Authored By: Syed Muzammil Ahmad Shah
LUMS (Lahore University Of Management Sciences )
The writer of this article emphasize Pakistan’s right to a fair trial. It demonstrates how, despite Pakistan’s ratification of the UN Declaration of Human Rights, the legislature did not include this right in the constitution until recently with the passage of the 18th Amendment. Although Pakistan’s constitution guarantees the right to a fair trial, it is contended that this right is not always upheld to the standard set by the Declaration. This is further explained in the statement in relation to violations pertaining to the actual execution of arrest and custody. The right to a fair trial and other associated fundamental rights are violated when cautionary warnings, confessions, identification parades, and the withholding of relevant evidence and allegations from the accused are employed. According to the essay, the right to a fair trial is a complicated issue. It must be fully accomplished with equal respect for the accused, the victim, and society as a whole.
Introduction
Pakistan was one of the 48 signatories to the “Universal Declaration of Human Rights-UDHR”, which was issued by the UN in 1948. Although it was not a legally binding treaty, the UN General Assembly President hailed its acceptance as a “remarkable achievement” and a “first step” in a major evolutionary process. 1 Student of Law, Lahore University of Management Sciences (LUMS). Research Intern, Record of Law.
The Constitution of Pakistan, 1973, incorporated many UDHR principles but strikingly omitted the explicit ‘right to fair trial,’ even if Pakistan has promised to advance human rights. Everyone is guaranteed “a fair and public hearing by an independent and impartial tribunal” under Article 10 of the UDHR. With the insertion of Article 10-A to the Constitution in 2010, the 18 th Amendment bridged this loophole and secured the right of every one to a fair trial and due process in a civil or criminal case.
There is no definition of this right in the Constitution, with specification of its basic points in the international agreements, like the European Convention on Human Rights, which comprise the right to a defense, a presumption of innocence, and a hearing before an unbiased judge within a reasonable time frame. The Pakistani jurisprudence has also had a broad interpretation of Article 10-A. The right has been pronounced well entrenched by Supreme Court” elevating it to a “higher pedestal” and rendering any inconsistent law void. 2 As pillars of justice, the Court has highlighted ideas like the presumption 3of innocence and the right to an impartial forum. 4
Other fundamental rights, such as safeguards against unlawful deprivation of life and liberty and protections during arrest and detention, are connected to Article 10-A (such as being informed of charges, access to counsel, and production before a magistrate within 24 hours), 5 and guarantees against torture, self-incrimination, and retrospective punishment.
However, the actual practice of arrest and detention demonstrates a number of violations of fundamental rights. This article examines common violations that jeopardize Pakistan’s right to a fair trial, such as issues with identification parades, confessions, custodial abuse, cautionary warnings, and evidence withholding.
Caution Warnings
The first phase of police interaction is a basic infraction. To bypass the constitutional mandate that an arrested individual be presented before a magistrate within twenty-four hours, police frequently delay the official registration of an arrest in the relevant register. As a result, until a habeas corpus petition is granted or the arrest is officially documented, accused people are held in unofficial police detention facilities or private “deras.” The detained individual is rarely told why they were arrested during this time, and they are rarely given or assisted in obtaining legal representation. In actuality, the idea of a “Miranda warning,” which is a constitutional protection against self-incrimination that notifies a person of their right to legal representation and quiet, is practically nonexistent. Although the precise language used in these cautionary cautions varies per jurisdiction, their goal is the same: Generally speaking, any statement a suspect makes without being made aware of these rights is not admissible as evidence. Despite the existence of clear, enforceable fundamental rights within the Pakistani Constitution that guarantee legal advice and the right to be informed of accusations, the common practice remains the opposite. The prevailing method involves subjecting the accused to torture to extract a confession, irrespective of their actual guilt or innocence.
‘Judicial Review of Public Actions’ (page 630) relies on Government of East Pakistan v Rowshan Bijaya Shaukat Ali PLD 1966 SC 286, 320, to define it as ‘detention, the object of which is to prevent the doing of an act… if the detention is not a punishment for what the person concerned has already done, but a means for preventing an act, it is preventive detention’.
