“The virtue of justice consists of moderation as regulated by wisdom”—Aristotle.
One must acknowledge the reality that those who are connected with imparting justice are highly respectable human beings. They not only serve humanity by setting the wrongs to right but also take upon their shoulders the heavy responsibility of making sure that no innocent gets punished and no criminal goes scot free. Together as a team of judges, advocates, court assistants and of course parties in a scuffle, efforts are made to establish true facts of a given situation in the light of evidences and witnesses, in view of which a judgement is made. These decisions may not be too overbearing in benign cases but sentencing someone to death is certainly quite an arduous verdict that could tantamount to manslaughter if given for an innocent.
Obviously, when there is miscarriage of justice many factors are involved including due process of law starting with lodging of initial complaint with the police and the way first information report (FIR) is written, the way a crime scene is secured and examined, the way evidence is gathered and preserved, and the way the accused and witnesses are handled. These are the grounds on which subsequent proceedings move forward and whatever is placed before the judge become the basis for decision. This clearly points out to an important matter that while a judge maybe solely liable for convicting a person, those who are assisting cannot be absolved from this responsibility.
Similarly, those who were onlookers at the time a particular crime was being committed should also be taken to task. A relevant example would be that of the Karachi Circular Railway (KCR) that has over the last two decades been abandoned and could not be revived because of encroachments. In order to restore this vital public transport system, the present honourable Chief Justice of Pakistan ordered the Sindh government and Railways to demolish these ‘illegal’ settlements including multi-storied buildings, with immediate effect much to the dismay of the occupants, who had probably paid heavy amounts of money for allotment. It may be recalled that KCR operations have remained suspended since 1999 therefore occupants were comfortably established and continued to hold their assets without any fear.
On February 7, 2020, when the Supreme Court confronted Secretary Railways regarding non-compliance of its order of May 9, 2019 to demolish encroachments, he informed that right of way had been granted and railway land was handed over to Sindh government following a decision by the Executive Committee of the National Economic Council in 2018 thereby shifting own responsibility on the shoulders of the provincial government. Continuing with similar infringements on state lands, parks and railway properties, the Court not only expressed its disgust but issued stern orders to comply with earlier commands.
These are commendable acts meant to restore the beauty and practicality of a city that was once considered as the jewel of the country but the essential question here is that are only the encroachers to be blamed for violating the law? Where were all the regulators, the railway police, the many provincial departments or even the regular police when such illegal constructions were in progress? Were these buildings and houses constructed overnight by invisible hands which were beyond the control of authorities? What about the thousands who would be displaced? Have they been given an alternate option? The biggest problem arises when law enforcers connive with unscrupulous elements for short term advantages shamelessly ignoring rules to permit them to do what they please; yet are not apprehended along with other culprits.
The same holds true where a criminal convict like Mazhar Hussain who was sentenced to death is exonerated of murder after enduring nineteen years of imprisonment during pendency of appeal in the Supreme Court. Although the accused, having died in custody, did not get to relish his acquittal, the Court never once called in question those who implicated him in an offence he never committed and the ones who had assisted (rather misled) the original sessions court that handed the death sentence to Mazhar Hussain in 2004. The apex court indicated flagrant discrepancies in the entire case of the prosecution yet no one involved at that time was called to account for the wrong that was done to the deceased innocent.
Convicting and exonerating one party is justice indeed but it remains partial. True justice would be when the persons directly or indirectly playing a critical role in cases such as encroachments, thefts, murders, gratifications, malafide decisions by public office holders and all types of civil and criminal offences are held accountable too. A person selling fake medicines is punished but the drug inspector is not questioned. An importer’s consignment is confiscated after he gets it released from the Customs at a low duty but no court ever tries to nab that appraiser who cleared his goods after getting his palms greased. A tax evader is rightfully punished but no tribunal or court ever holds the incompetent officer responsible for putting a law abiding taxpayer through years of various tiers of appeals, financial losses, social embarrassment and mental tensions before being eventually cleared,
Till today, the infamous Karachi May 2007 and 2014 Model Town, Lahore incidents have not seen finality despite available visual evidences of open high-handedness of political activists in the former and police officials in the latter case. Not a single politician from Karachi was called suo moto to account for the hooliganism by his party’s youths nor was the sitting chief minister of Punjab held responsible for the police department working directly under his control. If occurrences in broad daylight cannot be handled by our justice system then it is no wonder that crimes committed in the dark would be totally mishandled.
Proper justice is not just clerically clearing or convicting citizens of the state but creating an atmosphere of real deterrence that can help to stop the innocent from being unduly implicated and the criminal to conveniently go unpunished. Where the apex court on its own motion can take cognizance of high fees of private schools, why can’t it summon the government to discharge its obligation of providing a good standard of education in public schools? It is about time that Aristotle’s words are adopted meaningfully to provide the right type of cover for the judicial process, as also expressed by Winston Churchill, when during the war his country was facing the worst challenge, on inquiring was told that the judges were dispensing justice as normal responded by saying: “Thank God. If the courts are working, nothing can go wrong.”
The writer, lawyer and author, is an Adjunct Faculty at Lahore University of Management Sciences (LUMS)