Detention

The investigation process for a cognizable offence is initiated once the police register a First Information Report (FIR) under section 154 of the Code of Criminal Procedure (Cr.P.C.). All offences of terrorism defined under the Anti-Terrorism Act 1997 are deemed to be cognizable offences. An FIR can be lodged by any one by informing the police through any means. Anyone can report the matter to the police including a victim, a police official, a councilor, a community head/watchman or a private citizen. The police are then empowered under section 156 of the Cr.P.C. to conduct an investigation.

An investigation is defined as the collection of evidence conducted by a police officer or any person so authorized. The police have the power to arrest a suspect during the course of an investigation, however, this power is permissive and not obligatory. The police are only bound to arrest a suspect if it is likely that not doing so would result in the suspect’s escape from justice or an inconvenient delay.

The Power to Arrest Terrorism Suspects

The general power to arrest for terrorism-related offences is provided in Section 5(2) of the Anti-Terrorism Act 1997 which under sub-sections (ii) and (iii) stipulates that the police or armed forces may:

(ii) arrest without warrant, any person who has committed an act of terrorism or a scheduled offence or against whom a reasonable suspicion exists that he has committed, or is about to commit, any such act or offence; and

(iii) enter and search, without warrant, any premises to make any arrest or to take possession of any property, firearm, weapon or article used, or likely to be used, in the commission of any terrorist act or scheduled offence.

The power to arrest for cognizable offences is also provided in the Cr.P.C. which:

empowers the police to arrest anyone directly accused of an offence or anyone against whom there exists reasonable suspicion of his/her having been involved in a cognizable offence (Section 54)
authorizes a police officer to arrest a suspect known to be designing to commit a cognizable offence (section 151)

Under the Anti-Terrorism Act, if a person has been arrested by the armed forces, he/she shall be handed over to the police station’s investigating officer.

The scheduled offences contained in the Anti-Terrorism Act include any act of terrorism or other punishable offence under the Act, any attempt to commit, aid or abetment of or conspiracy to commit such an offence, abduction or kidnapping for ransom, use of fire arms or explosives in a place of worship even if there is no hurt or damage caused, the firing or use of explosives in court premises.

“Reasonable Suspicion”

Domestic and international case law has attempted to define the rather ambiguous phrase ‘reasonable suspicion’. It was held in Manthar Ali v. S.H.O that reasonable suspicion (as used in the Cr. P. C) does not mean a vague surmise or inference but a bona fide belief that an offence had been committed or was about to be committed. This belief had to be founded on some definitive averments/allegations which create the basis for suspicion of the person to be arrested.

Furthermore, the European Court of Human Rights held in the case of Fox, Campbell and Hartley v. the United Kingdom that:

“[H]aving a “reasonable suspicion” presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence. What may be regarded as “reasonable” will, however, depend upon all the circumstances. In this respect, terrorist crime falls into a special category. Because of the attendant risk of loss of life and human suffering, the police are obliged to act with utmost urgency in following up all information, including information from secret sources. Further, the police may frequently have to arrest a suspected terrorist on the basis of information which is reliable but which cannot, without putting in jeopardy the source of the information, be revealed to the suspect or produced in court to support a charge.”

Therefore, it can be concluded that for the suspicion to be ‘reasonable’ there must be a definitive basis for it, which would satisfy an objective observer. In addition, what is deemed ‘reasonable’ will also depend on the circumstances in the case.

It is not required that arrest be the only resort with no other viable alternative but to arrest the suspect. However, the arrest has to be fully justified and based on evidence. The power to arrest has to be justified in a court of law and must be shown to be practical, sensible and necessary at the time it is made.

Penalty under the Law

It is imperative that police officers satisfy the reasonable suspicion requirement as the Khyber Pakhtunkhwa Police Act 2017 has criminalized vexatious and unnecessary arrest as an offence punishable under the law. The penalty for vexatiously and unnecessarily detaining, searching or arresting a person is imprisonment for a term which may extend to five years and with a fine. Moreover, the superior judiciary has also been reluctant to permit a very broad interpretation of the term ‘reasonable suspicion’. The higher courts have expressed their disapproval of police officers who have tended to resort to powers to arrest in an arbitrary manner.

