REVIEW OF HUMAN RIGHTS

Vol. 4, No. 1, Winter 2018, 11-29

DOI: https://doi.org/10.35994/rhr.v4i1.85

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Zainab’s Murder: Heinous Crimes, Speedy Trial and the Challenge of Procedural Rights

Ali Chughtai*

::::::Desktop:orcid image.png https://orcid.org/0000-0002-9113-8173

 

Abstract

In early 2018, a seven-year old girl, Zainab Amin, was raped and murdered in district Kasur, Punjab province, Pakistan. The cold-blooded incident shocked the people across the country. It raised an outcry for speedy ‘justice for Zainab.’ After few weeks of search when the suspect of the crime was arrested, he was tried in an Anti-Terrorism Court, which sentenced him to death. While the sentence was well-deserved, questions arose relating to the criminal procedural aspect of the trial. These questions included the suspect’s confession before trial, the in-camera trial being completed within four consecutive working days, the cross-examination of 56 witnesses, and the paucity of time given to the defence counsel. In this paper I argue that although such heinous offences should be awarded legally warranted punishment, the courts must ensure that the special criminal procedure does not let go the principle of due process. I take Zainab’s case as an example to see whether the principle of due process and procedural rights of the suspect were ensured as required for a fair trial. The paper puts to critical light the chronological facts of the case (as reported in the press) and relies on applied jurisprudence to underscore the potential/danger of letting go the due process and procedural rights in speedy trials.

Key Words: Anti-Terrorism Courts, Child rape, Due Process, Pakistan, Speedy Trials.

Background

While heading towards her relative’s home, seven-year old Zainab Amin went missing on January 4, 2018 in the city of Kasur, Punjab province, Pakistan. A few days later her bruised body was found in a dumpster. The autopsy confirmed that she was raped and strangled to death.1 The incident shocked the people across the country and led to public outcry for immediate justice. The escalated sentiment was primarily due to the fact that sexual abuse of children was a recurring problem in Kasur. At least 12 children had been sexually assaulted and killed over the past two years, preceding which a pedophile gang running a child sex ring was discovered in 2015.2 However, the 2015 revelation did not lead to any real convictions, let alone reforms in police investigations.3 Zainab’s rape and murder was the final nail in the coffin for the residents of Kasur. Hundreds took to the streets to protest State inaction, and two people died as a result of clashes with the police.4 Given past incidents of mob violence in public outrage matters, it became apparent that the quest for immediate justice would play a vital role, either directly (e.g., lynching or defamation) or indirectly through the public pressuring the State to hand in a quick verdict at any cost. The State was especially wary of mob justice, given the fact that in 2017, a mob gruesomely killed a student Mashal Khan on allegations of posting blasphemous content (it later turned out that Khan had not posted any blasphemous content).5 State actors (e.g., the prosecution, the police, the executive and the superior judiciary), in pursuance of unprecedented public outrage, devoted all their resources into investigating Zainab’s rape and murder. Due to the pursuit for justice being reactionary instead of organic, there was a danger that due process would be circumvented in order to soothe the public’s (legitimate) anger.

Investigation

During the time of investigation, law enforcers faced intense pressure to handle the situation urgently. Each new detail, whether legitimate or unfounded, was being heavily scrutinized by the media and the public. For instance, unidentified footage of a CCTV camera purportedly showing Zainab with the would-be killer sent the nation into a frenzy, with conspiracy theories floating around about the identity of the killer. No real semblance of analysis was conducted by the public or mainstream media outlets as to the authenticity of the footage, let alone the source of such footage. The footage of the CCTV camera was observed by the media as a matter of fact. The investigation team’s inability to provide legitimate headway into the search for clues just two weeks into its investigation was deemed as a failure by the Lahore High Court.6 The Supreme Court subsequently took suo moto jurisdiction over the matter, and chastised the investigation team for not coming up with any tangible leads two weeks into the investigation.7 Meanwhile, politicians also joined in, calling for exemplary capital punishment for culprit(s), without comprehending whether it was necessarily mandated by law.8 Provincial governments started blaming each other for lack of competence in handling such cases, thereby making the case even more political than it had already become.9

The outrage of the public, media, political parties and the judiciary over the rampant and continuing child abuse problems in Kasur was justified. After all, more than two years had lapsed since the scandal had broken out, whereby private investigators, and not the police, had exposed the presence of a pedophile ring right in the prime minister’s political heartland.10 The Lahore High Court and the public’s sentiment were correct to the extent that Zainab may have been safe had the perpetrators of the pedophile ring been caught and duly punished. However, the public and the State’s conscience waking up in light of Zainab’s murder kick-started a lopsided pursuit for justice, whereby an immediate fix to Zainab’s murder mystery was sought, which not only potentially compromised a thorough and well-rounded investigation, but also failed to address the broader picture of implementing major institutional changes to investigate child abuse cases. The rhetoric that the State actors adopted could best be described as akin to using speedy justice as a band-aid which, while a quick fix until the initial pain passes, fails to address the gradual re-opening of the wound, thereby causing greater pain in the long run.

