V io le n ce R e se a rch a n d D e ve lo p m e n t P ro je ct | P a p e rs

Justifications and Legitimacy of Police violence

How is Police Violence Legitimized in

Violence Research and Development Project

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How is Police Violence Legitimized in Pakistan?

Kamran Adil

Violence Research and Development Project | Papers

No. 9

How is Police Violence Legitimized in

Papers

Violence Research and Development Project | Papers | No. 9

International Center for Violence Research – ICVR A Project of the Institute for Interdisciplinary Research on Conflict and Violence – IKG Universität Bielefeld Universitätsstraße 25 33615 Bielefeld Germany Project Webpage http://www.uni-bielefeld.de/icvr/ Violence Research and Development Project | Papers http://www.uni-bielefeld.de/icvr/publications.html Contact [email protected] The Violence Research and Development Project Papers are a medium for circulating research within the Violence Research and Development Project of the International Center for Violence Research prior to publication in order to encourage discussion. The Violence Research and Development Project Papers represent work in progress. Comments are welcome and should be addressed to the author(s). Any opinions expressed in this paper are the author(s) and not necessarily those of the International Center for Violence Research and the Institute for Interdisciplinary Research on Conflict and Violence, Bielefeld University. If you want to be informed about new publications of the International Center for Violence Research please send an e-mail to: [email protected] The copyright of this Violence Research and Development Project Paper is held by the author(s).

Violence Research and Development Project | Papers | No. 9 1

Acknowledgements The Violent Research and Development Project series of papers documents the preliminary

results of a pilot project that was established to integrate higher education training in social

science research with cross-regional comparative research on violence. The overall aims of

the project, which has been generously supported by the German Federal Ministry for

Economic Cooperation and Development (BMZ), is to empower young academics in Africa,

Asia, Latin America, and the Middle East, so that they can contribute to international violence

research, publish their findings both nationally and internationally, and ultimately develop

scientifically grounded political and civil-society responses.

For that purpose, the Bielefeld University’s International Center of Violence Research (ICVR)

entered into cooperative agreements with five partner Universities in Asia, Africa, Latin

America, and the Middle East: the American University in Cairo (Egypt), the Universidad

Centroamericana José Simeón Cañas in San Salvador (El Salvador), the University of Benin

City (Nigeria), the University of the Punjab in Lahore (Pakistan), and the Pontifical Catholic

University of Peru in Lima.

The empirical research carried out in the pilot project was structured in five research lines:

“Parties, Passion, and Politics”, “Justifications and Legitimacy of Police Violence”, “Violent

and Non-Violent Neighborhoods”, “Violence in the Twilight Zone”, and “Violence against

Women”. These topics were chosen to cover intra-societal conflict and violence by looking at

aspects such as political violence, violence perpetrated by state institutions, violent events,

violent and non-violent locations, violence and gender, and forms of self-defense and

vigilantism.

This chapter documents research that was conducted in the Research Line “Justifications

and Legitimacy of Police violence”. As specific types of state violence, Police violence and

violence by security forces are rampant in many countries today. Societies with autocratic

rulers and a colonial past seem to be most strongly affected by the phenomenon. Scientific

and political explanations usually focus on the police's lack of training and adequate

equipment, on the violence-prone cop culture, or on the politicization of the security forces.

While not out rightly rejecting those interpretations, this project wants to gain a more holistic

understanding of the police-society relation which forms the context of violent forms of

policing. In order to analyse police violence and its embeddings in society, the four case

studies in Egypt, Nigeria, Pakistan, and Peru focus on various actors' perception of police

violence and on discourses justifying and legitimising this form of political violence.

Bielefeld, March 2015

Rosario Figari Layús, Sebastian Huhn, Boris Wilke, Ciaran Wrons-Passmann


Research Line


How is Police Violence Legitimized in Pakistan?

Kamran Adil

Abstract

People come into contact with the criminal justice system in Pakistan largely through the

police, and therefore, much of the outcome of the system is dependent on the interaction

among the different components of the system. The police functions that are assigned by the

law can broadly be divided into riot control and investigation of criminal cases categories.

Whereas the use of force for riot control is sanctioned by the law – with some limitations, it is

totally prohibited for the purposes of investigation. Nevertheless, police violence is regularly

applied in the second category and it is prevalent in three forms: (a) the use of force to

extract evidence for prosecution, (b) the use of force as a police strategy by undertaking

extrajudicial killings to control crime, and (c) the use of force to ensure compliance with the

orders of courts, especially in the suo motu jurisdiction of the Supreme Court. Through

interviews with judges, prosecutors, defense attorneys and police officers, the research

shows that with all three forms of violence, interactions between the various parties involved

in the criminal justice system of Pakistan legitimize the use of force.