Proscription Lists

Section 11EE further allows the Federal Government to publish a list of proscribed persons if there are reasonable grounds to believe such a person in concerned in terrorism, is an activist, office bearer or associate of a proscribed organization or one kept under observation, or is concerned or suspected to be concerned with such an organization.

As per Section 11EEE, the Government may order in writing that a person included in a list under Section 11EE, be arrested and detained for a period specified in the order, and this period may be extended by the government for a period not exceeding 12 months.

Arrest to Maintain Public Order

Police officers are also empowered to arrest in connection with public order offences which could be considered terrorism-adjacent offences in that they aim to preserve public safety. Under the West Pakistan Maintenance of Public Order Ordinance, 1960, the Government may order in writing for a police officer to arrest and detain a suspect in order to prevent a person from acting in a manner prejudicial to public safety or the maintenance of public order. A government servant may also refer a matter to the Government for orders if they believe an individual is acting in such a manner prejudicial to the law.

Planning an Arrest

The arrest of an accused is a significant step in the course of an investigation. As soon as a person is arrested or detained, constitutional guarantees to present him in a court of law within twenty-four hours and his/her right to counsel are set in motion. Therefore, experienced investigation officers plan the arrest and may make tactical choices ahead of the arrest. For instance, in order to ensure the safety and security of the general public the police officers, the arrest could take place in a location the accused is not familiar with. This will ensure that the accused, particularly if violent or armed, will not benefit from a ‘ground advantage’ and avoid unnecessary risks for the police. The investigation officers will also conduct a security assessment as part of planning the arrest which will involve consideration of the following:

Identifying when a suspect is in a given place in order to make the arrest and ensuring all officers have a detailed description of the suspect (identification could be in the form of a recent photograph and a description should include whether the suspect has a propensity towards violence).
If the suspect has to be arrested from a premises, then the number of exits at the premises should be noted to ensure the suspect does not leave using any one of them. Obtaining the site plan of the premises, if possible, can be very helpful for this.
Assess the suspect’s profile and whether he/she is likely to have access to weapons (including the type of weapon) or the level of threat posed generally and take that into account when formulating a plan.
Identifying whether the suspect has access to a vehicle which he could use to try to escape if he becomes aware of the arrest
Alerting police officers to the need to preserve any vehicle as a crime scene after the arrest is conducted for evidence during the investigation phase
If there is more than one suspect to be arrested in which case different arrest teams may be required
If the suspects are to be held at the same or different police stations
If officers are required to guard the scene after the arrest, if necessary, or manage other people likely to be present during the arrest, this is particularly important as some of these individuals may potentially be witnesses in the case
If specialist equipment to force entry to premises is required in case entry is refused
Whether the means for transporting the suspect to the police station is available
Whether an ‘appropriate adult’ is available for juvenile or otherwise vulnerable suspects
Whether video-recording equipment for arrest and search is useful

Making an Arrest

The rules of arrest have been strictly regulated in cases involving women and children due to their vulnerabilities. Therefore, specific rules regarding their arrest must be known by all investigating officers.

Women

Women must be arrested by a police officer of Assistant Sub-Inspector rank or above. If a police officer of this rank is not available, she may be arrested by the Head Constable in the ‘presence of responsible male relatives and village and town officials’, as per Rule 26.18 of the Police Rules 1934.

Children

Under the Juvenile Justice System Act, 2018, a child (i.e. an individual under the age of 18) may only be handcuffed on the reasonable apprehension that he or she will escape, otherwise handcuffs are not to be used.

Foreigners

Under Section 3(2)(g) of the Foreigners Act 1946, a foreigner can be arrested and detained in the interest of the security of Pakistan for up to two months and subsequently deported. Any period of internment longer than two months requires approval by a Board. In Riaz v. Superintendent, Central Jail, Lahore (2011 YLR 418), the court held that there must be ‘sufficient material on the record to demonstrate that stay of the said person would injurious to the national interest of the country’ without indicating what sufficient material would be.

Location

A police officer pursuing a suspect for arrest can pursue the suspect in any place in Pakistan.

Use of Force

Section 46 of the Cr. P. C authorizes the use of physical force to make an arrest unless there is submission to custody by word or action. Where an individual resists the arrest, a police officer is entitled to use ‘all means necessary’ to effect the arrest. The force used should be proportionate to the offence for which an accused is charged and it cannot cause the death of the person if the offence of which he or she is accused is not punishable with death or imprisonment for life. Moreover, the person to be arrested is not to be subjected to more restraint than is necessary to prevent escape.