The Television Effect

It is no secret that a criminal investigation involving a heinous crime such as rape requires extensive findings, interpretation and analysis of medical, physical, forensic and ocular evidence. Notwithstanding the State’s inability, inaction and/or indifference in dealing with systematic child abuse in Kasur, it was crucial for the State to not succumb to mob mentality, or the public’s “CSI Effect” in Zainab’s case. The “CSI-effect” is a well-documented phenomenon, through which prosecutions are often adversely impacted by the public’s misunderstanding of criminal investigations.11 In this case, there was growing public expectation that, much like a criminal TV show whereby all loose ends in an investigation are neatly tied up within sixty minutes, the investigation team trying to unravel Zainab’s case would unrealistically find conclusive scientific and evidentiary proof of guilt within days. In Zainab’s case, the public, instead of gaining knowledge of the criminal justice system from experts, derived it from its own personal preferences. This included television outlets such as anchor talk-shows acting as experts along with the existing make-belief reality crime shows reinacting investigations on crimes.12 The mainstream media’s coverage led the public to gain an erroneous perception of criminal investigation, which has been a recurring problem.13 The public’s flawed understanding of criminal investigation was best showcased when a television journalist on air claimed that he had concrete proof that the (eventually caught) suspect had 37 bank accounts and was a part of a pornography gang sanctioned by a Punjab minister. The claims, notwithstanding coming from a television anchor with no real experience, background or resources in the investigative field sent the public into a frenzy, with the apex Court of all forums taking notice of the claims. The whole nation went into a standstill while the claims were examined and verified by various State entities (e.g., the State Bank and the FIA). Although the claims were unsurprisingly shown to not have merit, it once again showcased how the public, and consequently the State institutions, were being hijacked by mob justice even before any trial had begun.14

It became evident that the public was in dire need of answers. Fast answers in fact that were tailor-made to preconceived notions regarding how the crime unfolded in each person’s minds. The apex Court and the public buying into, or at least devoting enormous time to erroneous theories showcased that passionate public reactions, fueled by intense media coverage, would seep into the consciousness of trial participants, including the police, lawyers and the judges. This impacted the State’s ability to be an impartial adjudicator, as the State mistakenly believed that it had a duty to come to a quick result at any cost.

The Trial before the Trial

On January 23, 2018, the Punjab Chief Minister (Chief Minister), via a press conference with Zainab’s father, formally announced the arrest of a key suspect in the crime, a 23-year old man named Imran Ali (suspect). The press conference could best be described as a peculiar affair, as the Chief Minister took it upon himself to narrate the entire process of investigation leading to the arrest, which was only topped by inexplicably premature conclusions. The news of the arrest was met with applause, notwithstanding the grim realities of the matter. During the press conference, the suspect was referred to as a “murderer” and a “beast”, who was a serial killer based in Kasur accused of raping and murdering six to seven girls over the course of two years.15 The Chief Minister stated that the DNA matched a “100 percent” with the samples collected from the crime scene (notwithstanding that it was the forensic expert’s job to corroborate such a statement before the court); that the suspect’s polygraph test left little doubt as to his culpability (notwithstanding the fact that polygraph tests have universally been rejected as a primary source of evidence); that the suspect had accepted all of his criminal deeds during the said polygraph test (without providing context on the circumstances that led the suspect to accept or confess as such); and that if it were up to the Chief Minister himself, he would want the suspect hanged in public (which was not at all mandated by the law).16

All these statements were made before the trial began, raising eyebrows as to how such conclusions could have been reached at such a premature stage. Even before the announcement via the press conference was made, residents of Kasur had surrounded Zainab’s suspected rapist/murderer’s house. The Chief Minister’s press conference indicated the adverse impact of the nation’s restlessness in finding quick answers. Therefore, the press conference once again raised skepticism on the State’s ability to be a neutral and measured arbitrator in the handling of the suspect’s case.

