Cases lost translate almost directly to a lawyer’s incompetence in Pakistan, at least to those who have never conducted a trial in court themselves. The optics do not help either. To a litigant, a lawyer is the force behind the fate of the case. Although I do not negate that, what we often overlook is the role that police investigations play and the battles that are lost before the lawyer ever addresses the court. This arrangement precisely explains why people say
wakeel ko paisay denay se behtar, tafteeshi ko dedou
which roughly translates to “it is better to pay the Investigating Officer instead of the lawyer”.
I have served as a criminal defence lawyer for the majority of my practice, and as glad as I would be to take the praise for myself, most of my victories come from the investigative agencies simply not doing their job right. More often than not, and rightly so, we experience a national rage at headlines where heinous offenders are let off the hook. We jump to blame the judiciary, not realising that judges are bound by the files before them, and the evidence contained therein.
In criminal practice, the burden lies on the prosecution to prove their case beyond reasonable doubt. What is less known by our public is that even one such reasonable doubt entitles the accused to an acquittal as per Pakistan’s criminal jurisprudence [1995 SCMR 1345]. Unexplained delays in registering FIRs [2026 SCMR 917], no explanation for the presence of an alleged eyewitness on the spot [2026 SCMR 891], non-verification of CCTV footage [2026 SCMR 350], amongst many other reasons, are why a lot of actual, or more preferably referred to as ‘alleged’, criminals get to walk free at the end of their trials.
Consider a murder case of a kind I have encountered as State Counsel at the Advocate General’s Office, opposing bail in a matter under section 302 PPC. To summarise the facts, an elderly man, who was a taxi driver by profession, was killed by his daughter-in-law’s brother. The brother had initially resolved to kill his sister’s husband, but when he was unable to execute his initial plan, he turned to the father. The accused, using one of the deceased’s regular taxi customers, called the deceased to pick the regular up for a ride. It being late in the night, the brother was able to get into the taxi with the regular without the deceased noticing. The deceased was then forced to stop at a deserted place on gunpoint, taken out of the car, shot to death and left at the scene.
By the time the bail application was heard, the prosecution had almost nothing to place before the court. No eyewitness had been joined in the investigation. No motive had been established. No call data record was on file, though the deceased had been summoned by telephone. The accused had never been produced before a magistrate to record a confession under section 164 CrPC; whatever he had narrated to the police in his statement under section 161 was of no utility to the State, since Articles 38 and 39 of the QSO render confessions made to the police inadmissible. All the State could point to was the accused’s absconsion. Bail was allowed. On that file, it was difficult to argue; it should not have been.
These acquittals are rooted in more than just official incompetence. Police stations are under-staffed, overburdened and Investigating Officers are under-paid. It is not uncommon for litigants to report being approached for illegal gratification during the course of an investigation, with the quality or direction of that investigation offered as the consideration. The point is not blame. It is that no State counsel can salvage a case the investigation never built.
Even if reliance is placed by prosecutors on the Khyber Pakhtunkhwa Prosecution Service (Constitution, Functions and Powers) Act, 2005 to fill any gaps in the investigations, it is often too late. The evidence is either gone, the witnesses are no longer traceable or stipulated timelines have already expired.
It is tough to admit, but in the criminal practice of our katcheris, the brilliance of defence lawyers is rarely their own. The prosecution’s evidence is seldom concrete enough to put defence counsel to any real test. The fate of the case is decided well before the charge is framed, let alone the verdict announced.
I have learnt that in the courts of Pakistan, the difference between a ‘competent’ lawyer and an ‘incompetent’ one is often nothing more than the file he is handed and the side on which he stands. This is not an indictment of any one institution but the consequence is the same regardless of where the sympathy lies. Verdicts are announced before judges, but they are made much earlier, in the days that follow an FIR, quietly and away from any audience.
Perhaps that is all the litigant ever meant by the saying. Paying the tafteeshi over the wakeel was never cynicism; it was an ordinary man’s accurate reading of where a case is truly decided. The rest of us at the criminal bar, myself included, continue to bask in a brilliance that was never really ours.
