Investigation of murder during police custody | case law
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| Investigation of murder during police custody |
خاتون نے 22-A Cr.P.C. کے تحت درخواست دی کہ پولیس نے ایک جھوٹی ایف آئی آر درج کی تھی اور ایک پرائیویٹ پولیس فورس نے ان کے بیٹے اور دیگر افراد کو قتل کیا، اور ایف آئی آر درج ہونے کے باوجود مؤثر تحقیقات کی کمی تھی؛ تاہم، عدالت نے 17.01.2024 کو Ex-officio Justice of Peace کے حکم کو منسوخ کر دیا۔
کیس میں درج ذیل منفرد نکات ہیں:
1. **قانون کی برتری**:
- **Act of 2022** کو وفاقی قانون کے طور پر تسلیم کیا گیا جو عوامی اہلکاروں کی جانب سے تشدد، حراستی موت، اور حراستی عصمت دری کے کیسز کے لیے مخصوص طریقہ کار فراہم کرتا ہے۔ اس کا مطلب ہے کہ یہ قانون دیگر قوانین پر فوقیت رکھتا ہے۔
2. **عدالتی حکم کی منسوخی**:
- عدالت نے 17 جنوری 2024 کا حکم منسوخ کر دیا کیونکہ یہ Act of 2022 کی دفعات کے مطابق نہیں تھا۔ یہ فیصلے کی نوعیت میں تبدیلی کو ظاہر کرتا ہے اور Act کی خاصیت کو اجاگر کرتا ہے۔
3. **FIR اور Act of 2022 کا تعلق**:
- **FIR No.205/2023** کے اندراج کے باوجود، عدالت نے واضح کیا کہ یہ Act of 2022 کے تحت کارروائی پر اثر انداز نہیں ہوتا۔ اس سے یہ بات واضح ہوتی ہے کہ Act of 2022 کی دفعات کا مقدمات کی کارروائی پر کوئی اثر نہیں ہوتا، چاہے FIR درج ہو۔
4. **خصوصی طریقہ کار کی ہدایت**:
- عدالت نے درخواست گزار کو **FIA** میں شکایت دائر کرنے کی ہدایت دی اور اس بات کو یقینی بنایا کہ کارروائی Act of 2022 کے تحت مخصوص طریقہ کار کے مطابق کی جائے۔
5. **مخصوص مدت**:
- **سیکشن 13** کے تحت تحقیقات، مقدمہ چلانے، اور اپیلوں کے لیے مقررہ مدت کا ذکر، کیس کی جلدی نمٹائی اور انصاف کی فوری فراہمی کی اہمیت کو ظاہر کرتا ہے۔
6. **سیکشن 22-A Cr.P.C.** کا پہلو:
- اگرچہ **سیکشن 22-A** کا براہ راست ذکر نہیں تھا، لیکن یہ بتاتا ہے کہ پولیس کی جانب سے شکایت درج نہ کرنے کی صورت میں عدالت سے مدد لینے کا طریقہ کار موجود ہے۔
یہ نکات کیس کے اہم قانونی اور عملی پہلوؤں کو اجاگر کرتے ہیں اور اس بات کو ظاہر کرتے ہیں کہ عدالت نے Act of 2022 کے تحت خاص قانونی طریقہ کار پر عمل درآمد کو یقینی بنایا۔
reo. HCJDA 38
JUDGMENT SHEET
LAHORE HIGH COURT
BAHAWALPUR BENCH, BAHAWALPUR
JUDICIAL DEPARTMENT
Writ Petition No.1359/2024
Zubaida Qureshi
Vs.
Ex-officio Justice of Peace and others
JUDGMENT
Date of hearing:
6.3.2024
For the Petitioner:
Syed Zeeshan Haider, Advocate.
For the State:
Mr. Tahir Mehmood Mufti, Deputy Attorney
General, Rai Mazhar Hussain Kharal, Assistant
Advocate General, with Rizwan Umar
Gondal/DPO Rahimyar Khan, Farrukh
Javed/DSP, Akbar Khan/ Inspector and
Aftab/SI.
For Respondents No.5 & 6: M
r. Nazir Hussain Aslam, Advocate, with
Hafiz Muzaffar Karim, Advocate.
