Daily Times

“You are presumed to be innocent unless proven guilty” is one principle which is universally accepted in jurisprudence developed all over the world. This principle is taught as a rudimentary principle in probably the first lecture of any criminal law class all over the world, including Pakistan. You read any book on criminal law and you will surely see the author shedding light on this principle. The rationale behind this principle is also worth understanding and emanates again from a seminal principle of law that “he who asserts must prove”. So basically, if an accusation has been made, the accuser has to prove that the crime has been committed by the accused and not the other way around. The logic behind such a principle was to ensure that frivolous accusations are not made and that is why the onus to prove was placed on the person making the accusation. However, practically speaking, in Pakistan, this principle has unfortunately withered away. What is most unfortunate is that not only is this principle not strictly followed by our investigators, but the Courts as well. Basically through practice, the presumption has been reversed where the accused now has to prove his innocence, which is not only against the very principle of law but also, in my opinion, allows the powerful to use the law in their favour much to the detriment of the weaker class.

In order to elaborate my perspective, let me share the procedure of an FIR. The moment an FIR is registered and if it is a cognizable offence, the Investigating Officer gets the power to arrest the accused. It is a routine practice; the officer will go and arrest the accused person and the moment the arrest takes place, the onus gets transferred to the accused person to show his innocence and get bail from the Court. This practice is inherently flawed because an FIR is only the “First Information Report”. It is not wise to give officers the power to arrest someone after they receive nothing more than a piece of information. Unfortunately, the practice of arrest at the FIR-stage has become a standard operating procedure. In case the Investigating Officer, for a change, actually decides to apply his mind by not arresting the person(s) named in the FIR until his investigation is complete, he is subjected to wide spread criticism at the hands of the complainant and at times even the Magistrates Court. Moreover, if the alleged crime takes place (I put great emphasis on the phrase “alleged”) since no offence is proved and if it has caught the attention of the media or is of a political nature, then the arrest of the accused is inevitable since the Investigating Officer cannot simultaneously afford their wrath. The result is simple — arresting the accused gets you the headline and not arresting the accused gets you the ridicule. So if you are a police officer with ambitions, arrest becomes the order of the day. Once the arrest takes place, the Court also becomes very reluctant in granting bail since the onus to prove shifts on the accused and the same is not very easy until evidence is recorded by the Court. Since Courts don’t proceed with matters so expeditiously, the end result is the ‘miscarriage of justice’ which we keep reading about in the newspapers these days.

It is not wise to give officers the power to arrest someone after they receive nothing more than a piece of information. Unfortunately, the practice of arrest at the FIR-stage has become a standard operating procedure

It was widely reported last week that the Supreme Court has acquitted one Asma Nawab and two others after they had languished in jail for nearly 20 years. As per the news reports, the SC ruled that there was no evidence available on record to directly link the appellants (Asma Nawab and two others) with the commission of the alleged offence of triple murder. The bench observed that the material evidence produced by the prosecution had contradictions, and did not corroborate with the prosecution’s story. The order of the Court surely must have brought a smile on the face of the accused. However, is it not unfair that this order came after 20 years? Is it fair that the three accused had to suffer in jail for 20 years before they got justice? Is it fair that even 20 years later, we still haven’t been able to find the actual killers? There are numerous such stories that we keep reading about in the news, where the SC has ordered acquittal or release of a person from jail who is no longer alive or who has already been executed by hanging. Though one must appreciate that justice finally was done but there is also a very famous legal maxim that “Justice delayed is justice denied”, and in my opinion such omissions truly are a travesty of justice. Here I may also add the example of cases pertaining to white collar crimes and even cases of a political nature where investigating authorities make arrests, get great publicity but eventually most if not all accused are acquitted by the honourable Courts. I may share a case involving FIA, wherein a person cheated the public at large with a Ponzi scheme, the FIA could not arrest the actual person, but ended up arresting three low grade officers from a private bank. These three officers remained in Central Jail, Karachi for more than a year and eventually were acquitted by the worthy Special Offences Court, Karachi. Was this fair on part of the FIA or the Court which initially declined their bail? All I am saying is that three innocent people without any conviction or criminal record had were jailed for over a year due to our system’s deficiencies. There are numerous such examples of miscarriage of justice.

It may be noteworthy to mention here that back in 1972, in its judgement in the case of Manzoor & four others Vs The state held that “The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run”, according to reports in the 1972 PLD SC 81. Moreover, our Supreme Court in The State & Others Vs M. Idrees Ghouri & Others reported at 2008 SCMR 1118 held that “Since the Courts are under legal duty to defend, preserve and enforce the rights of people and their Constitutional guarantees, therefore, notwithstanding the protection provided to the NAB authorities under the law in respect of their functions, the use of power by them in an unbridled manner for prosecution of innocent persons in disregard to their Constitutional guarantees, rights, liabilities and duties must not be allowed and Courts must prevent such oppressive use of penal law through judicial determination…….. there is no repair to the loss caused to him in his body and mind….” The crux of both the judgments is that there is no way the state can make reparations for loss of time and indignity suffered by a person who spends time wrongly incarcerated. However, despite such judgments, every day we come across cases where there has been some level of miscarriage of justice.

There are two issues that I am trying to highlight through this article. One is the issue with investigation, prosecution and delay in conclusion of trials, while the second issue is with regards to arresting the accused before any pronouncement by the Court. In order to overcome the first issue and to exhibit the great efficiency of our system, we place too much attention on ensuring that the accused persons get arrested and rot in jail, only to acquit the accused after numerous years, thus exposing the inherent deficiency of our investigation, prosecution and the lethargic pace of the Courts. With all due respect, until we resolve our primary issue, which is bringing our investigation on par with modern needs, engaging efficient and dutiful prosecutors and complimenting them with fast paced and technologically equipped Courts, we will not be able to resolve the issues preventing us from delivering justice.

It is time that we start a process of introspection and address such lacunas prevalent in our system. Taking guidance from the judgment of the worthy SC, our investigating authorities should bifurcate offences between heinous and non-heinous offences. For heinous offences such as terrorism, dacoity with intention to kill, rape, etc. the investigating officer must have the power to arrest the accused, whilst for other offences no arrest should take place until the Court convicts the accused person. Having said that, for such cases the investigating officer may also take bail bonds or any other surety measure as required, to ensure that the accused does not abscond from the jurisdiction.

I have deliberately not focused on cases of a political nature. However, I may stress upon the case of Prime Minister Nawaz Sharif and his family members, who despite facing Accountability References have not been arrested. Though I appreciate this being in line with the principle of law, I may add that a common Pakistani is forced to ask why similar treatment isn’t given to them, since all Pakistani’s are equal in the eyes of the law. Readers will recall that President Zardari, Makhdoom Javed Hashmi, Naveed Qamar and many others political leaders remained in jail for many years without any accusation being proven against them. One would recall that President Zardari spent 11 years in jail without any conviction, and thereby was deprived of his right to quality of life. This is a right which has been guaranteed as a fundamental right by the Constitution of Pakistan. Was it fair? A question that I leave for the readers to decide.

The writer is a former member of the Senate

Published in Daily Times, April 11^th 2018.