The suo motu notice by the apex court, of the killing of a young Pashtun Naqeebullah Mehsud by a senior officer of Karachi police, points at the lack of accountability mechanism within the police service to deal with such abuse of authority.
Besides, in a faulty criminal justice system and alleged political backing of the administrative system, more responsibility falls on the judiciary to safeguard the rights of individuals and take action against such abuse of authority. But is that a permanent solution?
“The constitution of Pakistan clearly guarantees the rights of citizens and stops abuse of authority. Further, the accountability procedure defined in the Police Order 2002 also makes sure that actions are taken against officials involved in abuse of authority or torturing/killing people in custody,” says Azam Nazir Tarrar, senior lawyer and former vice chairman Pakistan Bar Council.
“It is mandatory for a district session judge to hold inquiry into any killing in police custody and order the district magistrate to look into the matter and furnish a report. It is also mandatory that post mortem of the dead person be conducted by a special medical board rather than a single doctor,” he says.
Tarrar says the laws bind the district judge to take all these steps and these are done in papers. “Such documentation is completed by the police, even if manipulated, because it is mandatory. So, it is not the issue of implementation of law or role of judiciary but the issue of quality — to make these steps possible.”
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Article 4 of the constitution of Pakistan, which is about “right of individuals to be dealt with in accordance with law, etc.” makes sure that “no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.” Article 9 of the constitution further guarantees security of a person saying “No person shall be deprived of life or liberty save in accordance with law.”
Section156 of the Police Order 2002 imposes penalty for vexatious entry, search, arrest, seizure of property, torture, etc. It reads “Whoever, being a police officer — (a) without lawful authority, or reasonable cause, enters or searches or causes to be entered or searched any building, vessel, tent or place; (b) vexatiously and unnecessarily seizes the property of any person; (c) vexatiously and unnecessarily detains, searches or arrests any person; or (d) inflicts torture or violence to any person in his custody; shall, for every such offence, on conviction, be punished with imprisonment for a term, which may extend to five years and with fine.”
While, the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials provide that “intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.”
Justice(R) Nasir Aslam Zahid of the Supreme Court of Pakistan says normally the courts take up such cases when it comes to their notice like in the recent Naqeebullah Mehsud case. “However, we should keep in mind that judiciary has to deal with the case according to facts and evidence. Before the judiciary [takes it up], it is responsibility of the police and prosecution to deal with this matter. Judiciary alone cannot do it,” he says. “Also, if people feel that such things are happening in society or if someone doubts that something unfair is happening, the right of private complaint before the judiciary is also there.”
Justice Zahid is of the view that courts are the last resort and “they only take notice when they see that other institutions are not playing an effective role to deal with that particular mater”. He urges there is need of a proactive civil society to raise such matters too.
In the past many years, hundreds of such alleged fake encounters have been staged in Pakistan and there are rare examples of accountability. Many police officers, speaking informally, admit to the practice of staged encounter killings because of different pressures — political and administrative or living behind the excuse of “faulty criminal justice system”.
Former police chief of Punjab, Shaukat Javed, however, feels a careless attitude towards implementation of law defers or slows down the accountability mechanism within the police department.
“First, we have to take care of prerequisites of good policing which include no political interference; effective hierarchy and accountability mechanism in a democratic way,” he says. “The Police Order 2002 helped in drawing a good accountability mechanism. However, Sindh and Balochistan governments changed this law. While in Punjab and Khyber Pakhtunkhwa, we still lack full implementation of this law that requires setting up of public safety commissions and police complaint authorities at provincial and district level to ensure accountability and ratify such issues like fake encounters, corruption, misuse of authority etc.”
He rules out excuses of “faulty criminal justice system” allowing the police to misuse authority or engage in extrajudicial killings. “There is no divine right given to the police to kill people even for committing a crime,” says Javed, calling for reviewing “the Evidence Act to ensure that forensic and circumstantial evidences are also fully admissible in the courts to sort out such criminal matters”.