2014_06_19_PUB Torture Litigation Manual.pdf

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Torture in Pakistan

A Lawyers Handbook


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Torture in Pakistan: A Lawyers Handbook 2

so far as the question of protecting human dignity and saving the public from policetorture and humiliation is concerned, it has been time and again held that dignity of

citizen is guaranteed by the constitution and no citizen can be subjected to torture by

the Law Enforcing Agencies charted with the duty to protect citizens. The modern

development of criminology has revolutionized the system of treatment of the accused

and the old brutal treatment has given place to a more humane one. Torture of all kinds

is prohibited by law and the person allegedly involved in crimes have to be treated like

human beings the police who is duty bound to protect citizens cannot be allowed to

themselves perpetrate acts of inhuman torture upon persons in their custody. Their

primary duty is to detect crime and bring the criminals before the court of law and not

to punish them, themselves.

Justice Sh. Ijaz NisarPLD 1996 Lahore 325


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Foreword

Torture, in Pakistan as in other CAT signatories, is a violation of both international and

domestic legislation. Despite this, the many instances of torture in Pakistan are rarely

litigated upon.

Although Pakistan has legislation in place prohibiting torture, it is ineffective for several

reasons; most important of which is the unwieldy nature of those laws, making them

complicated and time consuming to litigate. There is a need to review, clarify and

expand upon these laws. Whilst noting the need for legislative amendment, this manual

is not, however, the appropriate place to address this. Instead it aims to make sense of

the laws already in existence, in a bid to make them more workable for practicing

lawyers.

A quick appraisal of our criminal justice system suggests that defence lawyers can play a

crucial role in combating torture through enforcing accountability of the police,

judiciary, and prison authorities during the varying stages of a criminal trial. In theabsence of any independent state sponsored mechanism for investigating or

documenting allegations of torture, the need to build the capacity of lawyers to perform

this role increases.

Accordingly, this manuals aim is to provide practical guidance to lawyers. It encouragesthem to use legal safeguards and remedies within Pakistani domestic law to hold

delinquent police officers guilty of torture to account. In doing so it hopes to effect a

change in Pakistans legal culture, recognising the very important role played by local

lawyers in litigating to protect their clients against torture.

This handbook will detail the relevant sections of domestic laws, organised according to

the chronology of an arrest. Compiling all of this information in an easily accessible

format should increase reports of torture whilst making it simpler for lawyers to litigate

where they otherwise wouldnt have done.

This handbook has been prepared with the help of legal experts of Justice Project

Pakistan and OSJI, and after consulting senior representatives of various district and

high court bar associations.


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Acknowledgements

PCHR is thankful to all persons who have cooperated with our project team in

development of this manual. We are particularly indebted to Ms. Hina Jilani, AdvocateSupreme Court of Pakistan, Former UN Special Rapporteur on Human Rights Defenders;

and Mr Kamran Arif, Advocate Supreme Court of Pakistan and Legal Advisor Open

Society Institute; for their input, guidance and support. We are also thankful to

representatives of various high court and district bar associations and Punjab Bar

Council for their valuable suggestions. We are highly obliged to our Lead Consultants

Justice Project Pakistan, in particular Sarah Belal (Director) and Isabel Buchanan

(Fellow), as well as Barrister Hassam Qadir Shah for their expert legal advice and

Christopher Rodgers for his substantial assistance in editing portions of this manual.


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Table of Contents

Introduction .................................................................................................. 6

What Constitutes Torture............................................................................... 7

How lawyers can use CAT for their clients ................................................................................. 8

Chapter 1: Survey of constitutional guarantees and statutory provisions ...... 10

Pakistan Constitution ......................................................................................................................... 10

Criminal Procedure Code ................................................................................................................. 10

Qanuun-e-Shahadat ............................................................................................................................ 11

Police Order ........................................................................................................................................... 11

High Court Rules and Orders .......................................................................................................... 11

Chapter 2: Filing a Habeas Writ .................................................................... 12

Overview ................................................................................................................................................. 12

Relevant statutory provisions ........................................................................................................ 12

Requirements for filing a Habeas Writ ....................................................................................... 13

What you should do under s.491 .................................................................................................. 13What you should do under art.199 .............................................................................................. 13

Chapter 3: First Information Report .............................................................. 14

Overview ................................................................................................................................................. 14


What you should do before your client has been arrested..15

Chapter 4: Warrant and Arrest ..................................................................... 16

Overview ................................................................................................................................................. 16


What you should do when your client is arrested ................................... ..................... ......... 17

Chapter 5: Production Before a Magistrate ................................................... 19Overview ................................................................................................................................................. 19


What you should do ............................................................................................................................ 23

Chapter 6: Judicial Remand .......................................................................... 27

Overview ................................................................................................................................................. 27


What you should do ............................................................................................................................ 28

Chapter 7: Death in Police Custody ............................................................... 29

Overview ................................................................................................................................................. 29

Relevant statutory provisions ........................................................................................................ 29What you should do ............................................................................................................................ 30

Chapter 8: How to Raise the Issue of Torture at Trial .................................... 31

Reinvestigation ..................................................................................................................................... 31

Monetary Compensation .................................................................................................................. 32

Criminal Charges .................................................................................................................................. 33

Outrageous Official/Government Misconduct.................... ..................... ..................... ......... 35

Appendices .................................................................................................. 37

Appendix 1: How to interview a Victim of Torture .......................... ..................... ................ 37

Appendix 2: How to enquire into Torture: The Questions You Could Ask .................. 38


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Introduction

Pakistans existing laws are not effectively implemented as to protect people fromtorture during both legal and illegal custody. The aim of this manual is to encourage

implementation of those laws. It is written in clear English in order to make it readilyaccessible to an audience whose first language is not English.

The relevant legislation for litigating torture is largely contained in the Pakistan Penal

Code, 1860, and the Constitution. There are some other provisions of law which are

appropriate at different stages of the arrest/imprisonment. These include the Criminal

Procedure Code 1898, the Quanun-e-Shahadat 1984, High Court Rules and Orders,

Police Order 2002, Police Rules 1934, Prisons Act 1894, Pakistan Prison Rules 1978,

Pakistan Extradition Act 1972, Pakistan Army Act 1952. These will be referred to

throughout this manual, where they are relevant.

This manual will deal with each stage of an arrest and imprisonment on a chapter-by-

chapter basis. Each chapter will comprise a stand-alone document, which could then bereferred to by lawyers, where relevant for their clients. The chapters are short and

written in a bullet point format so as to offer simple, clear instructions.

Following a brief outline of the definition of torture, the first chapter is a survey of

constitutional guarantees and statutory provisions which can, and should, be raised at

every stage of the criminal process. Similarly, the second chapter outlines the procedure

for filing a habeas writ, which can be done during both arrest and imprisonment. The

third chapter concerns the registration of the First Information Report (FIR). Thefourth chapter concerns the grant of a warrant and investigation of the crime by the

police; this includes making arrests, interrogation of the accused, collecting witness

statements. The fifth chapter will discuss the production of the accused before aMagistrate and the initiation of judicial proceedings. The sixth chapter concerns judicial

remand, the seventh what lawyers should do if their client dies in police custody. The

final chapter summarises the options available to the court following a confirmed

allegation of torture. Appended to the manual is a pro forma torture reporting form.

Note: It is suggested throughout this manual that lawyers make a number of written

applications. This may appear onerous. However, due to the disjointed state of the law

it is important that lawyers build up a large court record. Each written application will

be added to the court record, which will be instrumental as lawyers continue litigation

on the torture that has taken place.


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What Constitutes Torture?

There is a difference between torture; cruel, inhuman or degrading treatment; and,

violence. The definitions and distinctions of each are clarified below.