Kamran Adil

Mr. Kamran Adil is a Senior Superintendent of Police in Pakistan. He is a BCL from Oxford

University besides having an LLB (Hons.) Shariah and Law from the International Islamic

University. He is enrolled for MPhil in Sociology in the University of the Punjab. He has

authored papers on criminal justice, law reforms and police management in Pakistan in local

journals. He regularly delivers lectures at the police and judicial training institutions.

Previously, he represented Pakistan in the Jean-Pictet Competition on the International

Humanitarian Law. His research interests include sociology of law, international and national

criminal justice system with special reference to the human rights.


Table of Contents

INTRODUCTION ........................................................................................................................ 3

THE CRIMINAL JUSTICE SYSTEM AND POLICING IN PAKISTAN .......................................... 5

RESEARCH DESIGN ................................................................................................................. 6

FINDINGS .................................................................................................................................. 8 1. EXTRACTION OF EVIDENCE THROUGH TORTURE: ................................................................. 8 2. EXTRA-JUDICIAL KILLING AS A POLICE STRATEGY: ............................................................. 10 3. RESTORATIVE JUSTICE AND THE SUO MOTU JURISDICTION OF THE SUPREME COURT: ......... 13

CONCLUSIONS ....................................................................................................................... 15

BIBLIOGRAPHY....................................................................................................................... 17

1. Introduction

The criminal justice system of Pakistan is ineffective, with low conviction rate (between 5 to

10 percent); accordingly, it urgently needs major overhaul (International Crisis Group, 2010).

The police, the chief component of the criminal justice system is politicized and corrupt and

continues to be an extension of colonial system of policing (International Crisis Group, 2008).

Due to unreformed criminal justice system, 337 people were killed in police encounters

whereas the state of torture by the police remained unchanged as compared to the previous

years (Human Rights Commission of Pakistan, 2011). Many initiatives were taken to improve

the situation. A major effort was an aggressive Access to Justice Program (AJP) that was

initiated in 2001. The AJP was launched to reform the justice system of Pakistan in

collaboration with the Asian Development Bank and over 353 Million Dollars were spent on

the program, which has had a ‘moderate’ impact (ADP, 2011). Against this backdrop, there is

abundant data on the pervasiveness of police violence in Pakistan and it is a well-

documented phenomenon (Democratic Commission for Human Development, 2012). The

documentation on police violence is mainly in the form of many reports by international and

national human rights organizations, but it is ‘largely disconnected from (mainstream)

academia’ (Wilke et al., 2011). In these reports, the ‘reasons’ for police violence have

tangentially been discussed (Amnesty International, 1993). Legitimation of police violence by

the criminal justice system in Pakistan has, however, not been analyzed in a methodical,

scientific manner; this research was undertaken to fill this knowledge gap.

The point of departure for this study was a survey of basic concepts. First: the concept of

‘the police’. It is used in two connotations. In the most common usage, it refers to a public


organization (which distinguishes it from private security agencies and non-state vigilante

organizations), while it also refers to a function for social and crime control in a society

(Brodeur, 2003). There has been difficulty in defining the role of the police, which is a

‘potpourri’, as there are many definitions (Klahm and Tillyer, 2010). In context of this paper,

by the police I mean the police organization in Pakistan, specifically those in the province of

the Punjab. There are four provincial and over twenty federal police organizations in the

country (Human Rights Commission of Pakistan, 2010). The police organizations are

constituted under the organizational laws such as the Police Order of 2002 and the Police

Act of 1861 while they derive their legal working powers from a different set of criminal

procedural law (Code of Criminal Procedure, 1898). The Punjab police is one of the largest

police organizations in Pakistan (Punjab Police, 2011) and the province of the Punjab is

considered to be the most developed as far as the criminal justice system is concerned. For

this study, the police, unless otherwise specified, refers to the Punjab police.

The second concept that requires elucidation is ‘violence’. In contradistinction with the

Common Law system, the Civil Law system uses the term violence to denote police powers.

The Common Law system, which essentially is the foundational legal system of Pakistan’s

law, uses the term ‘use of force’ to denote lawful police powers; for unlawful police powers, it

uses the word ‘excesses’(Brodeur, 2003; Sanders and Young, 2005). It may be noted that

Pakistan’s law specifically defines ‘force’ as ‘motion or change of motion’ (Section 349 of the

Pakistan Penal Code) and outlines rules about its use or non-use in various laws depending

upon the functions of the police. These functions of the police essentially fall into two

categories: the first is riot control and the second is the investigation of criminal cases and

other legal proceedings. The cardinal difference between the two categories is central to the

discussion in this paper. The use of force by the police in riot control is sanctioned by

legislation with some limitations. For example, Sections 127 and 128 of the Criminal

Procedure Code 1898 read with Rule 14.56 of the Punjab Police Rules 1934 authorize the

police to use force for riot control after exhausting all options of negotiations and by warning

the rioters to disperse peacefully. On the other hand, it is specifically prohibited under the law

in the second category of the investigation of criminal cases and other legal proceedings.

