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Victims of the justice system?

In his inaugural address as chief justice, Honourable Asif Saeed Khosa outlined his agenda for improving the workings of our justice system. Given his unparalleled jurisprudential contribution to Pakistan’s criminal law, it was particularly heartening to learn that he intends to construct “a dam against fake witnesses and false testimonies”.

 This insight into the maladministration of justice echoes the findings of a new report from the Foundation for Fundamental Rights and Reprieve. ‘The Pakistan Capital Punishment Study’ reveals the systemic, deep-rooted failures that lead to hundreds of people being wrongly sentenced to death each year – including the widespread use of unreliable witness testimony in capital trials.

The report reveals that, from 2010-2018, the Supreme Court overturned death sentences in a staggering 78 percent of cases reviewed. Think about that: according to this survey of rulings in Pakistan’s highest court, almost four in every five death sentences imposed by lower courts should never have been handed down. The Supreme Court either aquitted the accused, commuted the sentence or ordered a review. In 70 percent of acquittal cases, unreliable witness testimony at the lower court levels was cited as a main reason for acquittal.

The defective nature of eye-witness testimony reveals several further systemic flaws in the appreciation of evidence by the lower courts. In 44 percent of reviewed acquittal cases, independent physical evidence failed to corroborate or directly contradicted the ostensibly damning witness testimony. In 47 percent of all cases resulting in acquittal, there was either absence of proof that the witness was physically present at the crime scene at the relevant time or there was no probable reason for the witness being present. In a large number of cases, the witness was found to have altered their testimony throughout the course of the investigation and trial to favour the prosecution’s case. Lastly, the Supreme Court also often found that witnesses had been deemed credible by the lower despite their having a perceptible conflict of interest with the accused or a personal bias towards the case.

The stark reality of such practices is made evident in Mst Sughra Begum v Qaiser Pervez. This is one of many cases in which the Supreme Court overturned the high court’s verdict and found that the prosecution’s witnesses not only had a vested interest in seeing the accused convicted, but that “their testimony [was] not corroborated by a single shred of evidence”. The Supreme Court held that “being false witnesses, they cannot be safely relied upon without strong corroboration.” While Mr Qaiser’s co-accused had been acquitted at the trial stage, Mr Qaiser himself served almost 12 years in prison before finally being acquitted by the Supreme Court, further exhibiting the lower court’s arbitrary approach towards capital convictions.

In the judgements reviewed, the Supreme Court was rarely satisfied with the credibility of witnesses presented in the lower courts, especially where the post-mortem report failed to corrobate witness’ testimonies. Glaring discrepancies cited included a scenario wherein a witness testified that the accused shot the victim from far away whereas the post-mortem showed burning and other clear signs of shooting from a close range. In Pathan v the State (2015), the Supreme Court chided the high court for placing “reliance on [witness] testimony without judicial care and caution, which has resulted into miscarriage of justice” because the prosecution had “miserably failed to prove the presence of the eye-witnesses on the crime spot at the fateful time”.

Despite the Supreme Court’s directions, lower courts continue to impose capital punishment based on witness testimony that is later found to be uncorroborated, inconsistent, potentially biased or simply, false. Thus, the Supreme Court itself is forced to determine the credibility of witness testimonies and thereby take on duties of a trial court, contributing to the mounting backlog of cases at the highest level of the judicial system. The human consequence is that the accused languishes on death row for years before receiving meaningful justice.

We believe there are sound and effective strategies that can be employed to counter these failures. The FFR/Reprieve report recommends certification and training for judges prior to their hearing capital cases. In addition to becoming better aquainted with Supreme Court precedents, judges must gain greater skills in the forensic examination and piecing together of evidence and in determining the impact of unsubstantiated statements and of failures to disclose information to the court. All of this would help to ensure that capital convictions are only upheld in the strongest cases.

The justice system described in FFR/Reprieve’s report is one in which death sentences are routinely handed down by lower courts, based on inadequate evidence and unreliable eyewitness testimony, only to be almost as routinely overturned by Pakistan’s highest court, several years later. If we are to realise Chief Justice Khosa’s vision of a modern, efficient criminal justice system, lower courts must learn to recognise that “fake witnesses and false testimonies” are never a sufficient basis to impose the ultimate punishment.

Michelle Shahid, "Victims of the justice system?," The news. 2019-04-29.
Keywords: Social sciences , Human rights , Criminal law , Social aspect , Justice system , Supreme court , Public interest , America