1. TortureAs outlined above, torture is a severe form of ill treatment, inflicted by a state

official, for a specific purpose (such as the extraction of information, punishment,

etc.). Whether the suffering caused is severe so as to qualify as torture must be

determined objectively. In other words, it does not depend on the subjective

experience of the victim, but is determined by what a reasonable person in similarly

situated circumstances would consider to be severe pain and suffering.1 However,

this objective standard must take into account the particular physical attributes of

the victim, including age, health and gender.2

Under the UN Convention Against Torture (CAT) to which Pakistan is a State

Party (or signatory) - torture is defined as follows:

For the purposes of this Convention, torture means any act by which severepain or suffering, whether physical or mental, is intentionally inflicted on a

person for such purposes as obtaining from him or a third person information

or a confession, punishing him for an act he or a third person has committed or

is suspected of having committed, or intimidating or coercing him or a third

person, or for any reason based on discrimination of any kind, when such pain

or suffering is inflicted by or at the instigation of or with the consent or

acquiescence of a public official or other person acting in an official capacity. Itdoes not include pain or suffering arising only from, inherent in or incidental to

lawful sanctions.

There are four essential elements to this definition:

1. severe pain and suffering, whether physical or mental;2. intentionally inflicted;3. for a specific purpose, such as extracting information, punishment and

intimidation; and,

4. the involvement of a state official, at least by acquiescence.

Note: This is a broad definition. Most instances of deliberate police

mistreatment will constitute torture and should therefore be litigated and

challenged in court. However, a state official must be involved for an act to

constitute torture.

2. Cruel, Inhuman or Degrading Treatment1Camille Giffard. The Torture Reporting Handbook. Human Rights Centre: University of Essex, UK.

February, 2000.2Individual Land Training Manual on Reporting Torture,p.21; 28thMarch 2012. To be found at:

http://www.individualland.com/index.php?option=com_rokdownloads&view=file&Itemid=318


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Cruel, inhuman and degrading treatment are forms of ill treatment that cannot be

classified as torture. Such treatment may not reach the requisite objective severity

of pain or suffering, is not inflicted for a specific purpose, or is not inflicted by a state

official. The ill-treatment must, however, be deliberately inflicted in order to qualify

as cruel, inhuman or degrading treatment. Such treatment is still a violation of CATand may be a violation of Pakistani domestic law.

3. ViolenceAn act of violence inflicted upon an individual does not necessarily constitute

torture or cruel, inhuman or degrading treatment. Violent acts may not meet one or

more of the essential elements of torture and cruel, inhuman or degrading

treatment. Violence may be accidental not intentional. Violent acts may be carriedout by individuals - including other prisoners or the victim himself - rather than

solely state officials. Violent acts may also be committed for legitimate reasons such

as self defence, crown control, lawful punishment and legitimate law enforcement

actions.

Note: Torture differs from violence to the extent that torture is deliberately inflicted for

a purpose, by a state official; violence is not always intentional and can be inflicted by

anyone, including the victim. So long as a state official deliberately inflicts severe harm

upon a person, for a specific purpose, that person has been tortured.

Practice Note: Lawyers should repeatedly ask their client to give an account of their

treatment whilst under arrest or in physical or judicial remand. In noting this account,lawyers should bear the above definitions in mind. If there is any evidence, indication or

even any reason to suspect that a client has been tortured or subjected to ill-treatment,

lawyers should follow the steps outlined in this manual.

How lawyers can use CAT for their clientPakistan is a signatory to CAT3. However, Pakistan has made no declaration, under

Article 22, that it recognizes the competence of the Committee Against Torture to

receive and consider communications from or on behalf of individuals - subject to its

3With the following reservations:

Article 8 concerns extradition treaties. It stipulates that where States Parties do nothave an extradition treaty with other States Parties, CAT can be used as a legal basis for

extradition.

Under Article 28, signatories have the right to declare that they do not recognize thecompetence of the Committee against Torture to inquire into reported instances of

torture and visit state territory. Pakistan has not recognized the power of the

Committee against Torture to make inquiries in such circumstances.

Article 30provides that any dispute between two States Parties that cannot be settledthrough negotiation shall, at the request of one of those States Parties, be submitted to

arbitration.


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jurisdiction, i.e. residents of States Parties - who claim to be victims of a violation by a

State Party of the provisions of the Convention.

This means that individual victims of torture cannot bring a complaint directly under

CAT.

Nonetheless, compliance with the other provisions of CAT means that Pakistan does

have the relevant laws to litigate claims of torture in Pakistani domestic courts. The

laws prohibiting torture in Pakistan are in disarray, scattered through various pieces of

legislation. By compiling the relevant provisions of law in a brief and accessible format

and recommending legal strategies - this manual provides an easy-to-use reference

book to ease the work of lawyers, enabling defence lawyers to effectively litigate claims

of torture on behalf of their clients. Whilst written to have a palliative effect on the

immediate present, it is drafted in the hope that Pakistans laws on the prohibition of

torture will be redrafted to provide a coherent framework prohibiting torture.

In the meantime, CAT provides lawyers with a clear, legal and justiciable definition of

torture that may be incorporated into domestic Pakistani law and jurisprudence.


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Chapter 1

Survey of constitutional guarantees and statutory provisions

As stated in the introduction, there are a number of constitutional guarantees andstatutory provisions that will apply throughout an individuals arrest, trial andimprisonment. These are outlined here. When these sections are mentioned throughout

the manual chapters the reader will be referred back to this survey.

Pakistan Constitution Article 4: The right of individuals to be dealt with in accordance with the law.

Particularly relevant is that no action detrimental to the life, liberty, body,

reputation or property of any person shall be taken except in accordance with

the law (Art. 4(2)(a)).

Article 9: Security of Person. No person shall be deprived of life or liberty save inaccordance with law.Torture violates this fundamental right to be treated according to law and

equally before law [PLD 1998 S.C. 338]

Article 10: Safeguards as to arrest and detention. No person who is arrestedshall be detained in custody without being informed, as soon as he may be, of the

grounds for such arrest, nor shall he be denied the right to consult and be

defended by a legal practitioner of his choice.

Article 10A: Right to a fair trial. For the determination of his civil rights andobligation or in any criminal charge against him, a person shall be entitled to a

fair trial and due process.

Article 14: Inviolability of the dignity of man. The dignity of man and, subject tolaw, the privacy of home, shall be inviolable.This article declares in clear terms that no citizen of Pakistan shall be subjected

to torture. [PLD 1977 S.C. 545]

Article 199: Jurisdiction of the High CourtHabeas Corpus petition. This has a slightly wider scope than s.491 Criminal

Procedure Code. Under art. 199(1)(b)(i) the court may make an order directing

that a person in custody be brought before the court so that the court can

confirm that s/he is not being held in an unlawful manner.

Criminal Procedure Code, 1898 Section 491: Power to issue directions of the nature of habeas corpus

Habeas writ. The object of habeas corpus proceedings is to provide a quick and

simple remedy to those who are illegally detained. An application under this

section enables immediate determination of the right to the petitionersfreedom. Any person can apply for a Habeas order. A detention is illegal when

it is not in accordance with the law.

Section 202(1): Postponement of issue of processA court seized of a Private Complaint can direct and enquiry or investigation to

be made by any Justice of the Peace or by a police officer or by such other


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person as it thinks fit for the purpose of ascertaining the truth or falsehood of

the complaint.

Section 103: Search to be made in the presence of a witness.

Qanun-e-Shahadat Order, 1984 Article 38: Confession to police officer not to be proved. No confession made to a

police officer shall be proved as against a person accused of any offence.

Article 39: A confession by the accused while in the custody of the police is not tobe proved against him. Subject to article 40, no confession made by any person

whilst he is in the custody of a police officer, unless it be made in the immediate

presence of a Magistrate, shall be proved as against such person.

Article 40: How much of information received from accused may be proved.When any fact is deposed to as discovered in consequence of information receivedfrom a person accused of any offence, in the custody of a police officer, so much of

such information, whether it amounts to a confession or not, as relates distinctly

to the fact thereby discovered, may be proved.

