Daily Times

Chief Justice (CJ) of Pakistan Justice Anwar Zaheer Jamali took suo motu notice of Mustafa Kanju and his four guards who were acquitted for lack of evidence by a Lahore Anti-Terrorism Court (ATC) in the murder case of a 16-year old boy named Zain. The prosecutor reported that the complainant and the witnesses were persuaded to retract their statements. Unsurprisingly, ATC-I’s presiding judge, Muhammad Qasim, overseeing the trial agreed that all the 20 witnesses in this murder case had failed to identify Kanju as the accused who killed Zain in the Cavalry Ground area of Lahore. The defence counsel argued that the case had been registered on political grounds and that prosecution had no direct evidence. Prosecution claimed that Mustafa Kanju was allegedly drunk when his car hit another car driven by a woman, he became infuriated and opened fire.

The prosecution witnesses in this murder trial certainly have reason to be afraid to testify, given the strong political connections held by the defendant and his family. It is not difficult to fathom the reason why witnesses are scared and even unwilling to testify. The matter is sub-judice but it is sheer injustice. It is essentially to give the alleged criminal the right to see who is saying what against him. Yet again, we are seeing the criminal justice system play in favour of the criminal. It is an outrage.

It is absolutely baffling. Not only are courts now looking at the fact that lesser people will come forward as witnesses but also that many criminals will feel their convictions will easily get quashed. It is hard to believe this has been allowed to happen. There was only one thing one could actually say for sure, and it was that the boy that lay in a pool of his own blood in front of the witnesses on the road was none other than the young Zain and they did not have the courage to stand the trial.

In the law, the accused has always had the right to see his witnesses in court, to know who they are and to hear their testimony. An exception is made when a child is testifying against an abuser though since the presence of the abuser might inhibit the child’s testimony. However, some people are afraid to come forward; they are cowardly or do not trust the protection promised from the criminal justice system. It does seem fair then to bring a witness in anonymously unless it is absolutely necessary and for a very good reason.

No doubt, the theory is that justice is better served if everything is done openly. However, there is a crime called tampering with a witness, which is trying to persuade a witness to change his/her testimony or not to testify. It is a felony and judges should take it very seriously since this helps prevent the intimidation of witnesses. Witness protection and anonymity mean that people are more willing to come forward to speak out but we have now gone back in time and less people are prepared to come forward, which is a terrible thing for justice.

The crime is not new but the methods now are relatively young. Witness harassment has gone digital and the justice system is playing catch-up. It is part of a growing number of incidents of witness intimidation in the digital age where face-to-face threats, anonymous phone calls and threatening letters are being replaced by clicks, posts and status updates. This contemporary type of witness intimidation is taking many forms. But it is not just witnesses who are being intimidated. Prosecutors and jurors have been subject to harassment and consequences by associates of the accused, whether they are gang members or family members. Attempts to intimidate victims and witnesses to keep them from reporting crimes or testifying in court is a widespread problem and criminal justice officials have probably conveniently underestimated the extent to which threats deter victims and witnesses from cooperating, and they are not dealing with it adequately.

Threats of injury or death to judges, police and witnesses attack the heart of the criminal justice system. For the system to function, the major players in law enforcement and criminal prosecution must be protected against intimidation by those whom they arrest and prosecute. For prosecutors in Pakistan, witness intimidation has been a notorious problem. In the past several years, law enforcement officials in cities like Islamabad and Lahore have complained about murder cases falling apart after prosecutors were killed, judges forced to leave country before or after the trial and witnesses changing their stories.

The Supreme Court (SC) should issue a recommendation asking parliament to do something about it. It should urge lawmakers to create a law to allow a witness’ statement to be used at trial and deny the defence the right to cross-examination if the witness has been threatened into refusing to testify in court. It would be a sensible move to protect witnesses who have received overt threats to dissuade them from testifying. Prosecutors say it is all too common to have charges reduced or thrown out after witnesses are intimidated and they recant their previous statements out of fear for their safety.

What the critics are proposing would go against the long-standing right of defendants to confront and question anyone testifying against them. But for witnesses who have been threatened, it might be necessary to keep them out of the courtroom in order to keep them safe. A change in the law would send a powerful message to defendants that witness statements will be heard even if they are too scared to take the stand.

The writer is a professor of Psychiatry and consultant Forensic Psychiatrist in the UK. He can be contacted at fawad_shifa@yahoo.com