Abuzar Salman Khan Niazi
Jurist Lord Denning rightly averred that “properly exercised, the powers of the
executive lead to the welfare state; but abused they lead to a totalitarian
A few weeks
ago, Salahuddin Ayubi, known to be a mentally-challenged person, accused of
robbing an ATM machine, died in police custody. A horrible video also surfaced
on the media showing officials from the Punjab Police maltreating, beating and
humiliating Salahuddin whilst he was alive in police custody. The concerned
Regional Police Officer (RPO), hastily and in no uncertain terms, denied
Salahuddin’s family's claim that he had been tortured before death. However,
the subsequent forensic report negated the RPO's claims.
death is the most recent instance of rampant custodial crimes in Pakistan which
have now assumed frightening proportions raising serious questions on the
credibility of rule of law and administration of the criminal justice system.
In 2013, a report by the Centre for Public Policy and Governance, Policing,
Custodial Torture and Human Rights identified that custodial torture is the
prime tool of evidence collection in Pakistan. Furthermore, in 2016 a Human
Rights Watch Report also highlighted disturbing incidents of gruesome torture
and fake encounter killings of those in police custody.
Pakistan, the most common forms of custodial crimes are custodial torture
(suspension from ankles, beating on the soles of feet, rolling heavy logs over
legs, giving electric shocks, burning the body with cigarettes, pulling out
hair, threatening execution and depriving alleged criminals of sleep and food)
and custodial deaths resulting from torture and fake encounters. Ordinarily,
the police vindicate themselves by justifying custodial deaths on suicide,
illness, accident and natural diseases. The police, in order to cover their
malice, negligence and recklessness, either interfere with police records or
ensure that the contents of medical reports substantiate the police version.
Seldom are perpetrators charged and convicted, at the most, police atrocities
either result in immediate transfers or temporary suspensions.
in custodial crimes is due to our long-standing and inescapable love for
obsolete and draconian colonial penal laws which glaringly lack the mechanism
to prevent abuse of power. The scheme of the Code of Criminal Procedure 1898
(CrPC) confers wide and unstructured powers on the police to arrest, detain and
torture suspects. Such unbridled powers unguided by objective guidelines allow
the police to exploit and abuse them.
instance, Section 167 (1) CrPC specifies that a suspect has to be presented
before a magistrate within 24 hours of arrest and Section 167 (2) stipulates
that physical remand can be obtained from the magistrate for up to 15 days.
However, due to absence of objective criteria structuring this unqualified
discretion, the police manipulate the said provisions in two ways; first, the
suspects are not brought before the magistrate within the required period of 24
hours (arrest is not recorded even for days) and, second, even after obtaining
physical remand the police resort to torture with impunity.
on the issue of custodial deaths the grievance redressal mechanism prescribed
by the CrPC is also inadequate as it fails to appreciate ground realities.
Section 176 CrPC, which mandates a magisterial inquiry in all cases of
custodial deaths is rarely invoked despite the fact that there is no clog of
locus standi to approach a magistrate as the same can be invoked by a
magistrate on his own, exercising suo-motu powers. Non-invocation of Section
176 is either due to a relative’s fear of police retaliation or indifference
and negligence of magistrates. Additionally, the FIRs which, though rarely, are
registered against police officers for murder, attempt to murder or causing
bodily harms in custody, rarely result in convictions, primarily due to
defective and fabricated investigations, and faulty challan reports cooked on
the fire of ever-rising esprit de corps among the police fraternity. Moreover,
the approach of the courts while dealing with cases involving custodial crimes
is also narrow; too much reliance on technicalities envisaged colonial laws
prevent meeting the ends of justice.
situations require extraordinary measures. Keeping in view the overwhelming
increase in incidents of custodial crimes and inadequacies in the archaic
colonial law, we require a potent legislation specifically dealing with issues
of custodial crimes. The new law must not only curb custodial crimes but also
provide a mechanism to ensure that custodial crimes don’t go unpunished; the
law needs to explicitly state that if there is evidence that the injury was
caused during the period when the person was in the police custody, the court
shall presume that the injury was caused by the police unless proved to the
contrary. Furthermore, the law must take into account the eggshell skull common
law rule which says the frailty, weakness, or feebleness of a victim cannot be
used as a defence. Additionally, the law has to structure the unfettered
policing powers of arrest, detention and interrogation through statutory
legislate and take exceptional measures for preventing custodial crimes is the
international as well as constitutional commitment of the government. Pakistan
is party to and has ratified the United Nations Convention against Torture,
Inhuman and Degrading Treatment or Punishment 1984, which expressly bars
torture. Under the constitution of Pakistan, Article 14 guarantees protection
against torture, thus, it is the exclusive responsibility of state through its
organs to ensure safety against custodial torture. Moreover, custodial deaths
flagrantly violate Article 9 which guarantees right to life and mandates that
no one should be deprived of life except in accordance with the law. Right to
life is a sacrosanct right, and as per the Supreme Court of Pakistan 'life' is
not confined to mere living but means meaningful life, which shall be enjoyed
aspect which needs to be emphasized is the implied consent of society,
condoning custodial crimes. Although many among us express rage on incidents of
custodial crimes, the bitter truth is we also resort to them as trouble-shooting
instruments. Torture by the police is politically, socially and morally
acceptable to us – the political elite needs it, the business elite needs it
and the powerful bureaucracy loves it. Many among us prefer police bypassing
laws to resolve our disagreements. We expect results from the police in short a
span of time, forgetting that methodical investigation is a time-consuming and
protracted process. The impression is that whenever there is a crime,
investigation usually means apprehending all persons concerned and subjecting
them to torture with the expectation that someone will spill the beans.
crimes are deemed the worst kind of crimes in a civilized society; they are a
premeditated assault on human dignity and every time human dignity suffers,
civilization takes a step backward. The situation is further aggravated by the
fact that custodial crimes are committed by those who are supposed to be the
guardians of the masses. They barefacedly flout constitutional guarantees,
injure the majesty of the law and consider themselves to be above the law and
sometimes even become a law unto themselves, similar to tyrant King Louis XIV
of France whose words “L etat C'est Moi” (I am the state) appositely fit the
current approach of our police.
We live in
a democracy and we can’t let the police personnel become absolute tyrants. The
state urgently needs to criminalise custodial crimes through a special
legislation. If stern measures are not taken to check the disease of the very
fence eating the crops, the fundamentals of the criminal justice system will be
shaken occasioning authoritarianism reminiscent of barbarism.
Salman Khan Niazi is a Lahore-based advocate of the high court.
Headline: Custodial crimes: no legislation?
Source: The News, Pakistan