ABSTRACT
The conventional legal definition of a wrongful conviction. a final judicial error resulting in a guilty verdict which fails to capture the systemic reality of Pakistan’s criminal justice landscape. This article introduces the theory of the “Shadow Conviction,” arguing that the current 73.4% under-trial population in Pakistan serves a “procedural sentence” long before a verdict is delivered. By analyzing recent data from 2024–2026, including a staggering 85% acquittal rate in capital cases at the Supreme Court level, this piece explores how procedural loopholes in Section 161 of the Criminal Procedure Code (CrPC) and the judicial “Unit System” create a conveyor belt of victims. The article concludes by proposing a framework for statutory compensation and forensic-led reform, aiming to shift the focus from judicial disposal to the preservation of human dignity under Article 9 of the Constitution.
INTRODUCTION
In the hallowed halls of international jurisprudence, a wrongful conviction is often viewed as a singular, catastrophic event. However, for a lawyer practicing within the trenches of the Pakistani legal system, it is recognized as a slow, corrosive process. Pakistan is currently grappling with a crisis where the “process is the punishment.”^1 As of early 2026, statistics from the National Commission for Human Rights (NCHR) reveal that over 70,000 individuals are currently held in “under-trial” status.^2 These are not convicted criminals; they are the “accused” who, due to systemic delays, spend an average of five to ten years in high-security facilities before a judge ever determines their guilt or innocence.
This article contends that an acquittal after a decade of incarceration is not a victory for the state; it is a posthumous recognition of a life already served. When the Supreme Court of Pakistan overturned nearly 85% of death penalty convictions between 2020 and 2025,^3 it exposed a fundamental rot in the trial courts’ fact-finding mission. This “Shadow Conviction” thrives on the intersection of police incompetence, the absence of forensic infrastructure, and a judicial culture that prioritizes case disposal over individual liberty.
SECTION 161 AND THE FABRICATION OF TRUTH The primary engine of wrongful conviction in Pakistan is the over-reliance on oral testimony, formalized through Section 161 of the Criminal Procedure Code (CrPC). In theory, this section allows police to record witness statements during an investigation. In practice, as highlighted in the recent judgment Ishfaq Ahmed v. Mushtaq Ahmed,^4 these statements often become a “paper reality” constructed by investigating officers to fit a preconceived narrative. Because trial courts rarely possess the forensic tools to challenge these “ocular accounts,” they rely on the demeanor of witnesses who are often coached or coerced.
This creates what Harvard Professor Andrew Manuel Crespo terms “Systemic Triage” as a state where the legal system, overwhelmed by its own backlog (currently exceeding 2.2 million pending cases), begins to make implicit value judgments about whose liberty is worth investigating.^5 In Pakistan, the triage is social. The poor, who lack the resources to hire private counsel to deconstruct a flawed police challan (charge sheet), become the easiest units to process through the system.
THE JUDICIAL UNIT SYSTEM
Compounding the police’s procedural errors is the judicial “Unit System,” a performance-tracking mechanism for judges that incentivizes the number of cases decided over the quality of the reasoning. When a judge’s promotion is tied to disposals, the nuanced application of the “Benefit of Doubt,” the bedrock of criminal law, is frequently ignored. This pressure leads to a “convict first, let the higher courts sort it out” mentality.
Professor Carol Steiker of Harvard Law School has frequently argued that when a system’s procedural safeguards are eroded for the sake of efficiency, it ceases to be a system of law and becomes a “machinery of death.”^6 In Pakistan, this machinery is literal. The Global Torture Index (2025) confirms that forced confessions remain the primary method of securing these trial-level convictions.^7 By the time a case reaches the Supreme Court and the “torture-tainted” evidence is discarded, the victim has often spent the prime years of their life in a cell.
THE HUMAN COST
The legal community must begin to speak of these cases not in terms of dockets but in terms of human wreckage. Consider the recent exoneration of a defendant who spent 18 years on death row, only to be acquitted posthumously. This is the ultimate failure of the state’s duty under Article 9 of the Constitution, which guarantees the right to life and liberty. For the wrongfully convicted, life is stolen twice: once by the physical walls of the prison, and once by the social stigma that persists even after an acquittal. The “accused-victim” emerges into a world where their home has been sold, their parents have passed away, and their children are strangers. This is not a “miscarriage of justice”; it is a systemic human rights violation conducted under the color of law.
PROPOSED REFORMS
To dismantle the “Shadow Conviction,” Pakistan must move toward an evidentiary standard that favors forensic science over the unreliable ocular accounts permitted under Section 161. First, the recording of all police statements must be audio-visually documented to prevent the script from replacing the truth. Second, Pakistan must enact a Statutory Compensation Act, as suggested by scholarly work in the Journal of Social Sciences Review,^8 to provide financial and rehabilitative support to exonerees. Finally, the “Unit System” must be replaced with a “Quality Audit” system, where judges are evaluated on the durability of their judgments in higher courts rather than the mere volume of their output.
CONCLUSION
The jails of Pakistan are currently functioning as archives of state error. Every under-trial prisoner acquitted after years of detention represents a conviction that the law was unable to prevent. By bridging the gap between local procedural reform and global legal theory drawing from the decarceration movements at institutions like Harvard, we can begin to treat the accused not as a disposable unit but as a citizen whose liberty is the ultimate measure of the state’s integrity. Until we address the “Shadow Conviction,” our halls of justice will continue to be haunted by the ghosts of the innocent.
FOOTNOTES
^1 See Haya Emaan Zahid, Legal Aid and the Right to a Fair Trial, 2024 SAHSOL L. REV. 45, 48 (2024).
^2 NATIONAL COMMISSION FOR HUMAN RIGHTS (NCHR), STATE OF PRISONS: A REPORT ON THE 73.4% UNDER-TRIAL POPULATION (2026).
^3 See JUSTICE PROJECT PAKISTAN (JPP), THE INNOCENCE GAP: REVERSAL RATES IN THE SUPREME COURT OF PAKISTAN (2025).
^4 Ishfaq Ahmed v. Mushtaq Ahmed, 2025 SCP 112 (Pak.).
^5 Andrew Manuel Crespo, Systemic Triage: Implicit Value Judgments in the Allocation of Criminal Defense Resources, 131 HARV. L. REV. 1622, 1625 (2018).
^6 CAROL S. STEIKER & JORDAN M. STEIKER, COURTING DEATH: THE SUPREME COURT AND CAPITAL PUNISHMENT (Updated Ed., Harvard Univ. Press 2025).
^7 See WORLD ORGANIZATION AGAINST TORTURE (OMCT), GLOBAL TORTURE INDEX: PAKISTAN FACTSHEET (2025).
^8 Amina Aamer & K. Ayub, Legal Framework on Compensation for Wrongful Conviction in Pakistan: A Comparative Analysis, 3 J. SOC. SCI. REV. 142 (2023).
