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Huzaima Bukhari
“Every unpunished murder takes away something from the security of every man’s life”—Daniel Webster
Over time, this nation has developed a rather peculiar tradition. Whenever politicians are arrested or summoned before the courts, they rally huge crowds, usually armed with bludgeons and stones, and block the main thoroughfares, obstructing the path of emergency services and disrupting traffic as if something momentous has occurred.
Regardless of whether or not they do any actual good for the nation, these public representatives always want to cast themselves as heroes, moving around with great fanfare even if they have been charged with a crime that they might possibly have committed. Having said this, it is the right of their supporters to protest if they think that the State has demonstrated high-handedness — but not before exploring and exhausting legal remedies. This can be done by way of gathering peacefully at assigned spots, displaying placards and banners, chanting slogans or conducting a march as is the norm in democratic countries the world over. For even when a few hundred assemble in a particular place, a statement is made. There is really no need to resort to violence to make oneself heard. Yet as communication mediums expand — the world has greatly shrunk, with news of whatever is going on in any corner spread within nano-seconds — the mode of protest has changed from peaceful to volatile.
The death of Afro-American George Floyd, at the hands of the Minneapolis police in May 2020, prompted furious protests that were accompanied by looting, while demonstrations in about 60 other countries remained largely peaceful. If the Floyd case was not enough (this week saw a former police officer charged with his murder), Duante Wright, another Afro-American man, was shot and killed by the Minneapolis police last month. This sparked another stream of protests and images of men stomping on the windshield of a police vehicle made headlines around the world. When this happens, it affords immature minds the opportunity to re-live the ‘excitement’ of violence.
Destruction of public private property is a criminal offence, but a far graver crime is causing grievous bodily harm or, worse, death. Naturally, accidental death is a different matter, but hurting someone to the point of no-return is equivalent to murder within the necessary mens rea (requisite intention, that is, an individual’s awareness that his or her conduct is criminal). In cases where a mob confronts a single individual, the biggest question for the courts has to be: who inflicted the fatal blow? Yet this makes it difficult for the prosecution to build a convincing case based on crucial evidence. The lynching of Mashal Khan in 2017 is a case in point. Although 58 people were directly involved in his death — only the individual who shot him was awarded the death penalty; while five others were given life sentences and 25 were charged with minor offences. To date, Mashal’s father remains dissatisfied with the verdict.
British common law, from where many of our statutes are derived, talks about joint enterprise where two or more act together to chase and attack someone, in which case, each is liable for the subsequent outcome. The legal doctrine applicable here is that of common purpose, common design, joint enterprise or joint criminal enterprise. It can even extend to the masterminds of criminal offences who may not be physically present at the scene of the crime, but get others to do the job for them. This is with particular reference to imputing criminal liability for the wounding or killing of an individual to unarmed rioters who either had or did not have knowledge that one of them was in possession of a lethal weapon at the time of the attack.
In 2016, the United Kingdom’s Supreme Court reached a landmark verdict in R v Jogee that reversed earlier case law on joint enterprise, which previously contended that if two people set out to commit an offence (Crime A) and in the course of this one of them commits another offence (crime B), the second person is guilty as an accessory to crime B if he foresaw it as a possibility, but did not necessarily intend it.
Police brutality, resulting in civilian injuries or death, can never be condoned. During the Model Town incident of 2014, 14 people lost their lives in Lahore and more than 100 were injured following a clash between the Punjab Police and Pakistan Awami Tehreek (PAT) party activists. Until today, not a single police officer has been convicted, despite evidence in the form of incontrovertible video footage. By contrast, many so-called rioters are serving jail sentences. This therefore sends the message that joint enterprise is a non-cognisable offence because each participant can deny the intention to kill despite a death taking place. Defence lawyers cleverly manipulate these cases to prove their clients’ innocence, allowing them to get away either scot-free or with a lenient sentence. Attacks on law enforcement personnel can also not be justified.
Since mob attacks are often politically motivated, there is an urgent need to revisit the registration process of political parties and transparency regarding their sources of funding. The Election Commission of Pakistan (ECP) has enlisted 127 parties. However, due to poor compliance and inefficiency on the part of relevant authorities, these entities are not being held to account over their income sources. In fact, they are only called into question when a mass gathering of party supporters turns violent. Perhaps the authorities believe in not mending the roof because “the cabin never leaks when it doesn’t rain”.
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The writer, lawyer and author, is an Adjunct Faculty at Lahore University of Management Sciences (LUMS)