Defining Terrorism

The next day (i.e., January 24, Wednesday), the suspect was produced before an antiterrorism court (ATC) and was given in the custody of the Counter Terrorism Department for 14 days on physical remand. It is pertinent to mention that there were no known procedural challenges filed, moved or noted by the defence, mainstream media or pundits regarding the jurisdiction of the ATC for this particular matter. The Anti-Terrorism Act of, (1997) is the legislative instrument governing the ATCs’ trials of terrorism. Aside from Section 6 (c) of the Act, which is geared towards defining terrorism as advancing religious, sectarian and ethnic violence, Section 6 (b) of the Act broadly states that the use or threat of any action amounts to ‘terrorism’ if it is:

designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or a foreign government or population or an international organization or create a sense of fear or insecurity in society.17

There is no doubt that the language of this aforementioned quoted provision is broad. Critics have often noted that the definition of terrorism has been broadened to encompass what would ordinarily be criminal cases outside the ambit of ATCs for the purpose of obtaining speedy justice in special circumstances.18 Given the heinous nature of the crime and its impact on the public, it was perhaps assumed that ATC would have exclusive jurisdiction on this case. ATCs’ jurisdiction in cases of rape has been ousted in the past due to various reasons (e.g., personal enmity, lack of mens rea to intimidate the public).19 However, the High Courts in matters similar to these (e.g., gang-rape, rape combined with murder) have upheld such acts as acts of terrorism triable by the ATCs under the Act. 20 Besides, the Supreme Court in 2003 gave a wider scope to the jurisdiction of the ATCs by asserting that a barbaric and gruesome act that consequently created fear and insecurity would come within the purview of the Act.21 Similarly, the Supreme Court recently in the widely reported Shahrukh Jatoi murder case negated the rhetoric that a murder based on personal vendetta did not constitute an act of “terrorism” under the Act, whereby such act resulted in striking fear, insecurity or panic in the particular vicinity.22

Regardless, there is no record of the defence counsel having challenged the jurisdiction of the ATC before the ATC. Jurisdictional challenges are often the defence’s strongest arm before the ATCs, as suspects often negate the notion that their actions were “designed” to create a sense of fear or insecurity in society and/or to coerce/intimate the public. Notwithstanding the broad definition of “terrorism” and the liberal judicial interpretation on the definition of “terrorism,” the defence could have argued that the suspect’s alleged actions, while violent, were not designed to intimate the public. Alternatively, and perhaps more practically, the defence counsel could have argued that it was not the suspect’s alleged actions alone that led to huge outcry, insecurity and/or fear amongst the public. Instead, the defence could have argued that the systematic State inaction in combating the Kasur child abuse ring over two years was the primary reason or cause of insecurity and/or fear in the public, during which no real convictions resulted despite established cases of abuse. The defence counsel could have argued that panic had mistakenly been solely impugned on the suspect. However, if reports were to be believed, no such challenges were apparently raised at any point in time before the ATC, which was not only unusual for the defence, but perhaps indicative of the notion that all trial participants wanted a speedy resolution to this case via the ATC.

The Lack of Clarity on Confession(s)

During the suspect’s physical remand hearing, details of the investigation that led to the suspect’s arrest came out. The investigation team had collected DNA samples of around 1,110 men, of which the suspect’s DNA was found to match with not only that of Zainab’s rapist, but also eight other incidents of crime.23 Based on the DNA evidence, the police raided Imran’s house, and found a jacket with large buttons on both shoulders, similar to the one the alleged rapist was seen wearing in the footage of the CCTV camera.24 It was revealed by the investigation team that the suspect had confessed to the crime during the polygraph test.25 The court did ask the prosecution to explain the legal value of a polygraph test at the next hearing. Later on, it was stated by the Punjab deputy prosecutor general to the court that during the investigation, the suspect had confessed to his involvement in the rape and murder of not only Zainab, but seven other children in Kasur as well. The suspect confessed due to fear of being caught for raping them.26 While earlier statements by the Chief Minister and the investigation team narrowed down the confession to having taken place during the polygraph test, later on the confession was deemed to have taken place during the general scope of investigation, without elaborating further. Also, there was little context provided as to whether the suspect confessed to the crime and other crimes in light of the DNA evidence presented against him or otherwise. One day before the trial began (February 9, 2018), the suspect’s lawyer told the media that the suspect had not accepted his crime.27 The prosecution also admitted one day before the trial that the suspect’s confessional statement had not been recorded. According to one media report, the prosecution also conceded that the suspect had never made a confessional statement.28

The details regarding the suspect’s confession before trial have been scarce, somewhat inconsistent but definitely unclear. A confessional statement of an accused can only be admitted as evidence if it is recorded in compliance with Section 164 and Section 364 of the Criminal Procedure Code, 1898 along with all other relevant laws. A confessional statement can only be recorded by a Magistrate, who, while giving the accused time to ponder, is required to ensure that the accused’s handcuffs are removed during confession, that all police officers are outside the court room during confession, that the accused is reminded that he is not bound to make a statement of confession, that the accused is not facing any element of duress during confession and finally informing the accused that his/her confessional statement could be used as evidence against him/her.29 The Pakistani case law has held that a confession made by an accused during the course of an investigation is inadmissible, without it being recorded before a competent magistrate.30 In fact, where an accused makes a confession before a police officer, a police officer is required to take the matter to the Magistrate, who then has to record the confession in accordance with the law. Simply put, an investigation team cannot act upon any purported confession on its own volition, without following the law. Otherwise, it is an extra-judicial confession, which is any confession not made before the Magistrate in accordance with the law.

