ARE THE "GUILTY" REALLY "GUILTY"

ARE THE "GUILTY" REALLY "GUILTY" <!--[if gte mso 10]> ARE THE "GUILTY" REALLY "GUILTY" By Taki Ahmad Khan, Bar-at-Law, Lahore In the adversary system of Administration of Justice unlike the inquisitorial system of law the Judge 'is an umpire who gives his verdict after evaluation of versions espoused by the opponents before him. Unlike the inquisitorial system of law the Judge is bound to go by the material placed before him. 2. In Criminal Administration of Justice the grinding stones are set rolling by the complainant who lodges first information report with the police. In most cases the complainant goes to the police station in company of persons who enjoy the reputation of being thick with the police. More often than not, the story of the occurrence is pruned and polished on the way to police station and in this way distorted. Once at the police station, the complainant's version is again twisted and turned to make it palatable for the Courts. The witnesses are added or dropped or locus in quo is changed. Some times the complainant is substituted and list of the accused is invariably extended. The complainant's witnesses have their old scores to settle and insist that their opponents' name be added as accused. Can the complainant refuse them? The dishonest police are happy that large list of the accused would provide them opportunity to fleece more persons. The complainant with inflated list of the accused want to heap insult and misery on the whole families who dared to affront him. Some times the policeman with good intention falsifies the complainant's version because he mistakenly believes that complainant's version of the occurrence leaves holes in the net for the accused to escape. The first information report which finally crystalises has faint resemblance with actual occurrence. The more serious the offence is the higher is the degree of distortion. In the cases of female abductions which in most cases are love affairs ending in elopement, the innocent unmarried girls of the accused families are always named as accused. The complainant's statement is invariably that his ward was beguiled by the accused or was forcibly pushed into a waiting vehicle. Can any person with some sense of honour admit that his ward could fall in love with a lout. In Muhammad Faridoon v. The State reported in 1987 SCMR 1962 the Hon'ble Judges of the Supreme Court observed, "We might, also mention that although lodging of false reports and making false allegations is a matter of daily occurrence in this country and though persons falsely involved in criminal cases are almost invariably acquitted--------" One would wish to share the optimism of the worthy Judges. The avowed object of law is to protect the innocents. Punishment does not start with physical incarceration. It starts with lodging of first information report. The police raids, insults of women folk, loss of good name blackmailing by police touts, tangible fear of public torture, horror of going to jail etc. are enough to unnerve any lay man. With the lodging of the first information report the golden principle of law that it is better that nine guilty persons should escape than one innocent person be punished is tattered. Can the situation be changed if some of these measures are taken: (i) Any occurrence of criminal activities be reported to the Senior Civil Judge/Magistrate of the area; (ii) The Senior Civil Judge/Magistrate should ask the complainant to file an affidavit that occurrence was being truly reported. In case the affidavit proves false, the complainant should be punished under the law; (iii) The Judge/Magistrate should thereupon depute an officer of impeccable character to verify the truthfulness of the allegations by associating five persons in the preliminary investigation i.e. two each from the complainant and the accused side; fifth person should be nominated by the Civil Judge from out of the list ' of AHAL-E-RAI of the Tehsil/District to be kept by the Judge. The list of AHAL-E-RAI should be changed if the occasion so demands; (iv) F.I.R. should be written eliminating the names of innocents which would alleviate much suffering presently hunting the society. (v) AHAL-E-RAI can also be authorised to make efforts on reconciliation in petty matters which, once in law-Courts drag on for years. Any of the AHAL-E-RAI who successfully reconcile the opposing factions in large number of disputes should be honoured and awarded recognition at State level. 