Tariq Saleem Sheikh, J.– The Petitioner filed an application
under section 22-A Cr.P.C. before the Ex-officio Justice of Peace,
Ahmadpur East, seeking an order directing the SHO of Police Station City
Ahmadpur East to register an FIR against Respondents No. 5 to 11. She
stated that Respondent No. 5 (Dr. Hassan Mehmood) had previously lodged
a false FIR (No. 377/2023) under section 363 PPC at Police Station City
Khanpur, District Rahimyar Khan, accusing her sons of abducting his
children, Muhammad Subhan Hassan and Muhammad Shoban Hassan. The
Petitioner further alleged that on 09.04.2023, around 9:30 a.m., Respondents
No. 5 to 9, along with Respondents No. 10 and 11 and numerous other
police officials, forcibly entered the house of her son, Muhammad Usman,
and arrested him and his family members, including Muhammad Haseeb,
Junaid, and Raheel, and also seized household items. She immediately went
to Police Station City Khanpur to report the incident, but no one listened to
her as the SHO (Respondent No. 10) was involved. According to her,
Respondent No.10 released all the detenues after six hours
Writ Petition No.1359/2024
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2.
On 10.04.2023, around midnight, Respondents No. 5 to 11 and
their associates returned to Usman‟s house in police and private vehicles,
arrested Usman, Haseeb, Junaid, and Raheel again, and took them away. The
Petitioner stated that recognizing the gravity of the situation, she and her
witnesses, including her other son, followed the accused in their private cars.
At approximately 2:00 a.m., when they reached an area within the remit of
Police Station Kot Sabzal, the accused stopped. Respondent No. 11 and
other policemen dragged the handcuffed Usman, Haseeb, Junaid, and Raheel
out of the police vehicle and began beating them. After some time, they
removed their handcuffs and ordered them to leave the scene. As soon as the
men started running, Respondent No.11 retrieved a gun from his vehicle,
and Respondent No.12 pulled out a pistol from his holster. Both started
firing at them along with other police officials. As a result, all four men were
killed. The Petitioner approached Respondents No. 2 to 4 to register an FIR
against the accused, but they refused.
3.
According to the report of the S.P./District Complaint Officer,
Bahawalpur, on 07.04.2023, Respondent No.5 registered FIR No. 377/2023
under section 363 PPC at Police Station City Khanpur, District Rahimyar
Khan, regarding the abduction of his children, Muhammad Subhan Hassan
and Muhammad Shoban Hassan, against unknown persons. Subsequently,
the offence under section 364-A PPC was added. The investigation revealed
that Muhammad Usman (the Petitioner‟s deceased son), Muhammad Junaid,
Muhammad Haseeb, Muhammad Raheel, Sami Ullah, Abdul Saim, Irum
Bibi, Noreen Bibi, and Alishba Bibi were involved in the abduction. On
10.04.2023, Irum Bibi, Noreen Bibi, Alishba Bibi, Sami Ullah, and Abdul
Saim were arrested, interrogated, and later sent to the District Jail Rahimyar
Khan on judicial remand. On 11.04.2023, the Investigating Officer searched
for Muhammad Usman, Muhammad Junaid, Muhammad Haseeb, and
Muhammad Raheel and discovered that they had been killed by gunfire from
their co-accused in the area of Police Station Ahmadpur Lama, District
Rahimyar Khan. Consequently, FIR No. 205/2023 was registered at Police
Station Ahmadpur Lama under sections 302/324/353/186/148/149 PPC and
section 13(2)(a)(b) of the Punjab Arms Ordinance, 1965. The S.P./District
Complaint Officer reported that no such incident as alleged by the Petitioner
Writ Petition No.1359/2024
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had occurred, and there was no police encounter in the district. Furthermore,
the Petitioner lacked reliable evidence to support her claims. The DPO,
Bahawalpur, filed a report on the same lines in this Court during the hearing
of this petition.
4.
The Ex-officio Justice of Peace dismissed the Petitioner‟s
application by order dated 17.01.2024. He noted that the alleged incident
occurred on 10.04.2023, while the Petitioner filed the application under
section 22-A Cr.P.C. on 25.07.2023, i.e., after two months and 15 days. The
Ex-officio Justice of Peace found no satisfactory explanation for this delay.
He was also satisfied with the report of the S.P./District Complaint Officer
and saw no reason to disregard it.
5.
Through this petition under Article 199 of the Constitution of
the Islamic Republic of Pakistan, 1973 (the “Constitution”), the Petitioner
has assailed the aforementioned order dated 17.01.2024 of the Ex-officio
Justice of Peace before this Court.
6.
