3.1 Arrest

Arrest

 

The deprivation of liberty and the right to liberty and security of person is dealt with under several international instruments. The term arrest has been defined by the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment as the “act of apprehending a person for the alleged commission of an offence or by the action of an authority.”^[1] In addition to this, the erstwhile UN Commission on Human Rights defined arrest as, “the act of taking a person into custody under the authority of the law or by compulsion of another kind and includes the period from the moment he is placed under restraint up to the time he is brought before an authority competent to order his continued custody or to release him.”^[2] This definition continues to be applied by the UN Working Group on Arbitrary Detention as well.

 

• International Human Rights Safeguards and Standards

 

The Universal Declaration of Human Rights recognized the inherent dignity of man^[3], due to which certain standards must also be applied to the act of arresting an individual to ensure that during such an act, an individuals’ security is protected and that he is not found guilty merely on the basis of the arrest. The following international instruments establish human rights standards which must be complied with in the conducting an arrest:

 

RELEVANT PROVISIONS
Universal Declaration of Human Rights	Article 9 – Protection from arbitrary arrest, detention or exile. Article 11 – Presumption of innocence, and protection from retrospective punishment.
International Covenant on Civil and Political Rights	Article 9 – Life, Liberty and Security of Person, Protection from arbitrary arrest and detention.
Convention on the Rights of the Child	Article 37 – Life, Liberty and Security of Person, Protection from arbitrary arrest and detention and special protection of children.
Convention Relating to the Status of Refugees	Article 26 – Freedom of movement.
Convention on the Rights of Persons with Disabilities.	Article 14 – Liberty and Security of Person and special protections for differently-abled persons.
Convention Against Torture	Article 11 – Treatment of persons subjected to arrest, detention or imprisonment.
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment	Principle 2 – Protections as to arrest and detention. Principle 10 – Requirement for communication of grounds of arrest.

 

Figure 3.1 – International standards as to Deprivation of Liberty

 

 

Various other international principles such as the United Nations Rules for the Protection of Juveniles Deprived of Their Liberty, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules), and the Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum Seekers and Alternatives to Detention guide the interpretation of the core conventions. These international instruments reflect the human rights standards which are applicable during arrest and stipulate that individuals who have been arrested must have knowledge as to the reasons of their arrest, must be produced before a competent authority for a fair trial and must be compensated in case of unlawful arrest.

 

Furthermore, international law establishes that any deprivation of liberty must be carried out in accordance with the law,^[4] delineating a clear prohibition on arbitrary arrest and detention. Arbitrary arrest may be characterized as any arrest carried out in a manner which is in violation of the due process of law, or has been carried out inappropriately.^[5]

 

The UN Working Group on Arbitrary Detention is a body of independent human rights experts that investigate cases of arbitrary arrest and detention and identifies cases of deprivation of liberty in violation of set international standards. Furthermore, the Group has been mandated to seek and receive information from Governments and non-Governmental organisations, conduct field missions and work in close coordination with States and the Human Rights Council to prevent and guard against the practice of arbitrary detention. The group explains that arbitrary arrest and detention leads to unlawful deprivation of liberty where individuals are not allowed to access legal redress and may be subjected to torture and other forms of ill treatment.^[6] This includes the right to challenge the legality of such detention in court as well. The Human Rights Council has encouraged States to ensure that this right is available to all citizens deprived of their liberty through arrest or detention.^[7]

 

In their Opinion 11/2018 with regards to arbitrary arrest and detention in Pakistan and Turkey, the Working group establishes 5 categories where deprivation of liberty must be deemed to be arbitrary where:

 

• Category I: When there is no legal basis for the deprivation of liberty.
• Category II: Where the deprivation of liberty is a result of the exercise of rights or freedoms guaranteed within Articles 7, 13, 14, 18, 19, 20 and 21 of the UDHR or Articles 12, 18, 19, 21, 22, 25, 26 and 27 of the ICCPR.
• Category III: Where the right to fair trial has been completely or partially violated so as to give the deprivation of liberty, an arbitrary character.
• Category IV: Where asylum seekers, immigrants or refugees are subjected to administrative custody for a long period of time without the possibility of administrative or judicial review.
• Category V: Where the deprivation of liberty is violative of principles of international law on grounds of discrimination.

