|
Ijaz Ahmad, Judicial
Magistrate, Pakistan
Over the 55 years
since its establishment, the Government of Pakistan has been
practicing laws and procedures it adopted from the British
colonial regime. Minor changes have been made from time to time,
but the skeleton of rules remains the same. These laws do not
provide the common citizens with adequate security to defend them
from the wrath of law enforcers, who, while in principle are
there to protect citizens against social evils, in practice are
those most likely to deny the common person their basic right to
security. The problem stems from the police understanding of the
law through practices intended to bend and disregard it as much
as possible, whereas the courts still follow the outdated rules
and procedures acquired from Britain. Each passing day brings us
news about the callous, irresponsible and ugly doings of the
police department, to the extent that even the average citizen
strolling along the road can’t avoid an encounter.
I am a Judicial
Magistrate with a background in journalism. It is this
combination of roles that compels me to research the draconian
provisions that have changed the "protectors of the
nation" into figures of fear and hate and despots. My
research is a small attempt to figure out the problem, make
proposals for the required institutions to take proper actions,
and introduce the necessary reforms.
My conclusion is that
police reform is not enough. Many attempts at reform have been
made, but the problem is that the provisions of the procedural
law—the prehistoric Criminal Procedure Code (CrPC) of
1898—remain the same, and are not adaptable to an ostensibly
free nation like ours. Lawyers and human rights activists make a
hue and cry when an ordinary citizen is tortured, humiliated or
killed in police custody, but they pay no heed to this law that
has allowed the police to restrict freedoms. Instead, the CrPC
needs to be reformed so that no policeman dares to torture or
detain innocent people illegally. This can only be done if a
legally defined body consisting of human right activists, jurists
from abroad and the law commission together overhaul the CrPC.
Accordingly, some suggestions follow for the sections in most
urgent need of reform by such a body.
•
Section 46 (2) reads:
If a person forcibly
resists endeavor to arrest, the police may use all necessary
means to effect the arrest.
The power of the
police has under this section has been restricted under
subsection (3) which reads:
The police have no
right to cause the death of a person who is not accused of an
offence punishable with death or imprisonment for life.
Through this provision
the legislature has given a free hand to the police to summarily
kill the accused if wanted under an offence punishable with death
or a life term. Put bluntly, the section deems resistance to
arrest under these circumstances punishable with the death of a
person who is yet to be tried by a competent court. There have
been reports of many fake encounters in which innocent people
have been shot and killed under section 46(3). These could be
stopped if we simply replace the last portion of the subsection
with a certain insertion, for instance, "Nothing in
this section gives right to cause the death of the accused except
a proclaimed offender in cases punishable with death or a life
sentence" (rest wants deletion).
The CrPC has also not
yet defined the word "accused". This omission seems to
be deliberate, because it permits widespread application of
the Act. The British omitted the term to perpetuate their
ruthless rule, quell any insurgency and terrify innocent
people. To that end, sections 54 & 55 extend the police
powers over persons who are still to be declared as accused, by
permitting arrest without warrant.
•
Section 54 reads (and continued
below):
Any police officer
may without a warrant or order arrest any person;
Firstly; who has
been concerned in any cognizable offence or against whom a
reasonable complaint has been made or credible information
has been received or a reasonable suspicion exists of his
having been so concerned.
Under this sub clause,
two types of persons can be arrested without a warrant: those
concerned in any cognizable offence and those against whom a
reasonable complaint, credible information, or reasonable
suspicion exists. It is necessary for the legislature to define
or restrict these terms, otherwise the police can detain and
interrogate any person on a whim; as a consequence, innocent
people are arrested for crimes such as robbery, theft, dacoity or
homicide and released after they pay bribes.
Instead, what ought to
occur is that power be given to the courts to investigate a
complaint, information or suspicion and then issue a warrant for
the arrest of the alleged perpetrator as adjudged in a summary
proceeding. The problem is that this appears to be a lengthy
process and the police would argue that many of the accused would
escape in the interim. A simple procedure could solve this
problem. If a person against whom such suspicion exists were to
be immediately brought before the court or—if the
court is out of session—before the magistrate on duty, they
could be released on submission of bail bonds (not under section
497 but under a new section) pending further information. After
further information was received, the person might be designated
as accused and arrested. This procedure would save many from
being fleeced by the police.
