Wednesday July 06, 2022

Explainer: JIT not a criminal investigating agency

June 11, 2017

The Honourable Supreme Court of Pakistan, vide Order of the Court by majority of 3 to 2, formulated nine questions for the probe of a body to be constituted. The Supreme Court observes that in the normal circumstances such exercise could be conducted by the National Accountability Bureau (NAB), but when its chairman is indifferent and even unwilling to perform its part, we are constrained to look elsewhere and, therefore, constitute a Joint Investigation Team (JIT). 

This sets in motion with the subsequent selection process the investigatory body for fact finding with nomenclature of the JIT given by the Supreme Court. From these foregoing observations, it does not reflect that the Supreme Court was having in mind to constitute a body for criminal investigation of some crime having been committed; it was ascertaining as to whether a white collar crime was committed or not. Unfortunately, some journalists, politicians and even some lawyers have wrongly pasted a label on the JIT as a body constituted/engaged in criminal investigations. In fact, the JIT should be trying to find out through investigation if any crime or white collar crime has been or has not been committed. Therefore, regardless of the fact that the JIT is headed by additional director FIA Mr Wajid Zia Qazi with some members from NAB, the body does not assume the role of a “criminal investigator” nor it has the trappings of any such criminal investigation agency. It is simply to collect evidence without coercion, undue influence or the usually known “police investigation tactics”, including humiliation of the persons appearing before them, sometime assaulting them and sometime forcing them to confess or make a statement of “their choice”. 

It appears that the title, JIT  has transcended into the soul and spirit of its members who have assumed as if they are the “police officers” tasked with a duty to extort and extract evidence by humiliating people by keeping them “waiting while fasting” during the holiest month of Ramazan. If the JIT is occupied with doing something else more important, it is imperative for them as an agency tasked by the apex court of this country to politely, without hurting anyone’s self-respect, dignity and grace, inform the change of schedule so that a witness appearing before them is not humbled much less coerced or forced to sign a statement like it has been shockingly revealed from the investigating report of Mr Ansar Abbasi appearing in today’s ‘The News’ about Mr Saeed Ahmed, President of the National Bank of Pakistan. 

It has to be kept in mind that under Article 4 of the Constitution of Pakistan, 1973, it is the inalienable right of every citizen to enjoy the protection of Law and to be dealt with in accordance with Law. The JIT is acting as a collective body. It is not acting under any particular statute conferring any specific powers on them. It can only act as a body which enquires into a matter. As regards forcing any person to make any particular kind of statement, it has no power whatsoever, to do so under any statute. As regards signing of any statement, it has to be remembered that under Section 162 of the Code of Criminal Procedure 1898, no person making any statement, can be asked to sign it. It has to be kept in mind that the JIT, like any other person has to respect rule of law. If it acts beyond that, it would be causing legal injury to the person affected, giving rise to legal consequences. 

The assumption of “criminal investigators role” by the JIT is an aspect for the Supreme Court to seriously look into. The little I know of the Hon’ble judges of the implementation bench, such a horrible approach cannot be alleged to anyone of them. They are the most decent judges, humane and well trained judicial brains and to whom no such attributions could at all be made. However, if the JIT is really doing what it is being reported in the Press, then it is an imperative obligation to protect, preserve and defend the constitution, rule of law and the dignity of the SC to investigate the JIT members and find out who has assigned any task to them to obtain a confessional statement or a statement of a particular kind from any witness like Tariq Shafi and Saeed Ahmed have alleged. Mr Umar Cheema’s press report in daily The News the other day suggests that in the judicial academy, it is the Ministry of Defence which is calling the shots. This issue is of no less importance than reaching to the core of the questions framed by the Hon’ble bench hearing PanamaLeaks case. 

The stories of rounding up a whole village, forcing people to dance naked, is part of our recorded traditional history having taken note of by our Hon’ble judges. The fake police encounters are severely and similarly dealt by the courts. Even in investigating of a white collar crime, an investigator is not issued a licence of misbehaviour, arrogance and derogatory indiscipline to deal with those who appear before them. Particularly, when this task is being conducted in obedience to a command of the apex court which has taken pains in hearing this case for about six months. 

I am embarrassed by writing these lines as to whether the alleged conduct of the JIT investigators could be countenanced or approved keeping in view the nature of inquiry tasked to them. 

From the perusal of the judgement of the Supreme Court and its observations, it is not reflected as if any duty has been assigned to them to indulge in such kind of conduct, and it is really disturbing if they are acting contrary to the dictates of the august apex Court. 

I do not represent any of the party in this matter and my concern is that of a senior citizen and a senior member of the legal profession having spent my youthful years in the assistance of our judiciary and for struggling to achieve rule of law for our unfortunately beleaguered country slapped by frequent constitutional and democratic breakdowns. 

The conduct of the JIT, to say the least, is not becoming of a body constituted by the apex court to investigate such a serious issue and is not in conformity with the modern day level of maturity of the investigating agencies that we have achieved in our institution. This is a very pivotal concern for everyone believing in rule of law, supremacy of constitution, respect for human rights and the utmost dignity, neutrality and impartiality of our final arbiter i.e. the apex court. If this goes unchecked; it will be a self-defeating exercise and nobody may attach any credence to this.

The writer is Senior Advocate Supreme Court.