 

In assessing the actions of the Government of Pakistan in a case involving a Turkish family residing in Pakistan, the Working group further emphasises on the established principle that individuals should not be expelled from a State where there are substantial grounds to believe that their life or freedom would be at risk. The Group states that the risk of arbitrary detention in the receiving State must also serve as a consideration before individuals are expelled from a State.

 

In addition to the Opinions of the Working Group on Arbitrary Detention, the Working Group on Enforced Disappearances visited Pakistan in 2012 as well.[8] The Group shares its reservations with regards to the Anti-Terrorism Act which allows forms of arbitrary deprivation of liberty, which may lead to creation of conditions for the occurrence of enforced disappearances. Moreover, the Working group recommended that the legal and regulatory framework dealing with deprivation of liberty must be brought in line with international standards to ensure that secret detention which may lead to the practice of enforced disappearances is prohibited. It provides that as a preventive measure against enforced disappearances, persons deprived of their liberty must be held in an official place of custody and must be brought before a judicial authority without undue delays.

 

Moreover, the Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, visited the Islamic Republic of Pakistan (hereafter Pakistan) from 19 to 29 May 2012 at the invitation of the Government. In the realm of international human rights law, Pakistan has recently ratified two important treaties, namely the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which include many provisions relating to the administration of justice, fair trial, equality before the law and non-discrimination. The Special Rapporteur commended this positive step and urged the Government to undertake all necessary steps, including the passing of new domestic legislation, to implement these essential human rights conventions.

 

The Special Rapporteur further noted that the vague language of the blasphemy laws make no reference to a potential offender’s psychological state or intention and represents an open door for abuse and the persecution of minorities, in particular religious or sectarian groups. These laws serve the vested interests of extremist religious groups and are not only contrary to the Constitution of Pakistan, but also to international human rights norms, in particular those relating to non-discrimination and freedom of expression and opinion. Laws that are ambiguous can be applied in an arbitrary and discriminatory manner and impede the proper administration of justice. For this reason, the Special Rapporteur believes that they should be repealed and replaced with clear provisions in full conformity with the Constitution of Pakistan and international human rights instruments to which Pakistan is a party.^[9]

 

• Constitutional Safeguards

 

The Constitution of Pakistan provides specific safeguards as to arrest and deprivation of liberty in Article 9 and 10. Article 9 states that, “No one shall be deprived of life or liberty save in accordance with the law.” Furthermore, Article 10 provides for detailed safeguards as to arrest and detention and explains that any individual when arrested must be informed of the grounds of arrest and has the right to consult a lawyer. In addition to this, it provides that any individual who is arrested must be produced before a magistrate within 24 hours. While the Constitution of Pakistan provides that the provisions of Articles 10 (1) and (2) are not applicable to individuals arrested or detained under preventive detention, these provisions must be reconciled with Section 11EEE of the Anti-Terrorism Act 1997, which provides within Section 11EEE (2) that the provisions of Article 10 of the Constitution apply to the arrest and detention of persons subjected to preventive detention under Section 11EEE(1). These provisions, however, do not apply to individuals arrested or detained in relation to preventive detention.

 

The Anti-Terrorism Act (ATA) was issued in 1997 to provide a legal solution to acts of terrorism, sectarian violence and other heinous offences. Originally the ATA contained no specific provision providing for preventative detention. The Anti-Terrorism (Amendment) Ordinance, 2002 inserted Section 11EEE and the Anti-Terrorism (Second Amendment) Act, 2013 inserted Section 11EEEE to provide for preventative detention pursuant to the ATA.

