A shift needs to take place in the prosecutorial and judicial application of relevant law
The recent and consuming debate about reform and redrafting of the anti-terrorism law stems from a recognition of two specific issues relating to the prosecution of suspected terrorists: 1) allegedly, the law enforcement agencies are unable to apprehend, detain and investigate terror suspects, and 2) even when such terror suspects are brought before a court of law, no conviction takes place owing to lack of sufficient evidence, or due to improper investigation.
The first of these two issues – apprehension, detention and investigation of the suspects – is mostly operational in nature, dealing less with the legislative provisions, and more with the capacity and operational expertise of the law enforcement and intelligence agencies. And consequently, the improvement of this issue requires a long-term strategy of improving the training and building the capacity of our law enforcement establishment. The second of the two issues – prosecution of the terrorist suspects, resulting in meaningful convictions – squarely falls within the four corners of legislative reform, along with its interpretation and implementation. Therefore, at least in theory, this can be done almost immediately, with a stroke of a pen.
While discussions and deliberations will continue to rage on about the precise contours of the legislative provisions and procedures that must govern the empire of a new anti-terrorism law, and more broadly our criminal justice system, one aspect of the prosecutorial process that requires our particular attention (an issue that perseveres across all criminal justice system) is the sanctity that is afforded to the First Information Report (FIR).
By way of background, it is pertinent to mention that the FIR, conceptually, is simply meant to be the earliest communication or intimation of the occurrence of a cognizable offence to the relevant State agency, aimed at setting in motion an investigation into the matter. Specifically, per the mandate of section 154 of the Criminal Procedure Code, 1898, such ‘first information’ is to be conveyed to the relevant police authorities, reduced in writing, and duly signed by the complainant. The FIR, in almost all instances, includes an account of where the incident in question took place, the offences attracted, some assertion about the description or identity of the suspected offenders, and frequently also assigns specific ‘roles’ to the suspects in the commission of the alleged crime.
Introduced under the colonial rule, historically, the FIR did not hold a sacrosanct place in the prosecution of criminal offences. Numerous judgments of the superior courts have held that the primary purpose of the FIR is simply to inform the police about the commission of a cognizable offence, and that it is not essential that “all” details regarding the commission of an offence be provided at the FIR stage. In this regard, senior police officials and lawyers relate (fabled) stories about a time, many decades ago, when a brief (two or three lines) FIR, without much detail or evidence, could trigger a prosecution that resulted in the conviction of a murder suspect.
However, over time, trial courts across Pakistan (including the anti-terrorism courts), guided by eminent defence lawyers, started placing a much higher (evidentiary?) value on the contents and sanctity of the FIR. A line of jurisprudence, emanating from the trial court and later upheld by the superior courts, encouraged significant details about the events and identity/role of the accused to be included in the FIR itself, for a meaningful conviction to take place. As judicial interpretation of evidentiary standards evolved, trial courts started requiring the prosecution to prove their case in line with a narrow view of Qanoon-e-Shahadat and Islamic injunctions concerning ocular testimony (especially concerning offences such as murder). It soon became necessary to have eyewitness accounts to convict suspects for heinous offences. And the natural nexus was to include the eyewitnesses in the FIR itself, given their proximity to the scene of the crime.
As a result, through a process of reverse-engineering the prosecution and the police, with the aid of the complainant, were forced to ‘create’ FIRs that included (false) eyewitness accounts, without which convictions could not take place. And as is true for most false testimonies, it thus became easy for the defence counsels to poke holes in and point our discrepancies in such ‘manufactured’ eyewitness accounts. Naturally, such manufactured evidence led to a reduced number of convictions, and a larger fraction of the accused being granted bail at the interim stages of the trial.
A cursory reading of most FIRs concerning the offence of murder, across Pakistan, would demonstrate a set pattern of events in which the accused (along with his friends) issues a ‘lalkara’ (a sort of hollering used as a warning or threatening posture) prior to firing upon the deceased, and the entire story is witnessed by bystanders, all if not most of whom, are relatives or friends of the deceased or the complainant. In this cyclostyled set of circumstances, everyone – on the defence as well as the prosecution side – is aware of their roles and responsibilities, in a game that is geared by rules of conviction, instead of any measure of truth.
The prosecutorial system has thus become hostage between two competing ideas: that of creating an FIR which includes enough evidence and testimony to satisfy the judicial standards of conviction, and that of being vulnerable to the weaknesses of an FIR that is inherently false.
And when this model is applied to acts of terrorism, it becomes virtually impossible to get any meaningful result.
A debate about the re-evaluation of our criminal justice system, its standards, its procedures, and its application must necessarily entail a rethinking of the judicial sanctity afforded to the FIR. The truth is that most murders, almost all rape cases, and certainly most acts of terror are not done in the plain sight of eyewitnesses. Crime, in the modern day, has evolved to become more sophisticated, and less traceable. A corresponding shift now needs to take place in the prosecutorial and judicial application of relevant law. And in this process, a rethinking of the sanctity that our criminal justice system affords to the FIR is perhaps the first step.
Saad Rasool is a Lahore-based lawyer. He has a Masters in Constitutional Law from Harvard Law School. He can be reached at: [email protected], or Twitter: @Ch_SaadRasool