Police Order 2002 Article 35: Responsibility on complaints of neglect and excess by police.

Following an instance of police neglect, failure or excess, the lawyer of an

aggrieved party can report to the Zila Nazim who may direct the Head of

District Police to take remedial measures, including registration of an FIR

against the official concerned (art. 35(1)) and suspension of the official (art.

35(2)).

Article 156(d): Punishment for vexatious entry, search, arrest, seizure ofproperty, torture, etc.

When a police officer inflicts torture or violence to any person in his custody he

shall be punished on conviction with imprisonment for a term which may

extend to five years. He may also be fined.

High Court Rules and Orders Vol III, Chapter 11-B, para 12:Rights of Accused to access to counsel and

friends

An accused person should not be removed to a place which is either

inaccessible or unknown to his friends or counsel. Information regarding

his place of confinement should at all times be given to his friends on their

application and the prisoner himself should be informed that he is entitled

to have the assistance of counsel and to communicate with his relations

and friends.


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Chapter 2

Filing a Habeas Writ

Overview If your client has been tortured or is being illegally or improperly detained then

the most efficient way of challenging this is by filing a habeas petition.

There are two separate avenues for filing a habeas petition; Article 199 of theConstitution (which will be discussed later) and s.491 Cr.P.C.

Under s.491 in the Criminal Procedure Code lawyers may file a habeas petitionbefore both the High Court and Sessions Court.

Lawyers should bear in mind that proceedings under s.491 are summary innature and therefore usually do not look any further into the facts of the case

than necessary to ascertain whether there has been improper or illegal

imprisonment and whether the person should be set at liberty. Anyone with information can move the court in a habeas petition. You do not

have to be an aggrieved party.

Once the habeas is filed, the bailiff is deputed by the court the same day torecover the detenu.

If the detenu is found in the police station, the bailiff must check the police diaryfor an entry of the arrest.

The bailiff must then file a report before the court for the next day. If the detenu is recovered to be produced before the court the next day, the

detenu is kept in judicial lock up near the court.

Relevant statutory provisions Criminal Procedure Code, s.491:

Power to issue direction of the nature of habeas corpus.

(1)[Any High Court] may, whenever it thinks fit direct [...](b)That a person illegally or improperly detained in public or private

custody within such limits be set at liberty; [][(1A) The High Court may, by general or special order published in the

official Gazette, direct that all or any of its powers specified in clauses (a)

and (b) of subsection (1) shall, subject to such conditions, if any, as may be

specified in the order, be exercisable also by

(a)A Sessions Judge; or(b)An Additional Sessions Judge,within the territorial limits of Sessions Division.]

Constitution, Art.199:Jurisdiction of the High Court.

(1) Subject to the constitution, a High Court may, if it is satisfied that no

other adequate remedy is provided by law []

(b)(i): on the application of any person, make an order directing that a

person in custody within the territorial jurisdiction of the Court be brought

before it so that the court may satisfy itself that he is not being held in

custody without lawful authority or in an unlawful manner.


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Requirements for filing a Habeas Writ It is filed as an Urgent Application. This means it is a same day matter, if received

before 9.30am; otherwise, it can be heard the next day.

Despite this, lawyers can always ask the concerned branch person to bring theirhabeas in the knowledge of the Chief Justice or Sessions Judge immediately, in an

effort to have the petition heard on the same day.

The petition does not require a copy to be transmitted to the respondents (this isto safeguard against a possible leak of the information to the relevant police

station).

There is no court fee under s.491; there is a court fee under s.199. Lawyers should file a full affidavit with the petition. If an affidavit is filed there

is no need for any supporting documents.

What you should do under s.4911. Lawyers should accompany the bailiff to recover the detenu.2. Lawyers should include in their petition a request for monetary compensation

and cost to be awarded to a client that has been found to have been improperly

or unlawfully imprisoned4.

3. A second habeas petition is not barred; an order passed in a habeas petition isnot a judgement in terms of s.369 Cr.P.C. [1999 MLD 1250].

4. Grant of Bail: although a bail plea is ordinarily not to be considered, in peculiarand exceptional facts and circumstances the detenus can be ordered to be

released on bail [2002 PCrLJ 303].

What you should do under art.1991. Lawyers can file a habeas directly in the High Court as a constitutional petition

u/art.199.

2. U/art.199 the courts have wider discretion to award remedies; such ascompensation, criminal charges against the police, etc.

3. Lawyers should ask for the registration of case against the delinquent policeofficers under the Penal Code and the Police Order.

4. Lawyers should also request compensation and damages.5. Court fee Rs. 500 (if the applicant can afford this fee then this application is

much preferable to a s.499 application).

6. Lawyers should immediately request a medical when the detenu is recovered.Note: Even if the Habeas application is not successful, documentation of the application

will be useful at trial. The application should be brought on file when the accused is

facing trial as evidence of having filed these petitions throughout the criminal process

will strengthen the case of torture being made against the delinquent police officers.

4Merciless beating by the police: high court ordered that Rs.3000 be paid [ NLR 1999 LC 224]. The

police officer was burdened with the cost of Rs3000 to be paid to the detenu as compensation [ 1197

PCrLJ 508]. Detenu unlawfully confined in police station; police officer ordered to pay Rs.10,000 to

compensate for his suffering [2000 PCrLJ 913].


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Chapter 3

First Information Report

Overview Under s.154 of the Cr.P.C. the FIR is a written document prepared by the police

when they receive information of an offence.

This is the first stage of a potential arrest. Upon being named in an FIR that person may be called to the police station. Lawyers should be aware of tactics used by the police to delay the registering of

an FIR, which prejudices the complainants case. Any complaint which is lodged

outside the police station, on the basis of which the FIR is registered, is called the

Complaint. Allowing the claimant to lodge a complaint, rather than an FIR, is amethod often used by the police to cover delay registration of the case. For

example, the complainant will register an informal complaint arguing that it tookthem some time to travel to the police station to register the FIR. Significant

delay in registering an FIR will prejudice the complainants case.

The FIR is neither substantive evidence nor an exhaustive document [2002SCMR 1586] it is merely a complaint for the purpose of setting the law in motion

[1997 P.Cr.L.J. 348].

Relevant statutory provisions Pakistan Constitution, Article 4:

The right of individuals to be dealt with in accordance with the law.

(1) To enjoy the protection of law and to be treated in accordance with

law is the inalienable right of every citizen, wherever he may be, and of

every other person for the time being within Pakistan.

Criminal Procedure Code, s.154:Every information relating to the commission of a cognisable offence if

given orally to an officer in charge of a police station, shall be reduced in

writing by him.

Police Rules, rule 25(2)(3):It is the duty of an investigating officer to find out the truth of the matter

under investigation. His object shall be to discover the actual facts of thecase and to arrest the real offender or offenders. He shall not commit

himself prematurely to any view of the facts for or against any person.

High Court Rules and Orders, Vol III, Chapter 11-B, para 12:Rights of Accused to access to counsel and friends (see Chapter 1)

Pakistan Penal Code, s.166:Public Servant Disobeying the law with the intent to cause injury to any

person. If any public servant (this includes the police; officers of prisons

are also public officials (s.23 Prisons Act)) knowingly disobeys any

direction of the law and does so with the intent, or likelihood, of thisdisobedience causing injury to any person, they shall be punished with

imprisonment for a term which may extend to one year, and a fine.


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Police Order, Article 36:Reference to Police Complaints Authority. Head of the District Police shall

inform the Provincial Public Safety and Police Complaints Commission or

the Federal Complaint Authority, as the case may be, of any incident or a

complaint of rape, death or serious injury to any person in police custody.

Police Order, Article 18(6):Posting of head of investigation.