Articles 13 and 14 of the Constitution of Pakistan, 1973 and Articles 28 to 45 of the Qanoon-

e-Shahadat Order, 1984 (the law of evidence) prohibit torture for the extraction of the

evidence, and the evidence so obtained, has been declared inadmissible in legal

proceedings. The words ‘other legal proceedings’ refer to all legal and judicial proceedings

that are not related to criminal cases, but which form part of the processes related to police

duties. For example, in serving warrants of arrest for banking courts, the police may have to

use the necessary level of force to affect compliance with the court’s warrant of arrest. The


paper deals with the second category of functions of the police exclusively as the subject

matter of police violence in Pakistan revolves in and around this category.

Another conceptual point is that the expression ‘police violence’, in this paper, refers to

three specific forms of violence, which get lot of attention in media, the international and

national human rights’ groups’ reports and in the day-to-day discussion over justice system in

Pakistan. These three forms of police violence are: (a) the use of torture to extract evidence

for prosecution in criminal cases, (b) the extrajudicial killing of suspects to control crime, and

(c) the use of force by the police to affect compliance with court orders passed to bring about

restorative justice. Based on these working concepts, this study provides a brief introduction

to the nature of the criminal justice system of Pakistan. The methods used are then

discussed and finally, findings and conclusions are stated.

THE CRIMINAL JUSTICE SYSTEM AND POLICING IN PAKISTAN

Pakistan, which is a federation of four provinces, is currently governed under the 1973

Constitution, which envisages a parliamentary form of government. The legal and judicial

systems rest on Common Law tradition. The administration of criminal justice is a provincial

matter. The criminal justice system has the police, the prosecution, the criminal courts and

the prison system as its component parts. Besides, in the administration of criminal justice,

the Supreme Court and the four High Courts, which are all constitutional courts, also play a

role as appellate, revisionary, and through their suo motu powers. It may be noted that the

word suo motu means ‘on its own’ motion; the power of the Supreme Court of Pakistan to

take suo motu notice to any violation of Fundamental Rights, which essentially are human

rights, is conferred to it under Article 184(3) of the Constitution of Pakistan 1973. The power

to take suo motu notice has been enshrined in law since 1973, but it is only in recent years

that the Supreme Court has started using it more frequency.

Historically and legally, the most important component of the criminal justice system is the

police, for obvious reasons. The colonial power needed an ‘instrument’ and a ‘force’ to

control the local populace, rather than to serve the people (Niaz, 2012). Therefore, it was

natural that post-independence efforts would focus on police reform. There were as many as

twenty-one government-backed reform initiatives between 1947 and 2000 (Human Rights

Commission of Pakistan, 2010). Things have not improved, unfortunately. The police have

the reputation of being the most corrupt institution in Pakistan and have an image which is

generally very negative (Transparency International Pakistan, 2011). The word police station

(‘thana’ in Urdu, the national language of Pakistan) inspires terror and, based on it, the

‘thana’ culture is considered to be a curse in the system of policing. The police organization,

its culture and its day-to-day working procedures are widely reported in media reports. The


police organization is unusual in the sense that the top leaders are directly recruited from

well-educated people through competitive examinations at federal level, while the working

police officers who deal with day-to-day matters come from promotions from the lowest rank

of constables and are provincially recruited. As a result, there is a class system in police

organizations all over the country.

Owing to their significance, the police have been the subject of inquiry and many studies

have focused on them; a brief survey of some relevant studies may be useful at this stage. A

recent study on police legitimacy in Lahore, Pakistan examined, inter alia, the reasons for

corruption. It found that police legitimacy is dependent not only on procedural justice, but

also on its ability to control crime (Jackson. et al., 2014). The relationship between controlling

crime and torture was, however, not specifically addressed in this study. Another study

examined policing practices in Pakistan found that, in the context of Pakistan, repressive

policing may not necessarily be non-productive from an organization’s point of view

(Redding, 2012). Another study is about restorative justice as introduced by the police in

Pakistan. The study found that restorative justice efforts in police stations in Pakistan prevent

Pakistan from spiraling into civil war (Braithwaite and Gohar, 2013). The point made by these

studies was that policing practices may be appreciated best in the context in which the police

operate. A fourth study may be of interest here, as it related to the whole criminal justice

system vis-à-vis the use of violence. This study was conducted by Wajahat Masood and it

was survey-based. The data used comes from three cities (Faisalabad, Multan and Rahim

Yar Khan). Empirical evidence has been documented to establish the extent of the

perception of torture and legal lacunae in the criminal justice system of Pakistan (Democratic

Commission for Human Development, 2012).

