In certain intricate politico-judicial cases where public interest is deeply involved the courts are often in a fix where the evidence and the rebuttals, or the counter evidence provided by both the prosecution and the respondents respectively, is felt insufficient, non-incriminating and untenable by the courts. Although, as per the legal maxim ‘a judge only speaks through his orders’, but in such cases judges do pass certain observations during various hearings of a case. They are seen to be digging out more evidence or counter evidence so as to reach a logical conclusion to meet the highest norms of justice.

Thus, certain interesting observations are heard which may be translated as: “We don’t want to be chased to the walls of our graves after death by punishing the accused without any incriminating evidence”; “The papers being produced do not seem to have more value than that of papers used for wrapping pakoras”; “the narrative of gifts seems untenable”; and “Can the Prime Minister enjoy privilege even if he is found to have mistakes in his statement at Parliament” etc.

In criminal dispensation in any justice system, the courts in such cases would opt to declare the accused ‘guilty’ if the prosecution is successful in proving its case beyond any iota of reasonable doubt. Usually, there is no instance where the courts are legislatively empowered to declare any accused ‘guilty, but not proven’ or ‘proven, but not guilty in intention’ in case both the parties fail to prove their case. Yet, an unquenched element of his guilt or otherwise innocence in intention is definitely felt in the air by the public at large, and this is a question of public interest. Interestingly, this seemingly grey area is a peculiar option often used by the police, when they execute an alleged criminal in an “encounter” held in self-defense, or “in the line of fire”.

Where the case is left as not having been proved despite the discharge of burden of proof by the parties and a sense of guilt is felt behind, the courts are restrained to lay any ‘stigma’ on the character of the accused by pronouncing such a verdict to the effect that ‘although the case could not be proved against the accused, he is declared neither ‘guilty’ nor ‘innocent’ but “guilty not proven”. Such a verdict is called a ‘not proven’ or a ‘bastard verdict.’ Here, the mere wording of the verdict is often sufficient to convey the effect of the judicial proceedings and the judgment, by laying stigma on the forehead of the accused at one hand and quenching the thrust of the public at large.

Under such a verdict there are certain complexities for the accused in countries like ours where innocent persons are likely to fall prey to the precedent such a verdict would set. It can only exists in the countries where the Honourable judges themselves are extraordinarily careful of not punishing any such person in a situation between ‘guilty’ ‘not guilty’ and ‘not proven’ as in the case of Z.A. Bhutto. We are also not sure whether such a verdict would ever curb crime rates or be taken seriously such that people feel victorious.

In civilised societies, in such cases, courts ‘borrow time’, so as to not to give up on the issue and also leave the accused with a sword of Damocles hanging over his head. He does not leave the court with the entire satisfaction of being innocent.

Out of various types of judgments in vogue, apart from the question as to whether it can be suitable for Pakistan, a novel tri-verdict example, i.e, ‘guilty’, ‘not guilty’ and ‘not proven’, is found in the Scottish legal system. In the eighteenth century, an office holder, Carnegie of Finhaven, accidently killed another office holder, the Scottish Earl of Strathmore. The jury was to declare the case as ‘proven’ or ‘not proven’. The former would entail the death penalty whereas the latter would render him innocent with a stigma and chances of the case reopening any time in future. The jury took a shift and coined another term called ‘not guilty’ while adjudicating the case not merely on the basis of facts but on the whole circumstances of the case in consideration of the very intention of the accused. One school of thought is in favour and the other against this concept. To the first, it is not only confusing for the common man but also may not serve any useful purpose by way of reducing crime. The other school of thought finds usefulness in the third verdict of ‘not proven’ as at least it has moral and socio-economic consequences.

Both the complainant and the respondents in the Panama case so far do not seem to be proving their contentions through incriminating evidence beyond any reasonable doubt. The only ‘guilty’ and ‘not guilty’ verdicts are available to courts in Pakistan. The third verdict of ‘not proven’ is not available to our courts, which, perhaps, could have found a way out for all the parties as well as the public in case the parties failed to substantiate their contentions. Circumstances, too, do not invoke any popular judgment in either case. The exponents of the petitioner would be glad if the circumstantial evidence such as justification of assets from point ‘A’ to point ‘B’ were corroborated with media reports.

Courts in such cases may also seek additional evidence from the parties, reserve the judgment on the principle ‘to guide us more’ or even route the matter to a commission competent to investigate the matter beyond the restricted scope of Article 184(3) of the Constitution, with strong observations not on the pattern and spirit of ‘not proven’ verdict but one similar to it.

Apart from the question as to whether it can be suitable for Pakistan, a
novel tri-verdict example, i.e, ‘guilty’, ‘not guilty’ and ‘not proven’, is
found in the Scottish legal system.