An extra-judicial confession often is a result of being made before a person of influence and authority, thereby indicating coercion and duress against an accused. Article 39 of the Qanoon-e-Shahadat (Law of Evidence) explicitly states that subject to Article 10 of the Constitution (safeguards as to arrest and detention), “no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against person.” There has not been a single media report in this matter to suggest that the accused’s confession before trial was made before a magistrate in accordance with the law. Similarly, the notion that a confession during a polygraph test could suffice as evidence to act upon is farcical.

Had the defence successfully argued at the beginning of the trial that the suspect’s confession before trial was one made under duress or in abeyance of the law, it would have raised the stakes for the prosecution at an early stage, as such a confession would have little to no evidentiary value. Regardless of whether the confession was made under duress or not, the exact circumstances under which the suspect gave the confession remained unclear. With incomplete narratives appearing on the surface, questions arose as to what extent the accused’s “confession” during investigation was acted and relied upon to charge the suspect. With extra-judicial confessions having little to no value, a court was required to ascertain the circumstances surrounding the extra-judicial confession. In this matter, there was little context provided by the investigative team and the Chief Minister regarding the confession, with the prosecutor-general stating that the accused made the confession in fear of getting caught eventually.

In a normal trial, explaining of the circumstances of confession are deemed crucial: whether the confession was made to boast off, to ventilate the suffocating conscience or whether to seek help when trapped by the investigation? In absence of such explanation a confession has no value. The Supreme Court has noted in the past that extra-judicial confessions have become a norm, especially when the prosecution thinks that it cannot otherwise succeed.31 The apex Court deemed it of the utmost importance for a judicial mind, before relying upon such weak type of evidence, to ascertain the circumstances regarding the confession, especially whether there was an element of intimidation by any witnesses or the investigation team. The fact that there is lack of clarity or particular details regarding the exact circumstances surrounding the supposed confession made before trial raises serious concerns as to whether the accused was afforded due process in accordance with the law before the trial began.

Despite the anomalies, soon after the challan was submitted, the Chief Justice of Pakistan directed the ATC to give its verdict within seven days. This was not unusual though, as ATCs are tailor-made fast-track courts designed to hand in quick verdicts within seven working days under the ATA (1997). However, the fast-track courts might reach a speedy verdict but at the cost of abridging the accused’s due process rights.

The Trial

The trial of Zainab’s murder began on February 10th, 2018 in Lahore’s Kot Lakpat Jail, and was closed to the public, meaning that the trial was conducted in camera without access to independent observers. The prosecutor general of Punjab monitored the entire proceedings, as per instructions of the Chief Justice of the Supreme Court. The idea of holding in-camera proceedings away from the public had genuine reasons behind it, as intimidation tactics by accused persons against adverse witnesses have notoriously impacted trials of rape in the past. Eyewitnesses often change or resile from their statements due to pressure tactics employed against them by defendants. However, the trial being closed from the public raised legitimate concerns as to how the whole proceedings were conducted. Senior lawyer Asad Jamal (who went on to represent the suspect at the appeals stage), rightly noted that the trial could not have been held in a free and fair manner unless the suspect was given ample opportunity to defend himself through a counsel of his choice.32 Similarly, Jamal noted the trial had been conducted in camera without access to independent observers and that the prosecution unlawfully nominated a lawyer to defend the suspect in violation of due process of law.33 The fact that the trial was entirely monitored by the State, without any private counsel having independent access further aggravated the due process concerns.