There are many reports by different organizations on torture in Pakistan, but definitional

and methodological issues of these studies exclude them from academic studies. The

definition of torture in this study is very broad. The existing literature has not addressed the

issue of the sources of legitimization of police violence by the criminal justice system. Police

violence itself is well documented; however, how it arises has not fully been examined. This

study specifically aims at examining the role of the criminal justice system in legitimizing

police violence, with specific reference to the function of the police in investigating crimes.

RESEARCH DESIGN

At the outset, I would like to inform the reader that I am a serving police officer and this

position has been advantageous for writing this paper. Although the tendency may be to treat

such a person’s treatment of research as biased, I found it was particularly useful, as I could

get information which an ordinary researcher would have never got. This insiders’ view was


coupled with the interaction of different components of society. Because of the fear of

exposing oneself to criminal prosecution in so far as torture is concerned, the actors in the

criminal justice system usually do not divulge privileged and insider information related to this

subject. Another point that was particularly important was that I have first-hand information of

some of the cases and with those insights I was able to formulate some of the issues better

than a person who has little idea how police practices are shaped.

With the above caveat, I would now like to explain the methodology I employed, which

was primarily qualitative. First of all, I examined the legislation on the prohibition of police

violence in Pakistan in detail. The federal and provincial laws on the aspects were clarified.

Then most of the reports by the media and human rights organizations were gone through to

examine their methodology and the evidence contained in these reports. Based on these

studies, an interview guide was prepared containing open ended questions. Then these

questions were asked to police officers, prosecutors of district courts, defense lawyers,

magistrates (judges dealing with day-to-day criminal cases) and prison officers. The

questions were asked to these people as they are practitioners of the criminal justice system

and are currently serving in positions from where they observe the working of the police on a

daily basis. A total of twenty-five people were interviewed; however, their interviews were not

recorded as the protocol set with the interviewees (who are all in government service except

the defense lawyers) was that their information would not be stored in an electronic form for

future use, as this could expose them to legal action. The information thus obtained is

believed to be original and much akin to what happens in reality. It may be noted that all the

persons interviewed belonged to the province of the Punjab. Pakistan has four provinces, but

the Punjab province was chosen because it is the biggest and the criminal justice system is

most organized in this part of the country. In the other three provinces, the criminal justice

system is not so organized. For example, the Punjab is the first province where the newly

introduced prosecution department was introduced in 2007. Prior to 2007, criminal cases

were prosecuted by the representatives of the police department in the courts; prosecution

was taken away from the investigation agency and a dedicated department for prosecution

was developed to ensure effective prosecution. Some crime statistics were also used. These

statistics were obtained from the Statistical Officer of the Punjab Police. He provided data on

police violence in the categories of torture by police, deaths in the police custody, and police

encounters in various years.

The data on cases registered against police officers accused of committing torture is was

examined for four years (from 2010 to February 2014); likewise, the data on persons killed in

police custody is for the same period. However, the data on extrajudicial killings/‘police

encounters’ covers the ten years from 2004 to February 2014. The data has, of course, its

limitations, as it comes from an interested party. Even so, the statistics may be used as


indicative of the existence of such acts of police violence. Finally, two cases studies show

how the police use force to implement court orders involving restorative justice; these two

cases were taken from the records of the police and the Supreme Court of Pakistan. Some of

the persons and police officers dealing with these cases were interviewed and the unattested

copies of the court record were also obtained as part of the data collection for this study.

Finally a word about the three forms of police violence mentioned above. The typology is

based on first-hand experience of the actors in the criminal justice system and has been

highlighted, as they are the subject of discussion in various media and the human rights

reports published by national and international organizations. These three forms occupy

most of police officers’ day-to-day activities in connection with their second function, i.e.

investigating criminal cases and other legal proceedings.

FINDINGS

The upshot of the above discussion is summed up in form of findings, which are categorized

as 1) Extraction of evidence through torture and 2) Extrajudicial killing as police strategy.

1. Extraction of Evidence through Torture

The police extract evidence to link the criminal to the crime by resorting, more often than not,

to torture. The torture so applied is basically a demand by the criminal justice system, which

uses the extracted evidence for convictions. Although the exercise does not contribute

towards the statistics of the conviction rate, the police organization and the system behind

them perceives it as very rewarding. The actors in the criminal justice system legitimize the

extraction of evidence on the basis of legal reasoning. For example, the police officers say

that the law of Criminal Procedure Code of Pakistan defines ‘investigation’ as ‘collection of

evidence’ in Section 2(l), which puts ‘evidence’ at the center of the way the police work and

then use it for prosecuting criminals in order to secure convictions and to ensure that

maximum punishment is inflicted so that the deterrent of punishment keeps other criminals

away from society. They argue that in order to discharge this function, the ‘collection’ of

evidence is primarily done by use of torture as a matter of interrogation and investigation. It is

important to note here that there are two types of evidence in a criminal case. First there is

the material evidence (such as a weapon or stolen property), and the second is the

testimonial evidence (such as disclosures by the accused and testimonies of witnesses).

