KARACHI: After losing the case in criminal proceedings against police officials involved in the custodial death of his son, 86-year-old bed-ridden Mohammad Sarwar has finally managed to win civil litigation after a marathon legal battle spanning over three decades.

Fragile, shocked and visibly aggrieved with stony eyes, the octogenarian was brought on the premises of the Sindh High Court in a van to get the compensation cheque around 32 years after the death of his 24-year-old son in police custody.

Mr Sarwar, who had to run from pillar to post to get justice since 1990, says he finds some solace after over 30 years as law finally succeeds to assert its writ. However, he believes, justice can never be served to those who lose their his loved one.

The octogenarian, who has been paralysed after suffering a stroke several years ago, remained seated in the van parked outside the office of the SHC nazir as court officials handed him a cheque for over Rs20.08 million to him after fulfilling formalities.

The octogenarian father fought a three-decade-long legal battle over death of young son in police custody in 1990

The lawyer for Mr Sarwar was of the view that it was the first lawsuit in a custodial death case that was decreed by a high court in the country’s history.

Though all the police officials had been acquitted during criminal proceedings, Mr Sarwar had in 1991 filed a civil suit in the SHC for damages and compensation.

The lawsuit was decreed in 2017 and the SHC had directed the provincial government to pay the amount to the plaintiff together with 10 per cent mark-up from the date of institution of the suit till the realisation of the amount. Therefore, the plaintiff filed an execution application in 2018, but the provincial authorities filed an intra-court appeal, which was also dismissed in April this year.

Thereafter, the court had issued repeated directives to the provincial government for payment of compensation, but it did not deposit the amount with the SHC nazir. Thus, the court ordered to attach the government account to the extent of decretal amount along with mark-up as per decree and disburse the same to the decree holder.

Subsequently, the State Bank of Pakistan has attached an amount of Rs20,865,294 from the account of the Sindh government and submitted it before the SHC.

Advocate Farrukh Usman, who along with Barrister Nasir Maqsood represented the plaintiff before the SHC, submitted that it was an unprecedented decision in the judicial history of the subcontinent as a high court had allowed compensation lawsuit in a custodial death case.

When asked about an appeal reportedly filed by the provincial government in the Supreme Court against the SHC’s ruling, Advocate Usman said that he was not aware of it and yet to receive any intimation from the apex court in this regard.

In April 1990, the then CIA SSP Samiullah Khan Marwat, Inspector Choudhary Mohammad Latif, ASI Altaf Hussain along with other policemen were booked for allegedly picking up Mohammad Shakeel from Jodia Bazar, detaining him at the CIA Centre in Saddar, tortured and killing him.

However, the police officials were acquitted despite the fact that a judicial inquiry found that the CIA officials/defendants throughout made attempts to cover-up their criminal act by fabricating evidence, preparing false inquest reports and deposing falsely before the authorities concerned.

Most of CIA officials/defendants have passed away during the proceedings of the lawsuit.

Citing the provincial government through the home secretary, inspector general of police, DIG-Karachi and CIA officials defendants, Mr Sarwar had filed a lawsuit for damages and compensation in SHC in 1991which remained pending for around 26 years.

In June 2017, a single-judge bench headed by Justice Mohammad Faisal Kamal Alam had decreed the lawsuit against the defendants and said that since custodial death of the plaintiff’s son was now an admitted fact and indeed a gross wrongful act committed by police officials concerned, thus it did fall within the purview of the Fatal Accident Act, 1855.

The bench in its judgement said, “Looking at the peculiar nature of the case, highhandedness of officials who are defendants, the conclusive evidence that has come on record and the complacent attitude of defendants No.1, 2 and 3 [Sindh government, IG, DIG], I cannot restrain myself from observing that once the defendant No.1 (Government of Sindh) and Defendants No.2 and 3 have acquired knowledge about the unfortunate incident, particularly after findings of a duly constituted Judicial Enquiry, then being a Provincial Government and senior officials of an Islamic Welfare State, they should have compensated the family of the deceased long time back”.

In the evidence the plaintiff has also testified about his helplessness and traumatic experience with the government functionaries and in order to get justice against such a brutal act, he had to run from pillar to post, but never succeeded, it added.

The bench further observed that with regard to the acquittal of defendants in the criminal case, the findings given therein were not binding on this court in view of a settled rule of evidence applicable in criminal and civil cases. In a criminal case, the prosecution is to prove beyond reasonable doubt the guilt of the accused, but in a civil proceeding of the nature, the matter can be decided on the basis of preponderance of probability, it added.

Published in Dawn, October 26th, 2022