Impact Of Sughran Bibi Case On Criminal Justice System Of Pakistan
Situational Analysis
Pakistan’s Constitution adheres to the principle of the rule of law. Accordingly, it provides for the treatment of every citizen, including any person within its jurisdiction, according to law[1]. Despite there being records of the components of criminal justice system in the country, the rule of law cannot officially be measured. No statistics are collected to present a holistic view of the situation; organizational data such as that of the judiciary, prosecution and police, is, however, available. In the absence of official data, one is constrained to use unofficial data. In this regard, the Rule of Law Index for the Year 2017-18[2] compiled by the World Justice Project shows that out of 113 countries that were studied, Pakistan ended up in the lower bracket at 105 in terms of overall performance. In regional terms, it stood second last, only above Afghanistan. For the ‘Order and Security’ factor, Pakistan ranked at the bottom at 113. In ‘Civil Justice’ it stood at 107 and in ‘Criminal Justice’ it stood at 81. The purpose of providing rankings that have, in fact, been based on measurements is to provide the context and situational analysis of Pakistan’s justice sector and its perception in relation to the rule of law.
Controlling Effect of The First Information Report (FIR)
The situational analysis makes it abundantly clear that there is a strong case for legal and administrative reform. Within the domain of criminal justice, a key component of legal reforms would be to minimise the centrality and primacy of the document called the First Information Report (FIR)[3]. For jurisprudential purposes, it may be noted that it is only a procedural device of recording and preserving information; in practice, however, it has assumed overwhelming significance by all the components of the criminal justice system. The police treat it as biblical, thus, it controls their investigation. The prosecution is then stymied by whatever work has been undertaken by the police in view of the controlling effect of the FIR. As far as the judiciary is concerned, emphasis is on the strength of legal precedent in criminal justice and evaluation of the ‘evidentiary value’ of the FIR. The superior judiciary in Pakistan has tried to take stock of this controlling effect of the FIR in its latest judgment in Mst. Sughran Bibi Case[4]. Before discussing the points of law, it will be apposite to first briefly highlight the facts of the case in which the judgment has been delivered.
Factual Resume of Mst. Sughran Bibi Case
In brief, Mst. Sughran Bibi filed a human rights case in the Supreme Court of Pakistan under Article 184(3) of the Constitution of Pakistan praying for issuance of direction to local police to register a second FIR against police officials who had killed her son Mohsin Ali in an encounter on 21-03-2008 and had previously registered the first FIR[5]. Prior to this, on 12-01-2010, as an alternative remedy, she had filed a private complaint[6] in the court of the Additional Sessions Judge (ASJ), Lahore. The private complaint case remained pending till 18-06-2015 when the ASJ, Lahore summoned 16 accused police officers for trial on the basis of prima facie evidence. The trial was on, but Mst. Sughran Bibi wanted the ‘arrest’[7] of the accused police officers, therefore, she filed an application in the Human Rights Cell housed in the building of the Supreme Court of Pakistan. The case must have been placed before a judge of the Supreme Court of Pakistan who, after going through the material in the case and the conflicting judgments of superior courts in the matter of registration of multiple FIRs, requested the Chief Justice of Pakistan to constitute a larger bench, hence the present case was heard by a bench of seven honourable judges of the Supreme Court of Pakistan. The bench was headed by Justice Asif Saeed Khosa who is known to have rendered many important judgments in criminal law cases. The Attorney General of Pakistan, along with Advocate Generals of the provinces and the Islamabad Capital Territory (ICT), assisted the honourable judge. Barrister Salman Safdar, a very competent defence lawyer, was appointed as amicus curiae.
Reasoning
The judgment was authored by Justice Asif Saeed Khosa and is concise and erudite. The honourable judge dealt with the matter in a systematic manner. Chiefly, he did three things in his reasoning.
First, he analysed case-law on the subject; secondly, he interpreted the relevant statutory law; thirdly, he deliberated on the nexus between the registration of FIR and the power of arrest entrusted to police under law. All three were discussed under the same order.