What was remarkable about that trial was that the ATC concluded the proceedings within four consecutive working days, even though it had seven working days to adjudicate the matter. During the four days, 56 prosecution witnesses were presented before the court, who were examined, and seemingly cross-examined by the defence. This included witnesses such as forensic experts, eye-witnesses, medical experts and the investigation team. Medical, ocular and physical evidence was all purportedly thoroughly presented, admitted and cross-examined before the court. It is unclear as to whether there were any witnesses presented by the defence counsel, let alone whether the defence had time to prepare a list of and call upon its witnesses. In the middle of the ATC trial (i.e., two days into the trial), the private defence counsel for the suspect backed out, stating that his conscience did not allow him to continue representing the suspect, as the suspect had confessed to various rapes and murders during the trial.34 The prosecution then chose a State counsel to represent the suspect, which as aforementioned could be argued as being contrary to legal ethics. According to the prosecutor general, the suspect’s private counsel had cross-examined at least 22 prosecution witnesses before withdrawing his power of attorney. Later, the state counsel who was handpicked by the prosecution completed the cross-examination of the remaining witnesses.

The Verdicts

On February 17, 2018, the ATC found the suspect/Imran Ali (convict) guilty of raping and murdering Zainab and handed him four counts of the death penalty, one life term, a seven-year jail term and Rs 3.2 million in fines. The convict challenged the ATC’s verdict before the division bench of the Lahore High Court, Lahore (LHC) on February 20, 2018. In his appeal, the convict contended that he was not guilty, that the trial was conducted in haste and that legal requirements, which needed to be fulfilled, were fully ignored.35 However, later on it emerged from the convict’s jail appeal that he filed the appeal to avoid the death penalty in lieu of his confession during trial proceedings, which he claimed was made so that the court’s precious time could be saved and that his criminal actions would be mitigated to a life-sentence. The discrepancy between the two statements (i.e., not-guilty plea and subsequent guilty plea), which may have been due to inaccurate reporting by the media, was not addressed at any point in time by the media, the public or any legal experts. Regardless, the convict’s rhetoric, according to the jail appeal, was based on the notion that confessions to crimes in developed countries during trial stages have led to courts setting aside death penalties via the principle of commutation.36 The convict was seeking for similar leniency from the LHC. It should be noticed that a division bench of a High Court in Pakistan when deciding upon a criminal appeal under Section 376 of the Criminal Procedure Code (1898) has abundant powers to confirm the sentence, to annul the conviction, to order a new trial on the same/amended charge and, lastly, even to acquit an accused. A matter can be decided even in the absence of the convict, keeping in view the merits of the case.

For this matter, the LHC was to ascertain whether the evidence on record suggested that there existed reasonable possibility that the defence put forth by the accused was credible or not. Similarly, the LHC was to see whether the prosecution had been able to prove its case against Ali beyond a reasonable doubt (a high threshold). The LHC could also examine the evidence on record, as no new evidence was admissible at the stage of the appeal. Similar to the ATC, the High Court was to analyze the evidence and weigh whether there was any material discrepancy in the corroborative evidence used by the prosecution against the convict (e.g., oral, documentary, ocular and forensic evidence). For instance, the LHC was to see whether discrepancies (if any) in the witnesses’ testimonies and/or inconsistencies regarding different kinds of evidence were material to the extent that an unbroken chain of corroborative events was not showcased by the prosecution, thereby setting aside the conviction. Notwithstanding the convict’s confession made during the trial, the LHC was still to determine whether the prosecution had proven the convict’s guilt beyond reasonable doubt. Finally, and most crucially, the LHC was to establish whether the convict was afforded due process and a fair trial under Article 9, Article 10 and Article 10-A of the Constitution. The LHC was to examine whether the defence counsels (privately appointed by the convict and state-appointed counsel) had an adequate and fair opportunity to cross-examine all the witnesses (and consequently evidence) presented during the four-day proceedings against the convict. A lack of fair and adequate opportunity would impact the verdict.

On 13th March, 2018, the LHC summoned the ATC trial case file and gave the defence counsel, who had submitted his power of attorney earlier, seven days to prepare his arguments, although the defence counsel had asked for two weeks.37 On March 21, 2018, the LHC upheld the ATC verdict.38 The LHC turned down the convict’s pro bono counsel’s request for more time to prepare arguments, ordering the counsel to present arguments, or else the convict was to be appointed state counsel. The LHC dismissed the defence counsel’s contentions, including the notions that the DNA evidence was not foolproof, that the DNA analysis was not available on record, that the CCTV footage was not unequivocally proven to be that of the convict, that there were shortcomings in the cross-examination of the witnesses, that there was lack of fundamental fairness of the trial and that the ATC’s jurisdiction was questionable. The prosecution submitted that the punishment was awarded in light of the convict’s confession, the DNA analysis and the witnesses who had testified against the convict. The ATC’s jurisdiction in this matter, as stated above, was backed by well-defined jurisprudence. The fact that the prosecution relied on various forms of evidence to convict the accused was reassuring, as it showcased that the ATC did not disproportionately rely on a single piece of evidence by the prosecution to hand its sentences against the convict. It would have to be assumed that the prosecution relied on the convict’s confession during the trial, and not before the trial began.

