Revising evidence act
Ambassador’s Diary
Dr Samiullah Koreshi
Monday, June 20, 2011 - According to reports in the Press, there is a proposal to revise the Evidence Act in force, because many accused in terrorist cases are released because the evidence produced against them was insufficient for the Courts to convict them. It is implied that this is mainly due to the stringent criteria laid down in the Evidence Act to sentence an accused.
It seems that there is need to revise our Law of Evidence. I had written several times on this subject , not my views but those of a Chief Justice of a Supreme Court – of Nigeria- that our Evidence Act seems to protect the accused so much that it makes it difficult to sentence him. When I was a young High Commissioner to Nigeria, during 1969-72 my very good friend Fatai Williams, a Yoruba Muslim, said that as we knew Nigeria borrowed all the basic laws on its independence from Pakistan, the Penal Code, the Criminal Procedure Code etc,- I think Justice Sharif ? had gone to Nigeria during Tafawa Balewa’s regime in early Sixties to advise Nigeria on this matter after Nigeria became idependent.. Fatai Williams, who had studied law in Cambridge University- he was a boxing Blue of Cambridge University- had many Pakistani fellow students in Cambridge University – who were our mutual friends which made us good friends. I had enquired from him how a case for defamation against a Government department was settled from the lower Courts to the High Court, in about less than a year. At that time he was a Judge of Lagos High Court but subsequently he rose to be Chief Justice of the Supreme Court may be in 1984. It could never have happened in our own case. It was then that he made this remark on our Evidence Act. Well where a Chief Justice of a country larger than Pakistan in territory with a population of about 100 million, who learnt his law in the same country from which we took our legal system makes this remark , I considered it the view of a competent legal expert. So I wrote on this subject many times in the hope that the words of an experienced Chief Justice were worthy of respect they deserved. The entire system of justice is based on evidence produced for or against the accused . This is the first step in dispensation of justice. The effectiveness of a judicial system depends on reliability of witness and his evidence.
But while there is a matter of straightening our Law of Evidence I should say that it is not only the question of the law of evidence but also of a question of the attitude of the Courts towards tolerating all kinds of statements. It seems to me that the standard of the Courts over long period has also changed, in some vital respects. I am not in a position to use the correct words for the attitude of the old trying judges – of the hay days of the British rule but there is case I refer to.. I saw the diary of a grand uncle of mine, who was some kind of Police Prosecutor in Agra in the beginning of the twentieth century, written by him in his own hand. The dairy was with a Cousin of mine, Javaid Kazim, It was about the trail of a greatly feared dacoit, some Rajput Hindu, who was tried at the lower court for dacoity and murders and finally by the High Court of Allahabad which sentenced him to death. My grand uncle writing “Today so and so Singh was hanged in Agra District Jail” Now this trial was conducted under the same Penal Code and Law of Evidence we have in Pakistan where the trial goes on and on, and there are appeals and so on. I presume the Judges were Englishmen both in the Sessions Court and the High Court of Allahabad. I am not a lawyer; but what I have written above is personally known to me, and the Diary should still be with Javaid Kazim .
In Pakistan we have another problem, that of the reluctance of the witnesses to bear testimony for a number of reasons, which are connected with the personal ideas of social taboos in our communities- that is about bearing witness against powerful parties who can harm the witness if the accused is convicted , as well as the unwillingness of the witness to testify against a friend. It is supposed to be against the community code of conduct to bear witness against a friend. I would like to quote from my book “ Diplomats & Diplomacy- Story of an Era” (p 45) on my posting in Canada. This is what I had written: I was then a 25 year old Third Secretary in our High Commission:in Ottawa.
