For years, the common man in Pakistan has been denied access to justice and there is little accountability for Pakistan’s broken justice system. The police in particular are a frequent target of public criticism.
Transparency International ranked Pakistan 127 out of 177 countries in the Corruption Perceptions Index 2013. A public poll in 2013 by Transparency International of 1000 respondents in Pakistan showed the police department as the most corrupt institution of the country. This corruption is prevalent in all levels of the police force, and this ineffectiveness has grave repercussions on rule of law and protection of human rights and domestic security. The incompetence leads to low conviction rates, and hence higher crime rates.
Contrary to popular belief, Pakistan has intrinsically sound laws in place, which are analogous to Indian laws, the laws of United Kingdom and other common law countries. However, the crux of the problem lies in the failure to implement these laws properly. These issues have been studied in detail through a new study titled ‘Overview of the Criminal Investigation Process: FIR to Final Challan’, by the non-profit public policy think Manzil Pakistan.
To take one example, section 154 of the Code of Criminal Procedure, makes it obligatory on a police officer to file a First Investigation Report (FIR) but this is not always done in practice because a common citizen is neither aware of this duty of the police officer nor of the alternative remedies available to him or her. The main reason why police officers refuse to register an FIR is to avoid the collection of data regarding crimes in their area, in order to keep the crime rate of the area under them as low as possible.
One such instance is of Muzammal Afzal, who went to a police station to file an FIR regarding a brutal mobile snatching that he himself had been a victim of. Muzammal, after having dealt with loss of property and physical injury, had yet another hurdle to overcome in order to be given the justice that he rightfully deserved.
He was told that an FIR could not be filed at the time due to power shortage at the station and was asked to come back the next day. When he returned to the police station the following day, he was informed that the police officer in charge was not present. The police advised him not to file an FIR as to do so would be ineffective and he would have to spend an excessive amount of money in pursuance of his complaint. The police discouraged him from filing and FIR and in plain words told him no less than a bribe would suffice.
Perhaps, the situation would have been different had Muzammal been aware of his right to have his FIR registered under section 154 of the Code of Criminal Procedure. It is a commonly held opinion that there should be public literacy campaigns to educate the citizens of their legal rights.
For example, people need to know about the alternative remedies available in case an uncooperative police officer refuses to register an FIR or files it negligently. The remedies available are present in the provisions of the Code of Criminal Procedure and the Constitution of Pakistan. The former contains two alternative methods namely section 22-A which empowers the Justices of Peace with the same powers of filing an FIR as of a police officer and section 200 lays down the procedure of filing a private complaint to a Magistrate. Moreover, the Constitution of Pakistan contains the remedy of writ petition as a last resort.
The police take advantage of the lack of awareness amongst citizens instead of informing them of their rights. Muhammad Ramazan, who cannot read or write, had to go through a similar ordeal when he filed a complaint and was asked to provide his thumb impression as a verification of his complaint. Unfortunately, he later discovered that the data recorded was incorrect. To remedy this problem Manzil Pakistan’s report suggests appointing an in-house counsel at every police station or a legal officer for every district who proofreads the FIR and makes sure that the correct section of the law is applied.
Where and to whom does a common citizen go to, when the very agency that is meant to protect the rights and interests of the citizens is the one which abuses them the most? One way of tackling this issue is to computerize the process of registering an FIR and installation of close circuit cameras at the police stations.
The presence of CCTV cameras would not only result in better performance and an accountability mechanism of the police while filing an FIR, but also in making the investigation of the accused more transparent. Coerced confessions are very common in Pakistan, and this pressing concern can be addressed by recording confessions. Moreover, an online FIR registration system would lead to proper collection of data, which can be useful in future investigation and monitoring of crime as well.
At the moment, the FIR is written on a piece of paper, which is usually worn out making it hard to read. Digitalisation of the process of lodging an FIR would make it easier for the complainant or the informant to receive a copy of the FIR. In India, a copy of the FIR has to be given to the informant free of coast. In Pakistan, this is done in practice but not made mandatory by law. Due to this, police officers often omit or add information.
Police brutality has attracted a lot of international criticism as it leads to grave violations of human rights. A major reason behind these violations is the fact that some of the laws are outdated. Under section 46 of the Code of Criminal Procedure and its subsections, arrest requires the police officer to physically confine the body of the person to be arrested. The code does not provide the precautions or steps the police officer must take prior to conducting an arrest. This in practice may lead to a wrongful arrest of the suspect.
Furthermore the code allows the police officer to use ‘all means necessary’ to carry out an arrest where the suspect forcibly resists arrest. The Code of Criminal Procedure and the Police Rules 1934 do not specify what falls within the definition of ‘all means necessary’ which might enable the police officials to use lethal force. The recent incident of the Punjab police and Pakistan Awami Tehreek workers’ clash in Lahore’s Model Town depicted how the police used excessive force in such situations and hence caused grievous injuries and even casualties.
Furthermore, it can be argued that section 46 (3) of the Code of Criminal Procedure is a poorly drafted piece of law as it is silent about means used to arrest a person accused of a crime punishable by death or imprisonment for life. It only prohibits the right to cause death of a person who is not accused of an offence punishable with death or life imprisonment. Due to this, it is automatically implied that for the former category of accused, police officers have the right to cause death.
Moreover, even if a person is accused of a crime punishable by death or imprisonment for life for e.g. murder, he/she is still innocent until proven guilty and the police officers should not have this overarching cover of using ‘all means necessary’ to make the arrest effective because it can give a legal cover to unjustified ‘police encounters’ which give rise to gross violations of human rights.
Our own analysis of the criminal investigation process in Pakistan has led us to the conclusion that there are certain areas of the law that have been covered fairly well. However, their effect is compromised due a lack of implementation. Some laws have become obsolete or are draconian in their nature.
Regardless, monitoring police stations through cameras, digitizing of data, raising public awareness about the rights granted to the aggrieved by law and frequent amendments to the law can go a long way in making the investigation procedure more citizen-friendly.