• Secondly; in possession
without any lawful excuse any implement of house- breaking.
For the second sub
clause too the aforementioned procedure could be adopted and the
person tried in summary proceedings, which should end only in the
confiscation of the housebreaking instrument in favour of the
state. Mere possession of an instrument of some kind should not
amount to an offence if no unlawful act or attempt has been
committed. There is no special law relating to housebreaking
instruments like the Arms Ordinance, under which the possessor of
a weapon can be tried.
• Thirdly; who has been declared as a
proclaimed offender under this code or by the provincial
government.
Under the third sub
clause the provincial government has been given the power to
declare a person a proclaimed offender. I am at a loss to say as
to how and under what authority the provincial government can
exercise the right of a court when there are ordinary and special
courts to deal with the law of the land. Whenever there is a law
there is a court to deal with it and without any corresponding
penal provisions how can the provincial government exercise this
right? Any illegal order stands nowhere in the eyes of law and
any arrest made by the police under such a provision would be
illegal. That is why this portion requires deletion and
replacement with suitable words like, "Any person who has
been proclaimed as an offender under this code [CrPC] or by any
other court established under any other law."
• Fourthly; in whose possession
anything is found which may reasonably be suspected to be stolen
property and who may reasonably be suspected of having committed
an offence with reference to such a thing.
Under the fourth sub
clause the police have been given the power to arrest a person if
they have suspicion that the thing possessed is stolen property
or that the person has committed an offence in reference to that
thing. I would say that only a suspicion should not lead to the
arrest of the person because there are people who are habitually
pessimists and doubt everything. I would also question the mental
calibre of the average police officer standing on the roadside.
Have they been trained in a manner to improve their mental
calibre? Of course not: they have been trained as if the whole
society is a mess and they have to correct it. Again I would
suggest that the only way to resolve this problem is to introduce
the procedure mentioned in the first instance. I would also ask
whether any corresponding right for action against the police is
available to an ordinary person once it is established that the
police suspicion which led to their arrest was unfounded.
• Fifthly; who obstructs
police while in execution of his duty.
(No comments.)
• Sixthly; suspected to be a deserter
from the armed forces of Pakistan.
(No comments.)
• Seventhly; who has been concerned
in, or against whom a reasonable complaint has been made or
credible information has been received or a reasonable suspicion
exists of his having been so concerned in any act committed at
any place out of Pakistan which, if committed in Pakistan, would
have been punishable as an offence and for which he is, under any
law relating to extradition or otherwise, liable to be
apprehended or detained in custody in Pakistan.
I would question the
rationale behind the seventh sub clause, because the criminal law
has been enacted to establish law and order within the bounds of
Pakistan. Logically, it should have nothing to do with acts
committed outside. When someone is tried for an offence committed
in a third country, no law in Pakistan can punish that person if
they have already been tried and convicted or acquitted. The
aforesaid rules bypass the constitutional protection against
double jeopardy.
Some suggest that this
sub clause, coupled with section188 of the CrPC and section 3 of
the Pakistan Penal Code (PPC), is intended to restrain Pakistanis
abroad from committing crimes that would defame Pakistan as a
whole. If that be the case then I would suggest that a certain
amendment be made to this provision, such that it read, "Any
person committing any act which is a crime both under the PPC and
the law of the land in which the act has been committed can be
arrested, except those who have been tried, convicted or
acquitted by a court of that state."
• Eighthly; any released
convict committing a breach of any rule made under Section 565
(3).
The eighth sub
clause is to be read with section 565, which states that the
court may make an order regarding an accused who has been
convicted twice under section 215 or 489 A, B, C, D, or under
Chapter XII or XVII, for more than 3 years such that the
residence of the person be notified for a term not exceeding five
years. Subsection 3 empowers the provincial government to make
rules to carry out this section, giving it the capacity to fix
any term it so pleases for the defaulter who has changed
residence without permission.