Custodial Torture
The magistrate wields significant power to prevent custodial torture, but this power is often misapplied. The issue arises when magistrates allow requests for physical remand while acting irrationally and without a judicial mindset. This failure reaches its lowest point when remand is automatically prolonged in spite of claims of torture, and it is exacerbated when the accused is not brought to court.
The Lahore High Court’s Rules and Orders specifically call for a magistrate to attest to the need for the remand. This entails assessing if the accusation is well-founded, and if sufficient reasons exist to remand the accused to police custody rather than judicial lock-up. In addition to reviewing case logs and prior rulings, the magistrate must, above all, make sure the accused is always brought before them and given a chance to raise objections.
However, remand sessions are sometimes held outside of public courts, preventing the accused from contesting the motion with a friend or attorney. This approach seriously violates fundamental rights, including the right to a fair trial. In addition to being denounced, individuals guilty must face severe disciplinary punishment.
Confessions
Despite being inadmissible, confessions obtained while in police custody are sometimes utilized to assess guilt under the pretense of an investigating officer’s “opinion.” In order to accuse suspects, poorly trained officers frequently get “voluntary confessions,” The right to self-incrimination is being seriously violated. The Supreme Court has held again and time again that the courts alone have the power to determine guilt, not the police. This behavior was condemned by the Court in Muhammad Arshad and Others v. The State, announcing:
“It will thus be noticed… that the job of a police-officer conducting an investigation was confined only to collection of evidence… and it was then the authority and the obligation of this court and only of this court to form an opinion about the guilt or innocence of an accused person… Conceding formation of such an opinion to a police-officer would be a grave illegality which could lead to grave injustice…” 6
Confessions made willingly before a magistrate after the accused has been advised of their rights are the only ones that are acceptable. According to the Constitution, everyone has the right to confer with their preferred legal representative while being held by the police. It is blatantly against the law for the cops to forbid this. Sadly, this unlawful behavior is still commonplace for the average person, while those with money or influence are given preferential treatment. 7
According to the legislation, the police’s main responsibilities are to safeguard people’s lives, property, and liberty, make sure that the rights of individuals who are detained are upheld, and present information to a court of competent authority. 8 These constitute fundamental elements of due process. However, laws like the Investigation for Fair Trial Act, which grant the state the power to intercept private conversations and use them as evidence, may jeopardize the right to a fair trial and due process. 9
Identification Parades
A suspect might require an identification parade to pin down the suspect. Permission must be granted by the district and sessions judge who has an appointment with a magistrate to visit jails and conduct such identity parades according to the applicable procedure. To ensure the credibility of a witness’s memory recall, the procedure stipulates that the witness must not see the suspects before the identification process and that the time gap between the crime and the identification parade should be minimized. A given quantity of dummies same in height, body type, features, appearance, complexion and attire must be confounded with the suspect in the line-up. Once the suspects have been captured or arrested, police usually summon the witnesses to police station preceding the identification parade so that the witnesses may familiarize themselves with the suspects and, in most instances, take their photographs. This certainly dispels the notion of fair trial.
Non-Disclosure of Accusations & Material Evidence
The right to a fair trial is violated when allegations and evidence against an accused are not disclosed, which hinders their defense. Courts have recognized this since the 1960s, stating that accused individuals must be informed of their accusations to ensure fairness and allow them to refute them.10 Many times, the same concept has been reiterated, most recently in “Liaquat Ali Chughtai.”11 Thus, an essential component of the right to fair trial is the right to disclosure; A party’s ability to prepare a defense or “controvert, correct, or comment on other evidence, or information that may be relevant to the decision and influential material on which the decision maker intends to rely” is hampered when pertinent, evidentiary material is withheld.12 “Regardless of whether the material in question arose before, during, or after the hearing,” such a practice is unjust’.13
Right to Fair Trial & ‘Triangulation’ of Interests
While civil disputes guarantee both sides a fair trial, in criminal cases this principle has traditionally worked to the advantage of the accused. This raises an important question: shouldn’t victims, too, be assured a fair trial within Pakistan’s criminal justice system? victims often find themselves vulnerable to ineffective police investigations and disengaged public prosecutors, as reflected in low conviction rates. A privately retained counsel for the complainant operates under the supervision of the public prosecutor and is excluded from evidence collection. When a case is undermined by faulty investigation, poor prosecution, witness intimidation, or the absence of protection laws, the very notion of a “fair trial” becomes questionable.