The convict now has the right to appeal to the Supreme Court. Nevertheless, severe procedural and substantive questions of law and facts still remain unanswered regarding the ATC proceedings. It needs to be ascertained whether the different kinds of evidence produced by the prosecution before the ATC were reasonably examined within the short period of time (i.e., 4 consecutive days).

Analyzing THE Prosecution’s Case before the ATC

The prosecution, while relying on different kinds of evidence, was wary of the fact that it could not rely solely on the DNA evidence, let alone any other single form of evidence, for conviction. In fact, corroboration of different kinds of evidence — medical, physical and ocular — was required to convict, which meant that its competence was tested on a heightened level. Since there was no direct evidence in this case due to the victim’s death and there being no known, direct witnesses to the crime, the prosecution had to rely on a string of other forms of evidence to connect the suspect to the offence beyond reasonable doubt. This included proper post-mortem examination, correct semen grouping and matching of the swabs, untainted recovery of physical evidence from the scene of the crime, eyewitnesses’ consistent testimony, and finally accurate forensic analysis. Persons directly involved with the investigation of the case could also serve to present evidence against the accused. The Medico Legal Officer (MLO) who conducted Zainab’s post-mortem examination could be called upon to verify the contents of the examination report, along with the chain of events leading to the issuance of the report. Similarly, the police team (e.g., the investigating officers) who seized the physical evidence in the commission of the crime (e.g., the convict’s jacket) could also be called upon as witnesses. The MLO and the investigation team could be subject to extensive cross-examination on when, where and how they obtained and preserved their evidence and/or findings.

From the appraisal of the evidence in both the ATC and the LHC, it seems that no substantial disparity was discovered in or between the post-mortem report and investigative findings. Similarly, it also seems that there were no major contradictions in the recollection of the events or any improper collection/preservation of the evidence by the prosecution. Otherwise, the prosecution’s case would have been severely tainted before the ATC and/or the LHC.

Although there were no direct witnesses to the commission of the crime by the accused, the witnesses of interest, including those who might have seen or observed the suspect before or after the crime were amongst the 56 witnesses called upon to narrate relevant facts as circumstantial evidence. Different witnesses’ narrations were compared and contrasted to determine the sequence of events leading up to the commission of the crime and the events afterward. Any inconsistency in witnesses’ testimonies and/or presence of preconceived animosity/ill-will against the accused could have broken the chain of events and consequently tainted the evidence. Only overwhelming and irrefutable evidence of the above (i.e., medical, physical and ocular evidence) beyond a reasonable doubt was needed to convict the suspect. The ATC and the LHC’s rulings thus mean that there was a consistent chain of events beyond reasonable doubt established by the prosecution.

It is worth highlighting here that if the prosecution had relied only on the forensic evidence, including the DNA test, it might not have made a strong case. The mere availability of such evidence would not have equaled to admission or acceptance of it, as the forensic/DNA expert(s) are by custom subject to cross-examination and scrutiny. Moreover, higher courts have in the past declined to convict suspects based solely on medical (DNA) evidence.39 The convict’s defence during ATC proceedings must be wary of the precedence’s as well as to the fact that while DNA evidence serves as a powerful evidentiary device, it can become contaminated or corrupted by errors in laboratories from factors such as coincidental matches, time, temperature, contact with other contaminants, and exposure to other elements. Accordingly, the prosecution’s forensic expert(s) would have had to back the collection, preservation and findings meticulously, which we don’t know whether they did so or not.

To sum up the prosecution’s case hinged on presenting an unbroken chain of corroborative pieces and links of evidence against the suspect. However, given the fact that the whole case was dealt with within four consecutive working days, during which 56 witnesses were remarkably examined and cross-examined, it raises questions relating to criminal procedure and procedural rights. Notwithstanding the ATC’s and LHC’s verdict, the question remains as to whether the defence counsels were given adequate opportunity to negate the prosecution’s arguments through adequate cross-examination.

