Pakistan criminal law needs amendments: A proposal

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of the law through practices intended to bend and disregard it as much as possible, whereas the courts still follow the outdated rules and procedures acquired from Britain.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.

• Secondlyin 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.

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