Gulzar
Published in Dawn, December 4th, 2022