The Petitioner‟s counsel, Syed Zeeshan Haider, Advocate,
argues that Respondents No. 5 to 11 brutally murdered four innocent
persons, which necessitates a thorough investigation to ensure justice for the
families of the deceased. He states that the Petitioner submitted a written
complaint to the SHO Police Station City Ahmadpur East regarding the
incident on 11.4.2023, but he did not attend to it. Then, on 15.4.2023, she
lodged a complaint with the S.P./District Complaint Officer, Bahawalpur,
and on 20.4.2023, with the District Police Officer, Bahawalpur, but they also
did not take any action. Therefore, on 25.7.2023, she filed an application
under section 22-A Cr.P.C. before the Ex-officio Justice of Peace. The
counsel asserts that the Petitioner diligently pursued her remedies and that
there was no delay on her part. He relies on Rafique Bibi v. Muhammad
Sharif and others (2006 SCMR 512) to contend that the impact of delayed
FIR cannot be determined at this stage as it is for the trial court to assess its
effect.
7.
Mr. Haider argues that Parliament enacted the Torture and
Custodial Death (Prevention and Punishment) Act No. XXVIII of 2022
(the “Act of 2022”) to protect people against all acts of torture committed by
public officials during custody. He asserts that this new legislation covers
Writ Petition No.1359/2024
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the Petitioner‟s case, so she is entitled to have an FIR filed against
Respondents No. 5 to 11. When confronted with the fact that FIR
No.205/2023 dated 10.04.2023 has already been registered for the same
incident and that the Supreme Court‟s ruling in Sughran Bibi v. The State
(PLD 2018 SC 595) prohibits the registration of a second FIR, Mr. Haider
contends that the Act of 2022 introduces a new legal remedy that creates an
exception to this rule.
8.
This case involves the interpretation of Act of 2022. Therefore,
by order dated 1.3.2024, this Court issued notices under Order XXVII-A
CPC to the Attorney General for Pakistan and the Advocate General Punjab.
9.
Mr. Tahir Mehmood Mufti, Deputy Attorney General, argues
that the Act of 2022 applies specifically to instances when a public official
(or an individual acting in an official capacity) perpetrates the stipulated
offence while a person is in custody. Thus, “custody” is a prerequisite for the
Act‟s applicability. In the present case, there is no evidence that Usman and
his companions were in police custody at the relevant time. Hence, the
Petitioner‟s request for registration of FIR under the Act of 2022 deserves a
short shrift. Additionally, Mr. Mufti points out that the registration of a
second FIR is impermissible after the Supreme Court‟s ruling in Sughran
Bibi’s case.
10.
Rai Mazhar Hussain Kharal, Assistant Advocate General
Punjab, has supported the Deputy Attorney General‟s viewpoint and the
impugned order, agreeing with the reasoning of the Ex-officio Justice of
Peace.
11.
Advocate Nazir Hussain Aslam, the counsel for Respondents
No.7 to 9, has also adopted the Deputy Attorney General‟s arguments.
Opinion
12.
The United Nations Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (CAT) of 1984
requires Member States to take effective measures to prevent torture in any
territory under their jurisdiction. It also forbids Member States from
expelling, returning, or extraditing individuals to another country where
there are substantial grounds for believing that they would be in danger of
Writ Petition No.1359/2024
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being subjected to torture.1
Pakistan ratified CAT on June 23, 2010, marking
a significant commitment to international human rights standards. This
ratification obligated Pakistan to take measures to prevent and punish acts of
torture within its borders. Therefore, it has enacted the Torture and Custodial
Death (Prevention and Punishment) Act, 2022.
13.
Before considering the contentions of the learned counsel and
examining the issues raised in this petition, it is necessary to understand the
scheme of the Act of 2022 and look at some of the provisions relevant to our
present purposes.
14.
Article 14(1) of Pakistan‟s Constitution (1973) guarantees the
right to dignity, while Article 14(2) explicitly prohibits the use of torture to
extract evidence. The Act of 2022 defines torture and establishes a
comprehensive framework to protect individuals from it during custody by
any public official or other person acting in his official capacity. Section
3(1) of the Act renders inadmissible any statement, information, or
confession obtained through torture or cruel, inhuman, or degrading
treatment by a public official in any proceedings against the person making
it. Section 3(2) stipulates that a public official who knowingly uses such
information faces imprisonment for up to one year, a fine of up to one
hundred thousand rupees, or both. However, under section 3(3), the
aforementioned information, statement, or confession is admissible as
evidence against the person accused of committing the offence of torture.
15.
