The criminal justice system has acquired new shapes but one feature remains unchanged: might is right

Lahore: Former SSP Rao Anwar’s acquittal in the Naqeebullah murder case has once again exposed the flaws in our criminal justice system that have long been used by the elite to their advantage. Their renowned attorneys purposefully drag out the legal proceedings in order to ‘manage’ the witnesses and squander the evidence collected.

Many people in political and social circles have voiced their displeasure, and lament that the family of Naqeebullah Mehsud has been unable to receive justice despite a wait of five years. They term it a perfect example of “justice delayed,  justice denied.”

On the morning of January 13, 2018, Naqeebullah, a native of South Waziristan, and three of his friends were shot dead by the police in Karachi, with the then-SSP Malir Rao Anwar asserting that they belonged to the militant groups ISIS and Lashkar Jhangvi.

Subsequently, in January 2019, the Anti-Terrorism Court in Karachi dismissed all five cases brought against Mehsud on suspicion of terrorism, as well as charges of possessing weapons and ammunition, and noted that Naqeebullah’s social media accounts demonstrated that “he was a liberal, art-loving young man who aspired to be a model.”

That judgement notwithstanding, on January 23 this year, the anti-terrorism court in Karachi exonerated all 15 defendants involved in the case, including former SSP Malir Rao Anwar, of involve in  Mehsud’s murder during the suspicious police encounter five year ago. Meanwhile, In the interim five years, not only did Naqeebullah’s father and complainant in the case, Muhammad Khan Mehsud die, but the officials who had earlier given statements against Rao Anwar, reneged on their statements. As a result, he was exonerated.

The court said in its short judgment that while it has been proved that Naqeebullah Mehsud was abducted and killed in a fake police encounter,  the prosecution was unable to establish the presence of the accused at the crime scene or their role in the murder. This judgement because over the five years that have lapsed since the killing, the witnesses to the murder were somehow ‘convinced’ to change their initial testimony.

This case is not unprecedented. As is testified by history, as soon as a political or military regime is overthrown, the cases built against opposition members during its tenure are also usually dispensed with. And many cases filed against politicians seldom come to fruition, since the individuals involved have been powerful and have taken advantage of the flaws in our judicial system.  One such instance is the case against current federal Interior Minister Rana Sanaullah, filed during the tenure of the previous administration. Sanaullah was the accused in a significant drug-related case in 2019, which the Lahore High Court dismissed in December of that same year, on grounds of a lack of evidence.

This case, among others, strengthened the perception that the major reason powerful people escape justice is because the legal process is neither followed when a case is registered, nor throughout the investigation that follows. Resultantly, nearly all of the cases brought against political figures in the last 25 years in the name of accountability have been dismissed.

Azhar Siddique, a seasoned attorney, was questioned about his view on why such few cases involving politicians in Pakistan actually come to a just conclusion, for example, the Zulfikar Ali Bhutto case, Yusuf Raza Gilani’s disqualification, or the sentence pronounced in Javed Hashmi’s case. Their legality has long been a matter of debate. What went wrong and how can cases escape political vengeance?

According to Siddique, political retaliation has always occurred in our nation. He said the police, the FIA, NAB, anti-corruption, and anti-narcotics agencies have all been used for political vengeance. Sometimes bogus FIRs are filed. But the process for gathering evidence is terribly dated. And by purposely delaying the case and progressively aiding in the destruction of the evidence, defence attorneys contribute to the accused’s acquittal. If the institutions were to function independently, if they were free of the influence, threats or incentives offered by politicians, Siddique maintained, this situation could be avoided.

Then there is the  National Accountability Bureau (NAB), which arrests offenders and they are remanded, but when the cases are brought before the courts, there is invariably no punishment, because the accused are found to be innocent and freed. Advocate Siddique explained, “in NAB matters, first and foremost an inquiry is held, and a reference is made after the investigation. All the material is collected and sent to court.” That is all well and good. But, he added, “although NAB was established to combat corruption, they are currently looking into housing societies and subpar departmental performances. Its scope has been so greatly expanded that it is no longer able to conduct thorough investigations or acquire evidence.”

He also claimed that although the police and prosecution are the real culprits in high-profile instances, it is the the courts that are frequently held accountable for the acquittal of offenders. According to him, the court cannot impose punishment on someone because of someone else’s wishes; rather, it must render a decision only after carefully examining the evidence presented.

Another eminent jurist, Iftikhar Shah, stated that it is impossible to prove fraudulent cases in court when they are presented without sufficient evidence. He contended there should be a strict law against fabricating evidence, strong laws must be in place to safeguard one’s rights, and institutions should be so powerful that it is exceedingly challenging to defame somebody. According to him, “the existing laws need to be carefully enforced,” and he added, no new laws are necessary.