Unfortunately, the police resort to torture to extract evidence of both types to strengthen their

case. Four out of five police officers interviewed were quite candid in stating in their answers

that ‘police do it for legal reasons’ as the courts do not believe a police case in the absence

of any material or testimonial evidence. The Supreme Court of Pakistan in Mushtaq Hussain


versus The State held that the First Information Report (the first testimony about an offence

containing a report of a case as registered in a police station under Section 154 of Code of

Criminal Procedure 1898) ‘carries great weight and play a pivotal role in criminal case’.

Likewise, in Asghar Hussain versus The State, the Sindh High Court (a provincial high court

in Pakistan) decided that testimonial evidence had to be corroborated by material evidence

and that, in the absence of material evidence, convictions cannot be secured in criminal

cases. Since the law of Pakistan states that police officers’ testimony is not admissible in a

criminal case, therefore, the police are always looking for independent witnesses and in

order to do so first they torture a criminal to get a ‘disclosure’ about a committed offence and

then the complainant party is encouraged to provide witnesses. Often co-accused suspects

are tortured to get a confession against others who have also been accused. The reason for

torture in the investigation of criminal cases, according to defense lawyers and prosecutors,

is: ‘no recovery, no case’. All defense lawyers used this phrase to prove their point in reply to

questions about the significance of recovery in a criminal case. The judges, when asked

about the value of evidence extracted through torture, stated that the police have to show in

a court of law that the evidence is voluntary as stated in the law of evidence and as

guaranteed by the Constitution, but they say that there is no other way to ‘decide’ a case as

the allied scientific and forensic facilities are not readily available and such evidence usually

take much more time to gather. They stated that, as a general rule, the Criminal Procedure

Code of Pakistan allowed for a maximum period of fourteen days for finalization of a criminal

case and, more often than not, the forensic evidence is not available in such a short period of

time. The judges also stated that the jurisprudence for deciding cases in Pakistan as

developed by superior courts lays emphasis on testimonial and material evidence. The

content analysis of judgements of the Supreme Court of Pakistan confirms the reply by the

judges. In a number of judgements the Supreme Court of Pakistan has decided that

‘material’ evidence is ‘corroborative’ of ‘testimonial’ evidence, but in the absence of material

evidence, the criminals are not convicted and, if convicted, the superior courts do not uphold

the convictions.

The effect so created within the criminal justice system is that the police justify the torture

for extracting evidence on the basis of legal and judicial reasons. This process generates

legitimacy for the use of torture to extract evidence. When police officers were asked whether

anyone would confess to crimes when beaten, they used a queer form of logic. They stated

that they do not use torture immediately on arrest of an accused, but first they examine the

case, and after finding some solid reason, they use torture to further investigate a case and

primarily for ensuring the recovery of material evidence. The crux of their argument is that

they do not use torture for extracting ‘testimonial evidence’, but for extracting ‘material

evidence’, which is required by the courts and is legitimately relied when deciding on a case.


The police officers also stated that the newly established prosecution department’s

prosecutors also tend to not refer a case if it is not backed by ‘material’ evidence; therefore,

they are left with no option, but to use torture to extract material evidence so that the

prosecutors and judges can do their work, and ultimately the subsequent criminal

proceedings can take place. The insistence of courts and prosecutors on the production of

‘material evidence’ by police officers for successful prosecution of their cases provides

legitimacy to the process. The statistical records of the office of the Punjab police also

support this finding. According to these statistics, there were 68 cases of torture in police

stations by the police officers and there were eleven cases of custodial deaths of the persons

who were remanded by the police for investigations of cases in 2010. The years 2011, 2012

and 2013 show a decrease in torture cases by the police officers, but the cases about

custodial deaths remain almost in similar range. In 2011, 2012 and 2013, there were 46, 18

and 4 cases of torture reported respectively. On the other hand, the custodial deaths were

23, 16 and 18, respectively. The statistics on torture by the police may seem to be on the

decrease, but this may have something to do with the law of reporting a crime in Pakistan,

which does not report a case of torture as an independent crime, but rather as a case of

bodily harm with some level of intensity involved. The implication of this is that slaps, kicks

and beating by the police that do not cause sizeable hurt to a victim are not recorded as a

torture case. The procedure of criminal justice system empowers magistrates with very

effective legal powers to check the torture and excessive use of force by police. For example,

the judges can get an accused medically examined after his arrest and at the time of his

remand to ensure that no torture is inflicted on him, but they seldom use this authority and on

specific requests of defense lawyers only.

But the dynamics of police torture shows a more disturbing picture. Three police officers,

when asked about methods of torture they used, said that the torture by the police is used in

much early stages of case and without formally arresting an accused. The accused,

according to them, is taken into custody, but his arrest is not formally recorded. He is then

kept away from a police station, preferably at a remote site and then tortured to extract

material evidence. This process is known by almost all the judges, prosecutors and defense

lawyers, but is not questioned, especially in very heinous cases, due to a perceived sense of

justice by the actors in the criminal justice system.