As per international standards, it is generally understood that the police can use lethal force to protect life in the arrest of a person presenting a grave threat to life and resisting their authority and to prevent the escape of such a person. This is all the more relevant in terrorism cases where there can be a threat to the police officer’s life through a retaliation attack or suicide bombing at the time of arrest. The police in such cases should be specifically trained for an immediate response in order to neutralize the offender to avoid additional deaths among the public or police ranks. However, this level of lethal force should only be used where there is an immediate and actual risk of attack and this required an accurate assessment prior to the arrest.

Directing the Public

Under the Khyber Pakhtunkhwa Police Act 2017, police officers are given wide powers to direct the public which would facilitate the making of an arrest particularly in the aftermath of a terrorist incident. As per section 83, a police officer of the rank and above of Sub-Inspector, can direct the conduct of people in processions or assemblies on the roads, prevent obstructions, and keep order on streets or places of worship. The Police Rules 1934 also empower police officers to disperse crowds with warnings and exhortations and use military force where necessary.

Place of Arrest

Section 47 of the Cr.P.C. also allows entry into and search of any place where the individual to be arrested has entered and section 47 allows the police officer to break a door or window in order to effect entry but only after he has notified those residing that he is demanding admission. This is particularly so where there is a zanana (private portion of a house where women reside) which is being broken into as it gives the women time to withdraw from the place of entry.

In the UK, the police are also advised to not arrest juveniles at their place of education, unless this is unavoidable. If they are arrested at their place of education, the principal or their nominated person must be informed.

Post-Arrest Requirements

Informing them of the Arrest

As per Article 10(1) of the Constitution of Pakistan, 1973, the arrested person must be informed that they have been arrested, even if this is obvious. The UK’s Police Code also states that they must be informed of the relevant circumstances of the arrest, in that they must be informed of the nature of the suspected offence and when and where it was committed. In light of this, there are three things that must be conveyed to the person being arrested at the time of arrest:

That they are under arrest and have been deprived of their liberty
The nature of the offence (that they are arrested for terrorism-related offences)
Where and when the offence was committed

It should also be noted that the police officer should avoid using vague or technical language, however, it is not necessary to disclose specific details that might undermine the investigative process.

Informing the Family or Nominated Person of the Arrest

This right provides that arrested terrorist suspects can have their family or any other nominated person notified of their arrest with the shortest possible delay. This is also found under the KP Police Act 2017 which states under Section 4(e) that is a police duty to ensure that the information about the arrest of a person is promptly communicated to a person of his/her choice. International practice dictates that this may not include the arrestee himself to speak to their family or nominated person though allowing this is a matter of police discretion. This also includes notification of the place in which they are detained. Good practice would entail the repeated notification whenever they are transferred from one police facility to another.

However, in exceptional cases, it may be ascertained by the police that this could potentially lead to the alerting of potential accomplices who may escape or destroy crucial evidence. Therefore, the police must determine whether a delay is necessary before a notification is issued. This delay should be recorded and proportionate. The United Nations has defined a reasonable delay in notification as not exceeding a matter of days while the Council of Europe has said it should not exceed a maximum of 48 hours, (even for terrorism-related crimes).

Children

As soon as a child is arrested, the officer in charge of the police station where the child is detained is obligated to locate the child’s guardian and inform the guardian of the child’s arrest. The police officer is also to inform the guardian of the time, date, and name of the juvenile court before which the child is to be produced. The concerned Probation Officer is to be promptly informed of the child’s arrest to enable him/her to obtain information regarding the child and other material circumstances which may be of assistance to the juvenile court.

Search

At the time of the arrest, the arrestee is also searched. During the search, his/her personal belongings are taken from them and kept in safe custody. An inventory of the taken belongings is recorded and a copy is sent to a magistrate. Women are to be searched by women.

