Police in our country is synonymous to torture and violence. It resorts to inhuman treatment and brutality when it yearns to yield the words of its own choice from the mouth of the accused. It has become so infamous in this regard that when a judge confers upon police physical remand of any accused, it is perceived by the general populace as if police has been licensed to commit torture upon the accused. However, physical remand doesn’t aim at subjecting the person in custody to physical or mental torment as perceived by the general public but to interrogate the accused about the matter under investigation in order to collect evidence.
Painfully penned in our country custodial torture is deemed as part and parcel of criminal investigation. It is viewed as an unofficially sanctioned component of criminal probe. Normally, it is resorted to extract evidence, despite this being prohibited under article 14 (2) of the constitution.
Custodial torture in Pakistan has myriad forms; it encompasses physical torture, intimidation and threats (mental torture) sleep deprivation and humiliation. These not only constitute grave human rights violations but also violate Pakistan’s obligations under various international treaties, particularly United Nations convention against torture and other cruel, inhuman or degrading treatment or punishment (UNCAT) which the country signed in 2008 and ratified in 2010.
This centralization of expertise and authority ensures a streamlined, specialized approach by a neutral and independent agency.
Fortunately, with enactment of Torture and Custodial death (Prevention and punishment) act 2022, the teething power of police which it has been employing to meet its nefarious ends since its establishment under English rule has been taken away. Under this act, Police have no authority to cause even slightest harm to the body of a person in custody. However, if it nevertheless does so, severe punishment commensurate to the harm meted out to a person in custody would be given to one who perpetrates such torture.
Before delving into profundity of the act, I find it exceedingly necessary to elaborate some basic concepts like custody, torture, custodial torture, custodial death, custodial rape etc in the light of definitions provided in “Torture and custodial death (prevention and punishment act 2022.
The term “custody” includes all situations where a person is detained or deprived of his liberty by any person, including a public official or by any other person working in an official capacity irrespective of legality nature and any place of such detention. It includes judicial custody and all forms of temporary and permanent restraint upon the movement of a person by law or by force or by other means. In addition, a person shall be deemed to be in custody during search, arrest and seizure proceedings.
The term ‘torture’ has been explained in Section 2 (n) of the Act of 2022 in following words Torture ” means an act committed by which severe physical pain or physical suffering, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
Moreover, section 2 (h) expounds “custodial death” as the death of a person while in custody, directly or indirectly caused by and attributable to acts of torture committed upon the deceased while in custody; it includes death occurring in police, private or medical premises, in a public place or in a police or other vehicle or in jail. It even includes death occurring while a person is being arrested or taken into detention or being questioned; and all cases where the death of a person after his release from custody is directly caused by and may be substantially attributed to acts committed upon the deceased while in custody.
“Custodial rape” refers to instances where an individual exploits his position to commit rape or sexual abuse on a person under his custody or in the custody of a public official subordinate to him. This definition captures the misuse of authority to violate the personal integrity and rights of those detained.
Coming to the investigation, the most encouraging aspect of the act is that police have no mandate to probe into the matters of custodial torture and deaths but a specialized agency supervised by human rights commission is supposed to perform this task. The Act of 2022 establishes a twofold mechanism for oversight in the investigation of offenses perpetrated by public officials under its provisions. The primary tier confers exclusive jurisdiction upon the Agency, making it the sole authority empowered to investigate specific allegations of custodial torture, deaths and rapes against public officials. This centralization of expertise and authority ensures a streamlined, specialized approach by a neutral and independent agency. Consolidating skills and decision-making power within a dedicated entity guarantees investigations are conducted with impartiality, precision, and a thorough understanding of the complexities involved.
The second tier of oversight has been provided by the supervision of the investigation process by the Commission. This supervision is crucial as it introduces an additional level of scrutiny, ensuring that the investigations are conducted with a commitment to human rights standards. While investigating offenses under the Act of 2022, the Agency is endowed with the same powers and is required to adhere to the procedure outlined in the Federal Investigation Agency Act, 1974 (Act VIII of 1975), and the rules established thereunder.
Moreover, section 5 of the act of 2022 is a non-obstante clause having an overriding effect over any other conflicting provisions of law. The phrase non-obstante is Latin for ‘notwithstanding’, indicating that the specific provision will prevail despite anything to the contrary in other laws. Moreover, all the offenses under the Act of 2022 are cognizable in nature. A cognizable offense denotes a crime for which a police officer is empowered to make an arrest without a warrant.
Another worth-mentioning provision deserving applause is section 4 which deals with Custody of females; it stipulates that no female shall be detained in order to extract information regarding the whereabouts of a person accused of any offence or to extract evidence from such female. However, the dark side of this section is that it inadequately addresses the problem of illegal detention because it is limited to females only. The practice of detaining male relatives of an accused to extract evidence or determine whereabouts is common in our investigation dispensation and has been recognized and condemned by superior courts.
With regard to penalties provided under this act; section 8 of the act says that any public official who commits or abets or conspires to commit torture shall be punished with same punishment as prescribed for the type of harm provided in chapter XVI of the Pakistan penal code and for custodial death section 9 provides that whoever commits or abets or conspires to commit the offence of custodial death, shall be punished with the same punishment as prescribed in section 302 of PPC. However, the grey side of penalties provided under this act is that it does not provide punishments for torture and custodial death itself but falls back on already stipulated punishments in PPC which do not correspond completely with the nature or gravity of the crime and custodial death. Additionally, the prescribed punishments for the offences under PPC are not in line with the UNCAT and international standards because they lack specificity and don’t punish specific crime of torture.
It is pertinent to mention here that the most discouraging part of this legislation is provided in section 11 of the act which deals with malafide complaint. It eclipses the whole efficacy and object of the act since it instills fear among the complainants to lodge genuine complaints against public officials. Section 11 states that “whoever files a malafide complaint shall, after it is established that the complaint was malafide, be punished with the same punishment as prescribed under section 8 for the perpetrator under this act”. This provides a legal means to coerce and harass complainants in a system of skewed power, leaving the process open to manipulation by public officials.
To cap it all, despite some lacunas which warrant tweaking; the act is overall a phenomenal piece of legislation. The need of the hour is to disseminate awareness among the people about this act so that undue fear of police is removed from our society and police are schooled concerning its limits and powers.
The writer is an advocate and a columnist based in Quetta.