Justice Mandokhail says illegal detention and torture violate constitutional guarantees
Justice Jamal Khan Mandokhail. PHOTO: FILE
ISLAMABAD:
Amid a hue and cry over the encounters being carried out by the newly created Crime Control Department (CCD) in Punjab, the Supreme Court has ruled that in order to stop torture and extrajudicial killings, an effective, dedicated, external oversight of the police force is the need of the hour.
“Torture and other cruel, inhumane, or degrading treatment, including outrages upon personal dignity, are not permitted in any circumstance, as they are against human dignity and the rule of law.
“Sometimes, torture leads to extrajudicial killings by the police, presuming de facto impunity and as a means of bringing alleged criminals to justice. To stop this practice, an effective, dedicated, external oversight of the police force is the need of the hour,” says a seven-page judgment authored by Justice Jamal Khan Mandokhail.
The judge was part of a bench adjudicating the question of whether detaining a person illegally and torturing him by an official constituted misconduct and, if so, what its consequences would be.
The judgment noted that the police force is the custodian of law and is committed to preserving the framework of fundamental rights enshrined in the Constitution.
“It is bound to provide security and to protect the life, liberty, and dignity of a person. When a government functionary harms a person without following the law, this not only constitutes a violation of fundamental rights, but also violates due process of law guaranteed by the Constitution.
“There is no denial of the fact that the police have the authority to arrest any person who violates the law, but any such action without adopting the due process provided by the Constitution and law, and treating such a person inhumanely, cruelly, and subjecting that person to torture, constitutes not only a criminal act, but also amounts to misconduct.”
The judgment notes that the Constitution imposes a duty upon the state to protect the right to life of every citizen and to prevent custodial violence and killings.
“These constitutional guarantees against illegal detention, arrest, brutality, torture, and extrajudicial killings in any form are bedrock legal and fundamental principles enshrined in the Constitution.
“Therefore, illegal detention and torture are neither encouraged nor justified under any circumstances. The purpose of fundamental rights is to ensure a secure and just society.
“These are also recognized worldwide and were adopted by the United Nations in 1948 through the Universal Declaration of Human Rights (UDHR).”
Facts of the case
A three-member bench led by Justice Amin-ud-Din Khan heard the appeal of three police officials against their removal.
The petitioners were head constable and constables in District Police, Dera Ghazi Khan, and were posted at the Federal Investigation Agency (FIA).
There was an allegation against them that they had unlawfully detained one Zaryab Khan and subsequently committed his murder.
An FIR under Section 302 of the Pakistan Penal Code (PPC) was registered against the petitioners and others, and they were tried by a criminal court.
Simultaneously, a departmental inquiry and disciplinary proceedings were also initiated against them under the Punjab Police (E&D) Rules, 1975.
They were charge-sheeted on June 24, 2020 with an allegation of committing gross misconduct.
During the pendency of the departmental proceedings, the petitioners were acquitted of the criminal charge under Section 302 PPC by a sessions court, based on the benefit of doubt.
At the conclusion of the departmental inquiry, a report was submitted by the inquiry officer before the authorized officer/DPO on September 25, 2020, holding the petitioners guilty of misconduct.
On this basis, the authorized officer on October 9, 2020 recommended a penalty of reduction in pay by one stage for a period of two years.
The Regional Police Officer, Dera Ghazi Khan (RPO), being the competent authority, did not agree with the recommendations of the authorized officer and issued show-cause notices to the petitioners for enhancement of the penalty. They submitted their written replies.
After examining the record and hearing the petitioners in person, the competent authority found that the punishment proposed by the authorized officer/DPO did not commensurate with the gravity of the charge against the petitioners. They were, therefore, awarded the major penalty of dismissal from service vide order dated December 12, 2020.
Feeling aggrieved, the petitioners preferred departmental appeals, which were dismissed on June 8, 2023.
Aggrieved therefrom, the petitioners filed service appeals before the Punjab Service Tribunal, which too dismissed the pleas on January 17, 2024.
The apex court noted that the petitioners were members of the Punjab Police, a disciplined force, whose terms and conditions of service are subject to the relevant police laws and the Rules of 1975.
“In the present case, the allegations against the petitioners in their capacity as police officials — of unlawful confinement, maltreatment, and torture of Zaryab Khan — have been established during the inquiry through evidence and material described in the report of the inquiry officer as well as available on the record.
“By detaining Zaryab Khan illegally and subjecting him to torture, the petitioners acted in violation of their duty to act in accordance with the law.
“The act of the petitioners amounts to misuse of authority, falling within the definition of grave misconduct defined in sub-rule (iii) of Rule 2 of the Rules of 1975.
“The penalty proposed by the authorized officer did not commensurate with the gravity of the misconduct committed by the petitioners.
“The RPO, being the competent authority, provided an opportunity to the petitioners to defend themselves.
“After adopting due process, the competent authority was justified in enhancing the penalty — from reduction in pay by one stage for a period of two years, as recommended by the inquiry officer, to dismissal from service.
“Such departmental proceedings are necessary to uphold the rule of law and maintain public confidence in the state’s institutions,” said the judgment.
