Investigation (Part 6)

Well, one thing I want to make clear here, since the topic has come up — if you hold on to the truth, the courts do not have the audacity to give verdicts contrary to law. Natural witnesses will come, natural witnesses will come — 'Zaid fired in front of me, I'm shouting it out, Zaid came, Zaid fired' — now if Zaid fired and he's telling the truth, the witness saw that Zaid fired, he will stand firm on that testimony. But when you say that Zaid fired, and Zaid's three brothers also fired, and Zaid's father also fired, and Zaid's uncle also fired, and Zaid's cousins also fired, then that witness says, well, I can't take on enmity with everyone, I can only tell the truth, that Zaid fired — I'll stand by that much, but once you take me beyond that, then I'll become a party against you [i.e. against the false story]. I stand by this much — that Zaid fired — I won't become a party to the rest.

I hold the position that Allah Almighty has said, don't hide testimony — if you hide testimony, you will be a sinner. What I saw, I'm ready to testify to — but when the prosecution shoots itself in the foot, implicating ten people instead of just Zaid, then the real witness isn't willing to testify, saying, well, this is a lie, I can't be a party to this with you. Then who becomes a witness? People around you become witnesses — since they never even saw the incident, they have to be coached like parrots — when the scene isn't even playing out in front of him before he testifies, how long will that witness stand his ground under cross-examination? He is bound to retreat from his testimony, because he never actually saw it — I can say this with confidence.

Some people in our community say, sir, memory fades after four years, memory fades after ten years, memory fades after five years. Well, if you've seen something with your own eyes, I claim that a person of ordinary sense doesn't forget a witnessed incident even ten years later — he's bound to know what happened and what didn't.

There are weaknesses in the state's law-enforcement apparatus — there are weaknesses; in Pakistan there is no concrete solution for witness protection; no procedure has been given for these matters of witness protection — this exists in this country, there's no two ways about it — but it's also true that if a witness is truthful and impartial, no party can touch him. If the law for witness protection becomes strong, if the state starts providing that protection, these ten-year-long-running cases would stop running. I'm not saying the entire judiciary is squeaky clean — who gives the judiciary the opportunity? Who gives judges the opportunity? You give judges the opportunity — by bringing things to the borderline, you give them the chance to tip one way or the other. If you speak the truth, have the truth recorded, answer truthfully, a judge doesn't have the audacity to go one way or the other — I say this with great confidence — but when you hand your lawyer a bundle of lies, saying, sir, argue on this bundle of lies — even the lawyer understands it's a lie, but it's his professional duty to say what's being said, to assist the court, and, through proper procedure, the court too comes to understand that it's a lie.

Now back to the point — the same rehearsed story, an accused, on the thirteenth day as remand is running out, says, sir, my conscience has awakened, I can get the murder weapon recovered — the accused walks along, walks along, opens the door of his house, goes into the side room, after entering — the same rehearsed line — under the charpai, a tin box — that tin box under the charpai has never gone extinct — this law is now more than a hundred years old, and that tin box under the charpai — I can say with confidence that now 80% of homes don't have tin boxes, tin boxes aren't even a custom anymore. A tin box is lying under the charpai, out of it he took a pistol and handed it over. Well, for thirteen days it didn't occur to you that this accused even has a house, that we should search this house?

Now a further clumsy tactic the prosecution adopts — when the investigating officer takes people for recovery, 80% of recovery memos are witnessed only by that police official's name; only 20% include the witnesses of the complainant's party. A recovery memo, a 'fard-e-barmadgi' [recovery memorandum], legally requires this — a fard-e-barmadgi has no legal standing unless two witnesses have signed it, given testimony to it. Now, in only 20% of these are two witnesses providing testimony; in 80% of recovery memos, the witnesses drawn up are police officials — no witness from the neighbouring house on this side, no witness from the neighbouring house on that side, no senior person from that area — if it's a village, could have called a numberdar, a chaudhry, a nazim, a councillor, a UC member, anyone — or if it's a city area, could have asked someone from the neighbourhood — no, sir.

Now the recovery memo becomes worthless. Courts have had to say that recovery of incriminating material alone is not enough to convict an accused. Well, be natural about it — the world has become so advanced, such modern methods of investigation exist — when the courts have given the refuge that recovery isn't happening, it doesn't mean the accused won't be convicted.

Why don't you adopt those methods, why don't you do geofencing? Why don't you get CDRs obtained? Someone's hand is caught on camera there, coming, doing something, going somewhere — if witnesses have seen it, do a geofencing on him. Look at his fingerprints, look at his psychology — with our investigating officers, God forbid, they're still barely matric-pass, they say, sir, a stick does everything, this is how investigation happens with a stick — countless [examples] — I'll give a detailed lecture on this topic too, what investigating officers can actually do without ever touching the accused's body.

Here, the matters are such that whichever area a murder occurs in, the investigating officer appointed for it first offers a feast, a thanksgiving meal, [saying] thank God, our livelihood has opened up — this is the state of investigating officers, that, sir, they'll eat from both the complainant and the accused, and both sides are so foolish that the complainant is feeding him and the accused is feeding him too, and he sits in the middle eating from both — and neither the complainant is willing to believe the investigating officer is cheating him, nor is the accused willing to believe the investigating officer is ruining his case — both keep beating around the bush so much that, sir, there's no benefit in giving him money, he'll take from both of you anyway and do nothing.

They give proudly, give with great pride — and I've even seen cases where, despite giving money, their work doesn't get done, and they're told, we told you, didn't we — no, no — during the trial, he says he'll give testimony, we'll get your work done completely — this was a compulsion that came to the officers' notice — this was a compulsion to write the statement, and I'm the one who has to give it. Who knows how they get hypnotized, and hypnotized they become.

Now, in recovery, there should be independent witnesses — natural-looking testimony, that, sir, the police came into our area, this accused was with them, this accused disclosed before us that I can get such-and-such recovered, they went with us, when we were about to enter the room, one of his handcuffs was opened, one hand freed, he went inside the room and, sir, recovered this and that in front of us — a site plan is drawn up, and that same witness can be produced even ten years later, and the same actual reel that ran should run again in front of him.

This is how recovery works in injury cases too, in fraud cases too, in rape cases too, in theft cases too — recoveries happen there too. When investigation is completed naturally, and the SHO writes the challani zimni, when the SHO writes the challani zimni and prepares his 173 report, what responsibilities apply at that point? What are the responsibilities of filing the challan, commonly called the challan? One thing I forgot to tell you — when investigation comes to an investigating officer, from the day he gets up and takes up the investigation file, on that day when he starts investigation, he will write the time and date — in this file, whose sheets are called 'zimnis' [investigation-diary entries], Section 172 CrPC — he will write the time he started investigation, everything he did, all of it — and at the end, on the day he closes his zimni, he will also write the time — that at this time I closed my zimni, I closed my investigation.

Now a strange triangle plays out here — at this stage, at the initial stage of investigation, the police hierarchy, at its upper level, given their closeness with the judiciary, say, please, sir, do not interfere with our investigation procedure — the courts accept this; courts have given countless judgments that the court will not interfere in investigation. Now, have you ever thought about why the court won't interfere in investigation? What's the purpose behind it, what's the objective? The court doesn't interfere in investigation for this reason, so that tomorrow they can't blame the courts, saying we weren't even allowed to investigate, what could we do, we weren't allowed to investigate, the court stuck its leg in here too, and here too, and here too, what could we do — the prosecution — the court left it alone right from the initial stage.