Arrest as punishment

Legal eye

Anyone living in Pakistan during the peak of suo motus would be convinced that former religious affairs minister Hamid Saeed Kazmi and ex-DG Haj Rao Shakil were such depraved souls that they made money out of Haj arrangements. The judgement in Suo Motu Case No 24 of 2010 (titled ‘Regarding corruption in Haj arrangements in 2010’) begins by declaring that the “instant case has been initiated under Article 184(3) of the Constitution of [the] Islamic Republic of Pakistan regarding massive corruption in the arrangements of Hajj for the year 2010.”

Paragraph 26 of the judgement states: “The case remained pending for many years in this court, during hearing whereof following issues surfaced: (1) Corruption was done by political persons as well as officers in the higher echelons of government due to which Hujjaj were robbed as not only extra money was charged from them but the (sic) accommodation was not provided to them at Mina; (2) During investigation of the cases arising out of the Hajj scam, many officers/officials, who succeeded in collecting evidence against politicians/government officers involved in the corruption/looting of money, were disassociated from the investigation and transferred to other positions…”

The 36-page judgement narrates a sordid tale of how the executive bent over backwards to thwart investigation in this open-and-shut case of corruption. While the SC is convinced of massive corruption in a matter and wags its finger at everyone to nab the accused, what chance would the accused have to get a sympathetic hearing before lesser courts? While the matter was pending in the SC and observations of judges from Court Room 1 were making headlines (with a media trial continuing simultaneously), Special Judge Central (Islamabad) refused Kazmi’s bail application.

The Islamabad High Court also rejected Kazmi’s petition for bail. It held that: “at present, without deeper appreciation of material available, the active role and connivance of Rao Shakil Ex-DG and Ahmad Faiz Shafi cannot be overruled, whose appointments were facilitated due to the insistence of present petitioner (ie Kazmi). I am again refraining myself to discuss the evidence, but all these documents and the inquiry reports, prima facie, connect the present petitioner with the commission of offence and, therefore, at this stage, no case for bail is made out.”

On June 3, 2016 the Special Judge Central convicted Kazmi and Rao Shakil, awarded them jail terms and ordered them to pay millions in fine. The appeal against the conviction came before the Islamabad High Court, which set aside the conviction and acquitted the accused on March 20, 2017. Justice Mohsin Kayani’s 66-page judgement painstakingly analyses the evidence presented. In the process it lays bare much that is wrong with investigation and prosecution components of our criminal justice system, and how perceptions built in media trials acquire a momentum of their own and are acted upon replacing the need for facts.

Identifying lack of compliance with requirements of Evidence Act, the IHC holds that the “entire documentary evidence is inadmissible and cannot be relied upon for the purpose of conviction.” It notes that, “the Investigation Officer admitted that they could not collect any evidence through which they can prove the alleged crime…” and further that, “if it could be assumed for the sake of argument…that any kickback/commission was received by the appellants, why could the prosecution not recover the same, dig out the mode of receipt of kickbacks and channels through which these ill-gotten amounts were transferred?”

The court observes that, “the Investigation Officers have just wasted time, money and resources of Government of Pakistan and have not collected any substantial evidence to connect the appellants with commission of offense.” It finds that the ultimate wrong established was that some buildings hired in 2010 were beyond the maximum distance from Haram as specified in the Haj Policy. But that there is no evidence that the accused derived any personal gain from their actions, received kickbacks and acquired assets beyond their means, and there seems to have been mismanagement and negligence but no criminal breach of trust.

Now let us go back to the basics. Article 9 of our constitution promises that “no person shall be deprived of life or liberty save in accordance with law.” Article 10A states that, “for the determination of his civil rights and obligations or in any criminal charge against him, a person shall be entitled to a fair trial and due process.” Article 14 claims that, “the dignity of man, and subject to law, the privacy of home, shall be inviolable”, and further that, “no person shall be subjected to torture for the purpose of extracting evidence.” Have we not rendered these foundational human rights redundant in Pakistan?

Justice Asif Khosa is on a one-man mission to decide criminal appeals that have been pending before the SC for years. As old cases are being decided, we have witnessed people being acquitted after languishing in jails for decades. How will state and society recompense the loss of liberty inflicted on these folks? If the SC upholds the IHC judgement in the Kazmi case, will he regain his lost dignity? When did we begin using arrest as a substitute for punishment and when did we accept the notion that the purpose of the criminal justice system is to lock up anyone accused of a crime instead of punishing the guilty?

In Arnesh Kumar vs State of Bihar, the Indian Supreme Court observed that, “arrest brings humiliation, curtails freedom and casts scars forever. Lawmakers know it and also the police…[The Police] has not come out of its colonial image despite six decades of independence, it is largely considered a tool of harassment, oppression and surely not considered a friend of public…the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.”

The Indian Supreme Court is right, except that the morass is much deeper. The police alone are not to blame. In our polity, arrest is employed as a tool by the powerful to humiliate and harass opponents, and police and investigation agencies act as facilitators. Being a coercive tool, it creates rent-seeking opportunities for police too. Arrest is also a useful cover for incompetence. Investigation requires work. Arrest doesn’t. In the absence of investigation, arrest is used as proxy for performance. And we are all in on this. Even our courts pass observations questioning why the accused have not been arrested.

Section 54 of our Criminal Procedure Code grants wide latitude to the police to arrest anyone suspected of being involved in a cognizable offence. Let’s think about this logically. Why should the police arrest anyone suspected of having committed a crime (even while the law presumes him to be innocent)? Unless there is cause to believe that a person is about to commit a crime or likely to become a fugitive from justice, why should he be arrested merely for the purpose of investigation? Is there no other way to ensure that a suspect or accused will show up for questioning when summoned by the police?

The Michigan Law Review has published a thought-provoking article by Rachel Harmon, titled ‘Why Arrest?’ She argues that even those who critique the practice of arbitrary arrests in the US “widely assume the power to arrest is essential to policing. As a result, neither commentators nor scholars have asked why police need to make arrests.” And further that, “given their costs, arrests should be used only when they serve an important state interest; yet, they often happen even when no such interest exists.”

Professor Harmon’s analysis is equally relevant for Pakistan. Our jails are filled with those who don’t need to be locked up, and we struggle to convict those who should be. Unless we take focus away from arrests and place it on investigations, this equation won’t change.

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu