SC summons investigators on Shahbaz Gill’s plea against physical custody

Published September 16, 2022
<p>Justice Sayyed Mazahar Ali Akbar Naqvi (L), Justice Ijazul Ahsan (M) and Justice Jamal Mandokhail (R) — DawnNewsTV</p>

Justice Sayyed Mazahar Ali Akbar Naqvi (L), Justice Ijazul Ahsan (M) and Justice Jamal Mandokhail (R) — DawnNewsTV

The Supreme Court (SC) on Friday issued notices to federal investigators and summoned them in a personal capacity on a petition filed by PTI leader Shahbaz Gill seeking to determine if physical custody was necessary to complete criminal cases.

The order was issued by a three-member bench comprising Justice Ijazul Ahsan, Justice Sayyed Mazahar Ali Akbar Naqvi and Justice Jamal Khan Mandokhel, after it took the petition moved by senior counsel Barrister Salman Safdar on Gill’s behalf.

PTI chairman Imran Khan’s chief of staff has been nominated as an accused in the first information report (FIR) registered against him for allegedly inciting mutiny within the armed forces during an interview with a TV channel.

Gill was taken into custody under Sections 34 (common intention), 109 (abetment), 120 (concealing design to commit offence punishable with imprisonment), 121 (waging war against state), 124-A (sedition), 131 (abetting mutiny, or attempt to seduce a soldier, sailor or airman from his duty), 153 (provoking to cause riot), 505 (statement conducing to public mischief) and 506 (punishment for criminal intimidation) of the Pakistan Penal Code (PPC).

A day after his arrest, an Islamabad district and sessions court had granted police a two-day physical remand of the PTI leader. Subsequently, the police had multiple times sought an extension in the remand from the Islamabad High Court (IHC) but the requests were turned down.

On August 16, the IHC had referred the matter back to the trial court and later that day, a judicial magistrate had approved Gill’s two-day physical remand in police custody.

However, it was only two hours after the court’s ruling that Islamabad police were able to take Gill’s custody.

During the course of the investigation, PTI leaders, including Imran, alleged that Gill had been subjected to torture and abuse in police custody and contended the demand for Gill’s physical remand based on these claims.

Gill also accused police of physically and mentally torturing him and orchestrating a “fake medical checkup” when his “body was full of bruises”. He further alle­g­­ed that he was stripped and thrown into a room where he was beaten and kicked for three nights after his arrest on August 9.

In the most recent development, the IHC on Thursday finally granted post-arrest bail to the PTI leader and ordered his release against surety bonds of Rs500,000.

The hearing

In the beginning of the hearing today, Gill’s lawyer Salman Safdar claimed that the trial court “exceeded its authority” in the PTI leader’s case. “There is no example of the torture that was inflicted on Shahbaz Gill,” he said.

Here, Justice Naqvi inquired about Gill’s statements on which the case was lodged against him. “He gave a speech on the basis of which 13 provisions were booked [against him],” Safdar replied.

“What was it? On what basis was the case built,” Justice Naqvi asked the lawyer.

In his response, the lawyer said that the trial court “exceeded its authority”.

The judge asked again on what basis physical remand was given.

The lawyer then asked the judge to explain why the PTI leader was sent into physical custody.

However, his question irked the court. “What are you talking about? Is this the way you speak to a judge,” Justice Naqvi said.

Safdar immediately retracted his words and apologised to the court.

“Gill did not make a speech, he gave an interview,” Justice Naqvi went on, saying that the lawyer did not prepare for the case. “You don’t even know the purpose and process of giving a physical remand.

“The [trial court] judge has clearly written in the order that there were torture marks on Gill’s body,” Justice Naqvi said. “Will the judge also appear as a witness in the case?”

He said that the magistrate was the “guarantor of the prisoner’s rights”. “Don’t you know that?” the judge said and asked Safdar if the Criminal Code applied to the apex court.

The lawyer replied in the affirmative. “Waqeel sahab, Criminal Code does not apply to the Supreme Court,” Justice Naqvi contended.

Meanwhile, Justice Ahsan asked about the contents of Gill’s interview.

Justice Naqvi also inquired if seeking the remand of an accused in custody was important. “In this case, what was to be recovered from the accused? Did the police want to recover the tongue with which Gill has spoken?”

The judge observed that whatever was recovered for him had nothing to do with the case.

At one point, Justice Naqvi observed that the PTI leader would have to approach relevant forums against custodial torture and asked if the petitioner had reached out to any such forum.

He also inquired if someone had stopped Gill from filing an application in a relevant forum.

Here, Justice Mandokhel asked the lawyer if any such reports of torture surfaced during the tenure of PTI.

Safdar replied that incidents of custodial torture rarely came to light, claiming that Gill’s remand was the most “controversial” in the country’s history.

Subsequently, the court adjourned the hearing for an indefinite period of time, while issuing notices to federal investigation officers.

Gill’s petition

The petition filed in the apex court questioned if the approval of the federal government, as defined by the apex court in the 2016 Mustafa Impex case, was a mandatory precondition prior to registration of a criminal case on charges of mutiny and sedition, and whether the absence of permission by the federal cabinet would render the arrest, detention and remand an exercise in nullity, causing grave miscarriage of justice.

It also questioned whether the 14-day remand and physical custody of an accused was justified in the present case of mutiny and sedition when the allegations primarily revolved around a speech.

And whether the alleged torture and physical abuse during police custody and interrogation could be justified under the Constitution as well as the CrPC along with the Police Rules, the petition questioned, also asking if the IHC order of appointing the police chief to investigate the allegations of torture and physical abuse by the police operating under his command could ensure digging out the truth.

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