Asia Bibi and Our Criminal Justice System
On October 31, Supreme Court of Pakistan issued a landmark judgment in the ‘Asia Bibi versus The State, etc‘ case, overturning her conviction by the lower courts in the blasphemy case.
The Supreme Court ordered the immediate release of the appellant from the jail, where she had remained on death row for over eight years.
The court, while examining the evidence, observed that the prosecution’s narrative didn’t hold ground. Mainly, there was a suspicious 5-day delay between the time of action and the lodging of the FIR, the contradictory statements given by the complainant and the prosecution witnesses, the contradictory account of Asia’s arrest given by the complainant and the police. Finally the statement of the court witness which gave an alternate account of the occurrence, cast major doubt over the impartiality of the two prosecution witnesses.
The aforementioned grounds were sufficient to cast a shadow of doubt on the prosecution’s case, entitling the appellant to the benefit of the doubt and acquitting her of the charges.
The judgment ushered in a violent reaction from a faction of the religious far-right, Tehreek-e-Labbaik Pakistan (TLP) who marched out to hold countrywide protests, holding the state hostage for two long days and cost roughly 1.5 billion rupees in property damage and loss to the business. Finally, an accord was struck between the government and the TLP, whereby the government – among other demands – conceded to the protestors’ demand of putting Asia Bibi on the exit control list.
Asia Bibi’s case, where it highlighted many other flaws infesting our social fabric, brought my attention to the crippled criminal justice system in our country. One might sympathize with Asia given her decade long undue imprisonment, but, ironically, she is one of the lucky ones because she survived to see the light where countless other innocents suffer unjustified incarceration by the faulty, exploitative and inequitable criminal justice machinery.
The criminal justice system in our country includes the police, the courts and the prisons. The machinery is put into action when a person lodges a first information report (FIR) under section 154 of the CrPC (the code of criminal procedure) and the police then takes the suspect into custody. According to the guidelines of the criminal law the police have to present the accused before a magistrate within 24 hours of his arrest, where the magistrate would determine if there are any grounds to the case.
Afterwards the police start the investigation under the guidelines of the CrPC and the police rule 1934 and once the investigation is concluded, the investigating officer (IO) presents a challan before the court under section 173 of the CrPC
Soon after the submission of the challan the court starts its proceedings and accordingly awards acquittal or sentence.
The procedure seems quite straight forward and ideal but, unfortunately, it is selectively followed by the police as well as the judiciary.
Section 167 expressly stipulates that an accused cannot be remanded for more than 14 days but despite of that the court grants extension to the remand period at the request of the police.
Moreover, it is highly unlikely that an IO, which is usually an ASI, SI or IP, will diligently make an effort to collect the evidence and procure independent witnesses to shed light on the facts of the case. Most of the times, the police reports rely solely on the narrative provided by the complainants. Often, IOs lack training in modern evidence collecting, investigation techniques, and knowledge of forensic policing. Such shortcomings are few of the reason behind inaccurate police reports.
Furthermore, due to the lengthy criminal proceedings the defendants languish in the big house for many years without a sentence. As a direct consequence of that Pakistan has one of the biggest prison populations in the region and 55% of Pakistan’s prison population is accounted for by pre trial detainees, landing us among countries like Iran, Iraq, Saudi Arabia and China. This might be an oversimplification but it is invariably unfortunate to end up on a list with these countries. Ideally, we should aim to be on a list with good boys like Finland. All jokes aside, huge prison populations prove to be a major security risk as law enforcement officials refer to prisons as the think tanks of militant outfits.
To discourage torture the courts do not accept the defendant’s statement given before the police. However, the police are allowed to introduce evidence ‘discovered’ during the ‘interrogation’. Fabrication and alteration of forensic evidence by the police is a common practice.
The defendant’s ability to engage a good lawyer significantly impacts the outcome of the trial. This mainly affects the indigent defendants as the court appointed public defenders are often unenthusiastic about defending the accused to the best of their abilities and often require their palms greased, by the defendant’s already poor family, to get the cogs moving. Moreover, the defendant’s effectiveness in giving a robust defense is seriously undermined by being subjected to the severe conditions, abuse and torture in captivity.
Ultimately, the outcome of the criminal trial, mainly, rests on the testimony of the witnesses who face jail time if they change their testimony. Moreover, a rule requires the defense witness to record their statements before the police. Consequently, lawyers have a hard time in procuring witnesses.
In the judgment of Manzoor and others V. The State the Supreme Court remarked “the ultimate conviction and incarceration of a guilty person can repair a wrong caused by a mistaken relief of interim bail 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”. This begs the taboo question that should a country with as jaundiced a criminal justice system as ours, be allowed to apply the ultimate death penalty?
“Innocent until proven otherwise”, is the age old principle which is probably the first lecture in criminal law around the world. Ironically, our criminal justice system functions anti to that, pronouncing suspects ‘guilty until proven otherwise’.
It makes significant sense to set up an accountability mechanism for the functionaries involved in the criminal justice system, reforming the outdated investigative techniques and improving the standard of evidence. Reform committees should be formed, wherein the judiciary should be consulted. Finally the underfunded prosecution and probation systems should be equipped and funded properly, so that they may incorporate the most advanced methods for the dispensation of justice. This is, perhaps, the only way forward. Together with that we need to think of the tens of thousands of wrongly accused individuals who desperately crave justice.
The author is a lawyer.