Case-Law
In analysing case-law, the honourable judge took note of three categories of judgments. The first category of judgments[8] only allowed one FIR for an occurrence and clearly provided that all subsequent statements to the police were to be recorded under Section 161 of the Code of Criminal Procedure 1898 (CrPC) and that the police were free to investigate the case. The net result of this category was that only one case was to be handled by the police, and consequently, only one trial had to take place (1st Category).
The second category[9] provided that the police were bound to register FIRs under Section 154 of CrPC, hence, multiple FIRs could be registered. The outcome of this approach was that it allowed multiplication of criminal proceedings. Therefore, multiple FIRs meant multiple cases and multiple cases meant multiple trials (2nd Category).
The third category[10] left the matter to the circumstances of the case, resulting in affirming the position of 1st Category as a general rule, while treating the 2nd Category as an exception (3rd Category). Tracing case-law from colonial times, Justice Khosa quoted from a Privy Council (PC) case[11] in which judges repelled the propensity to treat each statement as a separate information report, thus establishing that only one FIR of an occurrence was permissible under the law. He quoted:
“The argument as their Lordships understood was that the only information report under Ss. 154 to 156, Criminal P.C., was that recorded on 31st August 1941, that the allegations recorded at a later stage of 5th September were not an information report, but a statement taken in the course of an investigation under Ss. 161 and 162 of the Code, that there was therefore no reported cognisable offence into which the police were entitled to enquire, but only a non-cognisable offence which required a Magistrate’s order if an investigation was to be authorized. Their Lordships cannot accede to this argument. They would point out that the respondent in his case treats each document as a separate information report and indeed, on the argument presented on his behalf, rightly so, since each discloses a separate offence, the second not being a mere amplification of the first, but the disclosure of further criminal activities.”
The law remained trite after the judgment and was adhered to in the judgment of the Supreme Court in Kaura case.[12] The law was by and large followed in letter and spirit for sometime thereafter. However, it started to change after Mrs. Ghanwa Bhutto case[13] that dealt with the murder of Mr. Murtaza Bhutto (brother of the then sitting Prime Minister of Pakistan, Benazir Bhutto) in Karachi. Mrs. Ghanwa Bhutto case got endorsed in Wajid Ali Khan Durrani case[14] by the Supreme Court of Pakistan. Subsequent decisions of the Supreme Court of Pakistan cited Wajid Ali Khan Durrani case as precedent. The practice continued on. Justice Khosa must be credited for making the effort to distinguish the precedent in these cases and gauging the reasons employed by the earlier judgments. He noted the following concerns:
“The confusion gripping the issue, we observe so with great respect and deference, is because of the fact that in none of the precedent cases detailed above the actual scheme of the Code of Criminal Procedure, 1898 and the Police Rules, 1934 regarding registration of a criminal case through an FIR and its investigation by the police had been examined in any detail…”[15]
He, therefore, undertook to examine the scheme of the Code of Criminal Procedure and the Police Rules 1934 – the statutory law – on the issue.
Statutory Law
As noted in the foregoing part, Justice Khosa decided to examine the scheme of the Code of Criminal Procedure and Police Rules 1934. Starting from Section 154, read with Sections 156, 157, 159, 160, 161 and 173 of CrPC, he commented on the purport of the statutory law and, by literally interpreting the law, distinguished ‘information’ from a ‘case’ and declared that in a single case, different hues of the information could be processed by a police officer. Besides interpreting primary legislation, he also supplemented his interpretation of the primary legislation through delegated legislation as contained in the Police Rules 24.1, 24.5, 24.17 and 25.1 of the Police Rules 1934.
FIR and Power of Arrest
Finally, he tried to delink FIR and arrest. He illustrated this point by enquiring from Mst. Sughran Bibi’s about her insistence to get a ‘second FIR’ registered, despite the fact that she had availed the alternative remedy of a private complaint. As expected, her response was that she wanted the police officers accused of ‘murder’ of her son to be arrested. The response led Justice Khosa to note the following:
“Such understanding of the law on the part of the petitioner, which understanding is also shared by a large section of the legal community in our country, has been found by us to be erroneous and fallacious.”[16]
He then went on to dilate upon the legal position that clearly mitigated the control of an FIR over the investigation and the prosecution, by separating registration of a criminal case from the power of arrest (the power of arrest has to be reasoned). He cited details from his own judgment in the Khizer Hayat case.[17]
Points of Law Declared in the Judgment
The following points of law were declared in the judgment:
(i) According to section 154, Cr.P.C. an FIR is only the first information to the local police about commission of a cognizable offence. For instance, an information received from any source that a murder has been committed in such and such village is to be a valid and sufficient basis for the registration of an FIR in that regard.