 

Section 11EEE reads, “ Power to arrest and detain suspected persons (1) Government if satisfied that with a view to prevent any person whose name is included in the list referred to section 11EE, it is necessary so to do, may, by order in writing, direct to arrest and detain, in such custody as may be specified, such person for such period as may be specified in the order, and Government if satisfied that for the aforesaid reasons it is necessary so to do, may, extend from time to time the period of such detention for a total period not exceeding twelve months. (2) The provisions of Article 10 of the Constitution of the Islamic Republic of Pakistan shall mutatis mutandis apply to the arrest and detention of a person ordered under sub-section (1) which grant constitutional safeguards to the person arrested i.e. ‘No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.’

 

Some other limitations to the power of exercising preventive detention include:

 

Section 11EEEE pertaining to Preventive detention for inquiry reads, “(1) The Government may, for a period not exceeding thirty days and after recording reasons thereof, issue order for the preventive detention of any person who has been concerned in any offence under this Act relating to national security and sectarianism or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned, for purposes of inquiry: Provided that the Anti-Terrorism Court may, for reasons to be recorded, grant extension in the period of detention for up to thirty days at a time, but the total period of detention shall not exceed ninety days.”

 

• Domestic Law and Jurisprudence 

 

Criminal Procedure Code 1898

 

Domestic law also establishes certain standards which are to be met in carrying out arrest. The Criminal Procedure Code (Cr.P.C.) provides that arrests may be made on the basis of both cognizable and non-cognizable offences. Sec. 46 of the Cr.P.C. stipulates the power to use reasonable force which is needed to make an arrest but clarifies that the power to cause death has not been granted. Furthermore, Sec. 50 sates that restraint which is more than necessary cannot be applied when arresting an individual. For women, specific protections have been established within Sec. 52 of the Cr.P.C. which states that if a woman is to be searched or arrested, such actions must be carried out by another woman. These Sections are to be read in line with the fundamental guarantees provided under the Constitution of Pakistan which states that once an arrest has been made, the individual must be informed of the reasons for arrest, must be allowed to consult with a lawyer and must be produced in front of a magistrate within twenty-four hours of arrest.

 

Arrests can primarily fall under two broad categories – (i) arrest pursuant to a warrant and (ii) arrests without a warrant. In the first category, this Section shall look at the Court’s powers to issue warrants of arrest under Sect. 75-79. Under the second category, this Section will look at the Police’s general powers of arrest without warrant under Sec. 54 of the Cr.P.C. as well as the exceptional power to arrest for the prevention of a cognizable offence under Sec. 151.

 

Arrests pursuant to a Warrant:

 

Generally, arrests are to be made pursuant to a warrant^[10] to ensure the legality of arrest. The law relating to warrants, their form and to whom they may be directed to is to be found within Sec. 75 to 79 of the Cr.P.C. Furthermore, Sec. 80 provides that the substance of the warrant must be brought into the knowledge of the person to be arrested, and if required the warrant may be shown to such person as well. Sec. 81 provides for further protections by stating that once a warrant has been executed, the arrested individual must be produced in front of a magistrate without unreasonable delay.

 

Arrest without Warrant:

 

The Cr.P.C. also lays down the procedure for arrest without warrant to ensure that clear restrictions are established on the exercise of such powers. Sec. 54 of the Cr.P.C. states that an arrest without a warrant can be made in nine instances. Furthermore, Sec. 61 clarifies that any person arrested must be produced in front of a Magistrate within 24 hours of the arrest.