The Act of 2022 primarily focuses on the following three
offences: (a) torture (section 8), (b) custodial death (section 9), and
(c) custodial rape (section 10). Section 11 provides punishment for filing
false and malicious complaints. Section 16 of the Act of 2022 stipulates that
the provisions of the Act will take precedence over any other conflicting
laws currently in force. However, section 15 clarifies that the Act does not
affect any civil remedies available under existing laws.
16.
The Act of 2022 grants exclusive jurisdiction to the Federal
Investigation Agency (FIA)2
for investigating complaints against public
officials accused of offences under the Act, but it must do so under the
1 Article 3 of the Convention.
2
FIA is constituted under the Federal Investigation Agency Act 1974 (VIII of 1975).
Writ Petition No.1359/2024
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supervision of the National Commission for Human Rights
(the “HR Commission”). This arrangement ensures that investigations are
fair, impartial, and free from conflicts of interest. By involving an
independent oversight body, the Act aims to safeguard the integrity of the
investigation process, thereby maintaining public trust and upholding justice.
If an agency involved in the dispute were responsible for the investigation,
the credibility of the process could be compromised, which would be
detrimental to both public interest and the pursuit of justice.
17.
The Act of 2022 deviates from the standard procedures outlined
by the Code of Criminal Procedure 1898 (hereinafter referred to as the
“Code” or “Cr.P.C.”) typically followed by police authorities for
investigating offences. A combined reading of clauses (c) and (d) of section
2(1) indicates that the Act establishes a special procedure for initiating
proceedings. Any person or their representative with reliable information
about the commission of an offence under this Act may file a complaint with
the FIA. The said complaint may be oral or in writing. Additionally, section
5(2) stipulates that if, at any time – including during the grant of physical
remand under the Code – the Magistrate has reasonable grounds to believe
that an offence under this Act has been committed or if a complaint of
torture in custody is lodged, he shall order a medical examination. If the
results of such examination reveal the infliction of torture, the Magistrate
shall notify the FIA to investigate the offence.
18.
Section 5(3) of the Act of 2022 stipulates that the FIA, while
investigating offences under the Act, shall have the same powers and follow
the same procedures as prescribed in the Federal Investigation Agency Act
1974 (the “FIA Act”) and the Rules made thereunder. According to Bennion,
it is common for drafters to incorporate existing statutory provisions by
reference instead of repeating them in full when drafting new legislation.
This technique conserves space and brings in the established case law and
interpretations related to the earlier provisions. Additionally, it benefits the
legislative process by shortening the Bill and limiting the scope for debate. 3
This practice aligns with the legal maxim verba relata hoc maxime
operantur per referentiam ut in eis inesse videntur, which means that words
3
F.A.R. Bennion, Statutory Interpretation, (1984) at p. 600.
Writ Petition No.1359/2024
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referred to in an instrument have the same effect as if they were inserted in
the referring document.
19.
There are two primary types of referential legislation:
(i) simple reference and (ii) incorporation by reference.4
Simple reference
involves the new law merely citing or mentioning provisions of an existing
law, as mentioned in section 28(1) of the General Clauses Act 1897. On the
other hand, in incorporation by reference, the new law makes the existing
law an integral part of itself, as if the provisions of the old law were directly
included in the new text. The earlier law‟s provisions are not copied
verbatim but are treated as if they were written into the new law. This
method fictionally embeds the referenced provisions within the new
legislation.5
20.
Courts frequently face the issue of determining whether a
reference to earlier legislation in a new law is merely a citation or an
incorporation. Its resolution hinges on the language used in the new law.6
Insofar as section 5(3) of the Act of 2022 is concerned, its language is
explicit and unambiguous. It incorporates the specified provisions of the FIA
Act and the Federal Investigation Agency (Inquiries and Investigation) Rules
2002 (the “Investigation Rules”) into the Act of 2022.
21.
A detailed examination of the Investigation Rules reveals that
they were primarily designed for anti-corruption investigations involving
various categories of government servants. Ideally, new Rules should have
been framed to achieve the objectives of the Act of 2022 effectively. Since
this has not been done, this Court must discern the legislative intent and
interpret the Act of 2022, the FIA Act, and the Investigation Rules in a
harmonious manner.
22.
Section 5 of the FIA Act and the Investigation Rules use two
terms, “inquiry” and “investigation”, without providing specific definitions.