(6)Investigation shall not be changed except atfter due deliberations and

recommendations by a board headed by an officer not below the rank of

Senior Superintendent of Police and two Superintendents of Police, one

being in charge of the investigation of the concerned district

Criminal Procedure Code, s.200:Examination of Complaint.A Magistrate taking cognizance of an offence on complaint shall at once

examine the complainant upon oath, and the substance of the examination

shall be reduced to writing and shall be signed by the complainant, and

also by the Magistrate.

What you should do before your client has been arrestedA suspect is not to be arrested straightaway upon registration of an FIR.

The arrest is to be deferred until sufficient material or evidence becomes

available on the record of investigation prima facie satisfying the

investigating officer regarding the correctness of the allegation levelled by

the complainant party. The law requires the investigating officer to begenerally slow in depriving a person of his liberty on the basis of

unsubstantiated allegations and insistence by the interested complainant

regarding the immediate arrest of the accused should not persuade the

investigating officer to abdicate his discretion.

Khizer Hayat[PLD 2005 Lahore 470]

1. Lawyer acting for a client named in an FIR should immediately apply for pre-arrest bail.

2. Once a person is named in an FIR and called to the police station the lawyershould immediately intervene; clients should never be unaccompanied at the

police station.3. If your client has been subjected to torture or other forms of mistreatment orthere is any indication or reason to suspect they have been subjected to

mistreatment by the officers of the investigating police station, the lawyer

should immediately apply for a Transfer of Investigation. An application has to

be moved through the police hierarchy, specifically the RPO/DIG (Investigation).

[Article 18(6) Police Order].

4. If the police significantly delay the registering of an FIR detailing allegations oftorture, the lawyer should bring a Private Complaint instead of waiting for the

registration of the FIR. A Private Complaintis made where an individual directly

approaches the Magistrate or Sessions Judge, instead of relying on the

registration of an FIR. This is a helpful method of registering a complaint of

police torture as police officials are often slow to register FIRs against their own.(see s.200 Cr.P.C.)


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Chapter 4

Warrant and Arrest

Overview

A warrant for arrest is needed for the police to arrest someone of a cognisableoffence; no warrant is needed for a non-cognisable offence.

With or without a warrant depending on the nature of the offence - the policeofficer will proceed to the scene of the crime and investigate the facts of the case.

This may involve examination of witnesses, making arrests, taking statements,searches, collecting forensic evidence, seizing case property and interrogating

the accused.

The police will make an arrest when, following substantial investigation, theyhave grounds to believe that that person may have committed the crime.

Relevant statutory provisions Pakistan Constitution, Article 4: see Chapter 1 Pakistan Constitution, Article 9: see Chapter 1 Pakistan Constitution, Article 10:see Chapter 1 Pakistan Constitution, Article 14: see Chapter 1.

Note: This article states that the privacy of home shall beinviolable. Lawyer should be aware of this as police conduct

searches at this stage of the arrest.

Pakistan Constitution, Article 199: see Chapter 1 Police Order 2002, Article 35: see Chapter 1 Criminal Procedure Code, s.155:

Information in non-cognizable offences. No police officer shall investigate

a non-cognizable case without the order of a Magistrate.

Criminal Procedure Code, s.156:Investigation into cognizable offences.

Criminal Procedure Code, s. 169:Release of accused when evidence is insufficient.

Criminal Procedure Code, s.47:Search of place entered by person sought to be arrested.

Criminal Procedure Code, s.49:Power to break open doors and windows for purposes of liberation.

Criminal Procedure Code, s.103:


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Search to be made in the presence of a witness.

Criminal Procedure Code, s.165:Search by police officer.

High Court Rules and Orders, Vol III, Chapter 11-B, para 12:Rights of Accused to access to counsel and friends (see Chapter 1) Police Order, s.36:

Reference to Police Complaints Authority.Head of the District Police shall inform the Provincial Public Safety and

Police Complaints Commission or the Federal Complaint Authority, as the

case may be, of any incident or a complaint of rape, death or serious injury

to any person in police custody.

What you should do when your client is arrested

1. If your client is called to the police station, it is VERYimportant that the lawyervisit that client as soon as possible. Presence of a lawyer during investigation

and interrogation of a client is THE MOST effective protection against torture

and mistreatement.

2. The lawyer MUST BE PRESENT during police interrogations of the client. Theclient has the right to have his lawyer present at all stages of the investigation,

including interrogations (see High Court Rules cited above). This is absolutely

essential to ensuring police compliance with the Police Order and other

statutory instruments aimed at preventing torture.

3. Always ask your client about the facts of the case and the circumstances of thearrest and write it down in a detailed memorandum for your records.

4. Following an allegation/evidence of torture, lawyers should file a report to thepolice authorities u/s.36 Police order 2002.

5. To facilitate the process of investigation the Cr.P.C. provides the police with aseries of specific and limited powers, such as: powers of arrest and detention

(s.155-6 Cr.P.C.);power to enter and search land (s.47, 49, 165 Cr.P.C.); power

to search persons (s.51 Cr.P.C.);power to seize property. When police officers

act beyond the limits of their legal powers they may be subjected to an action for

damages, criminal prosecution and disciplinary measures.

6. Police powers are also subject to the Constitution including constitutionalsafeguards against deprivation of life and property. Article 10 ensures four

things to the person arrested:a. Right to be informed of the grounds of arrest;b. Right to consult, and to be defended by, a legal practitioner of his choice5;c. Right to be produced before a Magistrate within 24 hours (see Chapter

5); and,

d. Freedom from detention for a set period except by order of Magistrate.7. Lawyer should make an application to the court if any of these powers are

exceeded.

5

Right of person arrested to be defended by legal counsel of his choice is assured by Article 10 and isa general right and is not limited to counsel within the courtroom [Bazal Ahmed vs West Pakistan PLD

1957 (WP) Lah. 388.]


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8. When there is insufficient evidence against a person in police custody, the policeare bound u/s.169 Cr.P.C. to release them. The lawyer should apply for this

release when there is no evidence against the accused.

9. The lawyer should write a letter to the concerned SHO and SP investigatingofficer requesting that the police take this action. This must be sent through

registered post so that lawyer has evidence of their having requested this.


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Chapter 5

Physical Remand (production before a Magistrate)

Overview

The police must bring the accused before a Magistrate within 24 hours of arrest. Copies of the police diary must be sent with the accused, by the police, to the

nearest Magistrate (s.167(1) Cr.P.C.).

The Magistrate must DECIDE whether or not further physical remand isnecessary for the police to fully conduct their investigation:

Physical Remand should NOTbe granted as a matter of course --proof of torture will constitute a significant reason to refuse

further physical remand6.

The Magistrate must consult the police diary in order to ascertainthe stage of police investigation. The magistrate shall send for the

police diary u/s172(2) Cr.P.C.

The Magistrate before whom the accused is produced, is expectedto put specific questions of all such aspects to ensure that police

does not commit illegal acts [PLD 1992 Kar. 358]

The Magistrate shall examine the police file in deciding thequestion of remand7 if no investigation was conducted after

having obtained remand, the Magistrate shall refuse to grant

further remand [1984 PCrLJ 2588].

Where it is found that the police have not had adequate time to complete theinvestigation the Magistrate will order that the accused be either:

held in further physical remand - for a maximum of 15 days in thewhole;

released on bail, if its a bailable offence; or, discharged (It is VERY important to note the Magistrate has power

to discharge the accused, under s.63 Cr.P.C.8)

If the Magistrate grants further physical remand, he must give REASONS fordoing so, u/s 167(3) Cr.P.C. [1984 PCrLJ 2588].

U/s. 435/439 Cr.P.C. the order passed by the Magistrate CAN BE REVIEWED bythe Sessions Court on application by either party.

Lawyers should also note that when: the police refuse to register the FIR; the police spoiled the case of the complainant; or, the police have not conducted the investigation properly or justly

6 In the following case, further physical remand was not granted owing to police conduct prior to

production before a Magistrate. After looking through the ziminis and keeping in view the past

conduct of the complainant and the Police Officer, the learned Magistrate rightly came to the

conclusion that it is not a fit case in which physical remand should be given to the police. After this,

two courses were open to the learned Magistrate, either the learned Magistrate send the accused

respondent to the judicial lock-up car or to discharge him. 1995 PCrLJ Lahore 97

7Along with the accused, the police officer shall forward a copy of the entries in the police diary to

the Magistrate [PLD 1992 Kar. 358].