(ii) If the information received by the local police about commission of a cognizable offence also contains a version as to how the relevant offence was committed, by whom it was committed and in which background it was committed then that version of the incident is only the version of the informant and nothing more and such version is not to be unreservedly accepted by the investigating officer as the truth or the whole truth.
(iii) Upon the registration of an FIR, a criminal “case” comes into existence and that case is to be assigned a number and such case carries the same number till the final decision on the matter.
(iv) During the investigation conducted after the registration of an FIR, the investigating officer may record any number of versions of the same incident brought to his/her notice by different persons. These versions are to be recorded by him/her under section 161, CrPC in the same case. No separate FIR is to be recorded for any new version of the same incident brought to the notice of the investigating officer during the investigation of the case.
(v) During the investigation the investigating officer is obliged to investigate the matter from all possible angles while keeping in view all the versions of the incident brought to his/her notice and, as required by Rule 25.2(3) of the Police Rules 1934, “It is the duty of an investigating officer to find out the truth of the matter under investigation. His/her objective shall be to discover the actual facts of the case and arrest the real offender(s). He/she shall not commit himself/herself prematurely to any view of the facts for or against any person.
(vi) Ordinarily no person is to be arrested straightaway only because he/she has been nominated as an accused person in an FIR or in any other version of the incident brought to the notice of the investigating officer by any person, until the investigating officer feels satisfied that sufficient justification exists for his/her arrest and for such justification he/she is to be guided by the relevant provisions of the Code of Criminal Procedure 1898 and Police Rules 1934. According to the relevant provisions of the said Code and Rules, a suspect is not to be arrested straightaway or as a matter of course and unless the situation on the ground so warrants, the arrest is to be deferred till such time that sufficient material or evidence becomes available on the record of investigation prima facie satisfying the investigating officer regarding the correctness of allegations leveled against such suspect or regarding his/her involvement in the crime under issue.
(vii) Upon conclusion of the investigation the report to be submitted under section 173, CrPC is to be based upon the actual facts discovered during the investigation irrespective of the version of the incident advanced by the first informant or any other version brought to the notice of the investigating officer by any other person.[18]
Analysis
Having discussed brief facts, the reasoning and declared law points in the judgment, it will be appropriate to analyse the judgment itself.
First, the Supreme Court of Pakistan must be credited for passing a comprehensive judgment on the issue of registration of multiple FIRs. The judgment clearly restated the law in a concise manner by implicitly distinguishing and overruling its earlier judgments. Multiplicity of registration of cases was a challenging and unhealthy development from the point of view of efficacy and efficiency of the criminal justice system. As noted earlier, the FIR, which in theory was only supposed to act as a report to police, started controlling the criminal justice system as each FIR meant a separate case, which in turn meant separate investigation, distinct scrutiny by a prosecutor, beckoning of a report under Section 173 of CrPC and culmination into a full-fledged trial. Checking the disturbing trend of multiple and parallel criminal legal proceedings was a much desired action on part of the Supreme Court of Pakistan. More so, when the registrations were amplifications of the same facts and were intended to counter-blast and counterweight the force of criminal law that was invoked by a law-abiding citizen. The surge in the practice of multiple and parallel criminal legal proceedings was seen after the introduction of an amendment to the Code of Criminal Procedure Code[19] that empowered judicial officers to issue directions to the police in relation to registration of criminal cases and investigation related matters.
