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Miscarriages of the judicial system

ISHAQ TANOLI | WASEEM AHMAD SHAH

•    Under the Code of Criminal Procedure, the police must investigate a case within 14 days of registration and submit a charge sheet.

•    The Sindh Witness Protection Act, 2013, stipulating security for witnesses is yet to be implemented.

When Masood Khan agreed to go to jail instead of his employer, Qamaruddin, in exchange for monetary compensation, he didn’t expect to be stripped of his true identity and have to serve a life term at Peshawar Central Prison. It was his misfortunate that he trusted his employer, jailed briefly for possession of drugs discovered in his car in January 2015. When Qamaruddin asked Masood to go to jail instead, he told him that he would be financially compensated. In need of money and convinced he’d be released in six months, Masood accepted the offer. Even though Nadra confirms that he is Masood Khan, son of Gadi Jan, resident of Peshawar, his prison record states otherwise. Although, when Masood’s counsel presented his identity record before the trial court as evidence in May this year, the judge was not convinced and sentenced him to life imprisonment with a fine of Rs200,000. With his appeal pending before the Peshawar High Court (PHC), it has recently summoned the record of his case.
Masood Khan’s case is one of many where the jailed suffer because of the loophole-infested criminal justice system — especially given chronic delays in litigation. Those accused and even convicted must wait for years in prison before their cases are tried. Even more time will lapse before appeals are heard and judgments decided before different forums, including the high court and the Supreme Court (SC). Legal experts believe that an appellant is fortunate, if his final appeal is decided before the completion of his prison term. “Because there are many stakeholders in the criminal justice system, blame can’t be placed on any one for the abnormal delay in litigation,” says SC advocate Noor Alam Khan. He adds responsibility for these delays lies with the police, prosecution, judiciary, prison and home departments and the lawyers’ fraternity. Another reason is that the judiciary is not taking the issue of inordinate delays in the disposal of cases seriously. If there is a shortage of judges to clear the backlog, the judiciary must increase its numbers.
While in other provinces appeal hearings in the high court can take years, the situation in Khyber Pakhtunkhwa differs — initial hearings usually occur within a year. “The superior courts have to strengthen their system of checks and balances so as to make the subordinate judiciary more functional. At the same time, they must address abnormal delays,” says SC advocate, Astagfirullah Khan.
The prosecution service and low conviction rates
Prosecutors must contend with a plethora of obstacles when it comes to criminal trials, such as non-appearance of witnesses, lack of facilities, etc. “Recently, a doctor who had conducted an autopsy failed to appear during a murder trial as he was transferred to another district. Although it was unethical, I had to ask a relative of the accused to accompany a constable so as to serve a court summon to the doctor in another town,” explains a Peshawar-based prosecutor requesting anonymity. Lawyers say that most witnesses do not appear to testify, especially in terrorism-related cases, for reasons of security and fear. For instance, although the Sindh provincial assembly passed the Sindh Witness Protection Act in 2013 stipulating security for witnesses in criminal cases, this law is yet to be implemented. Repeated requests for adequate security for judicial officers, witnesses and prosecutors have not been dealt with in most cities.
Witness protection
Most witnesses in criminal cases are apprehensive of the repercussions, preferring not appear — especially before anti-terrorism courts — despite the fact that they might have nominated the accused in FIRs and even identified them before judicial magistrates. Failure to protect witnesses was evident in a 2014 case in Karachi when an anti-terrorism court acquitted three political activists in an arson attack on a minibus in August 2011. They were acquitted after the driver and the conductor — key prosecution witnesses — refused to testify because they were threatened by associates of the accused. Even prosecutors working in Karachi’s anti-terrorism courts have been threatened and forced to leave the country — in 2013, Naimat Ali Randhawa, one prosecutor was killed.
Meanwhile, the legal fraternity believes that improving the conviction rate will require prosecutors to have operational control over investigators, and that prosecuting officers must submit cases where sufficient evidence is present. To add, appointments in the police and prosecution services made on a political basis can be attributed as a reason for low conviction rates countrywide. In Sindh, until 2006, the prosecution and investigation departments functioned jointly under the police department, when the former was separated to ensure greater efficiency and independence. Instead, the provincial authorities undermined the independence of the prosecution department and the powers of the provincial prosecutor general. This February, the prosecutor general was empowered through amendments in the Sindh Criminal Prosecution Service, but given the increase in cases most prosecutors require training. Furthermore, the lack of coordination between investigating and prosecuting agencies cause further delays and miscarriages of justice.
The pending numbers of court cases countrywide are staggering in the lower and higher courts. Sindh’s 27 judicial district courts have 119,677 pending civil, family and criminal cases from Jan 1 to Nov 30 2016 according to the Sindh High Court’s monitoring inspection team. “The criminal justice system has collapsed due to the incompetence of investigating and prosecuting agencies,” says the Karachi Bar Association president Mahmoodul Hasan. According to the PHC website, by the end of October 2016, around 33,302 cases were pending before the high court whereas 187,840 cases were pending before the subordinate courts or district judiciary. With 74,816 criminal cases pending before Peshawar’s district courts, 65 were old cases filed before 31 December 2011. Similarly, 1,274,310 cases are pending with district courts in Punjab, and 13, 882 in Balochistan.
In 2009, former chief justice Iftikhar Mohammad Chaudhry introduced the National Judicial Policy with the aim of resolving civil and criminal cases within a fixed timeframe. “Even when the courts were expeditiously disposing cases in the light of this judicial policy, the legal fraternity had objections because often the speed with which pending cases were decided pointed to the haphazard disposal,” explains advocate, Noor Alam in Peshawar. Further, the frequent transfer of police officials contributes to delays during the trial. Under section 173 of the Code of Criminal Procedure, an investigating officer must investigate and submit a charge sheet within 14 days of registering a case. Police officials concede this is an uphill task given that most have multiple duties to perform. Therefore, the recommendation that law officers must be inducted into the police as investigators to ease the burden makes good sense.
What has emerged in the last decade is that the PHC, for example, has had to contend with hundreds of habeas corpus petitions. The reason is that the ongoing operation against militancy in Fata and KP that has increased the number of unlawful detentions since 2008. It has been four years since Bukht Sania filed a habeas corpus petition for the recovery of her missing son, Shah Khalid, in the Elite Force in Nowshera. With the security agencies and law-enforcement agencies unaware of his fate, his mother awaits justice. It is usual practice for the court to direct the ministries of defence and interior, and the provincial home department to trace a missing person. If a petitioner is fortunate, the detainee is finally traced, often after several hearings, to one of the internment centres in KP and Fata set up under the Actions (in Aid of Civil Power) Regulation, 2011.

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