Friday, July 27, 2012

Legal Impediment in Zero Tolerance for Policing in Pakistan

The article gives a very interesting historical perspective on policing arrangement in Indo-Pak and brings out the generally ignored aspect of perpetual legal  impediment in achieving zero tolerance in law enforcement. Comments will be welcomed.
Afzal A Shigri

Legal Impediment in Zero Tolerance for Policing in Pakistan

Asad Jehangir

The police in Pakistan operated under the Police Act, 1861 right up to 2002 when a new law was enacted by the name of Police Order.

Both these enactments deal with the structure of the police, its organization and its accountability. While framing the laws the concept of policing was kept in mind. The concept of policing is different in the two enactments.

The Police Act, 1861 was enacted immediately after the traumatic events of 1857. Thus   the British decided to establish a police which would be able to handle disorder and maintain order.

The Police Act established two posts for this purpose. One was the post of the Superintendent of Police who would be responsible for amalgamating all the police officers until then working under the ilaqa magistrates in the district. Section 4 of Police Act lays down that “The administration of the police throughout the local jurisdiction of the Magistrate of the district shall, under the general direction and control of such Magistrate, be vested in a District Superintendent and such Assistant District Superintendents as the Provincial Government shall consider necessary.” He was also given powers, under the general control of the DM (Sec.33), to regulate assemblies and processions.

The other post was that of the Inspector General of Police. The functions of the IG were primarily to oversee that the district police forces are managed efficiently and are capable of performing the task assigned to it. Towards this end he was given the powers of framing Rules (which would be approved by the Government) to achieve this objective. He was also made the Inspector-General ( assisted by DIGs) of the police forces in the province on behalf of the government.

One important function given to the IG was to gather intelligence and keep the government informed about any under-currents that could affect the law and order. For this purpose the CID was established and placed directly under the Inspector General. This agency was similar to the FBI in its design. It was given powers to investigate serious crime which tended to be spread over district or provincial boundaries and crime relating to coins and currency. It could also be given investigations of other cases which the IG thought fit. However, the main function of CID was to gather intelligence and this was analyzed and placed before the government by the IG. This was to ensure a system of timely intelligence which was found so utterly missing before the events of 1857.

As far as the concept of policing was concerned, the Police Act formalized an arrangement between the Zamindar and the East India Company that was established under the Permanent Settlement in 1793. Under this arrangement, the Zamindar was left to his own devices  in return for land revenue to the Company which was fixed in perpetuity. In the 19th century the Company embarked on a reform agenda and enacted laws prohibiting satti and child marriage and allowing widow marriage. These laws were vigorously enforced by police working under the ilaqa magistrate. The Zamindar considered this an encroachment into his privileges guaranteed by the Permanent Settlement. The protest against this action was laced with religious undertones voicing concerns that the intention of the Company Bahadur was to convert the people to Christianity. In 1857 the Zamindar joined the army mutineers and in some areas even provided local leadership.

Once the disturbances had been suppressed with unprecedented atrocities the British decided to address the issue of Zamindar-Company partnership created by the Permanent Settlement. This partnership was now formalized under the Police Act and the Criminal Law. This relationship has been clearly stated in Police Rules 21.1 as follows:

The criminal law of India and the police organization which is based upon it, are both founded on the principle that public order depends essentially upon the responsibility of every member of the community within the law to prevent offences and to arrest offenders. The magisterial and police organization is set up to enforce, control and assist this general responsibility” (PR 21.1).

The Police Act enforced this responsibility under Section 15, 15A. According to the former section the government could quarter police at the cost of the community if it failed in its duty “to prevent offences and arrest offenders”. Under the latter the community could be fined for any loss to life or property in areas which had been “found to be in a disturbed or dangerous state”. Section 16 lays down the procedure under which moneys payable are to be recovered.

At the same time the Criminal Procedure Code disempowered the police from investigating non-cognizable offenses thus forbidding it from visiting villages and to wait for the report of a cognizable offense by a Zamindar for investigating crime. This was accomplished through Section 155 of the Criminal Procedure Code which forbids police from taking action on its own when report of a non-cognizable offense is brought to its notice. The informer is to be referred to the magistrate after recording the gist of the information in the Roznamcha. If the Magistrate orders investigation only then police can investigate.

In order further to disempower police from investigating offenses the Criminal Procedure Code laid down that offences can only be investigated by the “Officer in charge of the Police Station”(SHO). He could depute a subordinate to investigate a case but “he shall submit the result of such investigation to the officer-in-charge of police station.” (Sec. 168 CrPC). The final report of the investigation is also to be submitted by the officer-in-charge of police station (Sec. 173 CrPC). The intention of this is very clear. The law by designating only the SHO as the investigating officer effectively disempowered the police from carrying out investigations.

Section 45 of the Criminal Procedure Code makes it obligatory for the Zamindar to give information to police or magistrate in certain cases and offences but this is limited to only a few offences. The liability does not extend to all offences. The intention of letting the Zamindar deal with crime is quite clear in this dispensation.

