An affective criminal justice system is essential for good governance and indicates rule of law. Pakistan’s criminal justice system has remained under fire for its adverse rate of conviction and inability to effectively investigate, prosecute and convict the accused in violent extremism offences.
The foundation of any criminal case is laid in the police station by setting the law into motion, through the lodging of a First Investigation Report (FIR). This is normally lodged by a person who is usually a duty officer and not even equivalent to the rank of inspector. Contrary to the fact that cases of violent extremism demand proactive officers who are capable of understanding the scheme of jurisprudence as well as legislation behind the enactment of the special law.
There are only two forensic laboratories in the entire Sindh province, one at Sindh University, Jamshoro and the other one at the University of Karachi, to analyze and process sophisticated data and forensic evidence. In the case of Muhammad Noman v the State and another, reported as 2017 SCMR 560, it was observed by the court that police had failed to investigate the allegations, rather conducted a one-sided investigation against the accused. Prosecution is largely criticized for its performance which is only ascertained through quantitative means. As any judgment of acquittal generally mentions “prosecution has failed to establish its case.” Whereas, the prosecution relies on the evidence collected by the investigation officer and ineffective investigation leading to acquittal puts prosecution under question. It is also largely correct that the prosecution department lacks required competence and demands indigenous training to contest cases of hardened criminals involved in extremism and terrorism activities.
The Peshawar High Court (PHC) in PLD 2019 Peshawar 17 had set aside the conviction awarded by the military courts. The court acquitted the prisoners convicted by military courts on the grounds of admitted illegal detention of the petitioners, recording of confessional statements after five to ten years of illegal detention and that too, without following the proper procedure, absence of evidence.
There has to be a stern accountability, monitoring and performance appraisal mechanism for every investigation officer and DDPP assigned to a case. While the investigation officer in every FIR bearing sections of Anti Terrorism Act 1997 should not be below the rank of ASP.
In terms of investigation and prosecution, there is no accountability of either investigation officer or the prosecutor contesting the case, nor there is any performance appraisal mechanism. The prosecution department and office of SSP, responsible for forwarding the charge sheet to the competent court of law under section 173 Cr. PC, has also proved to be ineffective in terms of poor scrutiny. Even if there is no substantial material against the accused person, the prosecution sends the same for trial. Failure to observe what has been laid in the law results in the failure of prosecution and accused persons find acquittal on the ground of lack of evidence. It is also noted in some of the cases the complainant either himself or upon the insistence of the author of FIR creates a story that invokes the provisions of ATA 1997. The complainant also implicates more persons than just a perpetrator, including the ones with whom they hold a personal grudge or political vengeance.
The inclusion of military courts in the criminal justice system was an open admission by parliament through a constitutional amendment that our courts are not effective against terrorism. The Witness Protection Act is not followed effectively. How can a witness be protected for six months and for years when a trial is not concluded within the span in which the witness can practically be given protection?
Theoretically, term “benefit of doubt” should be redefined. This term has extended maximum relief to the accused and due to trivial shortcomings during the trial; the benefit of doubt is always extended to the accused. It is believed that the accused is favored by the law, but the courts have ignored that by exercising this notion in the heinous cases of terrorism and extremism, the victim has become a neglected child of law, and prosecution has become disadvantaged. In many cases, it is also observed that since the cases attracting sections of ATA 1997 are non-compoundable, the complainant or witnesses have started a practice of retracting from their statements. The terms “half-fried” and “full-fried” is almost a normal practice by so-called encounter specialists in police departments. In such cases, ATC has also handed over punishments to police officials as well, which leaves serious questions on the integrity of the police department and serious violation of human rights. One such case was decided by Honorable XVIth Anti-Terrorism Court, Karachi in the year 2021 in the case of The State v. ASI Tariq Khan in which a police officer was sentenced over a fake encounter. Unfortunately, in the cases of terrorism and violent extremism, civil society is denied an all-important locus standi to file an appeal and contest or plead the matter in the court of law.
There has to be a stern accountability, monitoring and performance appraisal mechanism for every investigation officer and DDPP assigned to a case. While the investigation officer in every FIR bearing sections of Anti Terrorism Act 1997 should not be below the rank of ASP. The entire criminal jurisprudence needs to be restructured. Either parliament must develop or courts may interpret the law of sentencing. The ATA 1997 holds a very minimal scope in terms of punishment. Therefore, courts are normally moved towards acquittal even if a minor contradiction arises, ignoring all other substantial material evidence against the accused person. Similarly, the interpretation of the term “benefit of doubt” has to be curtailed and made clearer by courts.