Despite a liberal constitution, many in Pakistan fear arbitrary arrest and prolonged detention, even when innocent. This fear isn’t about fair convictions; it’s about being snatched away by authorities on mere suspicion, languishing in jail for months (sometimes years) before acquittal.
Facts paint a grim picture. Around 66% of Pakistani prisoners await trial, while the conviction rate barely reaches single digits. This translates to roughly 60% being “wrongfully” detained, enduring legal battles only to be declared innocent later.
Explanations often focus on societal disregard for innocence or a state prone to excess. While partially true, they miss a crucial factor: flawed laws inherited from the colonial era.
In a society where innocence is presumed, arrests during investigations should be exceptional, reserved for preventing escape, witness tampering, or re-offending. Surprisingly, our 160-year-old Code of Criminal Procedure (CrPC) lacks this principle, granting law enforcement and magistrates unchecked discretion.
Superior court judgments have articulated this principle, but sporadic interpretation isn’t enough. We need parliamentary intervention to enshrine these safeguards in the CrPC.
Instead of clear arrest grounds, the CrPC lists who can be arrested. The broadest category – “anyone concerned in any cognizable offence” (over 250 offenses!) – empowers police to detain based on mere accusation.
Article 10(2) promises presentation before a magistrate within 24 hours, but what follows is often “remand.” Section 167 allows magistrates to detain for 15 days, effectively extending detention through repeated remands.
In principle, detailed reasons justifying remand are required. However, magistrates rarely provide them unless pressured by skilled lawyers. The CrPC lacks an appeal mechanism for challenging remands or penalties for unjustified detentions.
This colonial-era CrPC fails to protect individual liberty. Parliament must re-evaluate it. Adding a narrow, exhaustive list of arrest grounds (absconding, witness tampering, etc.) is crucial.
Realizing the constitutional promise of liberty requires not just enforcing the law, but questioning the laws themselves in light of fundamental principles. We must move beyond colonial relics and build a system that truly upholds individual freedom.
