I have served my country in
different administrative and constitutional posts for more than 40 years and
what I have learnt is put beautifully by a famous social scientist that when it
comes to privacy and accountability, people always demand the former for
themselves and latter for others. Our people are no different than rest of the
world. When it comes to accountability for their actions we as nation follow
the same above.
While being a member
of the Federal Investigation Agency (FIA) I have been involved in investigation
of cases of national and international ramification and since then I have seen
various JITs having formed by the Federal as well as Provincial governments to
investigate cases of public or sensitive importance. My views on the
constitution and involvement of any JIT in the investigation of a case since
then have been that a JIT is an alien mechanism in the eyes of law.
The investigation of a
criminal case is invariably regulated by the provisions of the Criminal
Procedure Code (Cr. P. C.). Section 156 of the Cr. P.C. empowers an
officer-in-charge of a police station to investigate any cognizable offence and
he under section 157 of the Cr. P.C. is empowered to depute one of his subordinate
officers to investigate the case and on the completion of the investigation,
the officer-in-charge of the police station forwards the Report u/s 173 Cr.
P.C. to the relevant court. Nowhere under any provisions of the Code, can
any non-police officer investigate the case assigned to a police officer under
section 157 of the Code. It is and would always be the duty and responsibility
of the police officer investigating a criminal case under sections 156 &
157 of the Code to conduct the investigation and submit a Report under section
173 of the Code to the relevant court for the trial or otherwise of the accused
person(s).
However, it had become
a regular phenomenon for the provincial governments to constitute a JIT
whenever there is a case of public importance or sensitive nature.
Although not many of the Joint Investigation Teams have concluded their
investigations which is matter of public record. The findings of the
JITs, in majority of the cases, have not yielded in conviction of the person(s).
Many matters investigated/interrogated by the JIT for the reasons that the
prosecution could not prove the evidence in the court of law beyond reasonable
doubt coupled with the legality and validity of the JITs itself. There
also have been several incidents where the then made JITs failed to produce any
concrete results.
The Federal Government
is, however, empowered under Section 3 of the Commissions of Inquiry Act 1956
to “appoint a Commission of Inquiry for the purpose of making an inquiry into
any definite matter of public importance and performing such functions and
within such time as may be specified in the notification…”, although the
findings of the Commissions of Inquiry were always recommendatory in nature and
not binding on the Federal Government. The Federal Government has appointed
number of Commissions of Inquiry under the Act in the past, which includes
Hamood-ur-Rehman Commission, Hamood-ur-Rehman Commission; Abbotabad Commission;
Commission on murder of journalist of many journalists. It is unfortunate that
the reports of majority of these Commissions were not made public.
On the other hand, the
Supreme Court under Article 184 the Supreme Court of Pakistan is under full
jurisdiction to consider the matter of public importance with orientation to
enforce any fundamental rights as per the nature mentioned in the given
article. In order to achieve these objectives, the Supreme Court
exercised its powers under Article 184 of the Constitution, it had at times
constituted judicial commissions including Memogate Commission; Lal Masjid
Commission – 2013; Election rigging commission on the petition of Imran
Khan/PTI – 2015 and Missing persons Commission. The difference between the
Commissions of Inquiry and the Commission constituted by the Supreme Court is that
the findings of the later are binding whereas it is not the case of the former.
The onourable Supreme
Court in the recent past had held in the case of Riaz Malik versus
ArsalanIftikhar that under Article 184 (3) of Constitution of Pakistan, Supreme
Court does not have powers to investigate but “special measures need to be
taken to ensure an impartial, fair and effective investigation and inquiry” and
appointed one-man Commission to investigate the allegations and report to the
Supreme Court. Again to keep a vigilant eye over the investigation by
keeping itself abreast of the progress, the Supreme Court monitored the
investigations of the cases of Hajj corruption and violation of Public
Procurement Rules by National Insurance Corporation (NIC) in 2012, but did not
constitute any Joint Investigation Team (JIT).
Ironically, the hype
of forming the commission is more than the hype of it when it fails to produce
any results. Take the example of Abbottabad Commission, which was to
investigate the killing of Osama Bin Laden in his compound in Abbottabad. My
question to you all is that how many of us know the findings of the
commission’s report? Do we have no right to know that how and why did the
Americans breach the security of our soil? And why is it that no one ever did
anything about it?
The reports were yet
again hidden from the public. Unfortunately, same happened to the Commission
constituted on Lal Masjid operation in 2012 where more than a hundred people
died. The then dictator Gen. Musharraf ran off from Pakistan when it came to
being accountable for his actions.
At the conclusion of
the hearings in Panama Case, the Supreme Court decided to constitute a JIT to
investigate 13 questions for further considerations of the Supreme Court.
Unfortunately, the Supreme Court expressed its dissatisfaction vis-à-vis the
State institutions like NAB, FIA, FBR, SECP and State Bank, which failed to
investigate the matter at their own. This dissatisfaction, in fact, led
to the formation of the JIT. The dissatisfaction of the Supreme Court is
in a way losing confidence in the credibility of these institutions in the eyes
of the public. The question, therefore, is; would the phenomenon of JIT,
in future, over-rule the prescribed means of investigation of criminal case as laid
down in the Code? If the answer is in affirmative, then we need to give it a
proper legal cover by amending the Code and the Constitution.
The point that I am
trying to make is that the idea of formulation of JIT is not flawed but how it
is executed shall be monitored properly. Because at the end of the day, what it
produces is what should matters. Take the example of Ireland where the
organized crime is becoming one of its most effective exports. The Netherlands
Politie’s joint investigation team (JIT) is so secretive that its officers use
numbers instead of names, fearing assassination at the hands of violent
godfathers but still work efficiently to locate the Irish- British gangs who
are developing effective drug trafficking routes across Europe. Similarly on
July 6th when 30 people were arrested across Europe ( from Spain,
Italy and Germany) involved in drug trafficking and money laundering with the
continuous efforts of Joint investigation team who recovered 520 kilograms of
cocaine and 450 ms of hashish and marijuana.
It seems that Pakistan
is the only country where the reports of JIT or JC do not bear any fruit if
they are against the most powerful lot of the society. I believe that the JIT
formed by the Supreme Court, however, has done its righteous duty whereas, in
politics when people fear fair results they make even the most respectable
institutes of the country controversial.
The notion of joint
teams was established during the revision and updating of the 1967 Naples
Convention on mutual assistance. As per the content of article 13 of Convention
2000; a JIT may be set up consisting of two or more members in order to carry
out criminal investigations across the board. It should be for a specific
purpose, with a team that must dissolve after the investigation is over.
Moreover, the nature of investigation can also include narcotics, arm
trafficking, and money laundering – which the Sharif family is also accused of.
It is for the first
time that JIT has been constituted which will always be the point of reference
by the other junior courts. Hence the JIT may be give a legal cover for
investigation and constitutional legitimacy to conduct its investigative duties
to regulate its proceedings within the legal ambit to make it more productive
and useful.
The article has been
published in ‘The News International‘ on 29 July, 2017
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