Conversely, the accused’s rights are equally compromised when denied legal access, confronted with fabricated evidence, or subjected to procedural injustices such as undue judicial reliance on police opinions, automated remand orders, staged identification parades, or selective application of due process. When either party victim or accused is denied a meaningful opportunity to pursue justice, the right to a fair trial is rendered illusory.
As a result, for all parties concerned, the successful exercise of other fundamental rights is contingent upon the right to a fair trial. The Indian Supreme Court has acknowledged this comprehensive viewpoint, despite Pakistani jurisprudence’s sluggish adoption in Zahira Habibullah Sheikh (5) that the concept of a fair trial is multifaceted. It calls for a “triangulation of interests” between the victim, the accused, and society as a whole. 14
The Court underlined that crime damages society as a whole and is a public wrong. As a result, the parties cannot have complete control over criminal procedures; courts have a primary responsibility to maintain public trust in the administration of justice. Judges must aggressively gather pertinent information and pursue the truth in order to ensure that all parties and the community are treated fairly and impartially. Ignoring oppressive or vexatious conduct even if a technically fair trial remains possible risks undermining the judiciary’s integrity and standing as an impartial institution. 14
Conclusion
The “Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power,” which was endorsed by the UN General Assembly in 1985, emphasizes the ‘necessity of adopting national and international measures in order to secure the universal and effective recognition of, and respect for, the rights of victims of crime and of abuse of power’, without compromising the accused’s rights.15 In Pakistan, however, legislative progress in this area has been notably slow. Over time, the country’s courts have consistently recognized that criminal behavior inflicts harm not only on individual victims but also on the broader community. If this is true, perhaps it is time to declare that the only way to completely achieve the right to a fair trial is to balance the rights of the accused and the victim with those of society, without favoring one another.
Reference(S):
1United Nations Yearbook (1948-1949) http://unyearbook.un.org/unyearbook.html?name=194849index.html.
2 On April 26, 2012, PLD 2012 SC 553, para. 27, the Criminal Original Petition No. 6 of 2012 in Suo Motu Case No. 4 of 2010 (Contempt proceedings against Pakistani Prime Minister Syed Yousaf Raza Gillani for noncompliance of this Court’s order dated 16.01.2012)3 was decided. ibid para 25.
4 Suo Motu Case No. 5 of 2012, which was determined on June 14, 2012, PLD 2012 SC 664, concerns the allegation that Malik Riaz Hussain and Dr. Arsalan Iftikhar attempted to influence the judicial process through a business deal.
5Article 10 (clauses 4 to 9) of the Constitution deals with preventive detention. While this phrase has not been defined in the Constitution, J. (R) Fazl Karim, in
6 Muhammad Arshad and Others v The State And Others PLD 2011 SC 350, 360-362.
7 Examples include the house arrest of Moonis Elahi, the son of a former Chief Minister of Punjab, who was implicated in a corruption case involving billions of rupees. Former President Pervez Musharraf was also granted house-arrest by an anti-terrorism court in the context of Benazir Bhutto’s murder case.
8 The Police Order 2002, s (4)(2) and s (4)(3).
9 Investigation for Fair Trial Act 2013.
10 Dacca v Zakir Ahmed PLD 1965 SC 90.
11 Liaqat Ali Chugtai v Federation of Pakistan 2012 PLC CS 1062 Lahore.
12 ibid para 26.
13 ibid.
14 Zahira Habibullah Sheikh (5) v State of Gujarat 3 SCC 374 AIR 2006 SC
15 On November 29, 1985, the United Nations General Assembly adopted the UN Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power without a vote.