 

RELEVANT SECTION	CONTENT
Sec. 54, Cr.P.C: Any police-officer may, without an order from a Magistrate and without a warrant, arrest:	Person concerned in any cognizable offence or against whom a reasonable complaint, credible information or reasonable suspicion for cognizable offence.
	Person in possession of implement of house-breaking
	Proclaimed offender
	Person in possession of stolen property
	Person obstructing police officer
	Deserter from armed forces
	Person apprehended under extradition law/concerned in offence committed outside Pakistan
	Released convict-committing break of any rule under Sec. 565 (3) of Cr.P.C.
	Person for whose arrest a requisition has received from another police officer

 

Figure 3.2 – Sec. 54, Cr.P.C. 1898

 

 

It is important to note that the first ground under Sec. 54, while granting wide powers of arrest, has been limited by requiring the police to make an arrest on the basis of either ‘credible information’ or ‘reasonable suspicion’.^[11] ‘Credible information’ has not been given a technical legal expression and does not mean that such information must be received upon oath or affirmation.^[12] ‘Reasonable suspicion’ as used in Sec. 54 of the Cr.P.C. does not mean a vague surmise or inference but rather a bona fide belief on the part of the police that an offence had been committed or was about to be committed.^[13] Such belief had to be founded on some definitive averments/allegations which create the basis for suspicion of the person to be arrest of involvement in the offence.^[14]

 

Furthermore, the wide powers given to Police Officers under Sec. 54 Cr.P.C. have been interpreted and construed in a strict manner by the superior judiciary in Pakistan. The Courts have time and again expressed alarm and disapproval at the tendency of Police Officers to regard their powers under Sec. 54 Cr.P.C. as without qualification or limitation.^[15] This means that a general definition of what constitutes ‘reasonableness’ in a complaint or ‘suspicion’ and ‘credibility’ of information cannot be given. Both must depend upon the existence of ‘tangible legal evidence’ within the cognizance of the Police Officer and he must judge whether the evidence is sufficient to establish the reasonableness and credibility of the charge, information or suspicion.^[16] Any arrest which goes beyond the provisions of Sec. 54 Cr.P.C. would be illegal and void per se^[17] and exposes a Police Officer to an offence punishable under Sec. 220 P.P.C.^[18]

 

The Human Rights Committee,[19] in its concluding observations on the initial report of Pakistan in 2017 shows concern with regards to the high incidence of enforced disappearances and extrajudicial killings allegedly instigated by the police and security forces. The Committee criticises the Actions (in Aid of Civil Power) Regulation 2011 for allowing detention without warrant. Thus, in accordance with international standards arrests without warrant must ensure protection of established safeguards with regards to arrest and detention and must not preclude rights related to communication of reasons for arrest, and the right to be produced before a Court which has been emphasised by General Comment 8 on Article 9 of the ICCPR produced by the Human Rights Committee.

 

Article 9(2) of the International Covenant on Civil and Political Rights states, “Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.” Principle 10 of the Principles for the Protection of All Persons under Any Form of Detention or Imprisonment reads, “Anyone who is arrested shall be informed at the time of his arrest of the reason for his arrest and shall be promptly informed of any charges against him.” These principles highlight the safeguards against arbitrary arrests.

 

The Universal Declaration of Human Rights (UDHR) article 11 states, “(1) Everyone charged with a penal offence has the right to be presumed innocent until proven guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.”

 

Principle 17 of the Principles for the Protection of All Persons under Any Form of Detention or Imprisonment guarantees right to legal counsel, while Principle 18 elaborates upon the communication with legal counsel.

 

Rule 93 of the Standard Minimum Rules for the Treatment of Prisoners states, “For the purposes of his defence, an untried prisoner shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him confidential instructions. For these purposes, he shall if he so desires be supplied with writing material. Interviews between the prisoner and his legal adviser may be within sight but not within the hearing of a police or institution official.”

 

Arrest without a Warrant for the Prevention of a Cognizable Offence:

 

The Police are under a duty to prevent cognizable offences under Chapter XIII of the Cr.P.C. Pursuant to this obligation, the Police is authorized under Sec. 151 of the Cr.P.C. to arrest, without the need for a warrant or orders from a Magistrate, any person involved in a design to commit a cognizable offence. Sec. 151 is deemed an emergency arrest provision available to a police officer where no other means of preventing the commission of the offence exist.^[20] In other words this section provides powers to a police officer to arrest a person even prior to the commission of a cognizable offence.