Persons arrested under
section 54 cause technical problems in the procedure and for the
magistrates. Suppose a person who is arrested under this section,
when the police are acting under an enquiry within section156 (3)
of the CrPC, is brought before the magistrate and is released
forthwith by the presiding officer and ordered to submit bail
bonds. Under what section of the CrPC is that person released?
The order may be made under section 497 or discharged under
section 63 of the CrPC. In both the cases, after registration of
the First Information Report the person cannot be arrested again
without a warrant, or summoned through a court. But in reality,
police do re-arrest suspects under these circumstances,
suggesting that there is in fact an urgent need for the
introduction of clear provisions relating to the procedure to be
adopted by the courts to deal with the persons arrested under
section 54.
• Section 55; Arrest of
vagabonds, habitual robbers, etc.
Any police officer in
charge of a police station may in the like manner arrest or
cause to be arrested;
a. any person found
taking precautions to conceal his presence within the
limits of such station ,under circumstances which afford
reason to believe that he is taking such precautions with a
view to committing a cognizable offence;
b. any person within
the limits of such station who has no reasonable means
of subsistence, or who cannot give a satisfactory account of
himself;
c. any person who is by
repute an habitual robber, house-breaker or thief, or an
habitual receiver of stolen property knowing it to be stolen,
or who by repute habitually puts or attempts to put
persons in fear of injury.
This section refers in
its marginal notes and heading to "vagabonds and habitual
robbers, etc". There is a difference of opinion among
jurists on its importance. To some the headings and marginal
notes are not part of the section while to some although they
should not be held to govern the text of the section, they can be
taken as an indication of what the legislature intended. In this
instance, it is only in the third clause that the meaning is
narrowed to not be inclusive of all persons, as is the case in
the first and second clauses. Both these provisions may have
suited the British but in modern Pakistan they are in violation
of the constitutional right to free moment and the privacy law
relating to one’s income.
Furthermore in sub
section (a), the reference to "precautions to conceal"
has not been clarified, because under the current interpretation
remaining inside one’s house is sufficient to raise the
suspicion of a police officer that one is concealing oneself with
a view to committing a cognizable offence. This is reminiscent of
the pre-partition days in which the Station House Officer
[senior-most officer in a police station] had the right to line
up all the villagers in the morning and then have them work for
him. Although 50 years have passed since our independence, we
still must live by the same rules. Under this clause even today
the police can compel a person to come out of the house to make
sure that they are not concealing themselves. If the person
refuses to come out, it is sufficient for the police to hold that
they are concealing themselves for the purpose of committing a
cognizable offence.
Under sub section (b),
the police can arrest jobless people and investigate how they are
living. To avoid unnecessary arrest, a jobless person has to
visit a police station everyday to prove that they have worked
and earned money sufficient for daily subsistence. Even then, the
person can be searched. Likewise, to avoid arrest, a
newcomer to an area has to go to the local police station to
get a certificate for living or visiting there.
Persons who default
under subsection (a) or (b) are bound by the CrPC to execute
bonds for their good behavior. If such a person has no contact to
give as surety then they are liable to languish in jail.
• Section 61: Person arrested
not be detained more than 24 hours.
No police officer shall
detain in custody a person arrested without a warrant for a
longer period than under all circumstances of the case is
reasonable, and such period shall not, in the absence
of a special order of a magistrate under Section 167,
exceed 24 hours exclusive of the time necessary for the
journey from the place of arrest to the Magistrate’s
Court.
This provision imposes
a bar on detention beyond 24 hours. Our police have interpreted
it to mean that they have the power to keep a person in the
lockup for 24 hours without any obligation. If a person is
arrested in the morning they are not forwarded to a magistrate
the same day but are kept in the lockup for the night. The
reference to the 24-hour timeframe should be replaced with words
to the effect of immediately or as soon as possible.
Arrests made during hours the courts are not in session
should be dealt with the magistrates on duty, who are meant to be
available around the clock.
