In my last article, in which I raised certain queries about the judicial system of Pakistan, my friend, Justice Sheikh Ahmed Farooq, ex-Judge of Lahore High Court, sent me a detailed reply on my request. I feel privileged to reproduce his write up with his permission.
“There is hardly any doubt about the corruption or misuse of authority or possession of assets beyond known sources of by the persons, who are normally arrested by National Accountability Bureau (NAB), barring very few odd instances.
However, the initiation of proceedings & stage/time & mode of the arrest of the accused by NAB is selective, arbitrary, untimely and politically motivated. The investigation skills, collection of relevant incriminating evidence, preparation and prosecution of references by NAB are extremely poor, which invariably result in the grant of bail or acquittal of the accused. And such criminals become “ Hero’s “.
In addition to the deficiencies or incapabilities or inefficiencies of NAB officers ,there are in built or inherent flaws in our criminal justice system. Look at the rate of acquittal of murder cases in our country is probably more than 75%, no one can prove even the murder of his real father or son strictly according to the provisions of Code of Criminal Procedure (C r.P.C) which was enacted in 1898 or Qunoon Shahdat Order 1984.
Just to give you a shocking example, even the accused, who were convicted by the Sessions court as well as LHC for the murder of the son of Mian Mahboob Ahmad, Former Chief Justice of Lahore High Court and Federal Shariat Court of Pakistan were acquitted by the Supreme Court in recent past due to lack of sufficient incriminating evidence or evidence of the commission of the offense by the accused, which could be accepted beyond any reasonable shadow of doubt.
In these circumstances, how can one expect from NAB that they would get accused of a White Collar Crime convicted? Hence, the only way to get an accused guilty of normal or NAB offenses is to change the whole system of administration of criminal justice including but not limited to registration of case (F.I.R), arrest & physical remand of an accused, collection of incriminating evidence, investigation, prosecution & trial of the case.
Secondly,C.r.P.C. & Qunoon Shahdat needs to be amended according to the changed circumstances & ground realities. Thirdly, the mode of appointment of the Judges has to be drastically changed. It should be merit-based/oriented & considerations like nepotism, favoritism & ‘Baradari’ or political affiliations or ‘Chamber fellows’ had to be done away completely.
A strict training & accountability system for the Judges needs to be introduced. They should not be treated like ‘Sacred Cows’ anymore. The Judges should not exploit the proverbial term of ‘Independence of Judiciary’ to conceal their alleged corruption or incompetence or intellectual dishonesty & even illegal judgments.
Either Supreme Judicial Council comprising of Senior Judges of Supreme Court should play an active role in the removal of corrupt & incompetent judges or a new system of Impeachment of Judges through Senate may be introduced in Pakistan.
Finally, the essential requirement of producing witnesses to prove an occurrence has to be amended. Evidence collected by investigating officer through the latest technologies should be accepted & confession of an accused before a Senior Police Officer through video or audio recording be made admissible during the trial.
In short, the prevalent Anglo Saxon System of Administration of Criminal Justice, which has collapsed, should immediately be substituted with Islamic System, which envisaged a pivotal role of a Qazi, who take cognizance of the offense right from the time of its commission & all investigations should be conducted under his direct supervision & evidence of the eyewitnesses be recorded by him on the spot.
The three tiers of the existing system i.e.Investigation, Prosecution & Trial should be substituted by a unified system of investigation & trial of an accused. This is the only way that hardened criminals, corrupt politicians & civil servants would be punished & confidence of the general public on the judiciary of Pakistan could be restored.
Let us not forget that according to a report published by an International Organisation, with which I entirely agree that the level of public confidence in the present Judiciary of Pakistan is insufficient to sustain the legitimacy of this Institution.”
After receiving the above answer, I raised another query. ” Problem lies with the legislators. The majority is either not interested due to vested interests or have no cognizance of the issue. Can it be taken up by SC on its own under the provisions entrusted upon them by the Constitution?”
He sent me the following answer.”Supreme Court can not legislate or make new laws. They can only interpret or review or even declare any law made by the Parliament as ultra vires of the Constitution.
However, SC has the power to request the government, not the Parliament, to enact a new law for redressal of a problem or public welfare. But how can you expect from this Supreme Court to suggest to the government to enact a law against their interests & curtailment of their own powers.
To be candid, our parliamentarians are not only incompetent, divided, partisan but also corrupt & that is the real problem, which has failed Parliamentary Democracy in Pakistan.”
Can it be seen, read and acted upon by the Chief Justice of Pakistan and also the Prime Minister of Pakistan?
May I now say that it is better to roll some heads now rather than the start of deep cleansing. That will be extremely painful. But, then, without pain, nothing can be achieved.