 

Police Rules 1934

 

Chapter 26 of the Police Rules deal with the power to arrest, and the duties attached to the exercise of such powers. It clarifies that a police officer must apply for a warrant of arrest other than in the situations outlined in Sec. 54 Cr.P.C. As per Rule 26.2 the police also have the power to defer arrest until after sufficient investigation in cases where there is no risk of the accused absconding. Furthermore, it states that if the police carries out an arrest, the facts of the case must justify such an action and the liberty of the individual must not be interfered with prior to such arrest.^[21]

 

The Police Rules have established specific protections for women as well. In relation to the powers to search an individual after arrest, the Rules clarify that a woman must be searched by another woman.^[22] Furthermore, Rule 26.18A states that an arrest of a woman must be carried out by any officer who is a Sub-Inspector or the head constable and the warrant must clarify the reasons for arrest. It also clarifies that in cases where bail is admissible after arrest, no woman must be kept in custody for an unreasonable duration. In addition to this, the Rules clarify that any women in custody must not be kept in a police station overnight unless in ‘unavoidable circumstances’ and must be transferred to judicial custody.^[23]

 

The Rules also provide for the protection of the rights of those who have been arrested and state that any individual suffering from any illness or injury at the time of or after arrest must be provided with medical treatment at the earliest.^[24] It further states that if an arrested individual is sick or wounded, he must be transferred to the prison hospital and a Magistrate may be requested to examine such person, or to grant remand. In addition to this, it has been clarified that any police officer does not have the power to re-arrest an individual released on bail, and if such a re-arrest is deemed necessary it may only be carried out through an application to the Court for the cancellation of bail and the issuance of another warrant in accordance with Sec. 497(5) Cr.P.C.^[25]

 

Other significant rules in relation to arrest are as follows:

 

RELEVANT SECTION	CONTENT
Rule 26.8	Report of Arrest
Rule 26-19	Arrest of drunken persons
Rule 26-19A	Stoppage of trains at non-stop stations to arrest persons
Rule 26-20	Transfer of arrested persons
Rule 26.22	Conditions in which handcuffs are to be used
Rule 26.23	Conditions in which use of handcuffs may be dispensed with

 

Figure 3.3 – Chapter 26, Police Rules 1934

The Courts of Pakistan have implemented the safeguards established under the Cr.P.C. and the Police Rules in various cases. In Bashiran Bibi v. Station House Officer, Police Station, Kot Sabzal,^[26] the accused was detained in a hospital while his arrest remained pending. He had not been produced in front of a Magistrate, nor was a Magistrate requested to examine the accused in the hospital due to which the Court deemed the detention illegal, as the arrest of the accused had been kept pending without any legal justification. The Court ordered investigation of the investigating officer under the Police Rules and the Police Order 2002 to ensure that such arbitrary exercise of power does not go unpunished.

 

Police Order 2002

 

In defining the duties of the Police, the Order states that sharing information about the arrest of an individual with a person of the accused’s choice^[27] and obtaining warrants^[28] lie within the purview of the responsibilities of the police, thus any laws related to these actions must be complied with. Furthermore, it aims to further the prohibition on arbitrary arrests and states that any police officer who unnecessarily arrests a person, or inflicts torture on them during custody may be punished for a term up to five years and will be liable for a fine.^[29] Article 157 of the Order also states that police officers who cause unnecessary delays in producing an arrested individual in Court may be punished for a year along with being liable for a fine.^[30]

 

 

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^[1] ‘Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment’ (Ohchr.org, 1988)

^[2] United Nations, Economic and Social Council, Commission on Human Rights ‘Study of the right of everyone to be free from arbitrary arrest, detention and exile: report of the Committee’ 9 January UN (1961) Doc E/CN.4/813.

