Rao Anwar Verdict Proves Prosecuting Police For Extrajudicial Killing Remains Difficult

The problem with prosecuting extrajudicial killing cases like fake encounters by police or custodial deaths in police custody is that the department protects its accused instead of fairly investigating and collecting evidence. It can be argued that this was the fate of the judgement dated 23^rd January 2023, by the Anti-Terrorism Court (ATC) XVI, Karachi, in The State v. Anwar Ahmed Khan alias Rao Anwar and others. However, besides factual questions, there are questions of law which could have affected the final outcome of the case.

The ATC III, Karachi, had approved the B-class report through order dated 21^st January 2019, declaring that the case was bogus, and that Naqeebullah Mehsud and three other victims were abducted, and that Naqeebullah Mehsud was killed in a fake encounter. The order was not challenged by the accused and, therefore, attained finality. Even though the order was produced before the court and was mentioned in the judgment and forms part of the record and proceedings, the proper discussion surrounding the legal consequence of the said order is missing in the final judgment.

This established legal position should have remained unaffected without being discarded on the pretext of the lack of evidence, and criminal liability should have been imposed upon the police officials for committing extrajudicial murder, which was established in the earlier order by the court, and became final as it was not challenged by the accused.

Besides appealing the judgment passed by the ATC before the high court, the victim’s family could also file a civil suit for the damages and compensation as was seen in the judgment announced by the honourable Sindh High Court where Mohammad Sarwar had received Rs. 20.08 million after the death of his 24-year-old son in police custody. Honourable Justice Mohammad Faisal Kamal Alam had held that since custodial death of the plaintiff’s son was an admitted fact, and indeed a gross wrongful act was committed by police officials concerned, thus, it did fall within the purview of the Fatal Accident Act, 1855.

In 2018, an inquiry report detailing 745 encounters was submitted by the Sindh police before the honourable Supreme Court of Pakistan, which stated that as many as 444 suspects were killed in 192 police encounters led by the accused after his appointment as Senior Superintendent of Police (SSP) in the Malir district.

According to the Human Rights Commission of Pakistan, over 2,000 people were killed in 2015, in armed encounters with the police, mostly in Punjab, while several officers, who spoke to Human Rights Watch, had admitted that police had staged an armed exchange to kill suspects. The issue of extrajudicial killings was highlighted during the third and fourth cycle of Pakistan’s Universal Periodic Review under the UN Human Rights Council.

These facts can make this case subject of the international criminal law, as the International Criminal Court (ICC) had started investigating possible crimes against humanity in the Philippines over former president Rodrigo Duterte’s drug war, which led to the deaths of 8,663 people, according to a UN report in 2021.

In 2019, the accused in the present case was blacklisted by the US for serious human rights abuse through fake police encounters. The UK had also imposed restrictions upon him in 2020, and can exercise universal jurisdiction to prosecute citizens of other countries for committing international crimes including torture. As was seen in the case of the killing of Saudi journalist Jamal Khashoggi, Dr. Agnes Callamard, the UN Special Rapporteur on Extrajudicial summary or arbitrary Executions, called on countries to invoke universal jurisdiction to arrest the responsible individual.

In the extrajudicial killing cases by police and other law enforcement agencies, a fair investigation is difficult if not impossible. Therefore, the rules of evidence need revisiting, such as the delay in lodging the First Information Report (FIR); prosecution witnesses becoming hostile; mandatory implementation of witness protection program, and so on.

The government can constitute a commission, and the superior judiciary can also play its role as well, as previously done in rape cases by amending Article 151 of Qanun-e-Shahadat Order, 1984, to remove the requirement of showing that prosecutrix was of generally immoral character as a legal defense in rape cases.

The weaknesses in any law are highlighted after its implementation and, therefore, needs constant reforms and amendments which is a continuous process, especially in the case of Pakistan where urgent measures are needed to deal with the cases of extrajudicial killings and restore the faith of the people in the criminal justice system, which was admitted by declarations on enforced disappearances and extrajudicial killings, passed at the 8^th Judicial Conference, in 2018, at the Supreme Court of Pakistan.