Over the past two decades, Pakistan’s legal system has faced consistent criticism with regards to outdated criminal justice laws and the lack of convictions that result from our porous system of justice. This criticism, which also featured in the recent evaluation of Pakistan’s performance in the FATF, requires deliberate focus and reform by the State of Pakistan.
In particular, the debate concerning reform of criminal justice laws—and in particular anti-terrorism laws—stems from recognition of two specific issues relating to prosecution of terrorist suspects: 1) allegedly, the law enforcement agencies are unable to apprehend, detain and investigate terrorist 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 legislative provisions and more with the capacity and operational expertise of the law enforcement and intelligence agencies. And consequently, improvement of this issue requires a long-term strategy that encompasses training and capacity building of our law enforcement establishment. The second of the two issues—prosecution of suspects in a manner that results in meaningful convictions—squarely falls within the four corners of legislative reform, along with its interpretation and implementation.
While discussions and deliberations about the precise contours of the legislative provisions that must govern the empire of a criminal law will continue, one aspect of prosecution that requires special attention is that of the importance and veracity is 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 intimation of the occurrence of a cognisable offence, 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. The FIR, in almost all instances, includes an account of where the incident took place, the offenses attracted, some assertion about the description or identity of the suspected offenders and the ‘roles’ to the suspects in the commission of the alleged crime.
Introduced under British colonial rule, the FIR (historically) did not hold a sacrosanct place in the prosecution of criminal offences. Numerous judgments of the superior courts have held that the primary purpose of the FIR is simply to inform the police about the commission of a cognisable offence and that it is not essential that “all” details regarding the commission of an offence 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.
However, over time, trial courts across Pakistan (including the anti-terrorism courts), guided by imminent defence 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 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 offences such as murder). It soon became necessary to have eyewitness accounts to convict suspects for heinous offences. And the natural nexus was to include the eyewitnesses in the FIR itself, given their proximity to the scene of the crime.
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 judicial standards of conviction could not be fulfilled. And, as is true for most false testimonies, it thus became easy for the defence counsels to poke holes in and point out 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 offence 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. In this cyclostyled set of circumstances, everyone—on the defence as well as the prosecution side—is aware of their roles and responsibilities, in a game that is geared by rules of conviction, instead of any measure of truth.
The prosecutorial system has thus become hostage between two competing ideas: that of creating an FIR which includes enough evidence and testimony to satisfy the judicial standards of conviction and that of being vulnerable to the weaknesses of an FIR that is inherently false.
A debate about the revaluation 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 cases and certainly 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 now needs to take place in the prosecutorial and judicial application of 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.