“I might narrate an incident of uprightness of the Canadian people. There were two young lady stenographers in the High Commission. They were great friends to each other and almost inseparable. Once one of them was taking my dictation when she was called down to the Reception to receive summon by the Police. When she returned I asked her why the Police had come to see her. She said some evening ago, she and her friend were taking alcohol drinks in the Britannia bay while sitting n the car. Her friend was on the steering wheel. A policeman came and booked her for drinking , since her friend was on the steering wheel even when the car was stationary, She had been asked to bear witness to this effect . I asked her will she bear witness against her best friend. Would her friend not mind it. She replied What a question Mr Koreshi.. Was it not a fact. Why should she mind it? “ I thought in Pakistan this would never be done”
Western social morality when it comes to observing it in Western countries is sublime, but when it comes to treatment of the Third World it is appauling. Our Courts seldom if ever convict the person giving false evidence. In the West this would not be the case. They would be sentenced harshly for perjury. If false evidence is severely punished it may stop prevalence of false witnesses. In Islam the injunction is to bear correct witness even if it be against you. But in Pakistan in the Courts a different morality has taken over. Every thing goes to win a case, that does not matter.
As regards quick decisions in terrorist cases, it is a different matter. I recall that in Greece in 1960 and around the same time or earlier there was the problem of communist guerrillas and of a serious nature. How it was suppressed is something which may be consulted. Revising the Evidence Act may take some longer time than copying the Greek and Malay practices . Perhaps in these two countries summary military courts dealt with the communist guerrillas.
Turning to another burning topic of these days, on 17th June in the Dawn I read an AFP news of China and Russia opposing NATO & Western imperialist war on Libya which also added that these two countries are going to ask regional player India to join them in opposing the NATO War on Libya. That the region in which India is a “player “ includes Muslim world, Africa and Middle East is a news to any in Pakistan. Unless this addition was AFP’s own addition it is a news to any Muslim, Arab and African. If it is true that Russia and China are going to ask India to join the denunciation of the West it is a wishful thinking. Perhaps they had excluded Pakistan from joining because they know who are patron saints of the regime in Pakistan or that because Prime Minister of Pakistan was visiting Sarkozy in Paris just when NATO’s imperialist game was gaining momentum an impression was gathered that Pakistan was silently supporting NATO regime change attacks on Libya. In foreign policy often such visits are counted as pointers of that country’s policy even if not correct . It would be better to avoid creating such pointers. Any way, it is a news to me that India’s regional play covers such wide area. Congratulation ! one of our regime’s many achievement is the prestige Pakistan has achieved even in the Muslim world vis-à-vis India. Ban Ki Moon’s second term is a sad day for third world and a victory for imperialists.
It seems that there is need to revise our Law of Evidence. I had written several times on this subject , not my views but those of a Chief Justice of a Supreme Court – of Nigeria- that our Evidence Act seems to protect the accused so much that it makes it difficult to sentence him. When I was a young High Commissioner to Nigeria, during 1969-72 my very good friend Fatai Williams, a Yoruba Muslim, said that as we knew Nigeria borrowed all the basic laws on its independence from Pakistan, the Penal Code, the Criminal Procedure Code etc,- I think Justice Sharif ? had gone to Nigeria during Tafawa Balewa’s regime in early Sixties to advise Nigeria on this matter after Nigeria became idependent.. Fatai Williams, who had studied law in Cambridge University- he was a boxing Blue of Cambridge University- had many Pakistani fellow students in Cambridge University – who were our mutual friends which made us good friends. I had enquired from him how a case for defamation against a Government department was settled from the lower Courts to the High Court, in about less than a year. At that time he was a Judge of Lagos High Court but subsequently he rose to be Chief Justice of the Supreme Court may be in 1984. It could never have happened in our own case. It was then that he made this remark on our Evidence Act. Well where a Chief Justice of a country larger than Pakistan in territory with a population of about 100 million, who learnt his law in the same country from which we took our legal system makes this remark , I considered it the view of a competent legal expert. So I wrote on this subject many times in the hope that the words of an experienced Chief Justice were worthy of respect they deserved. The entire system of justice is based on evidence produced for or against the accused . This is the first step in dispensation of justice. The effectiveness of a judicial system depends on reliability of witness and his evidence.
