Justice Mandokhail says illegal detention and torture violate constitutional guarantees
Judge Jamal Khan Mandokhail. PHOTO: FILE
ISLAMABAD:
Amid the outcry over the clashes carried out by the newly established Crime Control Department (CCD) in Punjab, the Supreme Court has ruled that to stop torture and extrajudicial killings, effective and dedicated external monitoring of the police force is the need of the hour.
“Torture and other cruel, inhuman or degrading treatment, including outrages upon personal dignity, are not permitted under any circumstances, as they undermine human dignity and the rule of law.
“At times, torture leads to extrajudicial executions by the police, which implies de facto impunity and is a means of bringing suspected criminals to justice. To end this practice, effective and dedicated external oversight of the police force is the need of the hour,” states a seven-page judgment written by Justice Jamal Khan Mandokhail.
The judge was part of a tribunal tasked with deciding whether a public official’s unlawful detention and torture of a person constituted misconduct and, if so, what the consequences would be.
The judgment notes that the police are the guardians of the law and are committed to preserving the framework of fundamental rights enshrined in the Constitution.
“It is required to provide security and protect the life, liberty and dignity of a person. When a government official harms a person without following the law, it is not only a violation of fundamental rights, but also violates due process guaranteed by the Constitution.
“It cannot be denied the fact that the police have the power to arrest any person who violates the law, but any such action without adopting due process provided by the Constitution and law, and treating such a person in an inhumane, cruel manner and subjecting him to torture, not only constitutes a criminal act, but also amounts to misconduct.”
The judgment notes that the Constitution imposes a duty on the state to protect the right to life of every citizen and to prevent custodial violence and murder.
“These constitutional guarantees against unlawful detention, arrest, brutality, torture and extrajudicial killings in any form are fundamental legal and fundamental principles enshrined in the Constitution.
“Therefore, illegal detention and torture are in no way encouraged or justified. The aim of fundamental rights is to guarantee a safe 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 headed by Justice Amin-ud-Din Khan heard the appeal of three police officers against their dismissal.
The petitioners were the district police chief and constables, Dera Ghazi Khan, and were posted in the Federal Investigation Agency (FIA).
There was an allegation against them that they illegally detained one Zaryab Khan and later 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 in a criminal court.
Simultaneously, departmental inquiry and disciplinary proceedings were also initiated against them under the Punjab Police (E&D) Rules, 1975.
They were charged on June 24, 2020 for serious misconduct.
While the departmental proceedings were pending, the petitioners were acquitted of the criminal charge under Section 302 PPC by a sessions court, on the basis of benefit of doubt.
Following the departmental investigation, a report was submitted by the investigating officer before the authorized officer/DPO on September 25, 2020, finding the petitioners guilty of misconduct.
On this basis, the authorized official recommended on October 9, 2020 a sanction of salary reduction by one step 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 increase in penalty. They submitted their written responses.
After examining the file and hearing the petitioners in person, the competent authority was of the view that the sanction proposed by the authorized officer/DPO was not proportionate to the seriousness of the accusation leveled against the petitioners. They were therefore imposed the heavy sanction of dismissal by order of December 12, 2020.
Feeling aggrieved, the petitioners preferred departmental appeals, which were rejected on June 8, 2023.
Aggrieved, the petitioners filed appeals before the Punjab Military Tribunal, which also dismissed their appeals on January 17, 2024.
The apex court noted that the petitioners were members of the Punjab Police, a disciplined force, whose conditions of service are subject to the relevant police laws and the 1975 Rules.
“In the present case, the allegations made against the applicants in their capacity as police officers – of illegal detention, ill-treatment and torture of Zaryab Khan – were established during the investigation using evidence and materials described in the investigator’s report as well as available on file.
“By unlawfully detaining Zaryab Khan and subjecting him to torture, the petitioners acted in violation of their duty to act in accordance with the law.
“The action of the applicants amounts to a misuse of power, falling within the definition of serious misconduct as defined in sub-rule (iii) of rule 2 of the 1975 Rules.
“The sanction proposed by the authorized official was not proportionate to the seriousness of the misconduct committed by the applicants.
“The RPO, being the competent authority, has given an opportunity to the petitioners to defend themselves.
“Having adopted due process, the competent authority was right to increase the sanction, ranging from a reduction in salary by one step for a period of two years, as recommended by the investigator, up to dismissal.
“Such departmental procedures are necessary to uphold the rule of law and maintain public confidence in state institutions,” the judgment said.
