ISLAMABAD:
Supreme Court Justice Athar Minallah, in his dissenting opinion, said law enforcement individuals involved in extrajudicial killings, enforced disappearances and custodial torture deserved the harshest punishments under the law.
“Enforced disappearances, extrajudicial executions, torture and killings in custody, as well as excessive use of force are the most intolerable crimes in a democratic society and the worst forms of violations of the Constitution and the fundamental rights guaranteed therein.
“There can be no tolerance for such acts and behavior on the part of law enforcement agencies and their members, and such cases warrant the imposition of the severest punishment when guilt is proven,” Justice Minallah wrote in his note, upholding the death sentence of a Frontier Corps (FC) soldier from Balochistan.
However, the majority converted his death sentence to life imprisonment.
According to the filing, a young university student, Mohammad Hayat, was deprived of his life in a horrific, brutal and shocking manner while in the custody of armed members of a paramilitary force. This was a case of custodial extrajudicial killing of an innocent citizen, committed in Turbat district, Balochistan.
Justice Minallah observed that in a society where grievances related to enforced disappearances, excessive use of force, abuse of power, extrajudicial killings and violations of fundamental rights by law enforcement agencies are widespread, granting impunity for crimes committed against citizens becomes the most aggravated form of transgression of the law.
“The gravity is heightened when a citizen is subjected to an attack by a law enforcement agency or its agents. Such an act or conduct is intolerable in a constitutionally governed society. The rule of law erodes when law enforcement agencies take the law into their own hands and assume the role of judge and executioner. This is exactly what happened in this case,” he noted.
Responding to the objection regarding the trial of the FC member in a civilian court, Justice Minallah said it was neither in the public interest nor in the interest of national security to refer such trials to military courts where the rights of citizens are at stake.
“The plan of the Constitution unambiguously contemplates protecting the armed forces from exposure to controversies involving civilians. The Constitution limits the role and functions of the armed forces under Article 245 to the defense of Pakistan against external aggression and, subject to law, to act in aid of the civil power when called upon to do so,” he said.
He stressed that public confidence in paramilitary forces, especially when commanded by serving army officers, was crucial for the discharge of their constitutional functions.
“In this case, a young university student was the victim of an extrajudicial execution in custody by a member of a paramilitary force commanded by serving officers of the Pakistani army,” he noted.
He further said that the appellant and FC Balochistan were governed by a special statute – the Frontier Corps Ordinance, 1959 – and the sessions court had full jurisdiction to conduct the trial.
“On the facts and circumstances of this case, a trial before a military court would have been contrary to the public interest, illegal and unconstitutional,” he added.
On the issue of sentencing, Justice Minallah wrote that deterrent sanctions are not only necessary to reflect the seriousness of the crime, but also to make the offender an example to others, as a preventive measure to protect society.
“In heinous crimes committed with premeditation and brutality, no leniency should be shown. A death sentence creates a deterrent effect in society so that no one dares to commit murder.
“When guilt is proven beyond a shadow of a doubt, adopting a lenient attitude jeopardizes the peace and opens the door to anarchy. Courts should not hesitate to impose the maximum sentence when warranted.”
He emphasized that sentencing discretion must be exercised judiciously and that life imprisonment, rather than the death penalty, requires strong reasons recorded by the court. “The punishment must be proportionate to the seriousness of the crime,” he stressed.
Justice Minallah also highlighted the statutory role of the FC. A reading of the 1959 order shows that the Balochistan Frontier Corps was established primarily to protect and administer Pakistan’s external borders.
“The purpose of its existence is to protect citizens against external aggression, enemies, hostile entities and collaborators. Command and control rests exclusively with the Federal Government, which appoints senior officers, including the Inspector General, seconded by the Pakistan Army.
“The FC is a disciplined paramilitary law enforcement force whose duty is to protect citizens. Its officers and members are armed only to defend the people and the state,” he stressed.
He said that as a disciplined uniformed force, CF personnel are expected to maintain exemplary conduct, professionalism and integrity when dealing with civilians.
“They enjoy a position of authority and trust and therefore have a fiduciary duty to the people. Breach of this duty has serious consequences for society and for the FC itself.
“The appellant, as a qualified member of the FC, was supposed to protect the victim and not kill him. The firearm given to him was intended exclusively for defense and not for illegal use against citizens,” he concluded.
