ISLAMABAD:
Supreme Court Justice Athar Minallah, in his dissenting opinion, has declared that law enforcement personnel involved in extrajudicial killings, enforced disappearances and custodial torture deserve the harshest punishment provided by law.
“Forced disappearances, extrajudicial executions, torture and murders in custody and excessive use of force are the most intolerable crimes in a democratic society and the worst forms of violation of the Constitution and the fundamental rights guaranteed therein.
“There can be no tolerance for such acts and conduct on the part of law enforcement agencies and their members, and such cases justify the imposition of the severest punishment when guilt is proven,” Justice Minallah wrote in his note, confirming the death sentence of a Frontier Corps (FC) soldier from Balochistan.
However, the majority judges converted his death sentence to life in prison.
According to the case file, a young university student, Mohammad Hayat, was deprived of his life in a gruesome, brutal and gruesome manner while in the custody of armed members of a paramilitary force. It was a case of extrajudicial custodial execution of an innocent citizen, committed in Turbat district of 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 severity is intensified when a citizen is the victim of an attack by a law enforcement agency or its agents. Any such act or conduct is intolerable in a society governed by the Constitution. The rule of law is eroded when law enforcement officers take the law into their own hands and assume the role of judge and executioner. This is exactly what happened in this case,” he said.
Responding to the objection regarding the FC member’s trial in a civilian court, Justice Minallah said it was not in the public interest or national security to refer such trials to military courts where citizens’ rights are at stake.
“The scheme of the Constitution unequivocally contemplates protecting the armed forces from being exposed to disputes involving civilians. The Constitution restricts 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 requested to do so,” he said.
He stressed that public confidence in paramilitary forces, especially when commanded by serving army officers, was crucial to the fulfillment of their constitutional duties.
“In this case, a young university student was the victim of an extrajudicial custodial execution by a member of a paramilitary force commanded by serving officers of the Pakistan Army,” it said.
He further stated that the appellant and FC Balochistan were governed by a special statute – the Frontier Corps Ordinance, 1959 – and that the Sessions Court had full jurisdiction to conduct the trial.
“In 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 punishment is not only necessary to reflect the seriousness of the crime but also to make the offender an example to others as a preventive measure for the protection of society.
“In heinous crimes committed with premeditation and brutality, no leniency should be shown. A death sentence creates deterrence in society so that no one dares to commit murder.
“When guilt is proven beyond a shadow of a doubt, taking a lenient stance jeopardizes peace and opens the door to anarchy. Courts should not hesitate to award the maximum penalty where warranted.”
He noted that sentencing discretion must be exercised judiciously and that life imprisonment instead of death requires strong reasons recorded by the court. “The punishment must be proportional to the seriousness of the crime,” he stressed.
Justice Minallah also highlighted the statutory role of the FC. A reading of the 1959 Ordinance shows that the Balochistan Frontier Corps was created primarily to protect and administer the external borders of Pakistan.
“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, who are seconded by the Pakistan Army.
“The FC is a disciplined paramilitary force whose duty is to protect citizens. Its officers and members are armed solely to defend the people and the State,” he said.
He said that as a uniformed and disciplined force, FC 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. Failure to fulfill this duty has serious consequences for society and the FC itself.
“The appellant, as a trained member of the FC, was expected to protect the victim, not kill him. The firearm given to him was intended exclusively for defense, not for illegal use against citizens,” he concluded.
