View from the courtroom: Govt continues to delay legislation to check custodial torture

Updated September 09, 2019

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The death of a suspect, Salahuddin Ayubi, in police custody in Rahim Yar Khan, has triggered a public outcry. — DawnNewsTV/File
The death of a suspect, Salahuddin Ayubi, in police custody in Rahim Yar Khan, has triggered a public outcry. — DawnNewsTV/File

The death of a suspect, Salahuddin Ayubi, in police custody in Rahim Yar Khan because of alleged torture has triggered a public outcry bringing to light once again the non-enactment of a law in the country to deal with cases of custodial torture.

The deceased, whose video had gone viral showing him breaking an ATM machine and taking away a card from it, expired in custody on Sept 1.

The issue received widespread media coverage with demands coming from civil society organisations for enactment of a law on the subject.

While the Constitution prohibits custodial torture, the situation is otherwise and it is an accepted phenomenon. The moment a suspect is remanded into physical custody of any law enforcing agency, including police, by the concerned magistrate, it is understood that he would be tortured.

The concerned courts are empowered to remand an accused to custody of police or any other law enforcing agency for different duration under different laws.

Under Section 167 of the Code of Criminal Procedure (CrPC), an accused can be remanded into custody of police for 15 days by the concerned magistrate. However, if a suspect is female the magistrate shall not, except in cases of murder and robbery supported by reasons to be recorded in writing, authorise the detention of the accused in police custody, and the police officer making an investigation shall interrogate the accused in the prison in the presence of an officer of jail and a female police officer.

Moreover, section 21 E of the Anti-Terrorism Act 1997 empowers the anti-terrorism court to remand a person detained for investigation to custody for maximum 15 days, but in case the investigation officer proves that further evidence may be available the court may remand the suspect for maximum 30 days in custody.

Similarly, under section 24 (d) of National Accountability Ordinance, a suspect should not be remanded in the custody of National Accountability Bureau for more than 90 days. However, the court may remand a suspect to custody not exceeding 15 days at a time and for every subsequent remand the court shall record reasons in writing copy of which shall be sent to the high court.

“Presently, physical remand is synonymous to custodial torture. Despite advancement of technology and investigation tools, seeking information from a suspect through torture is a traditional and easy mode for the investigation officers,” said a legal expert dealing with criminal cases. He believes that there should be an independent oversight body for keeping an eye on such practices.

Unfortunately, other stakeholders in the criminal justice system, including the medical professionals and duty magistrates, have also been turning a blind eye to this phenomenon and have in very rare cases been taking action against the officers involved in such practices.

Article 14(2) of the Constitution prohibits torture in custody. “No person shall be subjected to torture for the purpose of extracting evidence,” the Article states.

While no definition of ‘torture in custody’ is given in Pakistan Penal Code (PPC), section 337-K of the Code prohibits causing of hurt for extracting confession and this offence is punishable by up to 10 years imprisonment.

When the Police Order, 2002, was introduced during the military government of retired General Pervez Musharraf, it prohibited torture in police custody through section 156, which provided that whoever, being a police officer, inflicts torture or violence to any person in his custody, shall on conviction be punished with imprisonment for a term which may extend up to five years and fine.

The Police Order was replaced in Khyber Pakhtunkhwa through Police Act, 2017, which was enacted in early 2017. Through section 119 (d) of the Police Act, the previous provision related to torture in police custody was retained.

Furthermore, section 176 of CrPC empowers a judicial magistrate to inquire into death of a person in the custody of police. The magistrate holding such an inquiry shall record the evidence taken by him in connection therewith according to the circumstances of the case.

Pakistan is a signatory to the UN Convention Against Torture (UNCAT) and other Cruel, Inhuman and Degrading Treatment or Punishment while successive governments made commitments to enact a law in line with this convention, but in vain.

The Government of Pakistan had signed the UNCAT on April 17, 2008, and ratified it on June 23, 2010. An Optional Protocol to UNCAT, which was adopted by the General Assembly on Dec 18, 2002, and had entered into force on June 22, 2006, has so far not been ratified by Pakistan.

The Optional Protocol provides for establishing a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment. Enactment of a proposed law to check custodial torture continued to be delayed due to one or the other reason.

The Senate of Pakistan had passed the Torture, Custodial Death and Custodial Rape (Prevention and Punishment) Bill, 2015, in March 2015 which was tabled by Senator Farhatullah Babar. In the constitutionally stipulated 90 days the said bill could not be passed by the National Assembly under Article 70 of the Constitution.

On Feb 13, 2017, the Senate passed a resolution for referring the said bill to a joint sitting of the Parliament, but it could not be passed till then National Assembly completed its five-year tenure last year. Under Article 76 of the Constitution, a bill pending in the National assembly, shall lapse on the dissolution of the Assembly.

The Statement of Object of the said Bill provided that ratification of the UNCAT required enabling legislation to reflect the definition and punishment for “torture. “It is necessary after the ratification of the Convention that domestic laws of our State are brought in conformity with the Convention,” it was added.

It proposed sentence from five to 10 years with fine of up to one million rupees for those who commits, or abets or conspires to commit torture. Furthermore, any public servant, or any other person who has a duty to prevent and either intentionally or negligently fails to prevent the commission of torture shall be punished with imprisonment for a term of up to five years, but not less than three years with fine up to Rs500,000.

The Bill also recommended sentence of life imprisonment with fine of up to Rs3 million for offences of custodial death or custodial rape.

Published in Dawn, September 9th, 2019