8 An order under this section is an administrative order and therefore cannot be reviewed by the

Sessions Court.


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The lawyer can and should file a COMPLAINT with the Magistrate, u/s.200 Cr.P.C.

Relevant statutory provisions Pakistan Constitution, Article 4: see Chapter 1 Pakistan Constitution, Article 9:see Chapter 1 Pakistan Constitution, Article 10:see Chapter 1 Pakistan Constitution, Article 14:see Chapter 1. Pakistan Constitution, Article 199: see Chapter 1 Police Order 2002, Article 35: see Chapter 1 Police Order 2002, Article 18(6):

Posting of head of investigation. Senior Superintendent must authorise

this.

Police Order 2002, Article 114, a code of conduct should be published to:regulate police practices in respect of the exercise of stop and search

powers; the searching of premises by police officers and the seizure of

property from those premises by police officers; the detention, treatment

and questioning of persons by police officers; the identification of persons

by police officers.

Police Order 2002, Article 114(2):a police officer may be suspended, dismissed, compulsorily retired,reduced in rank or pay, fined, censured or awarded another punishment

for contravening the code of conduct.

Police Order 2002, Article 156(d):Punishment for vexatious entry, search, arrest, seizure of property, torture,

etc. When a police officer inflicts torture or violence to any person in his

custody he shall be punished on conviction with imprisonment for a term

which may extend to five years. He may also be fined.

Pakistan Penal Code, s.337-K:Causing hurt to extort a confession. Any person who causes hurt for the

purposes of extorting a confession shall be punished in a manner

appropriate to the hurt caused by imprisonment for up to a maximum of

10 years. Worth noting is that a policeman who is present and stands by

acquiescing in an assault on a prisoner committed by another policemen is

for the purposes of extorting a confession guilty of the offence of abetment

of an offence.

Pakistan Penal Code s.348:Wrongful confinement to extort a confession, or compel restoration of

property. This includes mental/psychological rather then simplyphysical torture.


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Qanun-e-Shahadat, Article 38: see Chapter 1 Qanun-e-Shahdat, Article 39:see Chapter 1 Qanun-e-Shahadat, Article 40:see Chapter 1 Criminal Procedure Code, s.22-A(6):

An ex-officio justice of the peace may issue appropriate directions to the

police authorities concerned on a complaint regarding:

(i) non-registration of a criminal case(ii) transfer of investigation from one police officer to another;

and

(iii) neglect, failure or excess committed by a police authority inrelation to its functions and duties.

Note: Justices of the Peace can complain about unjustified harassment by

the police. The complaint must contain all necessary factual details,

including the date, time and place of the alleged harassment as well as

the full particulars of the concerned police officer who is being

complained against. The police officer concerned may then submit his

comments to the complaint. The justice of the peace may warn the police

office not to break the law again or issue a direction to the relevant

police authority to consider the complaint and take appropriate action

under the Police Order 2002. If it is an extreme case of highhandedness

and totally unjustified harassment the Justice of the Peace may issue a

direction to the relevant police authority to register a criminal charge

against the delinquent police officer if he had seemingly committed some

cognisable offence during the harassment perpetrated by him. [PLD 2005Lahore 470](see Chapter 7 for judicial remedies).

Criminal Procedure Code, s.61:No police officer shall detain in custody a person arrested without warrant

for a longer period than under all the circumstances of the case is

reasonable, and such period shall not, in the absence of a special order

under s157 exceed 24 hours.

Criminal Procedure Code, s.63:Discharge of person apprehended. No person who has been arrested by a

police officer shall be discharged except on his own bond, or on bail, orunder a special order of a Magistrate.

Criminal Procedure Code, s.75(2):Continuance of Warrant of arrest. Every such warrant shall remain in

force until it is cancelled by the court which issued it, or until it is executed..

Criminal Procedure Code, s.81:The police officer must bring a person arrested before the court without

delay.

Criminal Procedure Code, s.164:Power to record statements and a confession.


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Criminal Procedure Code, s.167:Whenever any person is arrested and detained in custody, and it appears

that the investigation cannot be completed within the period of 24 hours

fixed by s.61and there are grounds for believing that the accusation of

information is well founded, the officer in charge of the police station shall

transmit to the nearest Magistrate a copy of the police diary. (2) TheMagistrate may authorise the detention of the accused in such custody as

such Magistrate thinks fit, for a term not exceeding 15 days in the whole.

(3) A Magistrate authorising under this section detention in the custody of

the police shall record his reasons for doing so.

Criminal Procedure Code, s.170:If there is sufficient evidence, such police officer shall forward the accused

under custody to a Magistrate empowered to take cognizance of the

offence upon a police report and to try the accused or send him for trial or,

if the offence is bailable and the accused is able to give security, shall take

security from him for his appearance before such Magistrate on a day

fixed.

Criminal Procedure Code, s.172:Diary of proceedings in investigation. [] (2) Any Criminal Court may sendfor the police-diaries of a case under inquiry in such Court, and may use

such diaries, not as evidence in the case, but to aid it in such inquiry or

trial. Neither the accused nor his agents shall be entitled to call for such

diaries, nor shall he or they be entitled to see them merely because they are

referred to by the court; but, if they are used by the police officer who made

them, to refresh his memory or if the Court uses them for the purpose of

contradicting such police officer, the Provisions of the Evidence Act 1872,s

161 or s 145, as the case may be, shall apply.

Criminal Procedure Code, s.200:Examination of Complaint. A Magsitrate taking cognisance of an offence

on complaint shall at once examine the complainant upon oath, and the

substance of the examination shall be reduced to writing and shall be

signed by the complainant, and also by the Magistrate.

Criminal Procedure Code, s.435:Power to call for records of inferior courts. (1) The High Court or any

Sessions Judge may call for and examine the record of any proceeding

before any inferior Criminal Court situate within the local limits of its or

his jurisdiction for the purpose of satisfying itself or himself as to the

correctness, legality or propriety of any finding, sentence or order recorded

or passed, and as to the regularity of any proceedings of such inferior court

[] All Magistrates shall be deemed to be inferior to the Sessions Judge forthe purposes of this subsection.

Criminal Procedure Code, s.439:High Courts powers of revision. (1) In the case of any proceeding therecord of which has been called for by itself or which otherwise comes to its

knowledge, the High Court may, in its discretion, exercise any of the powers

conferred on a court of appeal by s. 423, 426, 427, 428 or on a Court by

section 338, and may enhance the sentence and, when the judges


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composing the Court of revision are equally divided in opinion, the case

shall be disposed of in a manner provided by s.429.

High Court Rules and Orders, Volume III, Chapter 13(2):Confessions and Statements of accused persons.

High Court Rules and Orders, Volume III, Chapter 13(6):Instructions for recording confessions.

High Court Rules and Orders, Volume III, Chapter 13(7):Accused who has made a confession/statement should not be kept in

police custody, but should be kept in Judicial lock up separate from other

prisoners. An accused person who has made a confession before a

Magistrate should be sent to the judicial lock up and not made over to the

police after the statement/confession has been recorded.

High Court Rules and Orders, Volume III, Chapter 13(13)(i)(a):Accused should be left for some time away from influence of police. Inorder to ensure that a statement or confession under s.164 of the Criminal

Code of Procedure is made voluntarily, the following precautions should be

taken. Before the Magistrate proceeds to record the confession, he should

arrange so far as is compatible with his safety and that of his staff and

with the safe custody of the prisoner the latter is left for some time (say,

for half an hour) out of the hearing of police officers or other persons likely

to influence him.