While these terms are commonly considered interchangeable, they carry
distinct meanings in the legal context. The Black’s Law Dictionary defines
Writ Petition No.1359/2024
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“inquiry” as “(a) a question someone asks to elicit information; (b) the act or
process of posing questions to elicit information.”7 On the other hand, it
describes “investigation” as “the activity of trying to find out the truth about
something, such as a crime, accident, or historical issue; esp., either an
authoritative inquiry into certain facts, as by a legislative committee, or a
systematic examination of some intellectual problem or empirical question,
as by mathematical treatment or use of the scientific method.”8 According to
the Oxford Advanced Learner’s Dictionary, “inquiry” signifies
“a solicitation for information”,
while
“investigate”
denotes
“the comprehensive exploration and scrutiny of all facts surrounding a
particular event, such as a crime or an accident, with the objective of
ascertaining the truth.”9
The Code defines the two terms in section 4(1) as
follows:
(k)
“Inquiry”.– “Inquiry” includes every inquiry other than a trial
conducted under this Code by a Magistrate or Court.
(l)
“Investigation”.– “Investigation” includes all the proceedings
under this Code for the collection of evidence conducted by a
police officer or by any person (other than a Magistrate) who is
authorized by a Magistrate in this behalf.
23.
Legal precedents also acknowledge the distinction between
Writ Petition No.1359/2024
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24.
Albeit the FIA Act and the Investigation Rules envisage an
inquiry before an investigation, section 5(1) of the Act of 2022 deliberately
uses the term “investigation,” thus setting aside the requirement for an
inquiry as outlined in the aforementioned instruments. This interpretation is
further supported by the fact that the term “investigation” is used multiple
times in the Act of 2022, while the word “inquiry” has nowhere been
mentioned. It is well established that mistakes or absurdities cannot be
attributed to the legislature when interpreting a statute or discerning
legislative intent.11 Generally, when interpreting statutes, it is assumed that
the legislature chooses its words carefully. Therefore, if a word or phrase is
included, it is not considered redundant; similarly, if a word or phrase is
omitted, such omission is not deemed inconsequential. A change in language
implies a change in intent.12 It is also well settled that the legislature is
presumed to be mindful of existing laws, and thus, the expression of
legislative will should not be ignored lightly.13 As a result, under the Act of
2022, the FIA does not hold an inquiry before initiating a formal
investigation. Instead, it investigates the complaint directly under the
oversight of the HR Commission.
25.
Let‟s now examine some of the key provisions of the
Investigation Rules that are pertinent to our current discussion. Rule 3 states
that, subject to Rules 4 and 5, the FIA may initiate an inquiry or
investigation on its own initiative or upon receiving a complaint or
information, whether oral or written. Once an inquiry or investigation is
registered, it must be conducted discreetly to avoid undue publicity and
prevent unnecessary damage to the reputation of any public servant
involved. Rule 4 stipulates that the Deputy Director or a higher-ranking
officer must verify the identity of the complainant and the genuineness of
the complaint, but no action will be taken on anonymous or pseudonymous
complaints. According to Rule 5(1), an inquiry against a public servant can
only be initiated with prior permission from the designated authority,
determined by the public servant‟s pay scale. Rule 5(2) requires prior
11 Federal Government Employees Housing Foundation and another v. Ednan Syed and others
(PLD 2022 Islamabad 273).
12 Reference No.1 of 2012 [Reference by the President of Pakistan under Article 186 of the Constitution of
Islamic Republic of Pakistan, 1973] (PLD 2013 SC 279).
13 Aamir Khurshid Mirza v. The State and another (2006 CLD 568).
Writ Petition No.1359/2024
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permission from the designated authority before registering a criminal case.
However, Rule 5(3) provides an exception: if a public servant is
apprehended in a trap arranged by the FIA under the supervision of a First
Class Magistrate, prior approval to register a criminal case is not necessary.
In such instances, a report must be submitted to the concerned authorities
within twenty-four hours. Rule 5(4) states that if the competent authority
decides not to initiate an inquiry or register a case upon receiving a
complaint, it must record the reasons for its decision. Rule 6 mandates that
the registration of a case and the subsequent arrest of a public servant be
reported to the Head of the Department of the accused within twenty-four
hours. Rule 7(1) stipulates that the Secretary, Ministry of Interior,
Government of Pakistan, and the Director-General FIA may suo motu or
otherwise call for the record of any case or inquiry pending with the Agency
for examination and give such directions as may be necessary for the speedy,
fair, and just disposal of the case. Rule 7(2) states that a Director may suo
motu or otherwise call for the record of any case or inquiry to satisfy himself
as to the correctness or propriety of a decision taken by a Deputy Director
under these Rules and may pass such orders as he deems fit. Rule 8(1)
empowers the designated authority to drop a case and recommend
departmental proceedings against the accused public official. Rule 10
provides that upon completion of an investigation, a case found fit for
prosecution for which sanction is required under section 197 Cr.P.C., or
section 6(5) of the Pakistan Criminal Law Amendment Act 1958
(XL of 1958), or the rules made thereunder, shall be submitted by the FIA to
the Federal Government for sanction of prosecution along with the full facts
of the case, the opinion of the Legal Officer, and the statement of
allegations. Rule 10 also contains certain provisions that must be followed in
respect of officers in BPS-19 and above.
