Saad Rasool |
Earlier this week, during his speech at the symposium on population control, the honourable Chief Justice of Pakistan implored the Prime Minister (also in attendance) that the statutory regime, within which the legal system of Pakistan operates, is outdated and must be modernized (by the Parliament).
Specifically, the honourable Chief Justice pointed out how Pakistan’s Criminal Procedure Code dates back to 1898; our Civil Procedure Code was first drafted in 1908; the Pakistan Penal Code dates back to 1860, and our Contract Act was drafted in 1872.
The honorable Chief Justice correctly pointed out that the Parliament must legislate new statutory instruments, which not only bring our legal framework in-step with the dynamic needs of the modern world but also pay special attention to ensuring that speedy justice is available to all and sundry.
Specifically, per the mandate of section 154 of the Criminal Procedure Code, 1898, such ‘first information’ is to be conveyed to the relevant police authorities, reduced in writing, and duly signed by the complainant.
This speech of the honourable Chief Justice comes at the feet of hundreds of recommendations for statutory amendments, made by the Law and Justice Commission (over the past many years), which have not been legislated by successive democratic regimes. Also, in recent comments and judgments, Justice Asif Saeed Khosa (the Chief Justice in waiting) has pointed out numerous flaws in the statutory regime governing our criminal justice system, which have gone unheeded by the Parliament.
While most of our statutory instruments must be overhauled from their archaic mold, the issue is perhaps most pressing in regards to the criminal justice system. There are constant complaints about lack of convictions in cases of terrorism and heinous crimes. And instead of fixing the systemic issues, Pakistan has (unfortunately) resorted to make-shift solutions, such as the military courts, introduced through the 21st Constitutional Amendment.
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The debate about reform of our criminal justice system stems from a recognition of two specific issues relating to the prosecution of suspected offenders: 1) allegedly, the law enforcement agencies are unable to apprehend, detain and investigate suspects, and 2) even when such terrorist suspects are brought before a court of law, no conviction takes place owing to lack of sufficient evidence, or due to improper investigation.
The first of these two issues – apprehension, detention, and investigation of the suspects – is mostly operational in nature, dealing less with the legislative provisions, and more with the capacity and operational expertise of the law enforcement and intelligence agencies. And consequently, any reform, in this regard, requires a long-term strategy of improving the training as well as building the capacity of our law enforcement establishment.
It soon became necessary to have eyewitness accounts to convict a suspect for heinous offenses. And the natural consequences of this, eyewitness testimonies were manufactured in the FIR itself (even when the event was ‘unseen’ in reality).
The second of the two issues – prosecution of the criminal suspects, resulting in meaningful convictions – squarely falls within the four corners of legislative reform, along with its interpretation and implementation. Therefore, at least in theory, this can be done almost immediately, with a stroke of a pen.
While discussions and deliberations will continue to rage on about the precise contours of the legislative provisions and procedures that must govern the empire of a new criminal justice system, one aspect of the prosecutorial process that requires our particular attention is the sanctity that is afforded to the First Information Report (FIR).
By way of background, it is pertinent to mention that the FIR, conceptually, is simply meant to be the earliest communication or intimation of the occurrence of a cognizable offense, to the relevant State agency, aimed at setting in motion an investigation into the matter. Specifically, per the mandate of section 154 of the Criminal Procedure Code, 1898, such ‘first information’ is to be conveyed to the relevant police authorities, reduced in writing, and duly signed by the complainant.
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The FIR, in almost all instances, includes an account of where the incident in question took place, the offenses attracted, some assertion about the description or identity of the suspected offenders, and frequently also assigns specific ‘roles’ to the suspects in the commission of the alleged crime.
Introduced under the colonial rule, historically, the FIR did not hold a sacrosanct place in the prosecution of criminal offenses. Numerous judgments of the superior courts have held the primary purpose of the FIR is simple to inform the police about the commission of a cognizable offense, and that it is not essential that “all” details regarding the commission of an offense be provided at the FIR stage.
In this regard, senior police officials and lawyers relate (fabled) stories about a time, many decades ago, when a brief (two or three line) FIR, without much detail or evidence, could trigger a prosecution that resulted in the conviction of a murder suspect.
A debate about the re-evaluation of our criminal justice system, its standards, its procedures, and its application, must necessarily entail a rethinking of the judicial sanctity afforded to the FIR.
However, over time, trial courts across Pakistan, guided by imminent defense lawyers, started placing a much higher (evidentiary?) value on the contents and sanctity of the FIR. A line of jurisprudence, emanating from the trial court and later upheld by the superior courts, encouraged significant details about the events and identity/role of the accused to be included in the FIR itself, for a meaningful conviction to take place.
As a judicial interpretation of evidentiary standards evolved, trial courts started requiring the prosecution to prove their case in line with a narrow view of Qanoon-e-Shahadat and Islamic Injunctions, concerning ocular testimony (especially concerning offenses such as murder).
It soon became necessary to have eyewitness accounts to convict a suspect for heinous offenses. And the natural consequences of this, eyewitness testimonies were manufactured in the FIR itself (even when the event was ‘unseen’ in reality).
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As a result, through a process of reverse-engineering the prosecution and the police, with the aid of the complainant, were forced to ‘create’ FIRs that included (false) eyewitness accounts, without which convictions could not take place.
And, as is true for most false testimonies, it thus became easy for the defense counsels to find discrepancies in such ‘manufactured’ eyewitness accounts. Naturally, such manufactured evidence led to a reduced number of convictions, and a larger fraction of the accused being granted bail at the interim stages of the trial.
A cursory reading of most FIRs concerning the offense of murder, across Pakistan, would demonstrate a set pattern of events in which the accused (along with his friends) issues a ‘lalkara’ prior to firing upon the deceased, and the entire story is witnessed by bystanders, all if not most of whom, are relatives or friends of the deceased or the complainant.
Crime, in the modern day, has evolved to become more sophisticated, and less traceable. A corresponding shift must now take place in the prosecutorial and judicial application of the relevant law.
In this cyclostyled set of circumstances, everyone – on the defense as well as the prosecution side – is aware of their roles and responsibilities, in a game that is governed by rules of conviction, instead of any measure of truth.
The prosecutorial system has thus become hostage between two competing ideas: 1) of creating an FIR which includes enough evidence and testimony to satisfy the judicial standards of conviction, and 2) of being vulnerable to the weaknesses of an FIR that is inherently false. And when this model is applied to acts of terrorism, it becomes virtually impossible to get any meaningful result.
Some of the recent judgments of the honourable Superior Court, including those authored by Justice Khosa, have tried to dilute the importance of an FIR in the prosecution of a crime. However, by and large, the FIR continues to command a central position in the prosecution of offenses.
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A debate about the re-evaluation of our criminal justice system, its standards, its procedures, and its application, must necessarily entail a rethinking of the judicial sanctity afforded to the FIR. The truth is that most murders, almost all rape case as well as acts of terror, are not done in plain sight of eyewitnesses.
Crime, in the modern day, has evolved to become more sophisticated, and less traceable. A corresponding shift must now take place in the prosecutorial and judicial application of the relevant law. And in this process, a rethinking of the sanctity that our criminal justice system affords to the FIR is perhaps the first step.
Saad Rasool is a lawyer based in Lahore. He has an LL.M. in Constitutional Law from Harvard Law School. He can be reached at saad@post.harvard.edu, or Twitter: @Ch_SaadRasool. The article originally appeared at The Nation and has been republished with author’s permission. The Views expressed in this article are author’s own and do not necessarily reflect the editorial policy of Global Village Space.