Recording the Arrest

The arrest must be recorded in the case diary of the case maintained by the Investigation Officer as well as the Daily Diary of the Police Station as per Section 123 of the KP Police Act 2017. This provision requires that all complainants, persons arrested, and offences charged against them, the weapons or property taken from them and the name of witnesses to be examined should be recorded. The maintenance of a complete and regularly updated Daily Diary are important duties as the District and Sessions Judge may call for and inspect such a Diary at any time. Making a false entry in the Daily Diary (in that the police officer knows the entry to be untrue) is a serious offence punishable with dismissal from service. Also, where ‘wanted’ notices have been issued for an arrested offender or where an important arrest has taken place, the arrest must be published in the Criminal Intelligence Gazette (although in reality this is seldom published).

Under Section 172(i) of the Cr.P.C., the investigating officer is required to keep a case diary which must be maintained and submitted daily. This case diary is to:

Record, concisely and clearly, the steps taken by the police, the circumstances ascertained through the investigation and other information. Only information which has a bearing on the case should be included
Be as brief as possible and not be swollen with lengthy explanation and theories, it is to be written either in English or simple Urdu

Obligations towards Foreign Citizens Arrested

Arrested and detained foreigners must be informed of their right to have their consulate notified of their detention and their right to communicate with their Consulate. Moreover, if the arrestee so requests, the consular post must be notified of the arrest without delay and consular access must be granted to the arrested and detained individual. Consulates also have a right to communicate, correspond, and visit their detained nationals and arrange for their legal representation and provide appropriate assistance.

If the person arrested is a refugee who is reluctant to have their consulate informed, the police should inform a representative of a competent international organization of the arrest and detention.

Court Production

The Legal Framework

In terrorism cases, the provisions relating to remand and court production of the terrorist suspect are found in Section 21E of the ATA which stipulates:

(1) Where a person is detained for investigation, the investigating Officer, within twenty-four hours of the arrest, excluding the time necessary for the journey from the place of arrest to the Court, shall produce the accused before the Court, and may apply for remand of the accused to police custody, or custody of any other investigating agency joined in the investigation for which the maximum period allowed may be not less than fifteen days and not more than thirty days at one time:

Provided that, where an accused cannot within twenty-four hours be produced before the Court, a temporary order for police custody or custody of any other investigating agency joined in the investigation not exceeding twenty-four hours may be obtained from the nearest Magistrate for the purpose of producing the accused before the Court within that period.

(2) No expansion of the time of the remand of the accused in police custody or custody of any other investigating agency joined in the investigation shall be allowed, unless it can be shown by the investigating Officer, to the satisfaction of the Court that further evidence may be available and the Court is satisfied that no bodily harm has been or will be caused to the accused:

Provided that the total period of such remand shall not exceed ninety days.

(3) The Court shall be deemed to be a Magistrate for purposes of sub-section (1)

The obligations in this provision are the same as those contained in general criminal procedure law especially section 167 of the Cr.P.C. that states that all persons arrested without a warrant must be produced before a magistrate within twenty-four hours.

Children

Children must be informed of their legal rights by a lawyer within twenty four hours of being brought into custody and must be brought before the Juvenile Court. A child must be released on bail with or without sureties in bailable offences. However, if it appears to the juvenile court on reasonable grounds that such release would bring the child into association with any criminal or expose him to danger, the child shall then be placed in the custody of either a suitable person or the Juvenile Rehabilitation Centre under the supervision of a probation officer.

In cases where a child is not granted bail, the juvenile court shall direct for the guardian of the child to be traced and once traced, the child be immediately released on bail into the guardian’s custody. If a child is over 16 years of age and has been arrested or detained for the commission of a heinous offence, then the Juvenile Court can decide not to grant bail if there are reasonable grounds to believe he/she was involved in its commission.

Remand

Remand is the re-commital to custody of a person who has been brought before the Court. There are three types of remand:

Physical remand – this is requested by the police when physical custody is required for the investigation
Judicial remand – this is granted to provide judicial cover to the continued detention of the suspect who has been denied or is unable to pay bail
Transitory remand – this is granted when an accused is arrested outside the local jurisdictional limits of the Magistrate who issued the arrest warrant and so is brought to the local Magistrate with the intention to be transferred to the warrant issuing Magistrate

The Legal Framework

When an investigation cannot be completed within twenty-four hours, yet there are grounds for believing that the accusation and information against the suspect is ‘well-founded’, the suspect is to be forwarded to appear before a Magistrate (the competent court) as per Section 167 of the Cr.P.C. If there is no sufficient evidence or reasonable grounds of suspicion to justify forwarding the accused to the Magistrate, the suspect may be released from policy custody.

