No compensation

October 14, 2018

The case of SHO Aamir Saleem Sheikh, who served time in prison during a trial in the Model Town incident and came out a deseased and devastated man, shows the failure of justice system that may set people free but uncompensated

No compensation

Life isn’t going to be the same for Station House Officer (SHO) Northern Police Station, Lahore, Aamir Saleem Sheikh, who was recently reinstated after having spent three years behind bars.

Sheikh was among the six police personnel, including two sub-inspectors of the Elite Force and two constables, who were indicted by the Anti-Terrorism Court in 2015 in the Model Town incident that killed at least 14 workers of the Pakistan Awami Tehreek (PAT) in police firing.

"These past [three] years have ruined my physical and mental being, and my social and personal life," Sheikh tells TNS. He became a patient of diabetes and hypertension when he was released. Besides, his wife became paralysed and also got a cardiac disease.

"This entire period has been nothing but a nightmare for a person like myself who had not been declared guilty."

Sheikh has to appear in an anti-terrorism court every day, and is not sure about the future. "During my imprisonment, I could empathise with those innocent people who for various charges are imprisoned and waiting for justice. The cruel reality is that they are not going to be compensated upon their release for the agony and the time they spent away from their family, unjustly."

All told, there is no provision in the Criminal Justice System of Pakistan for compensation to those who serve time in prison during a trial. A 2018 report by the International Committee of the Red Cross declares the number of prisoners in different jails of Pakistan to be 83,718. Another report, published by the Institute for Criminal Policy Research (ICPR), states that 69.1 per cent of these prisoners is either pre-trial detainees or under remand.

In certain situations, a person suspected of having committed a criminal offence may be detained on remand. However, innocent people suffer in the existing legal system of Pakistan as it is not speedy in disposing of cases. Data provided by the Law and Justice Commission of Pakistan (LJCP) shows that some 38,539 cases are still pending in the Supreme Court, 293,947 in all the five high courts, and 1,869,886 in the lower courts across the country.

Lawyer and human rights activist Asad Jamal calls it a failure of the justice system that sets people free but uncompensated. "It’s a clear violation of fundamental rights provided by the Constitution of Pakistan when anyone is detained under trial for a long period.

As per a 2018 report by the ICRC, the number of prisoners in different jails of Pakistan is 83,718. Another report states that 69.1% of them are either pre-trial detainees or under remand.

"Section 9 and 10 of the Constitution say that no one shall be deprived of liberty arbitrarily. Nonetheless, arbitrariness comes in situations when a case is under trial and the person is detained."

He explains that under articles 12 to 14, constitutional rights like personal freedom, right to family, dignity and privacy are being violated when state detains anyone during the trial of the case. "Therefore, state must be held accountable when a case has been decided after a lengthy trial and an individual is acquitted on merit by the judgment of the concerned court."

Section 182 of the Pakistan Penal Code ( PPC) provides the right to file a civil suit for damages against the person who registers a false FIR (First Information Report). However, only a civil servant can file a case for compensation if they want to.

"In the light of the Model Town incident, there is no provision available in the current Criminal Justice System which permits any civil servant or a common man to apply for compensation or remedy," says advocate High Court, Ansar Shah.

He adds, "this law is being practised only in India and Pakistan when it is actually considered against fundamental rights to detain the accused throughout the trial, without him being convicted. Bail is granted to the defendant as a basic right."

Functions, rules, and duties of the police do not give a right to an inspector or SHO to give orders to open fire on a mob. Section 128 of Chapter 9 of the Code of Criminal Procedure (CrPC), 1973 states: "For dispensing any assembly or gathering, firing shall not be resorted to, under the specific direction of an officer of the police not below the rank of DSP (Deputy Superintendent of Police) or ASP (Assistant Superintendent of Police)."

In 2015, the JIT comprising CCPO Quetta, Abdul Razzaq Cheema; SSP Shehzad Akbar; DSP CIA, Khalid Abubakar; Col Ahmad of the Inter-Services Intelligence (ISI), and Muhammad Ali of the Intelligence Bureau (IB) held 10 policemen responsible in connection with Model Town Case. These policemen included Superintendent Police, Security, Salman Ali Khan. Nevertheless, the JIT made it clear that some of the policemen had fired shots after they received direct orders to do so from Khan.

 

Interestingly, there is no structure in place in the police department that could offer compensation to those who spend any number of days -- or months, for that matter -- in prison, under trial, and are released without being prosecuted.

The department has the structure to compensate the personnel by releasing their salaries/wages and other benefits for the period they were detained, but all this is applicable only on the condition of acquittal," says Deputy Inspector General, Police, Tariq Qureshi.

"Additionally, the department hires a lawyer for the personnel who are deemed as wrongfully convicted, or they did not have any bona fide intentions but something happened in the line of duty. There is no concept of compensation at the department level and at any other forum in the country," he adds.

The European Convention, in its article 5(1)(a), states that legitimate ground for deprivation of liberty is the "lawful detention of a person after conviction by a competent court." Article 5(5) of the European Convention provides that "everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation."

Article 9(3) of the International Covenant on Civil and Political Rights, article 7(5) of the American Convention on Human Rights, and article 5(3) of the European Convention on Human Rights say that anyone detained is entitled to trial within "a reasonable time." This is a logical protection given the fact that everyone charged with a crime has the right to be presumed innocent until proven guilty. Also, that deprivation of liberty must be an exceptional measure.

Article 9(5) of the International Covenant on Civil and Political Rights provides that "anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation," and this provision is applicable to all unlawful or arbitrary arrests and detentions.