Licence To Kill
Vigilante justice has become a norm in Pakistan. Supporters of vigilante justice justify their actions by quoting the poor law and order situation and diminishing public trust in the authorities. However, vigilantism can never be justified unless a relevant defence provided by the legislation is used.
By awarding a citizen for killing two robbers, IG Sindh has not only condoned but also encouraged vigilantes. In fact, this form of vigilantism, also known as “shadow vigilantism,” not only involves ordinary citizens but also officials who are cynical of the criminal justice system and could thus manipulate the system to justify their actions, or as in the case of Sindh police, inaction.
Some examples of vigilante justice in Pakistan include Salman Taseer’s assassination and various other incidents where vigilante justice is fueled by religious sentiments, especially in blasphemy cases. Moral vigilantism displayed by Qandeel Baloch’s brother in the name of honour and the frontier justice incidents of lynching robbers and thieves are pertinent to this article.
For many years, human rights activists have been raising concerns over extra-judicial killings by law enforcement agencies in Pakistan. Now, IG Sindh’s positive reinforcement has vindicated extra-judicial killings even carried out by citizens. Moreover, it seems as if the police force is admitting to the fact that it has been unsuccessful in protecting the citizens and expects the citizens to do their work for them, therefore allowing citizens to kill anyone who displays the intention to harm their body and/or property.
It comes as a surprise how taking the law into your hands can be termed as “valiant”. Yes, the right to self-defence exists in almost all jurisdictions around the world, but it has its limitations such as: the force used must be necessary, reasonable and proportional. Section 96 of Pakistan’s Penal Code (PPC) recognizes this right, but Section 99 also spells out the restriction: “There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt” and “the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.”
Moreover, according to Sections 100 and 103 of PPC, in case of death of the alleged offender, this defence can only be used if there was a reasonable apprehension of death and/or grievous bodily harm. The only other provision is if there was a significant threat to property such as robbery or arson, or if there was reasonable apprehension that trespass would result in death or grievous bodily harm.
Therefore, before awarding the citizen, an inquiry must have taken place. The inquiry should have also probed whether multiple gunshots were necessary to kill the alleged robbers, because even the police do not have wide powers to exercise violence which could result in the death of an offender whilst conducting their duties. According to Section 46 of the Code of Criminal Procedure (CrPC), while making an arrest, a police officer is only allowed to use force which could result in death of the alleged offender if the alleged offender is accused of an offence punishable by death or life imprisonment.
A proper legal procedure needs to be followed and deviance from it should not be encouraged. The courts are present to adjudicate on matters of innocence and guilt, which are not the domain of the citizens or even of the executive in case of extra-judicial killings by the law enforcement agencies. When citizens resort to street justice then innocent people also die. The lynching of the two brothers Muneeb and Mughees, in 2010, as a reaction to a fight over cricket made many of us cringe. Especially when the footage of a nine-year-old participating in the debauchery was aired. The seven perpetrators responsible for initiating and inciting the lynching were sentenced to death. But this was because the brothers were, in fact, innocent – yet while beating them the mob believed that they were guilty. However, whether innocent or guilty, as per principles of procedural fairness, every alleged offender is innocent until proven guilty. Due process exists to protect the rights of the citizens and an alleged offender has to be proven guilty beyond a shadow of doubt in order to be convicted.
Instead of encouraging citizens to carry guns, albeit licenced, especially when Pakistan needs gun control, authorities should put more effort in controlling crime. They need to be careful about the message they send across to the citizens because settling scores through the use of weapons and power is very common in Pakistan (for example, as seen in the cases of Shahzeb Khan and Hamza Elahi). In most of the incidents of vigilante justice, it has been difficult to isolate self-defence from revenge. Hence, it is probable that people would use the words of IG Sindh as a cover story or resort to violence even when not necessary, in order to receive the cash prize.
There is no denying that everyone has the right to defend their body and property and perhaps even if I were in a similar situation, I would also open fire. But the point I want to put across is that a proper investigation has to be carried out before a citizen is awarded for taking the lives of alleged offenders. Innocent until proven guilty is not just a foreign maxim of law, it is also a basic Islamic principle of justice. Therefore, as an Islamic state it is the responsibility of the state to ensure that everyone receives a fair trial. This right is also guaranteed under Article 10A of the Constitution of Pakistan.
As far as theft and robbery are concerned, it is the responsibility of the head of state of an Islamic state to provide the citizens with necessities of life. This principle resonates in Article 38 of the Constitution of Pakistan, which puts the responsibility of social and economic well-being of citizens on the state. According to this Article, the state must provide citizens with “basic necessities of life, such as food, clothing, housing, education and medical relief, for all such citizens, irrespective of sex, caste, creed or race, as are permanently or temporarily unable to earn their livelihood on account of infirmity, sickness or unemployment”. Therefore, if citizens resort to theft out of necessity, because their rights under Article 38 have been infringed, would punishment be justified?
Caliph Umar during his caliphate suspended the punishment for theft during a period of famine. A recent example of this form of absolute justice was also illustrated by an Italian court when the judge overturned the conviction of a homeless man who stole food from a supermarket because according to the judge the man had taken the food out of necessity. In this historic judgment, the court ruled that, “The condition of the defendant and the circumstances in which the seizure of merchandise took place prove that he took possession of that small amount of food in the face of an immediate and essential need for nourishment, acting therefore in a state of necessity.”
Despite the alarming number of wrongful convictions, the death penalty is one of the only principles of Islamic criminal jurisprudence that Pakistan holds dear to it. Adding to this, now public officials are handing out execution licences to citizens. Public officials, especially the police, should instead work towards making the country safe and the criminal justice system better. It is the primary responsibility of the police to protect the citizens. A characteristic of a good criminal justice system is to control extreme emotional reactions to offenders, discourage vengeful behaviour and maintain public trust in the justice system.
It seems the state of Pakistan has failed to provide citizens with the necessities of life. When certain citizens resort to criminal activities, the state fails to protect the rights of the citizens who become victims of these alleged offences, and instead encourages citizens to do what the state is supposed to be doing: controlling crime and protecting rights.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which she might be associated.