2. Extrajudicial Killing as a Police Strategy

One form of police torture in Pakistan is the extrajudicial killing of hardcore criminals. It is

employed as a police strategy and all judicial killings are then inquired into by the magistracy,

which usually legitimizes it on the ground of necessity and self-defense. The discourse


among the actors in the criminal justice system is that it is important to keep the crime level

low. However, this is not supported by the crime statistics, which have conventionally shown

a surge. While the conviction rate is painfully low (5-10 %), extrajudicial killings are

legitimized as an effective police strategy for controlling crime. According to the

Administrative Report of the Punjab police for the year 2011, the reported number of crimes

was 419,365 (almost half a million!). The police are under excessive pressure to work

through these cases and ensure crime control. In response to this pressure, the police

leadership has started using extrajudicial killing as a police strategy. Extrajudicial killings are

called ‘police encounters’ and police organization in Pakistan – and especially the Punjab

police – keep a detailed account of these police encounters. Some officers, according to the

police officers interviewed, record their periodical crime meetings on the basis of these

figures as ‘police encounters’. The abysmal state of crime-fighting and the fact that ‘police

encounters’ are popular (due to the celebration of killings by the media and the politicians),

lead the judges to look the other way when they are tasked to conduct ‘judicial inquiries’ of

such ‘police encounters’. The figures obtained from Statistics Officer of the Punjab police

provide some idea about the level of reliance by the police officers on this strategy.

TABLE 1: POLICE ENCOUNTERS IN THE PUNJAB AS RECORDED BY PUNJAB POLICE

YEAR NUMBER OF CASES

POLICEMEN CRIMINALS

Martyred Injured Killed Injured Arrested

2004 173 30 61 145 52 130

2005 240 30 75 190 67 157

2006 230 23 62 181 52 196

2007 247 24 97 209 72 153

2008 299 35 89 259 77 236

2009 307 28 102 253 62 301

2010 267 37 70 187 56 259

2011 216 28 103 127 49 233

2012 397 29 109 360 88 415

2013 256 35 72 253 42 176

2014 (till February)

54 8 14 48 13 42


The above table shows a consistent trend in ‘police encounters’ since 2004. The legitimacy

of ‘police encounters’ is derived by the police from the lack of accountability on the part of the

senior police officers (who are supposed to hold them accountable for professional matters)

and by the judiciary who condone such acts as ‘necessary’ (as stated by one of the judges).

It may be noted that ‘police encounters’ may come natural in Pakistan, as many a criminal

tend to challenge the police and use force against them; however, the phenomenon of ‘police

encounters’ in which the police become judges of the case leads to extrajudicial killing. The

police officers use the strategy of ‘elimination’/ ‘police encounter’ in cases of desperate and

hardened criminals most of the time, but what makes it an ‘excess’ is that they ‘kill’ them

when they have surrendered or when they have been legally arrested. A recent incident, in a

district of the Punjab (Khanewal) may help elaborate the point. A school teacher raped and

then murdered a class five student who was his student. The police arrested the accused.

However, the accused was under constant threat of being killed by the family of the victim

and there were apprehensions that unless he was killed in a ‘police encounter’, the police

station might be attacked on the night of his arrest. Besides, the media and the government

were discussing the issue and the matter was in the spotlight. The police officers killed the

school teacher the same night by staging a fake ‘police encounter’ story. The judicial officer

entrusted with the judicial inquiry (as the law necessitates that every such act is inquired into

by a judge) did not find any fault with ‘police encounter’. Such an omission on part of the

judiciary and senior police officers provides legitimacy for the acts of policemen who use it as

a strategy. Another factor that provides such strategies with legitimacy is the zeal of the

criminal justice system to achieve ‘justice’ instead of ‘going by the law’. This debate about

upholding the requirements of self-conceived ‘justice’ and the ‘rule of law’ is not new. As

back as in 1967, the then President of Pakistan General Ayub Khan (who imposed martial

law in the country in 1958 and continued to rule for the next ten years) on the occasion of

centenary of West Pakistan High Court centenary observed:

‘Why can’t our courts become the courts of justice instead of courts of law…?’

He exhorted the judiciary to provide ‘cheap and speedier’ justice. Since then, successive

heads of government and judiciary (handpicked and elevated by the government) tend to

condone acts of gross use of force when fighting crime. The conduct of the judges perhaps

has something to do with their independence from the executive. It is only since 2007 that a

perceptibly independent judiciary began to have effect, although the phase proved

temporary, as the judges themselves started resorting to dispensing ‘justice’ by use of suo

motu powers (discussed in the following section). Three defense lawyers responded to the


questionnaires about ‘police strategy of extrajudicial killings’ as being ‘effective’ in crime

control, whereas all five police officers interviewed agreed that the strategy contributed to

‘eliminating’ the offenders.