Alongside, it may be noted that the instant judgment declares the law relating to registration of criminal cases in a more refined manner in comparison to the Indian law on the point. The Supreme Court of India, in Surender Kaushik case[20] declared the following:
“24. From the aforesaid decisions, it is quiteluminous that the lodgment of two FIRs isnotpermissible in respect of one and thesame incident. The concept of sameness hasbeen givena restricted meaning. It does notencompass filing of a counter-FIR relating tothe same orconnected cognizable offence.What is prohibited is any further complaintby the samecomplainant and others againstthe same accused subsequent to theregistration of the caseunder the Code, foran investigation in that regard would havealready commenced and allowing registrationof further complaint would amount to animprovement of the facts mentioned in theoriginal complaint. As is further made clearby the three-Judge Bench in Upkar Singh, theprohibition does not cover the allegationsmade by the accused in the first FIR alleginga different version of the same incident.Thus, rival versions in respect of the sameincident do take different shapes and in thatevent, lodgment of two FIRs ispermissible.”
It can be seen that the Indian case provides for two FIRs in the same incident, which obviously leads to parallel criminal proceedings.
Secondly, the Bench, while examining case-law, noted with concern and deference that earlier case-law did not examine the statutory legal framework.[21] No remedy had been prescribed to ensure that it did not happen again as all courts were bound by the Supreme Court’s decisions to the extent of principles of law[22].
Thirdly, the judgment has reiterated the law of investigation in Pakistan in its pristine form by trusting the police as an organization. The approach taken by the judiciary is much different from the approach taken by the legislature that chooses to punish only the police for defective investigation (in rape cases though)[23].
Fourthly, the judgment has forcefully delinked, as required by statutory law and declared in earlier dicta of the Court, registration of a criminal case from arrest. The declaration has once again thrown the challenge of introducing internal controls on the exercise of powers of the police on senior police leadership which, more often than not, clamours about the increasing propensity of judicalization of police powers in Pakistan.
Finally, the Court passed a direction to the trial court seized with the alternative remedy of a private complaint to decide the case in four months[24]. While passing a time-bound direction in the case was very much in order, the issue of delay by trial courts seized with such matters needed to be addressed at a systemic level.
All in all, the judgment must be seen as promoting the enforcement of the fundamental rights. The insistence on abiding by them may improve the working of the criminal justice system in Pakistan.
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References
[1] Article 4 of the Constitution of Pakistan, 1973.
[2] https://worldjusticeproject.org/sites/default/files/documents/WJP_ROLI_2017-18_Online-Edition_0.pdf
[3] Registered under Section 154 Criminal Procedure Code, 1898.
[4] MstSughran Bibi v. The State in Human Rights Case No. 10842-P of 2018. http://www.supremecourt.gov.pk/web/user_files/File/H.R.C._10842_P_2018.pdf
[5] FIR No. 177/08 under section 324, 353 and 186 PPC read with 13/20/65 AO in PS Shahdrah Town, Lahore.
[6] Under Section 202 of the Code of Criminal Procedure, 1898.
[7] As recorded in paragraph 25 of the judgment.
[8] Mansur Ali and 2 others v. The State (1970 P. Cr. L. J. 287), Kaura v. The State (NLR 1979 Criminal 3), Qazi Rehmatullah v. Dr. Ghulam Hussain (1979 P. Cr. L. J Note 36), Ghulam Siddique v. SHO Dera Ghazi Khan and 8 others (PLD 1979 Lahore 263), Muhammad Aslam v. SHO, PS Mamun Kanjran, Faisalabad (PLD 1980 Lahore 116), Mushtaq Ahmad v. SHO Munawan (1984 P. Cr. L. J. 1454), Wali Muhammad and 4 others v. The State (1985 P. Cr. L. J. 1342), Hafiz Haji Muhammad v. The SP Dera Ghazi Khan (1986 P. Cr. L. J. 2167), Ghulam Mustafa v. SHO (KLR 1987 Cr. C. 134), Muhammad Younas v. SSP Faisalabad (1987 P. Cr. L. J. 1464), Rahmat Ullah v. SHO (1987 P. Cr. L. J. 2197(2)), Sharifan Bibi v. M. Ilyas (KLR 1987 Cr. C. 739), Muhammad Azim v. SHO Abbas Nagar (1988 P. Cr. L. J. 41), Malik Muhammad Anwar Khan v. The State (1988 P. Cr. L. J. 986), Yousaf v. The State (NLR 1990 U.C. 149), Sadiq Masih v. SHO (1994 P. Cr. L. J. 295), Arif Khan v. ASJ Kabirwala (2006 P. Cr. L. J. 1937), Syed Wahid Bux Shah v. The State (2011 MLD 64).
