The very basis of the modern judicial system is deliverance of justice through an impartial adjudicator. The theoretical justification for the separation of the executive and the judiciary is so that those who prosecute are not the same who decide on the guilt or innocence of the party under trial. However, when the prosecution itself lacks capacity for effective investigation and the judicial system has glaring shortcomings, then the deliverance of justice can hardly be expected. This was witnessed in the acquittal of a death row convict, Mazhar Farooq on Friday. The Supreme Court ruled the acquittal on the grounds that there was no proper prosecution nor presence of contradictory evidence against him. How, given the Supreme Court’s ruling, Farooq ended up on death row is a sorry commentary on the criminal justice system of Pakistan. The initial ruling for his death sentence came from a trial court, which was in turn upheld by the Lahore High Court. The fact that the absence of consistent evidence was missed by these two tiers of the judicial system paints a terrifying picture of the criminal justice system of Pakistan.
In very basic terms, the modern judicial system, for criminal cases, holds evidence to a very high test of reliability for a conviction to take place. Whereas, for civil cases the principle of higher probability applies, for criminal cases a person can be held guilty only if his or her guilt is established beyond reasonable doubt. This is because a criminal conviction results in cessation of a person’s liberties and has serious ramifications for his or her future. However, despite, the presence of these safeguards, there is always the possibility of an innocent person getting incarcerated. This is one of the reasons why many countries have eliminated the death penalty, as its irreversible nature prevents making amends if a person has been wrongfully convicted.
However, in Pakistan, the death penalty continues to be in place and people continue to wait their eventual end on death row, having ended there by a system that is fundamentally flawed. In October, two bothers, Ghulam Sarwar and Ghulam Qadir, were acquitted by the Supreme Court only to find out that that they had already been executed. This is a glaring reminder of the many issues in Pakistan’s judicial system, which militate against the death penalty, if not on principle, than on pragmatic basis. Even the most ardent supporters of the death penalty would not support it in Pakistan given its present state of the criminal justice system. The moratorium on death penalty that was initially lifted to punish hardcore terrorists is being used to punish those who have been convicted on non-terror related charges. And this is leading to the present-day travesties of justice in Pakistan.
In any case, death penalty misses the concept of individual reform that forms the central objective of the modern criminal justice system. That concept takes into account the various circumstances that make an individual turn towards crime, and see that crime as society’s failure of providing a healthy environment for that individual. Granted, certain crimes have more to do with just social shortcomings, but this approach transcends the role of the state beyond merely avenging for a crime, and instead focuses it on reintegrating individuals into society so that they can become productive members of the localities. This has proved to be a far more effective deterrent than the fear of the death penalty. Moreover, it breaks the cycle of despair and crime that convicts get locked in once they serve their sentence. It is towards these progressive ideals that Pakistan should be moving towards. *