3. Restorative Justice and the Suo Motu Jurisdiction of the Supreme Court

Pakistan’s criminal justice system is primarily modeled on the classical theory of deterrence

for crime control. This concept to some extent has been counter-balanced by rehabilitative

theories about criminals in which the focus was to reform the criminals; however, the latest

international trend of putting emphasis on restorative justice has affected all of the

components and actors in the criminal justice system. The crux of modern restorative justice

is to not only reform offenders, but to also compensate victims to the maximum extent

possible (Qazi, 2009; Sherwani, 2011). There have been efforts by the Pakistani police to

introduce strategies to ensure restorative justice; however, the Supreme Court of Pakistan

has recently being try to practice it by using its suo motu powers as provided in Article 184(3)

in the 1973 Constitution of Pakistan. This power is not absolute and it is primarily limited to

the enforcement of the Fundamental Rights as stated in the Constitution. The power is only

entrusted to the Supreme Court of Pakistan, but other constitutional courts such as the High

Courts of the provinces have also started using it (Rizvi, 2012). Two cases in which the suo

motu powers of the Supreme Court of Pakistan were used have been taken in this research

to show how – in order to practice restorative justice – the apex court has provided

legitimization for the illegal use of force by the police. These cases have been described in

the media as the Nadia Mushtaq Case and Raja Moazzam Ali Case; for legal citation these

are styled as Qazi Mushtaq Ahmad Awan versus Abdul Ghaffar & another and as Raja

Moazzam Ali (Missing Person). To explain the context, it would be appropriate to briefly

outline the facts of each of the two cases separately.

In the Nadia Mushtaq Case, a girl named Nadia Mushtaq aged fifteen years went missing

from her house in Rawalpindi on 25th November, 2006. Her father Mr. Qazi Mushtaq

registered a case with the local police (First Information Report No.633 of 2006 under

Section 11 of the Offence of Zina (Adultery/Fornication) Ordinance, 1979). He nominated one

accused Abdul Ghaffar, who was arrested by the police shortly after the case was registered.

Through the magistrate’s court, he was place on police remand for investigation and for the

recovery of the abducted girl. The police could not recover the girl and opted to charge him

for the offence as a mobile SIM of the abducted girl was recovered from him. During the trial,

he was acquitted. The father of the abducted girl preferred an appeal against the acquittal to

the Lahore High Court, Rawalpindi Bench, Rawalpindi. The high court upheld the acquittal.

On losing his case at the high court, the aggrieved father moved to lodge an appeal (a


provisional request for permission to file a regular appeal) to the Supreme Court of Pakistan

in 2010. The Supreme Court, when it took up the case, instead of deciding on the appeal,

took cognizance of the incident in its powers of suo motu jurisdiction and ordered the chief of

Rawalpindi police to ‘recover’ the girl. The chief of Rawalpindi police – in compliance with the

order of the Supreme Court – started re-investigating the case and summoned the main

accused, Abdul Ghaffar. Under the law, the accused could not be summoned in the same

matter as he had been acquitted in the case and was protected under the principle of double

jeopardy but, as the police chief of Rawalpindi was ordered to do so by the apex court, he

summoned Abdul Ghaffar. On the first appearance of Abdul Ghaffar before the Supreme

Court, the Chief Justice Iftikhar Muhammad Chaudhry ordered registration of a criminal case

against seven police officers for summoning the accused. It may be noted that the suo motu

notice of the abduction was taken in 2010 and the occurrence had taken place in 2006;

therefore, with a lapse of three years and with the exhaustion of all legal and judicial

processes, the police could do nothing in the case.

However, the registration of a criminal case further demotivated the police and, in

complete distress, they started picking up irrelevant persons to show progress on every day

of the hearing. In all there were over thirty-seven appearances before the Supreme Court in

the matter for the recovery of the girl. As the matter could not proceed legally, the police

could show no real progress and resorted to ‘torturing’ people picked up during the case.

Inspector Rafaqat Hussain, who interrogated some of the accused, conceded that besides

inflicting ‘torture’, close relatives of some accused persons were also kept in illegal

confinement to affect the recovery and to ‘comply’ with the orders of the Supreme Court of

Pakistan. The girl was not recovered by the police and ultimately she surfaced and

voluntarily came to police and was shown as ‘recovered’. The investigating officers say that

she eloped with her paramour. In any case, from 2010 to 2013, 22 senior and 23 junior police

officers investigated the case and in the final order of the Supreme Court on 15th February,

2013, the matter was disposed of with the direction to provincial government to proceed

against 45 police officers for ‘defective’ investigation. The case is very significant in

underlining the fact that court orders and the sense of doing ‘justice’ lead police to commit

excesses and they in return tend to derive legitimacy of their acts from court orders and legal

proceedings.

