Daily Times

The criminal justice system has different components, comprising of legislature, judiciary and executive — with all its administrative arms. The legislature specifies what constitutes a crime by enacting laws. The courts adjudicate on crimes people are charged with. Executive arms, the first point of contact with criminal activity, including the police, are tasked with law enforcement; controlling and preventing crime. They usually operate by receiving complaints from victims or witnesses, conduct inquiries or investigations, collect evidence and make arrests.

Prosecution is an important branch of the executive in so far as the criminal trial is concerned. On behalf of the state, it is tasked, to prove the case beyond reasonable doubt to establish the guilt of the accused on evidence brought to it by the police.  Executive arms; the prosecution and the police, operate independently of the courts in our justice system. The sole task of the courts is adjudication. They don’t investigate; they don’t prosecute! Regardless, of how strongly we feel about a certain event, and a judge is part of our society, deliberation in the court is only informed by material facts in light of enabling law. The recent judgment of the Lahore High Court (LHC) in the Khadija case has exposed a few cracks in our justice system. The debate that followed the judgment, however, has been both misleading and misinformed. The judgment of the court, given the merits of the case, is both persuasive and in accordance with law. Perhaps introspection is required from the legal team that conducted the trial instead of shenanigans on media bashing an honourable justice of the High Court.

The judgment takes stalk of delay in nomination of Shah Hussain as an attacker (not initially nominated in the FIR which was registered against unknown persons), statement of medial officer that Khadija was not disoriented as she had claimed (to justify the delay), contradiction in injuries sustained; eleven initially in the Medico Legal Certificate and later twenty-three as recorded during trial. Addition of those twelve injuries, per the judgment, could only be explained if a surgeon who operated on her was produced or at least his notes; both were not presented and nor were the other two doctors who initially examined Khadija after the attack.

A suo motu notice by the Chief Justice, pre-empting any appeal, does not only undermine the subordinate judiciary, but also brushes aside the requirements of Article 10-A of the Constitution that provides for the due process of law

The Court also discusses the veracity of the second Medico Legal Certificate in addition to the one already available; that Khadija did not appear before the District Medical Standing Board to confirm her claim of twenty-three injuries sustained by her; that no article was recovered from the car (knife recovered after five months with no blood stains) or signs of blood inside the car; that no evidence of resistance was available from the complainant (driver) and contradiction on the colour/r of helmet worn by the accused (red or black). The whole incident, as the court notes, took place in a broad day light, in a congested parking place, in a densely populated area of Lahore at 2 pm (peak traffic hours) and yet no independent witness was cited or produced by the prosecution.

All these are red flags in criminal trial advocacy. As a practice, these issues at the stage of trial, are difficult to wriggle around at the appellate stage of criminal proceedings — even if you have one of the top criminal lawyers representing you at an appellate stage. The Court noted that ordinarily in the criminal jurisprudence, great value is attached to the statement of the injured witness, but the circumstances don’t lie even if humans do.  The Court does not dispute whether injuries were sustained by Khadija. It only finds the circumstances in which they were sustained, as presented by the prosecution and the complainant, did not meet the threshold evidentiary requirement, to establish a case beyond reasonable doubt. This view is quite plausible and any other reasonable court, at an appellate stage, would have come to the same conclusion.

It must have been a difficult decision for a judge to give. But it is both honest and courageous of him to withstand media frenzy and apply his mind independently. Conversely, a suo motu notice by the Chief Justice, pre-empting any appeal, does not only undermine the subordinate judiciary, but also brushes aside the requirements of Article 10-A of the Constitution that provides for the due process of law. Even on a policy level, it is not possible for the Chief Justice to take suo motu on every decision, by every bench, in each High Court across the country. Why then, has this case been given greater significance than others?

Investigation may have been influenced and evidence may have been tempered. There is little doubt that the prosecution in our country is almost invariably below par. However, the court, at the appellate stage cannot arrogate these roles or speak on them, especially when it is not part of the list before the Court.

Regardless, Khadija does deserve closure. It is horrible what she had to go through. And it is awe inspiring how she has pulled herself together and is pursuing her dreams again. May the force be with her! And one can only hope that this case finally pushes our policy makers to bring necessary improvements in the conduct of our investigations and in overhauling our prosecution branch. The starting point could be implementation of both letter and spirit of the Police Order, 2002 that made significant strides towards police reforms. We owe it to Khadija and many like her!

The writer attended Berkeley and is a Barrister of Lincoln’s Inn

Published in Daily Times, June 11^th 2018.