The Cost of Speedy Justice

The legislative intent behind the notion of speedy trials, and therefore the creation of the ATCs, is to ensure the constitutional (directive) principles (of policy) of “inexpensive and expeditious justice” (Article 37d of the Constitution). However, as the ATCs carry out speedy trials within seven working days, the process involves the risk of miscarriage of due process and procedural rights. The due process requirements of the ATC trial case were predicated on the notion that the mere presence of a defence counsel for the convict satisfied all elements of the due process for a fair trial. It is settled law that a person charged with a crime cannot be unduly or unfairly rushed to trial. A suspect has the constitutional right to have a reasonable time in which to prepare his/her defence. This is precisely the reason why legislatures around the world decline to specify any definite period of time within which an individual prepares the defence. Rather, the issue is determined on a case-by-case basis. On the other hand, the ATC’s lack of discretion in determining the time-period required for lawyers to furnish and prepare their cases may adversely impact the defence’s case. This adverse impact was likely intensified when the convict’s private defence counsel resigned in the middle of the trial, leaving the state-appointed defence counsel with little to no time to prepare for the case, as the case was held on a day to day basis. It is inconceivable that the defence counsels (especially the State-appointed defence counsel) were afforded reasonable time to extensively analyze, interpret and investigate whether the evidence that was presented by the prosecution suffered from any procedural or substantive defects (e.g., hearsay and other potentially unreliable pieces of evidence). A competent defence counsel would have required reasonable time to question and cross-examine each expert’s qualification, the expert’s training and experience in the area of expertise, ascertaining whether the expert had a predisposition to believe the suspect’s guilt and to suggest reasonable explanations (including errors) for damning observations by the witnesses.

Similarly, while examining eye-witnesses, the defence would have needed reasonable opportunities and time to observe the demeanor of, and make inferences regarding the reliability of witnesses, and cross-examine them subsequently. Cross-examination is considered one of the most effective means to ascertain truth at trial. Effective cross-examinations illustrate to the court whether or not witnesses are accurate or credible.40 Cross-examinations can also expose any underlying prejudices, biases, or motives that may have led a witness to misstate or distort the truth (or lie). This is not limited to just eye-witnesses, but all witnesses that the prosecution presents before the court, including forensic experts. Cross-examination also tests witnesses’ perceptions, memory, and honesty, along with enabling counsel to impeach or discredit them.41

It is a stretch to state that within four consecutive working days, the defence counsels in the convict’s case could effectively test each witness, while having reasonable time to prepare the case. Additionally, it is unclear whether the State provided the defence counsel adequate disclosure of the prosecution witnesses’ identities, statements, police reports etc before the trial began. Any deprivation of the right to prepare for cross-examination can potentially violate the fundamental right to a fair trial.42 The State not giving the convict nor his counsel reasonable time to prepare for cross-examination raises concerns on whether the ATC’s s fast-track trial mode aids in fair trial. A previous failed attempt by the legislature to fast-track publicized cases of heinous nature (e.g., rape) serves as a pertinent reminder of the dangers of speedy justice.

The ATCs are not the first fast-track courts enacted to hand over swift verdicts in heinous crimes. Pakistan has dealt with fast-track courts exercising exclusive jurisdiction over publicized trials of shocking nature. In 1992, special courts were set up under the Special Courts for Speedy Trial Act.43 These special courts had exclusive jurisdiction over certain penal offences (e.g., crimes that were gruesome, brutal and sensational in character or shocking to the public morality). Both the Special Courts for Speedy Trial and the Supreme Appellate Courts constituted under the Speedy Trial Act decided cases and/or appeals within 30 days. The Supreme Appellate Court was comprised of a judge of the Supreme Court and two judges of the High Court. The Supreme Appellate Court, in an appeal from the trial court regarding a case of rape that received media attention, noted the perils of mob justice in such cases. The Supreme Appellate Court held that while the importance of expeditious disposal could not be undermined, there existed a perceptible difference between speed and haste.44 The court held that a balance was to be struck between the two well-known maxims that “justice delayed is justice denied” and “justice hurried is justice buried.”45 In fact, the court noted that excessive publicity through information media after reporting of the crime seeped into trial proceedings, and sensationalized the crime at an early stage of investigation.46 Such excessive publicity according to the court violated the cardinal principle that an accused was presumed to be innocent until the prosecution proved the case beyond a reasonable doubt. The court, while overruling a verdict of conviction, held that the shocking nature of a crime induced an instinctive reaction against a dispassionate judicial scrutiny of facts and law.47

The Speedy Trial Act (1992) was repealed in 1996, with effect of repeal being from July 1994.48 It can be reasonably inferred that the Speedy Trial Act was repealed due to politicization and/or lack of effective justice that while noble, exposed the faulty nature of such courts. It would not be a stretch to analogize the aforementioned Speedy Trial Act case with Zainab’s matter. The erstwhile Supreme Appellate Court’s decision serves as a painful reminder of how public and media frenzy coupled with fast-track courts can sometimes lead to lack of due process and botched investigations.