According to Section 19 (5) of the ATA, however, the Anti-Terrorism Court may, on good grounds, order that an accused who is so released from police custody, or one who is in judicial custody, be remanded to police custody for further investigation in the case. These reasons are to be recorded in writing.

As a result, the ATA offers wider powers of remand going beyond the requirement for sufficient evidence or reasonable suspicion, so long as there are ‘good grounds’ to support the continued detention.

“On Good Grounds”

The requirement that remand may be made ‘on good grounds’ requires further elucidation. Section 167 of the Cr.P.C. requires a police officer to have ‘grounds for believing’ that the accusation or information received against the appellant is well founded. The case of Rasool Bux v. the State held that the police should have tangible evidence with them which converts their opinion from ‘reasonable suspicion’ to belief under section 167 of the Code about the involvement of the accused, and there should be grounds to show that accusation or information is well founded. However, this does not offer much clarity on what is required under the law to turn a suspicion into a belief.

Period of Remand

The ATA envisages the first type of physical custody i.e. physical remand for those detained for investigation. However, the period of remand in the ATA is far longer than that envisaged under the Cr.P.C. Under the CrPC, physical remand cannot exceed fifteen days in total whereas the ATA allows a person to be remanded for a period of thirty days at a time for up to a total period of ninety days. It should be noted that this period of remand applies only to those suspects arrested under Section 5 of the ATA. Suspects arrested under the Government’s proscribed lists in Section 11EEE can be detained for a period of up to 12 months.

The Police Rules at Rule 25.56 (2) suggest the grounds for requesting remand:

(2). No application for remand to police custody shall be made on the ground that an accused person is likely to confess. Grounds for such an application should be of the following nature:—

(a) That it is necessary to take the accused to a distance that he may be shown to persons likely to identify him as having been seen at or near the scene of the offence.

(b) That it is necessary to have his footprints compared with those found on or near the scene of offence.

(c) That the accused has offered to point out stolen property or weapons or other articles connected with the case.

(d) Any other good and sufficient special reason.

Furthermore, the Lahore High Court Rules and Orders, Vol. III, Chapter 11, Part B, para8 provide principles for the guidance of Magistrates when granting remand and are reproduced below:

(8). Principle applying remand cases.–The following principles are laid down for the guidance of Magistrates in the matter of granting remands, and District Magistrates [NB: in KP this power has been devolved to District and Sessions Judges] are required to see that they are carefully applied:-

(i) Under no circumstances should an accused person be remanded to Police custody unless it is made clear that his presence is actually needed in order to serve some important and specific purpose connected with the completion of the inquiry. A general statement by the officer applying for the remand that the accused may be able to give further information should not be accepted.

(ii) When an accused person is remanded to Police custody the period of the remand should be as short as possible.

(iii) In all ordinary cases in which time is required by the Police to complete the inquiry, the accused person should be detained in magisterial custody.

(iv) Where the object of the remand is merely the verification of the prisoner’s statement, he should be remanded to magisterial custody.

(v) An accused person who has made a confession before a Magistrate should be sent to the Judicial lock-up and not made over to the Police after the confession has been recorded. If the Police subsequently require the accused person for the investigation, a written application should be made giving reasons in detail why he is required and an order obtained from the Magistrate for his delivery to them for the specific purposes named in the application. If an accused person, who has been produced for the purpose of making a confession, has declined to make a confession or has made a statement which is unsatisfactory from the point of view of the prosecution he should not be remanded to Police custody.

The Lahore High Court has also attempted to define the circumstances in which detention is approved in the case of Ghulam Sarwar v. The State and laid down fifteen principles aimed at regulating the grant of remand and improving accountability:

