Thursday, September 18, 2014
By Saeed Qureshi
How can justice be delivered in a country where murderers and rapists go home after payment of blood money or reconciliation with the aggrieved party? This reconciliation is imposed more often than not on the victimized party by threats or intimidation. In other instances a payment as compensation is settled with the harmed side and the courts acquit the villains.
It means that anyone with a heavy purse and a gun can shoot anyone in broad day light and prevent the due process of law by undercutting it with payment of money. The perpetrators of heinous crimes like murders are usually goons with lot of money and therefore law can be bent if they can pay for blood money. On the contrary a poor guy who injures or even kills someone cannot have such an escape route and therefore languishes in jails for years and finally to be hanged or awarded life sentence.
We have seen that in myriad criminal cases a roughneck forced the weaker party to come to terms and bargain to let the offenders walk their way. Not long ago a high profile murder case hit the headlines for pretty long time. The flamboyant and defiant son of a super duper feudal along with his equally roguish buddies killed a police officer with impunity. The principal culprit was given death sentence but was later freed after paying the settlement amount with the aggrieved party.
I have been reading about flurry of such court settlements in which the persecuted party was coerced to state before the court not to pursue the case because they had either pardoned the offenders or had accepted the retribution by way of a handsome amount of money.
There are various glaring factors that hinder the swift, condign and deserving punishment to the criminals and outlaws. It is seldom and unheard of that any rapist even proven was ever punished by a court. The lacuna is the presentation of four witnesses by the female victim as evidence. The production of this evidence is like asking for the moon. As such all the rapists and womanizers remain immune from the grip of law whether it is civil or the Shariah court.
For the aggrieved party it is absolutely imperative to produce the witnesses who had seen the crime being committed. First of all it is a tall order for the persecuted party to find out the witnesses because most crimes are not committed in public view. Second even if there are people who were onlookers or present at the crime scene they would not pick up the courage to come forward voluntarily or otherwise to be witnesses for a variety of compelling reasons. They would be aware that they would remain under a perpetual spell of fear and paranoid as long as the case is not decided.
Secondly, the cases on our courts take years from start to the end. The witnesses have to appear on each hearing before the court disrupting their jobs, and other activities of life. One would not wish or prefer to be caught in a grinding gridlock at the cost of disturbing their life and peace of mind. In the courts a witnesses is harassed, ridiculed and even humiliated by the defense counsels each time for hours. Any individuals even with strong nerves cannot stick to a statement verbatim each time as the prosecution or the defense make every effort to find out contradictions to prove the witness as a liar.
The aggrieved party hires the false or professional witnesses on payment for each appearance in the court. He has to bring them fully protected, take care of their traveling expenses and food etc. Most of the witnesses that are produced in the courts are therefore not genuine.
The evidence is taken after adjudication of case for pretty long time. By that time even if there was real eyewitness would forget the real scenes and the directions and timing and the faces and blah blah asked by the intimidating and aggressive lawyers. If at all witnesses can be helpful in the trial of a case then on the time of writing FIR their statement should be recorded or at the first appearance of the court. But even in this situation the witnesses cannot get rid of the subsequent appearances in the court that can prolong indefinitely.
But wring of FIR is a highly technical and legal job. It should not be entrusted to the minions of a police station. In Pakistan getting in an FIR written is a tough ordeal. The FIR is written after settlements of bribe or under the orders from the high ups. The FIR is mostly tainted and would favor more the stronger party than the weak or the victimized.
Now the police official who writes an FIR is summoned by the court and he would remain under a constant burden of being questioned by the court and the hostile counsels each time. There should be several cases for which he should be summoned when needed to put up the official outlook. Is he a computer to dish out the correct details about each case?
In the face of all these stumbling blocks and irritants for dispensation of speedy and fair justice, I suggest the following corrective measures:
1. Changes should be brought about in the legal system that should encourage more litigants to use an expedited court process, as opposed to arbitration.