3. The investigation of criminal cases by the police is horrific. Police lock-ups are filthiest places on the face of the earth. The inmates sleep, eat and defecate in the same room. Day and night indignities are heaped upon them. Bribe are given to earn favours from Investigating Officers which runs from arithmetic progression to geometric progression according to the gravity of offence. Hair raising methods of torture are employed to obtain illegal gratification. In the case of Noor Muhammad and another v. The State reported in 1986 SCMR 174 a recovery witness deposed in Court, "It is correct to suggest that today the police has (sic) tortured me....They asked me to sign recovery memos which I did." About the investigation of the case another witness in the same case stated, "The S.H.O. had been bribed by the accused and he spoiled the F.I.R." The prosecution witnesses are shown the accused whom they would not identify if they came face to face with him in the Court-room. The actual eye-witnesses for fear of retribution from the criminals fear to appear in the Court. Reports of criminals murdering the witnesses are common. Police, therefore, enlists the relatives of the complainant to depose against the accused. More often than not those enlisted witnesses were not present at the time of occurrence. The story of recoveries is most unnatural event. The accused by some perverse instinct keep the blood-stained knife safe in his living room, stolen currency notes in a hole dug in the earth, pistol used in murder in his pocket, iron bar with which he struck the victim in his bed room to be recovered at his instance by the police. In fact the recovery articles are supplied by the complainant and in crimes of violence the human blood present on them is also supplied by the complainant. 4. Our police are untrained in modern methods of investigation; they lack public sympathy and support; their knowledge is poor and equipment to trace the criminals is non-existent. The background of the police officials is mostly rural where resort to use of force is the first principle of resolution of problems. Foul abuse and crude torture fills the air of our police stations. Is there any solution? I suggest that: (i) Investigation 'cell of the police should be separately established in which highly educated people should be recruited. These officers should be given regular training in modern methods of investigation. Their pay should be handsome to make them indifferent to bribes. (ii) AHAL-E-RAI should supervise the investigation and if bias is seen the Investigating Officer should be reporter to the higher ups who should take immediately remedial steps. (iii) In order to inculcate spirit of friendship with the public the police should occasionally be employed in the performance of social services. (iv) The educational qualification of a police man should he raised to Intermediate level. (v) The pay of the police should be revised to make it commensurate with their onerous duties. (vi) Every Incharge of the police station should devote a day in a week to educate his subordinates in law and ethics. 5. When the case finally reaches the Court, the witnesses wax their muscles to utter falsehood. It has been judicially noticed by the Supreme Court that people hesitate to lie in the village Punchait but are not ashamed to utter falsehood in the Court-rooms. The Courts have long since discarded the principle of law falsus in Uno falsus in Omni bus. Instead the Courts endeavour to sift truth from falsehood in the statement of the witnesses. Clever witnesses successfully foil the Courts; they are absolutely consistent in their falsehood. 6. Judges are fallible human beings. Advocates with great persuasive powers are known to sweep the Courts off their feet. Judges too have their prejudices and judgments coming from different Benches betray the deep cleavage that separates their authors on the same legal proposition. Is it not a mere chance that the accused in one Court is hanged on the same facts while the accused before a different Bench on the same facts is given benefit of doubt and is acquitted? 7. Sometimes Judge's personal experience leads him to one specific conclusion excluding all other possibilities. Mr. Justice Buller was said always to hang for sheep stealing avowing as a reason that he had several sheep stolen from his own flock (Lives of Lord Chancellors By John Lord Campbell' Fifth Addition Volume VIII, Page 55). Magistrate Wisden exhibited great bias against motors and their drivers. Convicting a driver who was driving his motor car at the turn of the Century at a ferocious speed of more than 12 miles per hour, he said, "It would be a good thing if motor car industry was destroyed." The judgment was approved by a Divisional Court. 8. Judges are conscious too that if they acquit an accused, "it might even appear to the public at large as if crime is being patronised. This creates a sense of dismay and in-security in the peace loving and law abiding citizens." (Nathoo Khan v. The State PLD 1986 SC 82). Ordeal of an innocent citizen who is caught in the meshes of law, it is respectfully submitted, also spreads discontentment and frustration with the working of our judicial system. ***