But while there is a matter of straightening our Law of Evidence I should say that it is not only the question of the law of evidence but also of a question of the attitude of the Courts towards tolerating all kinds of statements. It seems to me that the standard of the Courts over long period has also changed, in some vital respects. I am not in a position to use the correct words for the attitude of the old trying judges – of the hay days of the British rule but there is case I refer to.. I saw the diary of a grand uncle of mine, who was some kind of Police Prosecutor in Agra in the beginning of the twentieth century, written by him in his own hand. The dairy was with a Cousin of mine, Javaid Kazim, It was about the trail of a greatly feared dacoit, some Rajput Hindu, who was tried at the lower court for dacoity and murders and finally by the High Court of Allahabad which sentenced him to death. My grand uncle writing “Today so and so Singh was hanged in Agra District Jail” Now this trial was conducted under the same Penal Code and Law of Evidence we have in Pakistan where the trial goes on and on, and there are appeals and so on. I presume the Judges were Englishmen both in the Sessions Court and the High Court of Allahabad. I am not a lawyer; but what I have written above is personally known to me, and the Diary should still be with Javaid Kazim .
In Pakistan we have another problem, that of the reluctance of the witnesses to bear testimony for a number of reasons, which are connected with the personal ideas of social taboos in our communities- that is about bearing witness against powerful parties who can harm the witness if the accused is convicted , as well as the unwillingness of the witness to testify against a friend. It is supposed to be against the community code of conduct to bear witness against a friend. I would like to quote from my book “ Diplomats & Diplomacy- Story of an Era” (p 45) on my posting in Canada. This is what I had written: I was then a 25 year old Third Secretary in our High Commission:in Ottawa.
“I might narrate an incident of uprightness of the Canadian people. There were two young lady stenographers in the High Commission. They were great friends to each other and almost inseparable. Once one of them was taking my dictation when she was called down to the Reception to receive summon by the Police. When she returned I asked her why the Police had come to see her. She said some evening ago, she and her friend were taking alcohol drinks in the Britannia bay while sitting n the car. Her friend was on the steering wheel. A policeman came and booked her for drinking , since her friend was on the steering wheel even when the car was stationary, She had been asked to bear witness to this effect . I asked her will she bear witness against her best friend. Would her friend not mind it. She replied What a question Mr Koreshi.. Was it not a fact. Why should she mind it? “ I thought in Pakistan this would never be done”
Western social morality when it comes to observing it in Western countries is sublime, but when it comes to treatment of the Third World it is appauling. Our Courts seldom if ever convict the person giving false evidence. In the West this would not be the case. They would be sentenced harshly for perjury. If false evidence is severely punished it may stop prevalence of false witnesses. In Islam the injunction is to bear correct witness even if it be against you. But in Pakistan in the Courts a different morality has taken over. Every thing goes to win a case, that does not matter.
As regards quick decisions in terrorist cases, it is a different matter. I recall that in Greece in 1960 and around the same time or earlier there was the problem of communist guerrillas and of a serious nature. How it was suppressed is something which may be consulted. Revising the Evidence Act may take some longer time than copying the Greek and Malay practices . Perhaps in these two countries summary military courts dealt with the communist guerrillas.
Turning to another burning topic of these days, on 17th June in the Dawn I read an AFP news of China and Russia opposing NATO & Western imperialist war on Libya which also added that these two countries are going to ask regional player India to join them in opposing the NATO War on Libya. That the region in which India is a “player “ includes Muslim world, Africa and Middle East is a news to any in Pakistan. Unless this addition was AFP’s own addition it is a news to any Muslim, Arab and African. If it is true that Russia and China are going to ask India to join the denunciation of the West it is a wishful thinking. Perhaps they had excluded Pakistan from joining because they know who are patron saints of the regime in Pakistan or that because Prime Minister of Pakistan was visiting Sarkozy in Paris just when NATO’s imperialist game was gaining momentum an impression was gathered that Pakistan was silently supporting NATO regime change attacks on Libya. In foreign policy often such visits are counted as pointers of that country’s policy even if not correct . It would be better to avoid creating such pointers. Any way, it is a news to me that India’s regional play covers such wide area. Congratulation ! one of our regime’s many achievement is the prestige Pakistan has achieved even in the Muslim world vis-à-vis India. Ban Ki Moon’s second term is a sad day for third world and a victory for imperialists.
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