Custodial torture

2023 PCrLJ 1650 ISLAMABAD Judicial Precedent

Ss. 316 & 344Qatl shibh-i-amd, wrongful confinementAppreciation of evidenceCustodial tortureAccused persons were police officials and deceased died in their custody during investigation of a criminal offenceTrial Court convicted both the accused personsValidity

Qatl shibh-i-amd was applicable in those cases where death was caused but injuries did not result into death in ordinary course of nature

Torture on the body of deceased was apparent which was in line with medical evidence

Custody of deceased was taken by accused persons from territorial jurisdiction of other police station without warrants of arrest

Accused persons failed to provide due medical care and attention to deceased

Accused persons as police officials were custodian of life and property of citizens but were negligent in their duties and involved in criminal activities

Trial Court rightly convicted accused persons for Qatl shibh-i-amd of deceased and charge under S. 344, P.P.C., was also rightly imposed for wrongful confinement of deceased

Accused persons as officials of police department were under heavy onus to prove that they were performing official duties in accordance with law but they failed to justify any such action rather were found guilty of criminal misconduct though no such charge was framed

High Court declined to interfere in conviction and sentence awarded to accused persons by Trial Court

Appeal was dismissed, in circumstances.

2013 SCMR 66 SUPREME-COURT Judicial Precedent

Right to protection of lifeInviolability of dignity of manCustodial tortureVictim suffering humiliation and harassment in police custodyTortMonetary compensation to victim by way of public law remedyScope

Victim (appellant), while in police custody, was compelled to hold a placard in which self-condemning language was written and he was photographed with the said placard and the photograph was made public

State authorities found the erring police officers guilty

Victim sought public law remedy for grant of compensation and filed constitutional petition before the High Court contending that actions of police and other authorities affected his fundamental right to live with dignity and that he should be granted compensation

High Court recorded findings in favour of the victim but required him to submit a representation to the Provincial Government for adequate relief pertaining to grant of compensation with a further stipulation that if he was aggrieved by it, he could take recourse to requisite proceedings available to him under law

Validity

Facts borne out on record showed that victim had been tortured and humiliated and treatment inflicted on him was inhumane and caused mental trauma

When there was contravention of human rights, the inherent concern as envisaged in the fundamental right of protection of life (security of person) sprang to life and enabled the citizen to seek relief by taking recourse to public law remedy

Relief of monetary compensation, as exemplary damages, in proceedings before Supreme Court or High Court for established infringement of constitutional right of protection of life (security of person) was a remedy available in public law and was based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen

Purpose of public law was not only to civilize public power but also to assure the citizen that they lived under a legal system which aimed to protect their interests and preserved their rights, therefore, when court granted 'compensation' as a relief in proceedings before the Supreme Court or High Court seeking enforcement or protection of fundamental rights, it did so under public law by way of penalizing the wrongdoer and fixing the liability for the public wrong on the State which had failed in its public duty to protect the fundamental rights of the citizen

Payment of compensation in such cases was not to be understood, as it was generally understood in a civil action for damages under private law, but in the broader sense of providing relief by an order of making 'monetary amends' under the public law for the wrong done due to breach of public duty, by not protecting the fundamental rights of the citizen

Compensation in such cases was in the nature of 'exemplary damages' awarded against the wrongdoer for the breach of its public law duty and was independent of the rights available to the aggrieved party to claim compensation under private law in an action based on tort, through a suit instituted in a court of competent jurisdiction and/ or to prosecute the offender under the penal law

Appeal was allowed and a sum of Rs. 5 lacs was granted to the victim as compensation.