In the Raja Moazzam Case, Tasneem, the mother of Raja Moazzam reported to the police

that her son was abducted. She also reported the background of the abduction. She stated

that her son was missing for some days, and while she was searching for him, she received

a letter from a girl named Maha. Maha had stated in her letter that she had developed

intimacy with Raja Moazzam and, when her affair with Raja Moazzam came to the attention

of her brothers, they became furious and threatened to harm Tasneem’s son. She had


alleged in her report to the police that she suspected five brothers of Maha of abducting her

son. Accordingly, a case for abduction (First Information Report No. 93 of 2005 under

Section 364 Pakistan Penal Code, 1860) was registered at the Delhi Gate Police Station,

Multan against Maha’s five brothers. During the investigation of the case, three of the five

brothers were arrested and tried. The Supreme Court of Pakistan took suo motu notice of the

case and heard the case many times. The police were directed to recover the abducted Raja

Moazzam. They could not recover the abductee and in the meantime, the Additional

Sessions Judge had acquitted three of the five accused. Raja Moazzam has still not been

recovered as of today, even though regular hearings of the case take place in front of the

Commission of Inquiry on Enforced Disappearances, a body dedicated to dealing with cases

of enforced disappearances. After acquittal of Maha’s three brothers by the court, the police

are still expected to register progress in the case. The problem with the police officers is that

they cannot do so without calling and asking questions of the acquitted individuals. This type

of onus from the highest court of the country on the police pushes the police to their limits

and they tend to resort to trampling the rights of the accused. The case demonstrates the

dilemma quite clearly. The two cases discussed above show that the police use force to

affect compliance with the orders of superior courts.

CONCLUSIONS

The findings discussed above may be summarized in three conclusions.

First, criminal justice is modeled on two types internationally: one, that is more inclined

towards due process, and the other which is more crime-control oriented (Sanders and

Young, 2005). In the context of Pakistan’s criminal justice system and in the light of the

findings stated, there seems to be a hybrid model. On the one hand, the judiciary insists on

following the due process model by following strict rules of evidence for criminal adjudication;

on the other, it manifests its prowess in achieving restorative justice according to the crime-

control model by exercising its suo motu jurisdiction. This hybrid model of criminal justice

system creates asymmetries, which provide legitimation to police excesses as the police try

to tailor their performance according to expedience. The same point was earlier observed in

research on the impact of the suo motu action of the Supreme Court of Pakistan vis-à-vis

police actions (Redding, 2012).

Second, in the context of Pakistan, the restorative strategies of the police, in which they

resort to extrajudicial killings on the grounds of controlling crime – and due to low conviction

rates – is legitimized by the criminal justice system. The judiciary and prosecutors legitimize

such strategies on the grounds of necessity and self-defense.


Thirdly, while it may be perceived that the police use force to obtain confessions and to

extract recovery from criminals, the impact of such practices is not borne out by the rate of

convictions, which is abysmally low (as little as 5-10%). The relationship between the

excesses involved in extracting evidence and the criminal adjudication may form the subject

of independent research, as so far it is based on an assumption that evidence extracted by

the police using force is believed to be true by the courts; this is truly not the situation on the

ground, as that would have led to higher levels of conviction.

Finally, the distinction between legitimacy and justification is not razor sharp and, in the

context of this study, it was not easy to separate the debate about police legitimacy in the

eyes of citizenry from the viewpoint of actors in the criminal justice system whose

acquiescence of police practices is tantamount to tacit approval and endorsement. It is not,

however, clear why different components of criminal justice system provide legitimacy to

police excesses: do they do it for crime control or for some other reason? In this study in

Lahore, Pakistan it was found that people accord the police legitimacy, not only for reasons

of fairness but also because it is effective (Jackson et al., 2014).


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Legislation

1. The Anti-Terrorism Act 1997.

2. The Constitution of Islamic Republic of Pakistan 1973.

3. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment

or Punishment 1984.

4. The Criminal Procedure Code 1898.

5. The Pakistan Penal Code 1860.

6. The Police Order 2002.

7. The Punjab Police Rules 1934.

8. The Qanoon-e-Shahadat Order 1984.

Case-Law

1. Asghar Hussain versus The State (2014 P.Cr.L.J 361)

2. Mehram Ali versus the Federation of Pakistan (PLD 1998 SC 1445)

3. Mushtaq Hussain and another versus The State (2011 SCMR 45)

4. Qazi Mushtaq Ahmad Awan versus Abdul Ghaffar & another (Cr. M. A. No. 71/2013

in Criminal Appeal No. 525/2010).

5. Raja Moazzam Ali S/O Raja Ahmad Mukhtar (NCMC ID No. 4096/898) in the Court of Inquiry on the Enforced Disappearances.

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