• SHC describes trial courts’measures against witnesses as coercive
• Stresses need to examine reasons why threatened families not pursuing cases

KARACHI: The Sindh High Court on Friday took exception to coercive measures by trial courts against witnesses in a large number of cases without inquiring as to why grieved families were not pursuing the cases to seek justice and observed that “it is the prime duty of the state to ensure security of witnesses”.

The SHC also said that issuing warrants and initiating proceedings of proclamation were causing harassment to victims/witnesses as they were already victimised by the loss of kin and property rather than being afforded assurance of their safety until their evidence was duly recorded.

It directed the chief secretary and home secretary of Sindh to notify the witness protection advisory board and unit as required under the witness protection law and also asked all senior superintendents of police to compile a list of serious offences, set up units for protection of witnesses and ensure their security till they testify in courts.

“Any dereliction in adherence to these directives shall be construed as a contravention of the Sindh Witness Protection Act, 2013, and the orders of this court”, it added.

The SHC also stated that the utilisation of digital means and modern devices for recording witness testimony was a prudent approach which not only enhanced the protection and comfort of witnesses, but also aligned with modern judicial practices that embrace technology to improve the legal process.

A single-judge bench of SHC headed by Justice Salahuddin Panhwar passed these directives while hearing the bail application of an accused in a murder case.

It noted that the procedure of proclamation/attachment of property was discretionary in nature to procure presence of either complainant, witnesses or accused as the case may be, as observed in the judgement handed down by the apex court in 2022.

The bench in its order also said that as per record provided by the registrar office of the SHC, the proceedings of proclamation/attachment of property under Sections 87/88 of the criminal procedure code had been initiated against the witnesses in 635 cases of heinous nature across the province.

“A perusal of the above shows an alarming situation, indicating a need to examine the reasons as to why grieved families are not pursuing the cases to seek justice. This suggests a failure of the criminal justice system. It appears that these families, who have lost their loved ones and/or valuable properties, are either in fear, under threats, or lack trust in our criminal justice system (courts) to secure the justice that is their due right”, it added.

The bench further observed, “The issuance of non-bailable warrants (NBWs) against witnesses without inquiring in depth their reason of evasion, not only exacerbates their plight, but also causes harassment to the victims/witnesses, who are already victimized by the loss of kin and property rather than being afforded assurance of their safety until their evidence is duly recorded. The edicts of justice unequivocally necessitate the safeguarding and protection of persons who are witnesses of heinous crimes; absent such protection, the elicitation of testimony is jeopardized, thereby obstructing the dispensation of justice”.

Nonetheless, it noted that such actions were in contravention of the Sindh Witness Protection Act, 2013 to the extent of proclamation of witness and it also inflicted undue distress upon the witnesses.

“It is imperative that Sections 87 & 88, CrPC are not employed against witnesses to engender harassment, but to procure their attendance to bring the guilt of accused at home or otherwise,” it added.

“Furthermore, it is the prime duty of the state to ensure the witnesses that no harm would be caused to them even they apprehend any threat. Despite the coercive measures taken by the trial courts, including the issuance of NBWs, the witnesses have persistently failed to appear. This recurring pattern of non-appearance has raised serious concerns regarding the efficacy of the existing legal mechanisms”, it added.

The bench also noted that the Sindh Witness Protection Act, 2013 was promulgated with the noble objective of safeguarding witnesses and enabling them to provide evidence in criminal proceedings without fear or intimidation, but it has come to the attention of court that advisory board and unit for protection of witnesses have yet to be constituted by the provincial government.

Published in Dawn, May 11th, 2024