Criminal Justice Response to Extremism
Pakistan’s legal and judicial system has long been seen as ineffective insofar as the criminal justice response to extremism is concerned. This may be generally true, but it is changing and the response is transforming gradually. The transforming response may be a result of highly-sceptical public opinion, better coordination between the police and the prosecution and more understanding on the part of the judiciary. The case of Priyantha Kumara (Sri Lankan citizen who was killed by a mob and his body burnt on 3rd December 2021) has finally been decided on 18th of April 2022. Ms. Natasha Naseem Sipra, Judge Anti-Terrorism Court, Gujranwala Division, Gujranwala, convicted 88 accused in the case with 6 awarded the death penalty, 9 handed down life imprisonment and 73 sentenced to rigorous imprisonment with varying terms.
This article will try to highlight some salient aspects of the whole justice system response and allied matters to the episode which may help in infusing energy, hope and learning for any future response to such incidents.
1. Information-based Crime Reporting
One of the chronic problems in Pakistan’s criminal justice system is the stranglehold of the first crime report (technically called the First Information Report or FIR), which has turned into a highly technical matter as the complainants more often than not try to inform it with evidence instead of with information (as required by law). This technicality-oriented crime reporting is the single most pronounced problem that shapes all the subsequent legal proceedings as it defines the factual framework that limits the work of other components of the criminal justice system. In this case, against the trend of writing an evidence-based crime report, the crime report was kept simple and no nominations or no witnesses were stated in its body. This information-based crime reporting provided much-required professional space for the investigators, the prosecutors and the judge to evaluate evidence on its own merit.
2. Separate Trial for Juveniles
The Court rendered two separate judgements in this case: one dealing with non-juveniles and the other with juveniles (as nine accused were juveniles). The separation was based on the Juvenile Justice System Act, 2018. The police acted quite professionally in the case by determining the ages of the accused at the time of investigation. Police leadership and the lead investigator Tariq Mehmood Inspector, in consultation with prosecutors, submitted a separate investigation report (under section 173 of the Code of Criminal Procedure, 1898) to the extent of juveniles. The judge, accordingly, conducted separate trial of the accused and convicted them as per sentencing guidelines of the Juvenile Justice System Act, 2018.
3. Forensic and Technical Evidence
The investigator of the case collected ocular, medical, forensic and technical evidence quite skilfully. Article 70 of the Qanoon-e-Shahadat Order, 1984 (the evidence law of the country), accords primacy to direct evidence implying thereby that ocular evidence is treated as primary evidence and all other technical, scientific, forensic and medical pieces of evidence get corroboratory status. While collecting ocular evidence, the investigator also collected loads of forensic and technical evidence. Very ably, he divided the crime scene into four parts and collected evidence on each part separately and then got it corroborated through mobile and forensic evidence. Over three hundred forensic reports were obtained from the Punjab Forensic Science Agency (PFSA) and the presence of each accused was proved by ocular, forensic and technical evidence. Likewise, forensic reports were also obtained from the forensic lab of the Federal Investigation Agency (FIA) on voice sampling of the accused as recorded in different video and audio clips from the crime scene. In addition, to anticipate any defence-related evidence from information systems (videos and audios), report was solicited from the Pakistan Telecommunication Authority (PTA).
4. Progressive Interpretation of Law
The Court was professionally assisted by a team of prosecutors notified by the Prosecution Department Punjab. Team formation and collective effort by the police and the prosecution added value to state’s ability to prosecute multiple accused who were being defended by separate defence lawyers. The judge resorted to progressive interpretation of law on the following points:
a. Definition of Information Systems
The defence lawyers questioned admissibility of technical evidence (electronic, audio, visual and mobile phones) against the accused. The judge relied on the definition of ‘information systems’ as contained in the Electronic Transactions Ordinance, 2002, read with Article 73 of Qanoon-e-Shahadat Order, 1984, and Section 27-B of the Anti-Terrorism Act, 1997, to admit electronic evidence in the trial.
b. Cause of Death and Medical Evidence
Defence questioned the cause of death, and brought in standard issues of time of death as recorded in post-mortem report. Relying on case law, the judge treated medical in totality and did not extend benefit of doubt to the accused; interpreting the medical evidence in cumulative manner, the judge believed in the evidence in totality.
c. Evidence on Common Intention
Mob-related cases always suffer from the challenge of the evidence on common intention. The judge agreed with the prosecution that there was common object of the accused that got corroborated by their audio-video evidence duly testified through onlookers/shopkeepers in the locality. Voice matching report by FIA was admitted and weighed in to decide this point by the judge.
d. Challenge of Degree of Qatl (murder)
The battery of defence lawyers attacked the charge of Qatl-e-Amad (murder) by arguing that as the accused were armed with bricks and sticks, their intention was not to kill the accused as they did not use weapons against the victim. They, therefore, argued that the case must be tried under the charge of Qatl Shibh-i-Amd (manslaughter). This contention of the defence was not entertained and the accused were convicted for Qatl-e-Amad.
5. Witness Protection
In order to extend state protection to witnesses, the judge and the prosecution, the trial of the case was transferred to jail. This single measure served well to ensure protection of witnesses. In addition, the judge did not allow adjournments enabling her to finish the trial in time.
6. Trial of Differently-abled Person
One of the accused in the case was a differently-abled person (deaf and dumb). He was provided with an interpreter at the expense of the state so that he could understand the proceedings against him. This also enabled him to express his defence before the Court.
7. Media Coverage
The gory incident of extremism got unending media coverage nationally and internationally; unfortunately, the state’s efforts and the criminal justice response did not get as a matching coverage. There is need to eclipse media coverage of extremism by glorifying the work of the criminal justice system, especially of police officers and prosecutors who fight fiercely for a battle within the paradigm of the rule of law.
Finally, it may be noted that the case was investigated by district police and not by the specialized Counter Terrorism Department (CTD). This shows that there is immense will power in police leadership to establish the writ of the state. Pakistan can be served best by further strengthening criminal justice response to extremism instead of favouring narratives that advance violence and have militant orientation.
The author is an independent researcher and has done his BCL from the University of Oxford. Email: firstname.lastname@example.org
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