PAKISTAN’S criminal justice system has remained heavily influenced by the British colonial legal framework. The legislature has not made significant efforts to amend outdated laws to align them with the fundamental rights enshrined in the 1973 Constitution, specifically those enumerated in Articles 8 to 28.

A prominent issue within this system is the broad powers granted to the police under relevant clasue of Section 54 of the Code of Criminal Procedure (CrPC), which allows a police officer to arrest a person if the accused is involved in a cognisable offence, a reasonable complaint has been made against the accused for the said offence, a credible piece of information is received by the police officer that the accused is involved in a cognisable offence, or a reasonable suspicion exists that the said person is involved in a cognisable offence.

The relevant clause of Section 54 is particularly concerning, as it allows mere suspicion to be a ground for arrest. This raises several fundamental questions. How should ‘suspicion’ be interpreted when arresting a person? How can suspicion be justified without prior investigation?

In the landmark judgment of Sughran Bibi versus the state (PLD 2018 SC 595), the Supreme Court (SC) held that one of the cardinal principles of criminal law and jurisprudence is that an accused person is presumed innocent until proven guilty before a court of law. The court noted a growing tendency among the complainants to insist on the arrest of the accused person nominated in the first information report (FIR) and an increasing willingness on the part of investigating officers to arrest the accused even before initiating a proper investigation of the allegations.

The court found such an approach to be absolutely against the spirit of the relevant law, fraught with inherent dangers to the cherished liberty of citizens who may ultimately be found innocent. It was like putting the cart before the horse.

In an ideal scenario, there should be a clear distinction between the power to arrest and the need to arrest. Before arresting any person, the police must have sufficient material or evidence against that person. This could be achieved through legislative amendments to the CrPC, such as transferring the power to authorise arrests in cognisable cases to a magistrate, similar to the power given to magistrates in non-cognisable cases. A magistrate would inspect the available material and, if satisfied that there are reasonable grounds for the arrest, would pass the necessary order.

There has to be a system of checks and balances in place. An arrest by a low- ranking officer must be reviewed by a senior police officer to ensure there is sufficient material for arrest. These reforms would help align the criminal justice system with constitutional protections and international human rights standards, ensuring that arrests are made based on evidence, and not merely on suspicion.

Faheem Dal
Hyderabad

Published in Dawn, June 12th, 2024