Amidst the chaos of political developments, breaking news, and constantly changing deadlines, it is hard to be certain about what might be happening behind closed doors, and more importantly what is going to happen in the coming days and weeks. This uncertainty lends itself to exploitation. Numerous television anchors, political actors, bureaucrats, and other functionaries of the State have constantly made their predictions about the future of the current government, and more generally that of democracy in Pakistan. Most of these opinions, and predictions, in light of shifty sources and reports, are, from time to time, self contradictory and confusing.
Watching the news and reading the daily papers, one clamors for certainty in terms of the law as well as politics. While political certainty, for now, might be asking for too much, we can at least comment and understand the law, underlying the ongoing political controversy, to a great extent, with certainty. In particular, the entire issue of the Model Town tragedy and the issuance of the controversial FIR, when viewed through the prism of law is a relatively straightforward matter.
Under Pakistan’s Criminal Justice System, upon the commission of a “cognizable offence” (an offence under which an arrest can be made without warrant), the State is duty bound to register the First Information Report (FIR). Specifically, under Section 154 of the Criminal Procedure Code of Pakistan, “an officer-in-charge of a police station”, is required to, in “writing”, record the “information” relating to the offence, which is then to be read over to the “informant”, and signed by the informant prior to being entered into the roznamcha. As such, per the established principles of our law, and judgments of the superior courts, each time a cognizable offence is committed, an FIR must be recorded, in which the following three substantive categories must be met: 1) the FIR must be recorded in writing, 2) it must be read over to the informant, and 3) the informant must sign it (certifying the veracity of the FIR to be exactly what the informant had conveyed it to be).
The FIR, in almost all instances, includes an account of where the incident took place, which offences are attracted, some assertion about the description or identity of the suspects, and frequently also assigns specific ‘roles’ to the suspects in the commission of the alleged crimes. It is an established principle of law, as held in Sana Ullah versus S.H.O. etc. (PLD 2003 Lahore 228), that the accused cannot claim an opportunity of being heard, prior to the registration of the FIR. It is also an established principle of law, reiterated by our superior courts, time and again, that registration of the FIR is a statutory right, which cannot be denied or interfered with, by organs of the State. Once the informant brings to the notice of police authorities that a cognizable offence has been committed, the police are duty bound, per the provisions of the Criminal Procedure Code as well as the Police Order, 2002, to register an FIR, precisely, in accordance with the “first information” provided by the informant. There is no power under the law – none at all – that gives police the authority to either delay or alter the contents of the FIR, at their sole discretion or whim.
These exact principles, without any exception, apply to the registration of an FIR in the Model Town tragedy case.
We have all seen the footage, and languished at the images of police authorities firing bullets at unarmed (protesting) civilians. We have heard the eyewitness accounts, of Dr. Tahir-ul-Qadri, his supporters, and even government officials, of how a tragedy was committed. There is no doubt that “cognizable offences”, including section 302 of PPC (murder), and section 7 of ATA (terrorism), were committed. And the complainants, Dr. Tahir-ul-Qadri and his supporters, have identified (with some credence) who, they believe, perpetrated the said offices.
In light of these facts, there is no justification for the police, under either law or morality, for delaying registration of the FIR, or for altering its contents in any manner or form.
As has been widely reported, compelled by a verdict of the Sessions court (under section 22-A/22-B of Cr.PC), which was later upheld by the honorable Lahore High Court, the State authorities have finally registered (a watered down version of) the FIR. However, in registering the FIR, the police authorities have, in a mala fide manner, refrained from the inclusion of section 7 of the Anti-Terrorism Act, 1997. Additionally, allegedly upon instructions from higher officials, the police authorities have included certain select portions of the Sessions Court and High Court judgment, into the body of the FIR, to the extent that these favor the accused.
From a legalistic point of view, these portions of the judgment, reproduced in the FIR, do nothing more than reiterate the principle that each person accused of a crime is innocent until proven guilty, and that mere registration of the FIR does not, in itself, warrant arrest, unless incriminating evidence is found against the accused.
However, this is not the point. The issue of importance is why was the FIR not lodged in the exact and precise manner that the informant/complainant has asked for it to be lodged? Why was it delayed in the first place? Why did the police authorities feel compelled to not include the terrorism offences into the FIR? Why were portions of select judgments included into the body of the FIR itself, instead of merely being guidance principles for the Investigation Officer to complete his proceedings?
It is clear, from the conduct of police officials, as well as from the contents of the FIR, that the police authorities are trying to bend over backwards to facilitate officials of the government in this ongoing criminal matter. This blatant bias of the police, for specific political leaders, as opposed to fidelity for the letter and spirit of the law itself, has further tarnished the already blemished image of civilian law enforcement in our society. Everyone is asking: if the police becomes the personal muscle (“servants”, as some have referred to them) of the Sharif family, if innocent lives are taken from the barrel of the police rifle, all in flagrant disregard of our democratic and constitutional principles, and if then, to top it all, the police authorities fail to fulfil even the very basic duties of registering a true and precise FIR, per requirements of the law, who can the citizenry turn to for law and order?
This mala fide registration of the FIR, a ‘favored innocence report’, at the heels of the entire Model Town tragedy, is a new low for our police force. It makes one want to shout a slogan for those marching for transformational changes in our political culture, and the police force.
The writer is a lawyer based in Lahore. He has
a Masters in Constitutional Law from Harvard