Conclusion

The jurisdiction of the ATC in Zainab’s rape and murder case was proper, and the prosecution correctly relied on the distinct strands of evidence to convict Imran Ali. However, the unprecedented public and media frenzy surrounding the matter, the inexplicably premature conclusions drawn by the Chief Minister before the trial, the unclear circumstances surrounding Imran Ali’s pre-trial “confession” and the extremely swift conclusion of the trial within four consecutive working days, during which 56 witnesses and pieces of evidence were examined and cross-examined, raise questions relating to due process and procedural rights. The accused’s right to a fair trial, in which the triers of fact determine guilt or innocence based on the evidence presented in court, is essential to our criminal justice system. This system is put to its greatest test in high-profile trials, where the pressures of constant media and public attention create difficult choices for all the participants.49 It is during these high-profile cases that the State’s competence is tested. The State has an ethical and affirmative duty of playing the role of protecting the defendant’s right to a fair trial.50 The Indian judiciary famously proclaimed that it would not convict even a single innocent defendant, and is notorious for its low conviction rates and for being soft on crime.51 Surely the State can find the appropriate balance in publicized trials between speed and due process without prejudicing defendants, even deplorable ones.

Notes

1.   Erickson, “A 7-year old Pakistani girl.”

2.   Ibid.

3.   Malik, “Police action in 2015.”

4.   Polianskaya, “Zainab Ansari killing.”

5.   Ullah and Ahmad, “Probe finds no Proof.”

6.   “LHC unhappy over failure.”

7.   Bhatti, “Entire nation is grieving.”

8.   “Two weeks on.”

9.   Ibid.

10.        Zahra-Malik and Bukhari, “Child abuse scandal.”

11.        Howell, “The Effects of Crime,” 9.

12.        Maria Jafry, “Crime show re-enactments.”

13.        Abdullah and Rahman. “Effects of TV Crime Shows.”

14.        Bhatti, “Shahid Masood has not apologized.”

15.        Riaz, “Zainab’s Murderer.”

16.        Ibid.

17.        The Anti-Terrorism Act, Act No. XXVII (1997).

18.        Iqbal, “Defining ‘Terrorism.”

19.        See Abdul Nabi v. The State, SCMR SC 335 (2017), and Jahangir v. State, YLR LHC 2330 (2011).

20.        See The State v. Abdul Malik, PLD LHC 449 (2000), Bashir Ahmed v. the State, PLD SC 775 (2002), and Bilal Farooq v. the State PLD LHC 277 (2016).

21.        See The State through Advocate General, N.W.F.P. Peshawar v. Muhammad Shafiq, PLD SC 224 (2003).

22.        Suo Motu Case No. 01.

23.        “Jacket buttons.”

24.        Ibid.

25.        Sheikh and Ansari, “Muted relief in Kasur.”

26.        Bilal, “Zainab Murder Trial.”

27.        “Zainab Murder Case.”

28.        Ibid. See also Wahab, “Zainab’s Killer.”

29.        See Ghulam Nabi v. The State, SCMR SC 808 (2007).

30.        See Muhammad Ayoob v. The State, MLD SHC 430 (2008).

31.        See Sajid Mumtaz and others Vs. Basharat and others, SCMR SC 231 (2006).

32.        Sheikh, “Zainab case.”

33.        Ibid.

34.        Ibid.

35.        Yasif, “Convict in Zainab Rape.” See also Bilal, “Zainab case.”

36.        Ibid.

37.        “High Court Seeks Record.”

38.        “LHC Upholds Death Penalty.”

39.        The Supreme Court, for instance, has decided in a recent case: “Even if in the present case such DNA report was admitted into evidence and relied upon, it would in no manner be sufficient to connect the necks of the accused person with the commission of the crime when the bulk of other evidence against them was found to be unbelievable.” Azeem Khan and another vs. Mujahid Khan and others, SCMR SC 274 (2016).

40.        Smith and Gompers, “Realizing Justice,” 136.

41.        Kowalski, “Alvarado v. Superior Court,” 234.

42.        Klinkosum, “Pursuing Discovery,” 26, 30.

43.        The Special Courts for Speedy Trial Act, Act No. IX (1992).

44.        See Saeed Muhammad Shah v. The State, SCMR SC 550 (1993).

45.        Ibid. Para 42.

46.        Ibid.

47.        Ibid.

48.        The Special Courts for Speedy Trial (Repeal) Act, Act XI (1996).

49.        Peterson, ”Speeding Up Sexual Assault Trials,” 107-108.

50.        Ibid.

51.        Ibid.

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* Ali Chughtai (Juris Doctor, Boston) is a lawyer based in Lahore, Pakistan. Email: chughtai@gsclaw.net. 

Published (Online): May 9, 2018.

ISSN (Print): 2520-7024; ISSN (Online): 2520-7032.

www.reviewhumanrights.com