26.
The requirement under Rule 5(2) of the Investigation Rules,
which mandates obtaining prior permission from the designated authority
before registering a criminal case against an accused public official, may be
justified as a measure to protect officials from harassment, even though
section 11 of the Act of 2022, penalizes the filing of false and malicious
complaints. However, Rule 8(1), which allows the designated authority to
Writ Petition No.1359/2024
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drop a case and instead recommend departmental proceedings, is
inconsistent with the objectives of the Act of 2022 and, therefore, cannot be
enforced. It must be read down14 to state that the competent authority may
initiate departmental proceedings against the accused public official in
addition to criminal proceedings under the Act of 2022.
27.
It is well-established that criminal prosecution and departmental
proceedings serve different purposes. The objective of a criminal trial is to
punish the accused for their crimes. In contrast, departmental proceedings
aim to investigate misconduct to maintain discipline, decorum, and
departmental efficiency, thereby preserving public confidence in the
institution. Even if a criminal court acquits the accused, it does not preclude
an employer from exercising disciplinary powers under the applicable
service rules and regulations.15
28.
Given the above, it is ordered that Rule 8(1) of the Investigation
Rules shall be read down as specified.
29.
It is important to note that the designated authority cannot
arbitrarily refuse permission to register a criminal case against a public
official. Rule 5(4) makes it mandatory to record reasons. The decision is
subject to judicial review.
30.
In summary, proceedings under the Act of 2022 can be initiated
based on a complaint by anyone with reliable information about an offence,
their representative, or at the Magistrate‟s instance as per section 5(2). The
FIA follows procedures outlined in the FIA Act and the Investigation Rules.
The Investigation Rules require an inquiry before a formal investigation, but
the Act of 2022 mandates that the FIA conduct a direct investigation into the
Writ Petition No.1359/2024
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complaint under the oversight of the HR Commission. If the FIA determines
that the accused public official committed the alleged offences, Rules 5 to 7
and 10 of the Investigation Rules apply. The designated authority may also
recommend departmental proceedings against him. Section 16 of the Act of
2022 states that the Act overrides other laws, requiring the FIA to adhere to
this specific procedure in all cases. Resultantly, even though the offences of
torture, custodial death and custodial rape are cognizable, section 154
Cr.P.C. is rendered inapplicable. Individuals have a statutory right to file a
complaint with the FIA regarding these offences but, subject to judicial
review, the registration of an FIR is governed by the provisions of the FIA
Act and the Investigation Rules.
31.
Section 13 of the Act of 2022 provides timelines for
investigation, trial, and appeal. Section 13(1) mandates that the investigation
of offences under the Act be completed within thirty days from the date of
submission of the complaint. Section 13(2) stipulates that if the investigation
of an offence under this Act is not completed within thirty days, the Agency
shall call for a report explaining the delay in the completion of the
investigation. If satisfied with the causes of the delay, the Agency may grant
a maximum of five additional days for the completion of the investigation. If
the Agency is not satisfied with the causes of the delay, it may transfer the
investigation to another investigating officer, who shall take up and
complete the investigation from the same stage where it was left by his
predecessor.16 Section 13(3) states that if the investigation of an offence is
not completed within thirty days, the FIA shall also file an interim report
before the Court of Session, which may decide to initiate the trial based on
such information. Section 13(4) states that the trial of offences under the Act
shall be completed within three weeks from the date of submission of the
challan. Finally, section 13(5) provides that the appeal against the offences
under the Act shall be decided within thirty days from the filing of such
appeal.
32.
The next question is whether the provisions of section 13 of the
Act of 2022 are mandatory. In The State through Regional Director ANF v.
16 Section 13(2) of the Act of 2022 repeatedly uses the term “Agency,” which is defined in section 2(1)(a)
as the Federal Investigation Agency (FIA). Prima facie, this term is not appropriate for the context in which
it is used in section 13(2). I leave this issue to be addressed in a suitable case.