2. The writing of an FIR should be handed over to a magistrate who can have his or her office within the precincts of the police stations or an independent office adjacent to a police stations’
3. The FIR registration officer should not hesitate or defer the writing of the FIR. Even an FIR from both sides can be recorded.
4. A time frame should be fixed for every case to be adjudicated and verdict announced even if it is to be done on daily basis.
5. The condition of producing witnesses should be dropped as it does not serve the actual objective of dispensing justice because as explained above, in most case the witnesses are paid and hired to appear and briefed what to say.
6. Instead the circumstantial evidence and forensic findings should be considered enough evidence. The Witnesses are usually produced mostly in criminal cases present at the time of occurrence of crime. In case of civil suits like property, money transactions the witnesses are mentioned on the written deals. In such cases the tainted or tutored evidence fed by a lawyer may not work.
7. In case of witnesses, the parties concerned should bring them along at the time of reporting the case or on the first day in the courts. They should be questioned by the lawyers on the same day and then liberated from future appearances. The FIR or reporting center should remain round the clock.
8. We have seen in Pakistan that despite incontrovertible evidence captured in a video or Television coverage, the justice is delayed and law is not allowed to take its course. So primarily it is the mindset of the judge, the tricks of lawyer and the the faulty system that delays and determines the outcome of a case irrespective of the merits. As such strict honest and rigid ethical uprightness should be the yardstick in the appointment of judges. The review committees or the appellate courts should have authorities to criticize and even fire the judges whose conduct looks suspicious, biased or unprofessional.
9. The colonies and cabins of the lawyers and sellers of the official stamps or documents around the court buildings should be disallowed. Instead of operating from the makeshift booths they should be lodged in proper offices and the court authorities should check their working conditions. The touts around the court premises should be barred. The stamp papers sold by the contractors can be even counterfeit. The court fees and other official charges should be deposited in a bank or in treasury so that all the money directly goes into the treasury. In America the fees are collected by at counters located within the court premises.
10. Our court buildings are rundown, broken stairs, with walls full of dirt and stains of betel nut (pan). The design of the court buildings has to be changed so that in one building all the relevant courts can be accommodated. Designs and plans of court buildings can be copied from the United States or western countries. We have seen these buildings to be immaculately organized, clean, dignified, elevators working, and the court rooms fitted with all the modern gadgets. We can make similar set up in Pakistan.
11. It would also be in order to send out jurists and judges and other members of judiciary to witness the courts operating in advanced societies. There is a dire need to streamline and update our justice system that on the whole looks a mockery and negates the dispensation of unalloyed and true justice.
12. In one of the counties in Texas in one building I have seen around 30 courts for different hearings. There is no noise or din or chaos anywhere. There are county courts and municipal and besides immigration courts. There are no touts or people shouting at each other or courts interior with broken benches and seats. There are no separate judges’ colonies as we have in Pakistan. Judges live lie ordinary citizens in the cities, drive their own cars and attend the courts. The judges are always in the radar or under the watch for any kind of misconduct.
13. For eradication of social evils as theft of power, adulteration, maltreatment of the citizens in government private departments and similar felonies, the mobile courts should be established to catch the culprits on the spot and award the punishment. That would serve the imperative of swift justice and save the litigants from a big hassle and unnecessary spending.
14. The mobile court has to be equipped with the appliances as computers and small labs for testing the adulterated food items on the spot. A magistrate with a posse of police should make surprise visits in all the bazaars and shopping areas and restaurants to check the prices of food items and announce punishments on the spot. They can visit also the hospitals for spurious and expired drugs, used equipment etc or for unhygienic conditions or negligence by the hospital staff. The electricity and water thieves can be awarded punishment on the spot in front of the other officials touring with a judge or the magistrate.
15. The rapist and molesters should never be allowed to escape under the Hadood laws or for being influential persons. The eyewitnesses’ condition is irrelevant and unreliable. The forensic and DNA can conclusively determine who had committed the crime. Even otherwise the victims and their families and the people in the area know about the culprits and perpetrators of the crime. So on the spot all information and evidence can be obtained that takes years for the lawyers to establish and still in many cases the culprits walk away unpunished.