High Court Rules and Orders, Volume III, Chapter 13(13)(i)(b):Confession recorded should not be handed over to the police.

What you should doIf there is any allegation of torture, raise it before the Magistrate.

An overview of the steps the lawyer should take is given in the following box.

These steps are then outlined in further detail below.

FIRST: Consult your client: is there an allegation of police torture? If yes

Have your client record his statement alleging torture in front of the Magistrate.

Have the Magistrate order a Medical Examination.

SECOND: Has the Magistrate granted further physical remand despite torture? If

yes

Have the Magistrates order reviewed.

NOTE: You can also file a complaint on behalf of your client with the police i.e.

through the police hierarchy, under the Police Order - to apply for a transfer ofinvestigation and case.


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ALLEGATION OF TORTURE

1. Upon arrival at the police station, the lawyer must immediately consult theirclient, asking how they have been treated.

2. If the client makes a credible allegation of torture or mistreatment or there aregrounds for suspecting that the client has been subjected to torture or

mistreatment, then the lawyer should immediately request that the Magistrate

cancel the warrant of arrest through u/s. 75(2) Cr.P.C.

3. When appearing in front of the Magistrate to challenge the physical remand onthe grounds that the client has been tortured - you must submit an application

that:

a. Requests the court to conduct a medical examination.b. Provides as detailed chronology and account as is possible, including:

1. Method[s] of torture2.

instrument[s] used3. frequency of torture

4. duration of torture5. injuries sustained6. precise locations of abuse7. name of the police station8. name of police officer[s]9. any potential witnesses to the torture, etc.

c. The application should also be explicitly state that the police areconducting the investigation dishonestly.

d. The lawyer should assist their client in preparing a statement whichmust be made in front of the Magistrate.

4. These four pieces of information medical report, material particulars,statement of police dishonesty and statement of torture victim - will become a

part of the court record, which will then be later relied on.

STATEMENT OF TORTURE

1. Your client should have his statement recorded in front of the Magistrate (see s.164Cr.P.C.). S.164 authorises the recording of statements at any stage before the

commencement of trial. The statement must:

a. be a detailed account of the torture inflicted;b. be recorded in open court; and,c. not be made in the presence of the police officers investigating the

case.

These statements should be made so that there is a reliable record of allegations of

torture to be used at trial.

2. In order to ensure that the statement is made voluntarily, the prisoner must be leftfor some time out of earshot of the police officers or other persons likely to

influence him.

3. Having made a statement, the accused should not be kept in police custody butshould be transferred to judicial lock up.

4. The statement recorded should not be given to the police.


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MEDICAL EXAMINATION

1. The Magistrate should order for the accused to be presented before a medical legalofficer. (If the Magistrate doesnt grantthis then the lawyer must CHALLENGEthis

in a review).

2. The lawyer should accompany their client to the medical examination to ensure thatit is conducted properly and no influence on the medico-legal officer is exerted by

the police.

REVIEW OF THE MAGISTRATES ORDER

1. The lawyer should note that when a Magistrate grants further physical remand, it isthe duty of the court to inform the accused about the grounds of his arrest.

2. The accused has a right to oppose his remand and also ask for his release on bail(personally or through a counsel of his choice). This right is enshrined inArticle 10

of the Constitution. This right can be exercised if the accused is present in court atthe time of considering the question of his remand. [1993 PCrLJ 2067].

3. Remand can be challenged through asking the Sessions Judge to review the order. Itcan be challenged as either an executive or judicial order:

a. If the Magistrate exercises his power to grant remand under s.63 Cr.P.C.then his is an executive decision.

b. If the Magistrate grants remand despite a police recommendation that heshould not do so then his is a judicial decision.

4. The High Court under s.439 Cr.P.C. is also quite competent to examine thecorrectness of the orders passed by Magistrates. Serious action may be taken

against them if they wrongly grant further remand, i.e. where the accused is being

tortured by the police [1984 PCrLJ 2588].

FILING A HABEAS WRIT

1. The lawyer also has the opportunity to file a habeas writ, based on the argumentthat the grant of further remand to a place where torture is taking place amounts to

illegal detention.

COMPLAINT TO POLICE

1. If torture has been inflicted by the officers of the investigating police station, thelawyer must ask for a transfer of investigation. The application must:

a. be moved through the police hierarchy.b. be submitted to the RPO/DIG (Investigation). [u/Art.18(6) Police

Order].

c. mention that an application for transfer has already been made,following the FIR.

2. The lawyer can file a complaint under s.35 Police Order if torture has taken place.This is filed before the Police Complaints Commission or Head of District Police.

3. The lawyer can report unjustified police harassment, i.e. torture of a client, to aJustice of the Peace who will issue a direction to the police authorities.


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Note: Although filing a number of applications at this point may seem onerous, it is

vitally important to build up a court record of police abuse. This record of police abuse

will be instrumental at trial, and can be used to exclude evidence obtained through such

abuse.


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Chapter 6

Judicial Remand

Overview

Judicial remand is only granted where a suspicion has been raised as to the

accuseds guilt and the court believes that further evidence is needed tostrengthen the suspicion into belief, or otherwise.

Lawyer must question whether there are grounds for grant of judicial remand. As with all stages of arrest and remand, the lawyer must continue to visit their

client frequently and enquire as to their state of health and treatment.

If the Magistrate orders judicial remand, bail can be applied for immediately.The applications filed before the Magistrate, outlining torture, should be

annexed to the bail petition.


Power to postpone or adjourn proceedings.

(1) If, from the absence of a witness, or any other reasonable cause, it

becomes necessary or advisable to postpone the commencement of, or

adjourn any inquiry or trial, the court may, if it thinks fit, by order in

writing, stating the reasons therefore, from time to time, postpone or

adjourn the same on such terms as it thinks fit, for such time, as it

considers reasonable, and may by a warrant remand the accused if in

custody. Explanantion. Reasonable cause for remand. If sufficientevidence has been obtained to raise a suspicion that the accused may have

committed an offence, and it appears likely that further evidence may be

obtained by a remand, this is a reasonable cause for remand.

Pakistan Prison Rules, s.20:Report of unexplained injuries. When a prisoner with injuries is admitted

into prison from police custody he shall be examined immediately by the

Medical Officer. If the examination reveals unexplained injuries not

already recorded in the medico-legal report accompanying the prisoner, a

report shall at once be made to the Sessions Judge and Officer in charge of

prosecution and the Superinterdent of Police.

Pakistan Prison Rules, s.735:Sudden death. Whenever there is any doubt surrounding the cause of

death this shall be immediately reported to the Superintendent and the

Medical Officer.

Pakistan Prison Rules, s.1065:Every officer in a prison shall at all times avoid all conduct likely to unduly

irritate or annoy any prisoner, and shall treat every prisoner humanely

and with tact, good temper and strict impartiality. He shall listen, without

displaying impatience or irritation, to every complaint or report which any

prisoner may at any time make to him, and shall show all such kindness


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and consideration due to every prisoner as is compatible with the firm and

effective discharge of his duties.

Pakistan Prison Rules, s.1066:Prisoners should not be struck. S.1066(ii): no officer shall, in the discharge

of his duties, at any time use more force than is absolutely necessary for thepurpose of enforcing law.

Pakistan Prison Rules, s.1069:No officer of a prison, other than the superintendent, shall at any time

award any punishment to any prisoner or inflict any punishment upon any

prisoner, other than in accordance with the law. In particular, no officer of

any prison shall use violent, abusive, insulting or unnecessarily irritating

language to any prisoner.

Pakistan Prison Rules, s.1071:Report of misconduct. A prison officer must report to his senior officer any

breach of prison rules by a subordinate officer.

Pakistan Prison Rules, s.1106:Prison officers found guilty of breach of the prison rules are to be punished

under this section.

What you should do1. If your client has been tortured/further tortured during physical remand then

the lawyer can ask that the Magistrate order a medical examination of the

accused. This medical examination will provide and introduce into the record

medical evidence of torture.