^[3] UNGA, ‘Universal Declaration of Human Rights’ 10 December 1948 Article 3

^[4] Communicaton No. 702/1996, C. McLawrence v. Jamaica (Views adopted on 18 July 1997), in UN doc. GAOR, A/52/40 (vol. II), pp. 230-231, para. 5.5.

^[5] Communication No. 458/1991, A. W. Mukong v. Cameroon (Views adopted on 21 July 1994), in UN doc. GAOR, A/49/40 (vol. II), p. 181, para. 9.8; footnote omitted from the quotation; emphasis added.

^[6] Report of the UN Working Group on Arbitrary Detention, ‘United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court’ 6 July 2015 UN Doc A/HRC/30/37

^[7] Report of the UN Working Group on Arbitrary Detention, ‘A compilation of national, regional and international laws, regulations and practices on the right to challenge the lawfulness of detention before court’ 30 June 2014 UN Doc A/HRC/RES/20/16, para. 6 (d))

[8] Report of the UN Working Group on Enforced Disappearances, ‘Report of the Working Group on Enforced or Involuntary Disappearances on its mission to Pakistan’ 26 February 2013 UN Doc A/HRC/22/45/Add.2

^[9] https://daccess-ods.un.org/TMP/7264616.4894104.html

^[10] Sec. 75 Cr.P.C. 1898 (Act V of 1898)

^[11] Mohsin Ali Shah v. S.H.O. Police Station Garh Maharaja, 1995 MLD 771 Lahore

^[12] Abdul Qayyum v. S.H.O. Police Station Shalimar 1993 P.Cr.L.J 91 Lahore

^[13] Manthar Ali v. S.H.O. 2013 P.Cr.L.J 553 Karachi

^[14] Manthar Ali v. S.H.O. 2013 P.Cr.L.J 553 Karachi

^[15] Noor Muhammad S.H.O. Police Station KlurKot District Bhakkar 2000 Y L R 85 Lahore, Abdul Qayyum v. S.H.O. Police Station Shalimar 1993 P.Cr.L.J 91 Lahore, Rasool Bux v. the State 2005 Y L R 915 Karachi, Asma Khatoon v. Syed Shabbir Hussain Shah PLD 1996 Karachi 517, Ghulam Sarwar v. the State, 1984 P.Cr.L.J 2588 Lahore, Sohail v. the State 1995 P.Cr.L.J 369 Karachi

^[16] Abdul Qayyum v. S.H.O., Police Station Shalimar, 1993 P.Cr.L.J 91 Lahore

^[17] Mst. Raza Pervez v. the Senior Superintendent of Police Multan 1992 P.Cr.L.J 131 Lahore

^[18] Sec. 220 Pakistan Penal Code 1860 -Commitment for trial or confinement by person having authority who knows that he is acting contrary to law

[19] Un Human Rights Committee, ‘Concluding Observations on the Initial Report of Pakistan’ 23^rd August 2017 Un Doc CCPR/C/PAK/CO/1

^[20] Ameer Mai v. Justice of the Peace Yazman 2012 P.Cr.L.J 1082 Lahore

^[21] Rule 26.2 Police Rules 1934

^[22] Rule 26.3 Police Rules 1934

^[23] Rule 26.18A(2) Police Rules 1934

^[24] Rule 26.6 Police Rules 1934

^[25] Rule 26-21(6) Police Rules 1934

^[26] 2013 MLD 1359 Lahore High Court

^[27] Article 4(k) Police Order 2002 (C.E. Order No.22 of 2002)

^[28] Article. 4(3) Police Order 2002 (C.E. Order No.22 of 2002)

^[29] Article 156 Police Order 2002 (C.E. Order No.22 of 2002)

^[30] Article 157 Police Order 2002 (C.E. Order No.22 of 2002)