Writ Petition No.1359/2024
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34.
Considering the above precedents and the language of the Act
of 2022, it can be concluded that the timelines for investigation under subsections (1) to (3) of section 13 of the Act are mandatory for the following
reasons: First, a holistic analysis of the Act indicates that treating these
provisions as directory would undermine its very object and purpose.
Second, delays may cause destruction of evidence. Third, non-compliance or
delay has specific consequences, such as a change of investigation.
However, sub-sections (4) and (5) of section 13 are directory in nature
because they do not prescribe any penalty or consequence for noncompliance. Tallat Ishaq’s case has authoritatively settled this point.
35.
The issue of torture and custodial death can arise in three
scenarios: (a) when an individual is in custody and is subjected to torture or
killed. In this case, the police or the public official involved acknowledges
that the individual was in custody within the meaning of section 2(1)(f) of
the Act of 2022 but refutes the allegations of torture or custodial death;
(b) when the accused public officials deny that the individual was ever in
custody, claiming that the question of torture or custodial death does not
arise; and (c) when the allegation constitutes a cross-version of an already
registered FIR.
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38.
The definition of the term “custody” in section 2(1)(f) is not
exhaustive, as is apparent from the language of the section. The legislature
has used the term “includes” instead of “means” and employed deeming
clause in Explanation-II. Likewise, the Explanations of section 2(1)(h) use
the term “includes”. The Supreme Court of Pakistan has interpreted the said
term in many judgments. In Don Basco High School v. The Assistant
Director, E.O.B.I., and others (PLD 1989 SC 128), it stated: “The word
„include‟ is generally used in the interpretation clauses to enlarge the
meaning of the words and phrases occurring in the body of the statute.” In
Mushtaq Ahmad v. The State (1991 SCMR 543), it held: “As a general rule,
the word „includes‟ is used as a word of enlargement and ordinarily implies
that something else also falls within that definition beyond the general or
generic meaning of that expression which precedes it, i.e. a species which
does not naturally belong to it or a species which normally or naturally
attaches to it.” Similarly, in Messrs Elahi Cotton Mills Ltd. and others v.
Federation of Pakistan and others (PLD 1997 SC 582) it was held that
“the factum that the word „includes‟ has been employed and not the word
„means‟ indicates that the definition given in a statute regarding a term is not
exhaustive.” Thus, the term “includes” is used where it is intended to
broaden the meaning of a particular word or phrase.
39.
The courts have also discussed the rules for interpreting the
deeming clause in numerous cases. In Muhammad Mubeen-us-Salam and
others v. Federation of Pakistan and others (PLD 2006 SC 602), the
Supreme Court of Pakistan summarized them as follows:
41.
Applying the principles settled in the above and other
precedents on the subject, it is observed that under section 2(1)(f) of the Act
of 2022, “custody” encompasses any situation where a person is detained or
deprived of liberty by anyone, including public officials or others acting in
an official capacity, regardless of the legality or location of the detention.
This definition includes all forms of temporary or permanent restraint on a
person‟s movement, whether imposed by law, force, or other means. It also
covers instances where a person is considered to be in custody during search,
arrest, or seizure proceedings. Under section 2(1)(h) “custodial death” refers
to the death of a person while in custody that is directly or indirectly caused
by acts of torture committed while in custody. This includes deaths
occurring in various settings such as police stations, private or medical
premises, public places, vehicles, or jails, and also covers deaths occurring
during arrest, detention, or questioning. Additionally, it includes cases where
death occurs after release from custody if it is directly attributable to acts
committed while the person is still in custody.
42.
The phrase “when a person is being arrested or taken into
detention” in Explanation-I of section 2(1)(h) of the Act of 2022 is crucial. It
covers situations where death occurs during an encounter or interaction with
Writ Petition No.1359/2024
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the police when the individual is not formally in their custody but is under
their control or restraint. Therefore, allegations of a fake encounter by the
victim fall within the investigative jurisdiction of the FIA. The following
observations of the Supreme Court in Ch. Muhammad Yaqoob and others
v. The State and others (1992 SCMR 1983) are quite instructive:
“It is true that there is no entry in the diary of the police station, but we
cannot overlook the fact that it is not uncommon that police detains
suspects at the police station for interrogation without formally arresting
them … Bhide and Din Mohammad, JJ., while dealing, inter alia with the
above question, have held that police custody does not necessarily mean
custody after formal arrest and that it also includes some form of police
surveillance and restriction on the movement of the person concerned by
police …”
43.
