Faulty probes overturn Pakistani court convictions
May 9, 2007 - 5:04:16 PM

Karachi, May 9 - Over 70 percent of convictions involving capital punishment handed down by Pakistani trial courts are set aside by superior courts, largely due to defective and inefficient investigation techniques by the police and flaws in the prosecution system, media reports said Wednesday.

Quoting sources in the office of the Sindh advocate-general, Dawn reported that the quality of police investigations in high-profile cases like bomb blasts and sectarian killings 'was not up to the mark and most sentences awarded to the accused by the trial courts were either set aside or commuted by the Sindh High Court'.

In some cases, improper identification parades by magistrates, who left loopholes in the collection of significant evidence was responsible for the setting aside of convictions.

Former Supreme Court judge Nasir Aslam Zahid attributed poor investigations to rampant corruption and political appointees in the police department.

'The conviction rate of anti-terrorism courts is high because when a high-profile case is brought to a low-ranking judge, he comes under immense psychological pressure. But when the same case goes to experienced judges of the high court, they find hardly any evidence in the convictions,' he maintained.

'The criminal justice system in on the brink of collapse in this country. Crimes are being committed all the time and convictions handed down by trial courts are being set aside by superior courts. So, the question is: Where have the real culprits gone?' Zahid fumed.

Defence attorneys had a different take on the issue.

According to them, investigators in Pakistan were in the habit of 'creating and fabricating' evidence instead of collecting it honestly.

'As a rule, the quality of a police investigation is very poor and investigation officers almost always fail to find direct evidence against defendants. Consequently, they create and set up evidence, shattering their own case,' Dawn quoted lawyer M.R. Syed as saying.

Syed claimed the Sindh High Court set aside convictions of his clients, belonging to outlawed sectarian outfits, in as many as 15 cases over the past 16 months.

According to Syed, there must be direct evidence of eyewitnesses - known in technical parlance as ocular evidence - in cases involving capital punishment, as merely circumstantial evidence and judicial confessions were not adequate to establish the prosecution case.

Three types of evidence are usually admissible in a Pakistani court: ocular evidence, circumstantial evidence and judicial confession.

'It is really hard for an investigating officer to find a real and independent eyewitness to a crime as people do not come forward to record their evidence,' Syed admitted.

'Even I, despite being an attorney, would avoid becoming a witness for the prosecution since there is no witness protection programme in our country,' he contended.

According to Syed, police investigators were not properly trained and unacquainted with modern investigation techniques.

'Lack of knowledge on their part is one of the main reasons for flawed prosecution,' he said.

Mushtaq Ahmed, another lawyer, said the Sindh High Court had allowed at least seven appeals filed by his clients belonging to the Lashkar-i-Jhangvi group and the capital punishment awarded by an anti-terrorism court was set aside.

A prosecution lawyer, who did not wish to be named, said: 'Since a trial court judge himself tries the accused, his opinion is influenced by the behaviour of the defendants and witnesses who appear before him during the trial.

'He sometimes overlooks prosecution flaws. But high court judges examine the record of the trial very minutely and eventually detect the flaws that favour defendants,' the lawyer added.

He said delays in the holding of an identification parade of the accused also adversely affected the prosecution's case.

'Similarly, a delay in the recording of a judicial confession of the accused creates doubts in the mind of a judge,' the lawyer added.

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