2. In order to establish that the accused was totured whilst in jail, the lawyershould under Prison Rule 20 - obtain a copy of the Medical Officers report(the report of the examination made upon admittance to the jail). If the jail does

not supply this report, an application can be made to the Sessions Court to do so.

3. Immediately upon the grant judicial remand, lawyer should apply for post arrestbail. This application should include the allegations of torture and annex all

evidence of torture and previous applications.

4. If your client is released on bail he should immediately be medically examinedby an independent medico legal officer.

5. The lawyer should also file an application for quashing the FIR based onallegations of torture.


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Chapter 7

Death in Custody

Overview If a person dies as a result of police torture, the police officers can be found

guilty of intentional murder.

Normally, the Chief Medical Officer (CMO) of a Government Hospital conductspost mortem examinations. However, cases which involve death in police

custody fall outside the jurisdiction of the CMA. Such cases are presented before

a district standing medical board (DSM) consisting of four members:

1. Medical Superintendent of the DHQ Hospital (Chairman)2. District Health Officer (DHO)3. District Surgeon4. District Medico-legal Officer (DMLO)

The police have to take the file and the body to the DSM, the board is convenedand the post mortem is conducted.

Note that s.176 Cr.P.C.only applies where a person dies in police custody.

Relevant statutory provisions Criminal Procedure Code, s.154

Information in Cognisable Offences.

Criminal Procedure Code, s.174:Police are to inquire and report on suicide.

Criminal Procedure Code, s.176:Inquiry by Magistrate into cause of death. (1) When any person dies while

in custody of the police, the nearest Magistrate empowered to hold inquest

shall, and in any other case mentioned in s 174, clauses (a), (b), (c) of

subsection (1), any magistrate so empowered may hold an enquiry into the

cause of death either instead of, or in addition to, the investigation held by

the police officer, and if he does so, he shall have all the powers in

conducting it which he would have in hold and inquiry into an offence. The

Magistrate holding such an inquiry shall record the evidence taken by him

in connection therewith in any of the manners hereinafter prescribed

according to the circumstances of the case []. (2) Power to disintercorpses. Whenever such Magistrate considers it expedient to make an

examination of the dead body of any person who has been already interred,

in order to discover the cause of his death, the Magistrate may, cause the

body to be disinterred and examined.

Criminal Procedure Code, s.200:Examination of Complaint.A Magistrate taking cognizance of an offence on complaint shall at once

examine the complainant upon oath, and the substance of the examination

shall be reduced to writing and shall be signed by the complainant, and

also by the Magistrate.


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What you should do1. If a person dies while in police custody, the matter must be promptly reported

to the officer in charge of the concerned police station. This is reported

u/s.154 Cr.P.C. (i.e. in an FIR).

2. The lawyer must ensure a post mortem examination is completed as soon aspossible. This will bring on record the cause of death (as medical evidence) to

substantiate the charge against the delinquent officers. (see s.174 Cr.P.C.)

3. The death must be notified to the forensics department, of that territorialjurisdiction, who is to conduct the post mortem.

4. If the medical opinion shows that the death occurred owing to violence thenthe lawyer should implicate and nominate the police officers responsible.

5. The lawyer should then register a case for intentional murder under s.302CrPC.

6. Alternatively, lawyer can file a private complaint under s.200 Cr.P.C. Filing aprivate complaint is a preferable procedure as it does not have to be registered

with the police and thus avoids a conflict of interest. A private complaint

involves solely judicial procedure.

7. Where the deceased has been buried before a post mortem has beenconducted, lawyer should rely on s.176 Cr.P.C. to enquire further into the

death. S. 176 Cr.P.C. provides that the nearest Magistrate shall conduct an

inquiry into the death. This can be in addition to the inquiry conducted by the

police. In doing so the Magistrate will have all the powers in conducting the

inquiry as he would when holding an inquiry into an offence. The Magistrate

also has the power to order that a body be disinterred in order to conduct such

inquiry (u/s. 176(2) Cr.P.C.).


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Chapter 8

How to Raise the Issue of Torture at Trial

Evidence obtained through torture is inadmissible at trial (see Chapter 1: Qanun-e-Shahadat, Art.38 and 39). The use of torture should be raised at trial to defeat the

prosecutions case. Evidence of torture should also be raised as grounds to have the casedismissed due to the outrageous government misconduct which has taken place

during investigation and/or imprisonment.9

This is the stage at which the court record of torture, established through filing the

different applications recommended in the chapters of this manual, will aid lawyers in

establishing torture and raising this issue at trial.

If the appropriate evidence proving torture is produced before a judge then that judge

can order three remedies, outlined and numbered below. There is a fourth application

which lawyer can make, the grounds for which are a claim of outrageousofficial/government misconduct.

1. Reinvestigation Overview

Reinvestigation can be argued on the ground that the initial investigation wastainted by torture.

The Magistrate can order reinvestigation if it is successfully proved that theofficers abused the process of law. A senior police officer may also be directed toconduct an inquiry into the matter, and report to the court.

Where a reinvestigation has been ordered by the court, evidence filed in thecourse of the previous investigation is deemed inadmissible.


Power to issue directions of the nature of a habeas corpus.

Case Law [2008 YLR 2603 (LHC)]:

A habeas petition was filed before the court on account of two

proclaimed offenders detained in the illegal custody of police, without

being produced before a magistrate or their arrests recorded in the

appropriate register even though an FIR had been filed against them. The

detainees also asserted that physical torture had been inflicted on them

during their illegal confinement. The court directed the SP of the town to

hold an inquiry into the matter. The court also observed that it would not

99Outrageous government misconduct is discussed at point 4 of this chapter


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be fair to let the current investigation officer continue on with the

investigation, thus is referred the matter to SP investigation to look into

the desirability of entrusting the case to some other police officer.

[2000 SCMR 453]:Re-investigation of criminal case after submission of challan Validity Son of petitioner died in police custody and it was alleged by petitioner

that death was caused due to torture by police Petitioner got a caseregistered abainst police officials responsible for the incident

investigation agency was not submitting challan in the Trial Court u/s

302 PPC Supreme Court directed the Investigating Agency to complete

the re-investigation and submit its report to the Trial Court within a

period of four weeks Trial Court was further directed to wait for the

second report and should proceed on the receipt of the same in

accordance with law and if second investigation report was not

submitted in time specified by Supreme Court, Trial Court could proceed

with retrial on the basis of the First Investigation Report No legal barexisted on re-investigation of case even after submission of final report

u/s 173 Cr.P.C. and police could carry out fresh investigation and submit

its report to the Court.

2. Monetary compensation following a Habeas Writ petition

Overview Following a habeas petition, the person who has suffered torture should seekmonetary compensation for illegal/unlawful detention, police abuse and torture. The courts have been granted complete discretion to pass such orders as are

appropriate in any given case. Therefore, where the court finds in favour of a

petitioner it may, apart from ordering that the person be set at liberty, also

direct the respondents to monetarily compensate the Petitioner with the amount

specified by the Court.

When seeking monetary compensation from the court, lawyer should ensurethat it is sought from the police department rather than the individual officer

concerned. This not only allows the victim to seek a higher sum, but also makes

sure that the police department is held accountable for the actions of its

individual employees.


Power to issue directions of the nature of a habeas corpus.

Case Law [2007 YLR 1618]:


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The court ruled that since the action of the police officers had caused

humiliation and mental torture to the detainees and their illegal arrest

had resulted in undue expenses the police officers in Court were liable to

compensate the three persons. The persons who remained in illegal

police custody were entitled to Rs 5,000 each for everyday they

remained in custody from the police officers involved under Article 199of the Constitution. The court also observed that the conduct of the

involved police officers was against public policy and directed that they

be immediately removed from their posts and not be assigned any field

posting for the next three years. The court also stated that the detainees

were free to claim damages by filing a suit and they also may lodge FIR

against the delinquent officers for their illegal detention.

