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EARLIER this week, Daska, a small, somewhat lesser known town, 100 kilometres north of Lahore, was catapulted into national prominence. The reasons for this, however, were not only tragic but also potentially dangerous.
According to reports, certain local residents — including lawyers — had been protesting against an anti-encroachment drive organised by the municipal administration and the Daska police. It is not clear whether the police asked the protesters to disperse and if and how they resisted. What is known, however, is that the police opened fire, killing two — both lawyers, the president of the Daska Bar Association amongst them — and injuring two more, one an ordinary citizen.
As news of these deaths spread, lawyers in Daska hurled stones at the police, set on fire police offices and injured the deputy superintendent. They also set on fire the house of the assistant commissioner who was reported to have fled the city with his family. The fear, insecurity and rage soon spread to Gujranwala, Sialkot and eventually to Lahore where lawyers attacked the Punjab Assembly. Even as the Lahore High Court chief justice and the Punjab chief minister took notice, lawyers took to the social media, suggesting the clash between lawyers and police was in fact an irrevocable breach of trust and worse, a clash of institutions.
The violence in Daska raises many questions.
What actually happened at Daska? Had the protesters — whether ordinary citizens or lawyers — committed an offence? In the absence of details, it may be assumed that the protesters had committed either or both of the offences of encroachment and unlawful assembly.
In Punjab, encroachment is an offence under Section 6 of the Punjab Highways Ordinance 1959 and Section 175 of the Punjab Land Revenue Act 1967. Under both laws, the offence is punishable by fine, which the highway and revenue authorities may levy themselves. In case of highways, it is also punishable by imprisonment that may only be awarded by a court.
The offence of unlawful assembly is more complex. In terms of Section 141 of the Pakistan Penal Code 1860, any group of five or more persons that gathers with the common object of overawing a public servant in the course of his duty, resisting the execution of law or criminally encroaching upon property may be liable for unlawful assembly.
The offence is compounded if a person intentionally joins such a group especially if he does so armed with a deadly weapon, joins it after the group has been ordered to disperse, or incites the group to riot with or without a deadly weapon.
Once again the offence, in all its permutations, is punishable by fine or imprisonment to be determined by a court.
If the protesters had indeed committed either of these offences, was the police authorised to open fire on them? According to Section 127 of the Criminal Procedure Code 1898, the officer in-charge of a police station — the SHO — has the authority to direct an unlawful assembly to disperse. Further, in terms of Section 128, if the assembly resists his orders, the SHO has the right to use civil force to disperse the crowd. This means that, unless specifically authorised by higher authorities to do so, he may resort to any means for dispersal of the assembled protesters, short of firing at them.
It is, therefore, clear that in shooting at the Daska protesters, whether they were themselves the encroachers or had assembled merely to protest against the anti-encroachment drive, the SHO acted beyond his legal authority. Does this, however, justify the violent reaction of the lawyers? Certainly not. Irrespective of the provocation, lawyers, perhaps even more than ordinary citizens, are duty bound to uphold the law rather than to break it.
More importantly, however, does this incident amount to a clash of institutions? It does not have to, provided the executive and judiciary act decisively and promptly in bringing the culprit to book and the bar associations demonstrate responsible behaviour by reining in their members.
Luckily, there is help at hand from history as well as from present times. Perhaps the Punjab government would care to remind itself of the 1919 massacre at Jallianwala Bagh in Amritsar which certain historians mark as the beginning of the end of the British Empire in India?
Or perhaps the lawyers may like to examine the settlement just reached between Cleveland Police and the United States Justice Department? Irrespective of where they look for inspiration, the executive and the legal community will be well advised to remember, that each needs the other for its very survival.
The situation, therefore, calls for a careful balancing of the powers and duties of institutions rather than the domination of any one over the other.
The writer is a barrister and an Advocate of the Supreme Court of Pakistan.
Published in Dawn, May 28th, 2015
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