In cases where it is admitted that the individual was in police
custody at the time of the alleged torture or killing, the process is
straightforward. The FIA can act on the complaint of the aggrieved person or
at the Magistrate‟s direction under section 5(2) of the Act of 2022 and
proceed according to the procedures outlined in the FIA Act and the
Investigation Rules.
44.
When allegations are made against public officials for torturing
or killing an individual in custody, the FIA is obligated to entertain the
complaint. It cannot refuse to exercise jurisdiction merely because the public
officials deny the allegations. It must be borne in mind that it is common for
the accused to reject the charges. The investigating agency must gather
evidence and uncover the truth.
45.
In Sughran Bibi’s case, the Supreme Court stated that the
purpose of the FIR is to set the law in motion. The FIR is essentially an
“incident report” because it informs the police for the first time that an
occurrence involving the commission of a cognizable offence has taken
place. Once the FIR is registered, the occurrence becomes a “case”, and all
investigative steps under sections 156, 157, and 159 Cr.P.C. are part of this
case. The Investigating Officer should seek the truth and gather information
from those familiar with the incident, not just establish the FIR‟s version. A
new FIR is not needed for additional information or new circumstances
discovered during the investigation; these are part of the ongoing case. After
completing the investigation, the Investigating Officer should file a report
under section 173 Cr.P.C. on the real facts that he discovers, regardless of
Writ Petition No.1359/2024
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the initial or other versions of the incident. The Supreme Court emphasized
that the power to investigate pertains to the offence, not just the FIR details.
Any information about the offence, including its background and
perpetrators, is the informant‟s version and should not be accepted as the
whole truth. All versions of the incident are recorded under section 161
Cr.P.C., whether supplemental or divergent, and all of them are part of the
same “case” that originated with the registration of the FIR as aforesaid.
46.
The Act of 2022 is lex specialis. Even if the local police have
already registered an FIR, a complaint under the Act of 2022 would still be
competent before the FIA where torture or custodial death is alleged. The
precedent set by Sughran Bibi’s case does not impede this process because
the narratives of the police and the victim party are subject to separate legal
frameworks and investigative agencies.
The case in hand
47.
Considering section 5 of the FIA Act, ample case law holds the
FIA as a police force. Consequently, the FIA is subject to the jurisdiction of
the Ex-officio Justice of Peace under section 22-A Cr.P.C.17 The Act of 2022
does not affect the powers of an Ex-officio Justice of Peace and he can
competently exercise them even in cases where an offence under the said
Act is alleged.
48.
In the present case, the Ex-officio Justice of Peace declined to
direct the FIA to consider the Petitioner‟s complaint against Respondents
No. 5 to 11, primarily because the application under section 22-A Cr.P.C.
was filed two months and 15 days late. Prima facie, the Petitioner has
explained the delay in her application. Regardless, the impact of the delay
should be determined by the trial court, as per the Supreme Court‟s ruling in
Rafique Bibi, cited by Mr. Haider.
49.
In Khizar Hayat and others v. Inspector-General of Police
Punjab (PLD 2005 Lahore 470), a Full Bench of this Court held that an
Ex-officio Justice of Peace is not required to requisition a report from the
police in every case, but when he does, it must be given proper
17 Makhdoomzada Syed Mushtaq Hussain Shah v. Additional Sessions Judge, Islamabad and others
(PLD 2013 Islamabad 26); National Bank of Pakistan and other v. The State and others
(PLD 2021 Lahore 670); and
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consideration.18 In the present case, the S.P./District Complaint Officer filed
a report with the Ex-officio Justice of Peace negating the Petitioner‟s
version. While the Ex-officio Justice of Peace felt satisfied with it, I find it
unconvincing. It raises serious questions that necessitate a thorough
investigation by an independent agency to ensure justice. Therefore, the
impugned order dated 17.01.2024 is set aside.
50.
I have already held that the Act of 2022 is a federal law which
grants a new remedy in instances of torture by public officials, custodial
death, and custodial rape. Registration of FIR No.205/2023 dated
10.04.2023 does not trump the proceedings under the said Act. The principle
laid down in Sughran Bibi is inapplicable.
51.
The Petitioner is directed to file a complaint with the FIA as
contemplated in the Act of 2022 which shall proceed with it in accordance
with the prescribed procedure, as elucidated in this judgment.
52.
This petition is accepted in the terms specified.
(Tariq Saleem Sheikh)
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