• Section 62: Police to report
apprehensions.
Officers in charge of
police stations shall report to the Sessions Judge, or, if he
so directs, to the Judicial Magistrate, the cases of all the
persons arrested without warrant within the limits of their
respective stations, whether such persons have
been admitted to bail or otherwise.
This section is hardly
obeyed. To ensure compliance, there should be an insertion in the
section to permit that action be taken against any defaulting
officer.
These are some of the
sections of the CrPC that require the serious attention of human
rights activists, lawyers and the outside world. It is our
misfortune that none of them have either been noticed or have not
been addressed, due to the vested interests that protect the
current arrangements. If the present apathy towards the existing
situation persists, it will worsen considerably. If, however, we
start now, our children may grow to live in a society where
justice, democracy and respect for our fellow humans prevail. To
continue to accept the law as it stands, supporting tyranny, is
sheer foolishness. Now is the right time for the relevant
institutions to look into the matter. They have to put aside
their differences and particular agendas, and collectively force
the government to bring the criminal law into line with
international standards, with a view to improving the human
rights situation in Pakistan. Finally, I would invite suggestions
and assistance from all concerned readers of this article. I
believe that "parts make a whole" and social
integration is what we need to create a practical, secure,
integrated and democratic Pakistan.
A comment on
‘Pakistan criminal law needs amendments’
Ali Saleem, former
officer, Punjab Police, Pakistan
In principle, I agree
with the remarks by Mr Ijaz Ahmad, but would question as to
whether or not such amendments to the Criminal Procedure Code
(CrPC) as raised in his article would really effect any change,
given the problems faced by institutions involved in the
administration of justice in Pakistan. Amid deeply rooted
corruption, undefined institutional boundaries, the
militarization of civil administration, and the culture of
impunity that is a product of social and political circumstances
past and present, how can any legal framework function properly
in Pakistan?
There is no doubt that
police powers must be limited and the police force be developed
into an institution based on the principles of both the domestic
law and also universal human rights. But the police force also
needs institutional independence. Should powers of investigation
be given to the judiciary (with due respect to the judiciary)
what would be the checks and balances for effective functioning
of the new system?
Above all, the law
will only be effective if sufficient willingness exists to
implement its arrangements with a positive frame of mind at all
levels. I would suggest that to start with, Pakistanis must
promote respect for the national constitution, as it has been
played around with ever since being created. It is this lack of
respect for the most fundamental national law that has seriously
damaged both the national identity and respect for civil norms in
Pakistani society.
Ijaz Ahmad replies:
After going through Mr
Ali Saleem’s comment, one gets the impression that he wants
to maintain the status quo. These "ifs" and
"buts" are what we Asians raise whenever someone comes
up with a good idea. By and large we are reticent about change.
It is only after change has occurred that we come to know of its
practicality and shortcomings. Only after the CrPC is reformed
will we come to know if the amendments have improved the human
rights situation or not. So far as I am concerned, such reforms
would definitely minimise police excesses and provide the
ordinary citizen a chance to get justice. But to suppose that
simply amending criminal procedure would root out all the ills of
the society is an error. To root out corruption we need a
complete overhaul of our institutions, which cannot be done
overnight. It will be a long and drawn out affair.
I think that Mr Saleem
has not properly understood the essence of the article. I am of
the opinion that the magistrate is part and parcel of the
investigation. If it were otherwise then the CrPC would have
never conferred on the magistrate powers to grant custody.
Likewise, a confession before the magistrate is admissible in the
law because he is part of the investigation. Statements that are
recorded under section 164 before the magistrate are also
admissible. My suggestion is simply that the court be given
powers to evaluate police apprehension or suspicion. This does
not mean a complete transfer of investigative power to the
magistrates. It simply means that the police will have to work
hard to investigate properly and honestly so that the court may
not overrule their apprehension or suspicion.
Finally, if Mr Saleem has any idea as to how Pakistanis could
be taught to respect the constitution and to rectify the entire
society then I am sure that we all would be happy to receive such
suggestions from him.
Posted on 2002-11-22
|