In the opinion of analyst Mubashar Bukhari: “The accountability process and concerned institutions in Pakistan have been controversial and used as a tool of political revenge. In my opinion, NAB should either be abolished or reconstituted.”

Referring to the history of accountability, Mubashar Bukhari said: “NAB has impeached many political leaders, including former President Asif Zardari, former Prime Ministers Nawaz Sharif, Yusuf Raza Gilani, Raja Parvez Ashraf and Shahid Khaqan Abbasi, and Prime Minister Shahbaz Sharif and Maryam Nawaz were detained. However, none of the cases against any of them reached a final conclusion. Most of them were either acquitted or granted bail. The cases kept pending for years and became redundant.”

Bukhari expressed concern about the amendments regarding NAB,  and said: ‘These amendments alone cannot improve the reputation of the anti-corruption institutions and the so-called accountability process. The slogan of accountability has been misused by almost every ruler of Pakistan for political revenge.”

Referring to history, Mubasher Bukhari said: “Since 1949, governments in Pakistan have been using various accountability mechanisms. The first Prime Minister Liaquat Ali Khan enacted the Public Representative Offices Disqualification Act (PRODA) from 14 August 14, 1947. Under PRODA, a public representative could be disqualified for 10 years. The then Chief Minister of Punjab, Nawab Iftikhar Mamdot and his lawyer Hussain Shaheed Suhrawardy were the main victims. Suhrawardy later became the Prime Minister. PRODA is mostly remembered as a black law aimed at targeting opponents.”

He further stated that General Ayub Khan also believed that PRODA was a ‘black law’. So they replaced it with another black law, the Public Office Holder Disqualification Order (PODO). Shortly after, PODO was changed to the Elective Bodies Disqualification Order (EBDO).

More than 70 political opponents of General Ayub Khan, including Suhrawardy and Qayyum Khan, faced corruption charges and were barred from contesting elections until 1966. However, they were never punished. Ayub Khan’s ouster also hurt 3,000 civil servants who were sacked after cases of misconduct filed against them were heard in special tribunals working under retired judges.

According to Bukhari, General Yahya Khan also showed similar enthusiasm and dismissed more than 300 senior civil servants. In 1976, then Prime Minister Zulfikar Ali Bhutto enacted the Holders of Representative Offices Act (HPOA) and the Parliament and Provincial Assemblies (Disqualification for Membership) Act. Unlike the accountability laws passed before them, not a single case was registered under these Acts.

Mubashar Bukhari said that the process of accountability became more controversial in 1997 when Nawaz Sharif came to power for the second time and he enacted the Accountability Act 1997. Under this Act, the powers of the Accountability Commissioner were curtailed and an Accountability Cell was established, which took orders from Saifur Rehman, a close associate of Mian Nawaz Sharif. In 1998, the Accountability Cell was renamed the Accountability Bureau.

According to Bukhari, Saifur Rehman specifically targeted Benazir Bhutto, her spouse and close advisers. In 2003, an audio tape was released by the PPP in which Saifur Rehman was heard asking Lahore High Court Judge Malik Qayyum to award Bhutto and Zardari the maximum punishment in a money-laundering case filed against them. Zardari was convicted and sentenced to five years in prison. He was later acquitted.

Bukhari said: “The current structure of the National Accountability Bureau was established by General Pervez Musharraf who issued the National Accountability Bureau Ordinance to replace the Accountability Act and gave full power to the accountability body, in which the accused could be tried in any court. It included a 90-day detention without arraignment.” He continued, saying that before the 2002 general elections, this ordinance was ruthlessly misused against politicians and some leading industrialists. The coalition government of 2008 ordered NAB to stop the inquiry against 60 politicians.

After Nawaz Sharif was elected as Prime Minister for the third time in 2013, the Panama Leaks case came to light and led to his disqualification. Later, the accountability court sentenced him to seven years in prison and a fine of 1.5 billion rupees in the Al-Azizia Steel Mill case. Following that, said Bukhari, “former Prime Minister Imran Khan promised ‘merciless’ accross-the-board accountability through the NAB after taking oath in July 2018, but he mainly continued to target the leaders of the People’s Party and the Muslim League-N.”

And now, after Imran Khan lost power, many corruption cases have been established against him, the final decisions for which are yet to come.

Mubashar Bukhari says: “I believe that fair and universal accountability is not possible without free democracy. If the government reconstitutes the existing structure of NAB after abolishing it by national consensus, the process of accountability can gain people’s confidence in the years to come.”