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Dispute resolution

October 16, 2012

PEACE in society depends on the capacity of the latter to resolve petty disputes which occur daily. In all democratic societies, the police assist society in resolving such disputes. In Pakistan, however, the police play a minor role in dispute resolution. This is evident from the criminal law of the land.

The Criminal Procedure Code (CrPC) gives extraordinary powers of arrest to the police. The officer-in-charge of the police station (SHO) can arrest anyone who is lurking around to commit an offence, anyone who is a vagabond, or anyone who is by reputation a habitual robber, housebreaker or thief (Section 55, CrPC).

However, the police are not empowered to investigate every offence and where such power has been given it is restricted to a designated officer. This is clearly laid down by Sections 154 and 156 which empower only the SHO to entertain a complaint or investigate a ‘cognisable’ offence. Every police officer has not been empowered in this regard.

Subsequent provisions of the Code reveal the SHO’s control over investigations conducted by subordinate officers. All reports to the magistrate are to be submitted by him. The police cannot decide the fate of cases which are undetected or in which evidence is lacking. This power vests with the court (Section 173 CrPC).

The police are absolutely prohibited from probing ‘non-cognisable offences’ (Section 155). The SHO is only required to direct the victim to the magistrate after recording the gist of the complaint in the roznamcha.

According to a report (Dawn, Aug 23, 2012), in Karachi 22,416 cases of assault and affray were reported to the police in 2011. In addition, 19,946 reports related to domestic and family disputes. These offences fall under the non-cognisable category.

A major cause of disputes and friction in society is public nuisance. Chapter X of the CrPC defines public nuisance and lays down the procedure to handle it. In this the role of the SHO is limited only to a report of the public nuisance to the magistrate. The solution is to be arrived at by the magistrate.

Thus, whether it is a cognisable offence, a non-cognisable offence or a public nuisance, it is the magistrate who is responsible for the ultimate fate of the case. This means that disputes can be resolved only through court proceedings. This method may be correct for serious crime but for minor offences and disputes, it is not very appropriate. One must look at British rule in India to understand the reason for this unusual dispensation.

The uprising in 1857 of the zamindars of Oudh and Bihar in support of the mutineers of the Bengal army and, in many places even leading them, gravely alarmed the British. The zamindars were revolting because they felt that the Company Bahadur had broken the terms of the Permanent Settlement (1793) according to which the zamindars were left to hold sway in return for land revenue which was fixed in perpetuity.

The reason for this discontent was the enforcement of laws enacted in the first half of the 19th century which were meant to ‘civilise the natives’ (e.g. Abolition of Satti, Prohibition of Child Marriage, etc.). The frequent visits of the police to enforce these laws adversely affected the sway of the zamindar.

To redress his grievances new laws were decreed and the zamindar was assured that the arrangement formulated by the Permanent Settlement would be the foundation on which India will be governed. Police Rule 21.1 explains this as follows: “The criminal law of India and the police organisation which is based upon it, are both founded on the principle that public order depends essentially upon the responsibility of every member of the community within the law to prevent offences and to arrest offenders. The magisterial and police organisation is set up to enforce, control and assist this responsibility.”

Prevention of crime being the responsibility of the zamindar, resolution of disputes was firmly vested in him within the village. This was changed in 1959 when under the Basic Democracy Order the responsibility for dispute resolution was given to the Union Council. During the next 10 years the police and the magistracy interacted with the elected councillors in resolving disputes and in the process a new vested interest surfaced.

The village was better served when dispute resolution vested within it and the community had some control over it because of recognised precedents. The elected councillors assumed the style of a jirga in resolving disputes and the centuries-old village mechanism was ruined.

In urban areas disputes and nuisances are dealt with according to the law. The SHO makes a report of disputes (Section 150 or 151 CrPC) and nuisances (Section 133 CrPC) to the magistrate and it is for him to decide them. Non-cognisable offences are also dealt by the magistrate. As the police have not been empowered, disputes cannot be dealt through an alternate dispute resolution mechanism.

In conclusion, it would not be wrong to say that the dispute resolution mechanism available in Pakistan lacks a positive role of the state. The police are barred from resolving disputes. The magistrate solves disputes through a court procedure which only adds to the woes of the people.

The 19th-century system vested dispute resolution squarely in the village. Giving this responsibility to the union council was unfortunate. Today there is a jirga style of justice in the rural areas with novel and corporal punishments being the norm.

In towns and cities, dispute resolution vests in the magistrate and is lost in court procedure. This failure of the state is leading to mob justice generating chaos and lawlessness.

Finally, if the police cannot investigate crime it cannot bring offenders to justice. If the police cannot help resolve disputes it cannot prevent crime. Prohibiting the police from resolving disputes and investigating offences is a complete negation of the doctrine of zero tolerance which is absolutely necessary to establish the rule of law.

The writer is a former IG, Police.