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Saturday May 25, 2024

Sindh Witness Protection Act — a law probably made so that it can gather dust

By Yousuf Katpar
April 13, 2024
This representational image shows the gavel in a courtroom. — Unsplash/File
This representational image shows the gavel in a courtroom. — Unsplash/File

A shadow of fear looms in the streets of Karachi where every other citizen has a story to tell — a story of being a victim or a witness to a robbery at gunpoint. But not all voices find their way to the authorities. Many incidents go unreported and even fewer witnesses muster up courage to turn up in courts to ensure that justice is served.

One reason for this silence is a pervasive sense of insecurity, where people feel unsafe and lack protection. Imagine being thrust into the spotlight with your identity exposed to those you testify against.

Given the reluctance of people to appear in courts as witnesses, police officials often end up being primary witnesses, even when crimes occur in public presence. This concern has also been voiced by courts in their judgments.

"Even strong persons are reluctant to come forward for giving evidence in routine criminal cases,” noted an anti-terrorism court judge in a robbery case. “In cases of such criminals, the victims/complainants would rather prefer to let the culprits go unpunished than appear in court. In the prevailing circumstances, no private person, even the neighbour, is willing to act as a witness in criminal cases."

The proper functioning of the criminal justice system hinges on the participation of witnesses. It is imperative that witnesses feel secure and confident to testify in courts. However, the conviction rate remains low because suspects are often acquitted due to insufficient evidence.

So, what steps has the government taken to address this critical issue? Back on September 18, 2013, the Sindh Assembly passed the Sindh Witness Protection Act 2013, with the Sindh governor granting it assent on October 20. But, this Act, like many other laws, met the same fate: ignored and left to gather dust.

The law was mainly introduced against the backdrop of witness intimidation and even murders of witnesses in high-profile terrorism cases. A glaring example is how inadequate witness protection, despite the existence of the law, resulted in key witnesses retracting their statement against former SSP Malir Rao Anwar and his subordinates in the Naqeebullah Mehsud murder case, ultimately leading to their acquittal.

"Unfortunately, the Act has not been implemented or taken seriously," lamented Advocate Salahuddin Panhwar, who represented Naqeeb's family in the case. "To date, there exists no example that demonstrates witnesses being granted protection in high-profile cases. The primary reason witnesses retract their statements is lack of protection, due to which accused are acquitted in cases of heinous offences by courts," he went on.

"There are many high-profile cases in which accused have got off the hook due to lack of evidence. We applied for protection of witnesses in the Baldia factory inferno case. We filed applications for witness protection in the Naqeebullah case not once, but four times under the anti-terrorism law, and the courts issued orders for the same. However, not just two witnesses but half of them withdrew because the court orders were not complied with. Not a single clause of the Witness Protection Act, which includes concealing the identity of witnesses among other measures, was implemented."

The Act

The Act allows witnesses to establish a new identity. They can conceal his or her identity by wearing a mask and changing voice, appearance or any other form of segregation during the investigation or trial, or examination.

Witnesses can also testify through video link to ensure their protection. The Act even calls for relocating witnesses, offering them accommodation, arranging transportation for their belongings, providing reasonable financial assistance or livelihood whenever possible, compensating legal heirs if the protected person is killed due to participation in a witness programme, and offering free education to dependent minors.

Under the law, the home department is required to establish a unit called the 'Witness Protection Unit' to facilitate programmes for protection and safety of a witness in any proceedings.

The Act also calls for the Witness Protection Advisory Board to advise the unit generally on the exercise of its powers and performance of its functions under this law, advise on the formulation of witness protection policies in accordance with the current law and international best practices, and oversight the administration of unit.

"The role of witnesses in the administration of justice is pivotal. Unless witnesses are produced and record their statements in court without any pressure, threat, or coercion, the case won't yield the desired result," said senior lawyer Shaukat Hayat.

"What often happens is that influential parties either win over witnesses, threaten them to prevent their appearance in court, lure them, or even go to the extent of eliminating them."

He highlighted that courts call witnesses repeatedly as trials linger on. "There should be a law that if a witness appears on the first day, they should record their statement and not be sent back without it. Here, what happens is that the witness becomes more like the accused; sometimes the accused does not come, sometimes their lawyer or prosecutor is absent and sometimes the judge is too busy," he said.

Shaukat couldn't recall any witness being provided protection by the government throughout his practice. "This is rare that the witness is provided protection." He pointed out that in narcotics-related cases, a law was enacted to prohibit the production of private witnesses, as police said people are unwilling to appear in courts due to fear of retaliation from drug peddlers.

He suggested that summary trials should be conducted in street crimes cases, which should last no longer than 15 days to effectively deal with the menace of street crime. When contacted, Prosecutor General Sindh Fiaz Shah confirmed that the Act had not been implemented yet in letter and spirit. In a brief response to the correspondent's inquiries about the witness protection programme or unit, he stated that he had requested the home secretary to initiate it.