Procedures at fault: The case of a Polish man’s alleged executioners

Almost a year after the beheading of Polish geologist Poitr Stanczak, the accused have been acquitted for want of evidence. But those familiar with prosecution procedures in terrorism cases are unsurprised: very few alleged terrorists are actually convicted by courts of law. And the investigation procedures are largely at fault.

Take the procedural requirements. The First Information Report is the starting point of a criminal investigation. The point is to take down an account of the incident while it’s fresh and collect evidence, which will strengthen the prosecution’s case and result in convictions. Or so goes the theory.

“This theory doesn’t admit of the fact that police officers and so, FIRs are subject to political and monetary influences, among others,” explains a Karachi-based criminal lawyer. “The FIR is usually filed much after an incident and, more often than not, is based on how the PO thinks the incident happened or how the influential suspect wants it to appear, not the way it actually did.”

Since criminal law demands a higher standard of proof than, say, civil litigation, all the successful defence lawyer needs to do is mine inconsistencies between the FIR and the evidence or identify technical breaches of procedure and introduce a shred of doubt. And this, say lawyers, is precisely the point that was exploited by the lawyer representing the accused Ataullah in this case.

In his confessional statement, Ataullah said he and his accomplices had kidnapped Stanczak and taken the geologist to the tribal areas at the behest of former JUI-S MNA Shah Abdul Aziz. But the point the defence lawyer picked on was that the confessional statement was in English and since the accused spoke and understood only Pashto, contrary to legal requirements, he could not have understood what he was signing. And so walked Ataullah and Aziz. Never mind that Attaullah had been arrested from Islamabad in July last year, ostensibly in possession of three grenades, a machine gun and 30 bullets.

But such recoveries, argues the lawyer, mean little on their own. “Our agencies don’t collect evidence; they fabricate it, including ‘eyewitnesses’, for pecuniary, political and even expediency reasons,” he says dismissively.

And the times they don’t fabricate, their incompetence lets them down. “The problem is, when the police collect shells from the crime scene for example, they usually end up keeping the shells with them,” says the litigator. By the time the weapon used is recovered, a few months have passed. “When the shells and the weapon are presented together in court, all the defence has to do is just suggest the police manufactured the evidence and there walks your guy, even if he is a terrorist,” he says. “This is probably what happened with the recoveries from Aziz’s house.”

For their part, the police insist that they have little choice but to manufacture evidence. “What do you expect, given the state of forensics here?” retorts a former investigator. “You’re talking about a bunch of people who have no specialised training in forensics, terrorism or even homicide; you expect them to find, collect, preserve and produce evidence that would establish a suspect’s guilt ‘beyond reasonable doubt’ in the eyes of the court?” he drawls.

What about witnesses? Too few are ready to testify in terrorism cases, says the former investigator. And without the ‘independent’ witnesses the law prefers, the police can either testify themselves or they can fake it.

Take Punjab governor Salmaan Taseer’s case as an example. Killer Mumtaz Qadri told the police that he’d been ‘inspired’ to murder Taseer after hearing the inflammatory sermons of Mufti Hanif Qureshi and Imtiaz Shah. Given that hate speeches qualify as terrorism, the investigators were justified in wanting to interrogate the clerics on the basis of Qadri’s statement. But the ATC judge shot down the request for want of evidence and allowed the clerics to post bail. “The police’s say-so is rarely enough even to secure arrest warrants; you need to have supporting evidence,” says the former policeman.

“To be fair to the police, they’re in a real bind here,” confides another lawyer. “Since they are considered interested in the case, their testimony is subjected to a far greater level of scrutiny than other witnesses and it’s easier to trip them up by introducing minute details.”

Without revamping the investigation process, say lawyers and investigators, the state hasn’t a hope of convicting the people they apprehend, anti-terrorism rhetoric notwithstanding.

Published in The Express Tribune, February 22^nd, 2011.