Custodial death, rape cases: ‘Registration of FIR does not trump proceedings’: LHC

LAHORE: The Lahore High Court (LHC) held the other day that a complaint with the Federal Investigation Agency (FIA) will be competent in the alleged torture and custodial death and rape cases even if the police have already registered FIR.

The court observed that the Torture and Custodial Death (Prevention and Punishment) Act, 2022 grants a new remedy in instances of torture by public officials, custodial death, and custodial rape. The registration of FIR does not trump the proceedings under the said Act. The court also observed that regardless the trial court should determine the impact of the delay as per the rulings of the Supreme Court.

The court passed this order in a petition of Zubaida Qureshi who approached the court against the Ex-officio Justice of Peace who declined to direct the FIA to consider the petitioner’s complaint against respondent police officials for killing Haseeb, Junaid, Raheel, and her son Usman.

The court said the Ex-officio Justice of Peace declined to direct the FIA to consider the petitioner’s complaint primarily because the application was filed two months and fifteen days late. Prima facie, the petitioner has explained the delay in her application, the court added.

The court observed that the designated authority cannot arbitrarily refuse permission to register a criminal case against a public official and it is mandatory to record reasons as the decision is subject to judicial review the court added.

The court said the narratives of the police and the victim party is subject to separate legal frameworks and investigative agencies. The court said in the present case, the SP concerned filed a report with the Ex-officio Justice of Peace negating the petitioner’s version. The court said it is unconvincing that the Ex-officio Justice of Peace felt satisfied with the report it raises serious questions that necessitate a thorough investigation by an independent agency to ensure justice. The court; therefore, set aside the impugned order of the Ex-officio Justice of Peace. The court directed the petitioner to file a complaint with the FIA which shall proceed with it in accordance with the prescribed procedure, as elucidated in this judgment.

The court observed in cases where it is admitted that the individual was in police custody at the time of the alleged torture or killing, the process is straight forward. The FIA can act on the complaint of the aggrieved person or at the Magistrate’s direction under section 5(2) of the Act of 2022 and proceed according to the procedures outlined in the FIA Act and the Investigation Rules, the court added.

The court said the FIA is obligated to entertain the complaint. It cannot refuse to exercise jurisdiction merely because the public officials deny the allegations. It must be borne in mind that it is common for the accused to reject the charges. Therefore, allegations of a fake encounter by the victim fall within the investigative jurisdiction of the FIA. The investigating agency must gather evidence and uncover the truth, the court added.

The court observed that the Act of 2022 grants exclusive jurisdiction to the FIA for investigating complaints against public officials accused of offences under the Act, but it must do so under the supervision of the National Commission for Human Rights (HR Commission). This arrangement ensures that investigations are fair, impartial, and free from conflicts of interest, the court added.

By involving an independent oversight body, the Act aims to safeguard the integrity of the investigation process, thereby maintaining public trust and upholding justice, the court concluded.

Copyright Business Recorder, 2024