Judge Mandokhail says illegal detention and torture violate constitutional guarantees
Judge Jamal Khan Mandokhail. PHOTO: ARCHIVE
ISLAMABAD:
Amid the uproar over the encounters being carried out by the newly created Crime Control Department (CCD) in Punjab, the Supreme Court has ruled that to stop torture and extrajudicial killings, effective and dedicated external supervision of the police force is the need of the hour.
“Torture and other cruel, inhuman or degrading treatment, including attacks on personal dignity, are not permitted under any circumstances, as they go 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, effective and dedicated external oversight of the police force is necessary,” reads a seven-page judgment written by Justice Jamal Khan Mandokhail.
The judge was part of a court judging the question of whether illegally detaining a person and torturing him by an official constituted misconduct and, if so, what the consequences would be.
The ruling noted that the police are guardians of the law and are committed to preserving the framework of fundamental rights enshrined in the Constitution.
“It is intended to provide security and protect the life, liberty and dignity of a person. When a government official harms a person without respecting 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 denying 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 the law, and treating such person in an inhumane, cruel manner and subjecting him to torture, constitutes not only a criminal act, but also amounts to misconduct.”
The ruling indicates that the Constitution imposes on the State the duty to protect the right to life of all citizens and prevent violence and murders in custody.
“These constitutional guarantees against illegal detention, arrest, brutality, torture and extrajudicial executions in any form are legal and fundamental principles enshrined in the Constitution.
“Therefore, illegal detention and torture are not encouraged or justified under any circumstances. The purpose of fundamental rights is to ensure a safe and just society.
“These are also recognized globally 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 police chief and officers of the district police, Dera Ghazi Khan, and were posted in the Federal Investigation Agency (FIA).
There was an allegation against them that they had illegally 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.
At the same time, a departmental inquiry and disciplinary proceedings under the Punjab Police (E&D) Rules, 1975 were also initiated against them.
They were accused on June 24, 2020, of having committed serious misconduct.
During the pendency of the departmental proceedings, the petitioners were acquitted of the criminal charge under Section 302 PPC by a sessions court on the basis of benefit of doubt.
On conclusion of the departmental investigation, the investigation officer submitted a report 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 salary reduction by one level 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 presented their responses in writing.
After examining the file and hearing the petitioners personally, the competent authority concluded that the punishment proposed by the authorized officer/DPO was not proportionate to the seriousness of the charges against the petitioners. Therefore, the greater penalty of dismissal from service was imposed on them by order dated December 12, 2020.
Feeling aggrieved, the petitioners preferred departmental appeals, which were dismissed on June 8, 2023.
Aggrieved by this, the petitioners filed service appeals before the Punjab Service Court, which also dismissed the appeals on January 17, 2024.
The top 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 1975 Rules.
“In the present case, the allegations against the petitioners in their capacity as police officers (of illegal confinement, ill-treatment and torture of Zaryab Khan) were established during investigation through evidence and material described in the report of the investigation officer as well as available on record.
“By illegally detaining Zaryab Khan 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 abuse of authority, within the definition of grave misconduct defined in sub-rule (iii) of Rule 2 of the 1975 Rules.
“The sanction proposed by the authorized official is not proportionate to the seriousness of the offense committed by the petitioners.
“The RPO, being the competent authority, gave the petitioners an opportunity to defend themselves.
“After adopting due process, the competent authority was justified in increasing the penalty, from reduction in salary at one stage for a period of two years, as recommended by the inquiry officer, to dismissal from service.
“These departmental procedures are necessary to defend the rule of law and maintain public confidence in State institutions,” the ruling says.
