Despite the rhetoric surrounding a reform of our criminal justice system, as well as the police and prosecuting culture, Pakistan continues to struggle with securing convictions against heinous crimes, especially when the accused hails from an influential segment within the society.

The latest manifestation, in this regard, has been the acquittal of Mustafa Kanju (by the Anti-Terrorism Court), in the infamous murder case of 16-year old Zain Rauf, resulting in Supreme Court’s suo moto cognizance of the matter.

As has been reported, under the alleged influence and threats from the notorious Kanju family, the witnesses in the said case reverted from their testimony, including the complainant himself (deceased Zain’s uncle), having coward in the face of imminent threat to his person, family, and property. These unfortunate events strum on a similar chord to the one that we all witnessed in Shahzeb Khan’s murder by Shahrukh Jatoi, and the cold-blooded murders by Raymond Davis (where family of the deceased decided to settle for an undisclosed amount of blood money).

Somewhere in the process, we have transformed our criminal justice system into a simple mathematical equation of money and influence.

If I have the ability to exert enough influence over your family, so as to persuade (or threaten) them not to pursue charges against me, taking your life is at no cost or consequence to me. If you have the financial ability to buy the favor of my survivors, killing me will be of no penal consequence to you. And this simple equation, where human life is balanced against the scales of money and influence, has sadly become the hallmark of our criminal justice system.

The issue becomes even more perverse when the accused belongs to a terrorist organization (e.g. TTP) or to a feared group of organized individual (e.g. MQM). In such situations, even the most menial members of such organizations wield an unassailable clout, enough to render the entire criminal justice system irrelevant, and thus giving such individuals the license to commit crimes (especially murder) with impunity.

For this purpose, the criminal justice system has been designed to treat all offences as crimes against the State (as opposed to civil disputes, which are merely among two private entities within the State); in the belief that regardless of how wealthy or influential the accused might be, or how feared the group that the accused belongs to, the State will always be stronger and wealthier in comparison. And thus, a surrender by our criminal justice system, at the feet of the powerful, the wealthy, and the feared, is effectively a reneging of the myth that the State of Pakistan is stronger than all the accused.

Another reason for classifying criminal law as ‘State versus…’ is to entrench the ideal that a crime against any individual within the State demeans the entire society and is thus a crime against the State itself. As a result, the criminal justice system views every crime as an affront against the writ of the State, and assigns a State prosecutor to try the same.

A fixing of the criminal justice system, ensuring that neither influence, nor money, nor fear, factors into the prosecution of heinous crimes, requires reforms within the State, as opposed to blaming private individuals who (out of desperate circumstances) surrender to their mortality. While Allah Ditta, burdened by ‘dhons Police Sarkar di’ and ‘dhaandli maal patwaar di’ might have no choice but to relent against ‘jug ki keetiyan ne’, the State has a responsibility to become the ‘jeewan di nukkar’ that Allah Ditta craves. And for this, major structural reforms are needed.

As is obvious, in line with efforts already made, we need a potent witness and judge protection program, so as to protect the sanctity and safety of the prosecutorial regime. We need a depoliticized police force that investigates each case on its merit, without fear or favor of the mighty and the powerful. We need an evolution in our investigative techniques, forensics as well as others, which incorporate modern technologies into our antediluvian procedures. We need to rethink the sanctity that we ascribe to the First Investigation Report (FIR), thus stemming the hemorrhage of concocting ‘convictable’ facts. And we need to develop fresh evidentiary standards, in line with international best practices, as opposed to dogmatically holding on to archaic notions of eyewitness testimonies as a prerequisite for conviction.

But above all, we need to develop a State culture that does not relent on prosecution, even if the aggrieved individuals do so. In this regard, it is no excuse for the State, or even for the court, to excuse the accused in lieu of a compromise between the parties, or in case, out of fear or greed, private individuals decide not to prosecute the alleged offenders.

Even the Islamic doctrines of diyat does not exonerate the State of its burden to convict a crime to its fullest extent. The payment of diyat, or some forced compromise, ‘may’ settle the issue between the parties, but it does into extinguish the crime that has been committed against the State. Nothing can; except, of course, an unrelenting recourse to the law itself.

Our criminal justice system is broken. And only a small part of that can be attributed to the broken spirit of Allah Ditta against Mustafa Kanjus and Shahrukh Jatois of our country. Majority of the fault, if not all of it, rests exclusively in the domain of the State and the judiciary.

Suo moto actions, like the one in Zain’s murder case, convey a positive sentiment on part of the judiciary to not allow the oppressor from prevailing over the oppressed. But such actions, commendable as they are, cannot stem the rot of our criminal justice system. A rethinking of our State’s philosophy as well procedures is needed. And Allah Ditta is waiting.