In order to strengthen the Zamindar still further, the Panchayat was also empowered to try certain Penal Code offenses including theft and receiving stolen property where the value of property did not exceed one hundred rupees and police were directed to send these cases to the panchayat (PR 24.5)

The Police Rules (23.1) further prohibited the head constables and constables from visiting villages except for ascertaining presence of bad characters and absconders; and to carry out specific orders. Only the SHO(SI) and ASIs at the police station were required to move about freely in their jurisdiction. However, these ranks were not to serve in their district of domicile. Other junior ranks were not to serve in the police station of their domicile. These rules were to further strengthen the Zamindar and make police rely on his cooperation to prevent crime and arrest offenders.

The above shows that the Police Act was based on the partnership of the Zamindar and the Company Bahadur as enshrined by the Permanent Settlement. Under this policing is primarily a community function and the police is meant to “enforce, control and assist this responsibility”.

The Police Order, 2002 envisaged a police which “has an obligation to function according to the Constitution, law and the democratic aspirations of the people”. It , therefore, intended to establish a police force based on modern policing concepts. It was to be structured on functional basis to make it efficient and responsive to change. It also gave police the duty to “protect life, property and liberty of citizens” and “prevent the commission of offences and public nuisance”. The partnership with the Zamindar was terminated. The omission or negligence of the long list of police duties was punishable by imprisonment. New democratic structures were created for the accountability of police and complaints against it. The concept of policing envisaged by this enactment is that prevention of crime is primarily the function of the police.

However, the criminal law which was framed in the 19th century and which established a partnership between the Zamindar and the police has not  been changed. The new duties and responsibilities given to the police by the Police Order cannot be carried out unless the Criminal law is changed.

The duty to “prevent the commission of offences and public nuisance” cannot be performed under the existing law. Prevention of offences is possible only under the modern concept of “zero tolerance”. Under the existing laws the police is not empowered to take cognizance of every offense. The existing criminal laws are still based on the concept of Zamindar-Police partnership established by the Permanent Settlement. In this partnership the police can not take cognizance of a large number of offences. Moreover, the report of crime is left to the Zamindar and the village officialdom. In this situation the police cannot ensure zero tolerance and is in no position to perform its primary duty to prevent offences and public nuisances.

It is relevant to point out that currently, because of the criminal law, there is no policing in the country by and large. A rural police station has at an average seventy villages in its jurisdiction. Under the legal dispensation mentioned above the policing of these villages is not the responsibility of the police. There is no policing in FATA and police has powers over only 5% of Baluchistan. It is quite clear that there is no policing in the country. In the absence of policing it is no wonder that the public has started resorting to vigilantism.

Another upshot of this legal dispensation is that the distinction between cognizable and non-cognizable gives the SHO a mendacious discretion whether to register a case or not. This discretion is a cause of major concern and has resulted in:
i)  Burking
ii) Registering false cases
iii)                 Corruption
iv)                 Citizen dissatisfaction

However, by far the most important fault in this legal dispensation is that the people do not get any service from the police with respect to minor offenses of daily occurrence. Take the case of assault which is a non-cognizable offense and the police cannot take any action except refer the victim to the magistrate. In Karachi there are a large number of cases of assault every day but the victim gets no redress. Exact figures cannot be obtained but if one were to presume just 3 assault reports at a police station every day the total for the whole year would come to 105120 cases that are not dealt by the law. In the villages  such cases are not even brought to the notice of police. If the state is not providing any service to the citizens in such cases then it is in violation of the Constitution.

In view of above there is a need to make changes in the Criminal Procedure Code so that the police can perform its role of zero tolerance and provide the community a dire service which it is lacking at the moment. The police must investigate non-cognizable offenses so that public hurt is properly pursued and disputes are promptly settled. The rights enshrined in the Constitution cannot be protected if the police is not empowered to perform this much needed service.

The following amendments in the Criminal Procedure Code would be required to enable police to provide investigative services to the community:

a) The words "officer-in-charge of a police station" wherever used in Chapter XIV should be replaced by the word "police".
b) The word "cognizable" occurring in Section 154 should be deleted.
c)  Section 155 should be deleted.
d)  The word "cognizable" appearing in Section 156 should be deleted.
e)  The word "cognizable" appearing in Section 157 should be deleted.
f) In Section 157 sub-section (1) the words "If, from information received or otherwise, an officer-in-charge of a police station has reason to suspect the commission of an offense which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a magistrate empowered to take cognizance of such offense upon a police report, and shall proceed in person, or shall depute one of his subordinate officers not below such rank as the Provincial Government may, by general or special order, prescribe in this behalf to"  may be replaced by the words  "On receipt of information or otherwise of any offense, the police shall".
g) Section 159 may be deleted.
h)  Section 162 may be deleted.
i)    Section 168 may be deleted

Writer is a retired Inspector General of Police