During first 15 days, the Magistrate may authorise the detention of the accused in judicial custody liberally but shall not authorise the detention in the custody of the police except on strong and exceptional grounds and that too, for the shortest possible period;
The Magistrate shall record reasons for the grant of remand.
The Magistrate shall forward a copy of his order passed under section 167, Cr.P.C. to the Sessions Judge concerned.
After the expiry of 15 days, the Magistrate shall require the police to submit complete or incomplete challan and in case, the challan is not submitted, he shall refuse further detention of the accused and shall release him on bail with or without surety.
After the expiry of 15 days, no remand shall be granted unless, the application is moved by the police for the grant of remand/ adjournment.
The application moved by the prosecution/ police after the expiry of 15 days of the arrest of the accused, be treated as an application for adjournment under section 344, Cr.P.C.
Before granting remand, the Magistrate shall assure that evidence sufficient to raise suspicion that the accused has committed the offence has been collected by the police and that further evidence will be obtained after the remand is granted.
The Magistrate shall not grant remand /adjournment in the absence of the accused.
The Magistrate should avoid giving remand /adjournment at his residence.
The Magistrate shall give opportunity to the accused to raise objection, if any, to the grant of adjournment /remand.
The Magistrate shall record objection which may be raised by an accused person and shall give reasons for the rejection of the same.
The Magistrate shall examine police file before deciding the question of remand.
If no investigation was conducted after having obtained remand, the Magistrate shall refuse to grant further remand /adjournment.
The Magistrate shall not allow remand/ adjournment after 2 months (which is a reasonable time) of the arrest of the accused unless it is unavoidable.
The Magistrate shall not grant remand mechanically for the sake of co-operation with the prosecution/ police.

Women

An application for physical remand of a female accused shall only be made by the special order of a gazetted officer who will subsequently ensure that all necessary measures as per the Police Rules are taken. (i.e. an officer whose name is published in the official gazette by the Government and are BPS 17-22) Rule 26.18, sub-rule 2 of the Police Rules 1934 states that women are not to be lodged in police lockups even for a night ‘except in unavoidable circumstances’ wherein a gazetted officer is to take responsibility for ensuring decent custody of the accused. They are to be immediately produced in front of a Magistrate to obtain judicial remand and be handed over. All women remanded to judicial custody are to be reported to the District Magistrate and if they are escorted about for the investigation they must be escorted by an officer not below the rank of assistant sub-inspector. Section 167 of the Cr.P.C. also prohibits Magistrates from authorizing the detention of a female in police custody. Women admitted to judicial remand are to be transferred immediately to police headquarters or other ‘properly equipped judicial lock-ups’.

Preventive Detention

The ATA allows for preventive detention for inquiry under Section 11EEEE which stipulates that:

(1) The Government or, where the provisions of section 4 have been invoked, the armed forces or civil armed forces, as the case may be, subject to the specific or general order of the Government in this regard for a period not exceeding three months and after recording reasons thereof, issue order for the preventive detention of any person who has been concerned in any offence under this Act relating to the security or defence of Pakistan or any part thereof, or public order relating to target killing, kidnapping for ransom, and extortion/bhatta, or the maintenance of supplies or services, or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been so concerned, for purpose of inquiry:

Provided that the detention of such person, including detention for further period after three months, shall be subject to the provisions of Article 10 of the Constitution.

(2) The inquiry under sub-section (1) may be conducted by a police officer not below the rank of Superintendent of Police or through a Joint Interrogation Team (JIT) to be notified by the Government comprising a police officer not below the rank of Superintendent of Police and officers of other investigation agencies and the powers of the inquiry officer will be vested as per section 5 of the Federal Investigation Agency Act, 1974 (VIII of 1975)

Provided that where the detention order has been issued by the armed forces or civil armed forces under sub-section (1), the inquiry shall be conducted by the JIT comprising members of armed forces or civil armed forces, as the case may be, intelligence agencies and other law enforcement agencies, including a police officer not below the rank of Superintendent of Police.

Article 10(4) of the Constitution of Pakistan 1973 guarantees that no law providing for preventive detention shall be made except to deal with individuals acting in a manner prejudicial to, inter alia, the integrity, security or defence of Pakistan. The provision further states that any such law cannot authorize the detention of a person for a period exceeding three months unless an appropriate Review Board has afforded him/her the opportunity to be heard in person, reviewed the case and reported that there is sufficient cause for such a detention.

This ‘sufficient cause’ must be communicated to the detainee in a language which he/she can understand. The grounds must not be vague and indefinite and should be comprehensive enough to enable the detainee to make a representation against the detention.

Children

Under the Juvenile Justice Systems Act, 2018 no child is to be arrested under any law dealing with preventive detention.