Preventing miscarriage of justice in Pakistan

A few suggestions

How can justice be delivered in a country where murderers and rapists go home after payment of blood money or reconciliation with the aggrieved party? This reconciliation is imposed more often than not on the victimised party by threats or intimidation. In other instances a payment as compensation is settled with the harmed side and the courts acquit the villains.

It means that anyone with a heavy purse and a gun can shoot anyone in broad day light and prevent the due process of law by undercutting it with payment of money. The perpetrators of heinous crimes like murders are usually goons with lot of money and therefore law can be bent if they can pay for blood money. On the contrary a poor guy who injures or even kills someone cannot have such an escape route and therefore languishes in jails for years and finally to be hanged or awarded life sentence.

We have seen that in myriad criminal cases a roughneck forced the weaker party to come to terms and bargain to let the offenders walk their way. Not long ago a high profile murder case hit the headlines for pretty long time. The flamboyant and defiant son of a super duper feudal along with his equally roguish buddies killed a police officer’s son with impunity. The principal culprit was given death sentence but was later freed after paying the settlement amount with the aggrieved party.

I have been reading about flurry of such court settlements in which the persecuted party was coerced to state before the court not to pursue the case because they had either pardoned the offenders or had accepted the retribution by way of a handsome amount of money.

There are various glaring factors that hinder the swift, condign and deserving punishment to criminals and outlaws. It is seldom and unheard of that any rapist even proven was ever punished by a court

There are various glaring factors that hinder the swift, condign and deserving punishment to criminals and outlaws. It is seldom and unheard of that any rapist even proven was ever punished by a court. The lacuna is the presentation of four witnesses by the female victim as evidence. The production of this evidence is like asking for the moon. As such all the rapists and womanisers remain immune from the grip of law, whether it is civil or the Shari’a court.

For the aggrieved party it is absolutely imperative to produce the witnesses who had seen the crime being committed. First of all it is a tall order for the persecuted party to find out the witnesses because most crimes are not committed in public view. Second, even if there are people who were onlookers or present at the crime scene, they would not pick up the courage to come forward voluntarily or otherwise to be witnesses for a variety of compelling reasons. They would be aware that they would remain under a perpetual spell of fear and paranoid as long as the case is not decided.

Secondly, cases on our courts take years from start to the end. The witnesses have to appear on each hearing before the court, disrupting their jobs and other activities of life. One would not wish or prefer to be caught in a grinding gridlock at the cost of disturbing one’s life and peace of mind. In the courts witnesses are harassed, ridiculed and even humiliated by defence counsels each time for hours. Any individual, even with strong nerves, cannot stick to a statement verbatim each time as the prosecution or the defence make every effort to find out contradictions to prove the witness as a liar.

The aggrieved party hires false or professional witnesses on payment for each appearance in the court. He has to bring them fully protected, take care of their travelling expenses and food, etc. Most of the witnesses that are produced in courts are therefore not genuine.

If at all witnesses can be helpful in a trial then at the time of registering the FIR their statements should be recorded or at the first appearance of the court. But even in such situations witnesses cannot get rid of subsequent appearances in the court that can go on indefinitely.

But registration of the FIR is a highly technical job. It should not be entrusted to the minions of a police station. In Pakistan getting in an FIR written is a tough ordeal. The FIR is written after settlements of bribe or under orders from high ups. The FIR is mostly tainted and would favour the stronger party than the weak or the victimised.

Now the police official who writes an FIR is summoned by the court and he would remain under a constant burden of being questioned by hostile counsels each time. There are usually several cases for which he is summoned when needed to present the official outlook. Is he a computer to dish out the correct details about each case?

Changes should be brought about in the legal system that should encourage more litigants to use an expedited court process, as opposed to arbitration

In the face of all these stumbling blocks and irritants in the way of dispensation of speedy and fair justice, I suggest the following corrective measures:

1. Changes should be brought about in the legal system that should encourage more litigants to use an expedited court process, as opposed to arbitration.

2. The writing of an FIR should be handed over to a magistrate who can have his or her office within the precincts of the police stations or an independent office adjacent to a police stations’

3. The FIR registration officer should not hesitate or defer the writing of the FIR. Even an FIR from both sides can be recorded.

4. A timeframe should be fixed for every case to be adjudicated and verdict announced even if it is to be done on daily basis.

5. The condition of producing witnesses should be dropped as it does not serve the actual objective of dispensing justice because as explained above, in most case the witnesses are paid and hired to appear and briefed what to say.

6. Instead the circumstantial evidence, forensic findings should be considered enough evidence. Witnesses are usually produced mostly in criminal cases where they were present at the time of the crime. In case of civil suits like property, money transactions, etc, witnesses are mentioned on written deals. In such cases the tainted or tutored evidence fed by a lawyer may not work.

7. In case of witnesses, the parties concerned should bring them along at the time of reporting the case or on the first day in the courts. They should be questioned by the lawyers on the same day and then liberated from future appearances. The FIR or reporting centre should remain round the clock.

8. We have seen in Pakistan that despite incontrovertible evidence captured on video, or even TV coverage, justice is delayed and the law is not allowed to take its course. So primarily it is the mindset of the judge, the tricks of lawyer and the faulty system that delays and determines the outcome of a case irrespective of the merits. As such, strict, honest and rigid ethical uprightness should be the yardstick in the appointment of judges. The review committees or the appellate courts should have authorities to criticise and even fire the judges whose conduct looks suspicious, biased or unprofessional.