[1998 PCrLJ 1035]:Art.199---High Court under the wide powers of Art.199 of the

Constitution can award monetary compensation to the victims of

violation of fundamental rights--- Amount of compensation would be

determined by the court in its discretion keeping in view the principle

applied in awarding general damages in case of false imprisonment.

[2009 YLR 1971]:Medical examination uncovered evidence of torture---Court ruled that

this practice is not only in contravention to established international law

but is also ultra vires to the Constitution of Pakistan. The sub-inspector

and SHO of the police station were instructed by the court to pay Rs

100,000 and Rs 50,000 as compensation for illegal detention and torture.

3. Criminal charges

Overview The aggrieved person may have an FIR registered against the delinquent police

officers which will then proceed in the same manner as any other criminal

charge.

Due to the likelihood of a conflict of interest arising upon the registration of anFIR against the police, the Criminal Procedure Code allows for an aggrieved

person to file a private complaint directly before a Magistrate.

Filing a private complaint allows the aggrieved party to bypass the executivepart of the procedure and the complaint is treated as a challanfor all procedural

purposes.


Examination of a Complaint: A Magistrate taking cognisance of an offence

on complaint shall at once examine the complaint upon oath, and the

substance of the examination shall be reduced to writing and shall be

signed by the complainant, and also by the Magistrate.


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Pakistan Penal Code, s.119:Public servant concealing design to commit an offence which it is his duty

to prevent. Whoever, being a public servant intending to facilitate or

knowing it to be likely that he will thereby facilitate the commission of an

offence which it is his duty as such public servant to prevent voluntarily

conceals by any act or illegal omission the existence of a design to commitsuch offence or makes any representation which he knows to be false

respecting such a design shall, if offence be committed, be punished with

imprisonment of any description provided for the offence, for a term which

may extend to one-half of the longest term of such imprisonment, or with

such fine as is provided for that offence, or with both.

Pakistan Penal Code s.337-K:Causing hurt to extort a confession or to compel restoration of property.

Whoever causes hurt for the purpose of extorting from the sufferer or any

person interested in the sufferer any confession or any information which

may lead to the detection of any offence or misconduct, or for the purpose

of constraining the sufferer, or any person interested in the sufferer, to

restore, or to cause the restoration of any property or valuable security or

to satisfy any claim or demand or to give information which may lead to

the restoration of any property or valuable security, shall, in addition to

the punishment of qisas, arsh or daman, as the case may be, provided for

the kind of hurt caused, be punished, having regard to the nature of the

hurt caused, with imprisonment of either description for a term which may

extend to ten years as tazir.

Case Law [PLD 2008 Lahore 564]:

Two persons were illegally detained by a police officer with a shared

enmity. There was no FIR filed against them nor were they produced

before a magistrate. Two acquaintances of the two detainees were also

arrested once they came to the police station to visit them. The arrest of

all four was also not recorded in the relevant register of the police

station till their recovery by the bailiff on account of a habeas corpus

petition (S-491). The detainees were medically examined by the relevant

doctor and the report proved they were tortured while being in the

custody of the police. The first two detainees specifically accused Bhatti

ASI of committing the torture under the supervision of SHO. The court inits ruling directed the SHO to file a criminal case against himself, Murtaza

Ali Bhatti and all the other police officers involved in the illegal

confinement and torture.

[PCrLJ 1990 716 (HC)]:A habeas corpus petition (S-491) was filed by a detainee who stated he

had been in police custody for more than a week (a case had been

registered against him however) and he had been severely tortured

during this period; the torture was of such an intensity that he had been

admitted to a hospital and had to be supported by a constable while

appearing in court. Keeping the precarious condition of the detenu into

view, the court changed the habeas corpus petition into a bail application

and the detenu was granted bail. The court also directed the SHO to


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register a case against the delinquent officers if approached in this

regard; the court further directed that the case after the registration

shall be investigated by a CIA official not less than the rank of inspector.

[PLD 1996 Lahore 325]:A constitutional petition was on account of a photograph that appearedin daily Jang, Lahore that showed police officers subjecting a person to

torture. The person being subjected to torture in the photo, Zulfiqar, was

called before the court who stated that he was apprehended by the

Baghbanpura police and tortured in the police station; he also stated that

the picture in the newspaper was a true picture of the maltreatment

meted out to him by the police.

The inspector general of police Punjab reported to the court that the

police officials concerned have been placed under suspension and are

being proceeded against departmentally for misconduct. A criminal case

under s. 342 (for illegal detention) and 337-K (for torture), PPC had also

been registered against them on the report of Zulfiqar Ali. Since a

criminal case had already been registered against the concerned officials

and they were also placed on suspension, the court observed that no

further action was called for and the petition was disposed of

accordingly.

4. Outrageous official/government misconduct

Overview As stated in the foreword, the use of torture is prohibited under both Pakistani

and International Law. Accordingly, it can be argued that torture by the police

should result in dismissal of charges against those suffering from torture.

Torture whilst being held in custody or imprisoned amounts to a secondpunishment for the same offence.

The outrageous government misconduct defence is a form of the doublejeopardy bar where there has been prosecutorial or judicial overreaching10.

In order for the courts to find prosecutorial overreaching there most be grossnegligence or misconduct, [which] caused aggravated circumstances to develop

which seriously prejudiced a defendant11.

It has been found, repeatedly, in American case law, that, When conduct on thepart of the authorities is so outrageous as to interfere with an accuseds right todue process of law, proceedings against the accused are thereby rendered

improper12.

This principle is supported by some Federal Shariat Court judgements (seebelow).

The remedy for such misconduct is to have the charges which are pendingagainst the victim of torture dropped.

10

United States v Jorn, 400 US 470, 484, 91 S. Ct. 547, 557, 27 L. Ed. 2d 543 (1971) 11United States v Kessler, 530 F.2d 1246, 1255-56 (5thCir. 1976).12Boulas v Superior Court, 233 Cal. Rptr. 487, 490 (Cal.App.2 1986)


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Relevant statutory provisions Constitution of Pakistan, Article 13:

Protection against double punishment and self incrimination. No person

(a) shall be prosecuted or punished for the same offence more than once;

or, (b) shall, when accused of an offence, be compelled to be a witnessagainst himself.

Criminal Procedure Code, s.403:Persons once convicted or acquitted not to be tried for the same offence.

Case Law [PLD 2010 FSC 1]:

If we keep Article 13 of the Constitution in view we find that there is a

positive guarantee of protection against double punishment. One theone hand the condemned prisoner is already being detained in the highly

protected prison and on the other hand he, along with a few other

condemned prisoners is under additional punishment by way of strict

surveillance and isolation in a cell where he has no facility to even

answer the call of nature in complete privacy. In this view of the matter

the provisions of the Pakistan Prison Rules are tantamount to an

additional chastisement which is violative of the protection guaranteed

by the Constitution against double punishment.


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Appendix 1How to interview a victim of torture

1. The interviewee should feel comfortable at all times. Investigators should bear inmind that victims will most likely be traumatized by their experience and may not

be comfortable talking about it. The interview should be conducted in as private a

setting as possible.

2. The interviewer should be very self aware throughout the interview. Be carefulnot to use intimidating language or threatening body language. At all times be

aware of the interviewees response, and sensitive as to whether they are

intimidated.

3. In trying to make them as comfortable as possible, offer the interviewee foodand/or drinks and allow for as many breaks as necessary.13

4. The interviewer should not overdress or wear anything that may agitate theinterviewee.5. If possible, female lawyers/investigators should interview female victims, andlikewise with men.

6. Ask your interviewee if it is possible to take notes/recording/photographs duringthe interview.

Protecting your client:1. Individuals must provide informed consent befor

2014_06_19_PUB Torture Litigation Manual.pdf

Documents

Transcript of 2014_06_19_PUB Torture Litigation Manual.pdf