A crying shame

Practically there is no remedy for wrongful conviction

The strength of a strong criminal justice system is to prove the accused guilty beyond reasonable shadow of doubt and till then, he would be considered innocent. But this is not the case in most of the developing countries, including Pakistan. Wrongful convictions could be in the circumstances where individuals are detained without any charge against them, charged before trial and whose conviction has been subdued on request.

Unlike other countries, In Pakistan, a wrongfully convicted person acquitted after a lengthy trial also does not have a statutory right to compensation. HoweverAlthough, there are three legal documents that are worth mentioning for compensation:  section 250 of the Criminal Procedure Code , the Constitution of Pakistan 1973 and filing a tortious claim against liable parties under the law of torts. These documents are relevant because each of them has recognized the importance of compensating the victims of a miscarriage of justice. Pakistan became a signatory in 2008 of a United Nations treaty called the International Covenant on Civil and Political Rights 1966 which guarantees compensation for those who are wrongfully convicted according to law. But practically, there is no such implementation of the above rules and treaty.

A judicial mechanism to hear the appeal of the accused against the conviction is also of paramount importance to be heard with immediate effect, steadily and in an effective manner, so the victim may be able to prove his unlawful detention swiftly. Another thing that is needed at the moment to make the system prevent these loopholes is to launch an awareness campaigns among the masses so they know their rights under the Constitution and other substantive laws to save them from these misapprehensions. Also, strong urgency and efforts are required to make the whole justice system abide by international standards substantively and procedurally

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A very famous case e of wrongful conviction of Rani Bibi should be enough to depict the current position of where the criminal justice system stands. it is an eye-opening case in which Rani Bibi was acquitted after spending 19 years in prison. Even after the miscarriage of justice, she received no compensation and imprisonment of almost two decades ruined her teenage and youth years in jail without any crime. This is not just about Rani Bibi, but thousands of other innocents are facing the same and they are not in any record of being reported. In a recent report of Media for Transparency, there is no data available in Pakistan for the wrongful conviction cases.

As far as fundamental rights of an individual under the Constitution are concerned, Article 4 of the Constitution rules the right of individuals to be dealt with by law. Article 9 further talks about the right to life and liberty and Article 10 is regarding the safeguard as to arrest and detention. A study by the Foundation for Fundamental Rights found that almost 78 percent of the death sentences overturned by the Supreme Court of Pakistan were upheld by the lower courts. According to an estimate, over one-third of Pakistan’s death row inmates might be completely innocent. But, even if they are innocent, the appeals process to overturn their sentences might take a decade to complete and that’s why it is said that delayed justice is denied justice.

The question which is always raised is who will be responsible for the injury or loss (socially, emotionally and economically) suffered to an individual due to errors in the justice system. Society does not accept the person warm-heartedly even if he is proven innocent. Miscarriages of justice occur daily through negligence or malfeasance at all levels of the criminal justice system, from police to prosecutors, jail officials and judges in Pakistan. Crime scene investigation is a prime tool in the investigation but the local police in Pakistan are not fully equipped and trained enough to collect evidence where the alleged incident took place, and the poor handling of evidence leads to a negative impact on the final verdict.

False testimony or perjury is also a gigantic issue, causing hurdles for access to justice. Under the Pakistan Penal Code, giving wrong testimony during judicial proceedings can make one liable for imprisonment of up to seven years. Unfortunately, it does not have any effect as implementation is not there and wrongful testimonies are being heard on a daily basis in courts, leaving the life of the accused to be in the hands of the witness to decide his future.

A number of accused cannot appeal against the punishment or defend themselves just because they are not financially strong enough to hire a counselor for themselves. Therefore, legal aid should be given to those persons to defend and prove themselves innocent. The attorney incentivized by the government must be experienced enough to lead his client with full capacity. Investigation-related procedures need to be upgraded with technology, and different techniques and training courses should be organized for the police to collect evidence on the crime scene efficiently.

A judicial mechanism to hear the appeal of the accused against the conviction is also of paramount importance to be heard with immediate effect, steadily and in an effective manner, so the victim may be able to prove his unlawful detention swiftly. Another thing that is needed at the moment to make the system prevent these loopholes is to launch an awareness campaigns among the masses so they know their rights under the Constitution and other substantive laws to save them from these misapprehensions. Also, strong urgency and efforts are required to make the whole justice system abide by international standards substantively and procedurally.

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Shehryar Amin
The writer is a Law Student, studying at the University of London.

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