[9] Sawant v. SHO PS Saddar, Kasur (PLD 1975 Lahore 733), Akram Ali Shah v. SHO Kotwali, Kasur (PLD 1979 Lahore 320), Mirza v. SHO (1982 P. Cr. L. J. 171), Abdul Ghani v. SHO PS Saddar, Sheikhupura (1983 P. Cr. L. J. 2172), Muhammad Ibrahim v. SHO PS Mansehra (1983 Law Notes (Peshawar) 686), Halim Sarwar v. SHO PS Headmarala (PLJ 1984 Cr. C. (Lahore) 369), Fateh Sher v. SHO (1984 Law Notes (Lahore) 1169), Karim Bibi v. SHO PS Rajana (Faisalabad) (1985 P. Cr. L. J. 213), Ghulam Hussain v. Sirajul-Haq (1987 P. Cr. L. J. 1214), Mst. Rehmi v. SHO Basirpur (KLR 1987 Cr. C. 442), Manzoor Hussain v. SHO (NLR 1989 Cr. L. J. 39), Abdul Rehman v. SHO Karianwala, Gujrat (1989 Law Notes (Lahore) 885), Mrs. Ghanwa Bhutto v. Government of Sindh (PLD 1997 Karachi 119), Muhammad Ishaque v. SP Jaffarabad (PLJ 1998 Quetta 1), Ahmed Yar v. SHO Shah Kot, Sahiwal (2007 P. Cr. L. J. 1352), Muhammad Azam v. IGP, Islamabad (PLD 2008 Lahore 103), Mst. Allah Rakhi v. DPO Gujranwala (2009 MLD 99).
[10] Muhammad Rafique v. Ahmad Yar (NLR 1982 Criminal 638), Allah Ditta v. SHO Basirpur, Okara (PLD 1987 Lahore 300), Pervez Akhtar v. The State (1989 P. Cr. L. J. 2199), Firdous Barkat Ali v. State (1990 P. Cr. L. J. 967), Muhamamd Latif v. SHO PS Saddar, Dunyapur (1993 P. Cr. L. J. 1992), Hamayun Khan v. Muhammad Ayub Khan (1999 P. Cr. L. J. 1706), Muhammad Anwar v. SHO Railway Police, Kasur (PLD 1999 Lahore 50), Rana Ghulam Mustafa v. SHO Civil Lines, Lahore (PLD 2008 Lahore 110), Independent Media Corporation v. Prosecutor General, Quetta (PLD 2015 Balochistan 54), Pervaiz Rasheed v. Ex Officio Justice of Peace (2016 YLR 1441), Imtiaz Ali v. Province of Sindh (2017 MLD 132), Wajid Ali Khan Durrani v. Government of Sindh (2001 SCMR 1556), Mst Anwar Begum v. SHO Kalri West, Karachi (PLD 2005 SC 297), Ali Muhammad v. Syed Bibi (PLD 2016 SC 484).
[11] Emperor v. Khawaja Nazir Ahmad (AIR (32) 1945 Privy Council 18)
[12] 1983 SCMR 436
[13] Mrs. Ghanwa Bhutto v. Government of Sindh (PLD 1997 Karachi 119)
[14] Wajid Ali Khan Durrani v. Government of Sindh (2001 SCMR 1556)
[15] Paragraph 11 of the judgment.
[16] Paragraph 25 of the judgment.
[17] Khizer Hayat v. Inspector General of Police (Punjab), Lahore (PLD 2005 Lahore 470).
[18] Paragraph 27 of the judgment.
[19] Section 22-A(6) Code of Criminal Procedure Code, 1898.
[20] Surender Kaushik & Ors. vs. State of U.P. &Ors., (2013) 5 SCC 148
[21] Paragraph 11 of the judgment.
[22] Article 189 of the Constitution of Pakistan, 1973.
[23] A proviso has been added to Section 166 of the Pakistan Penal Code, 1860 vide the Criminal Law (Amendment) (Offences Relating to Rape) Act, 2016 (Act XLIV of 2016) criminalizing defective investigation.
[24] Paragraph 29 of the judgment.
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