POLICE LAWS IN PAKISTAN

MUHAMMAD ZAIN UR REHMAN

BERET #244
CLASS #4
DISTRICT FAISALABAD
 POLICE LAWS IN PAKISTAN

POLICE LAWS IN PAKISTAN

Table of Content

INTRODUCTION

LITERATURE REVIEW

MAJOR ISSUES

LEGAL FRAMEWORK

CONSTITUTIONALITY OF ORGANIZATIONAL LAW

LEGALITY OF THE POLICE ORDER 2002

EIGHTEENTH AMENDMENT AND CRIMINAL LAW

CONSTITUTIONALITY OF EMPOWERING LAW

POLICE ORGANIZATIONAL LAWS IN DIFFERENT PARTS OF PAKISTAN

IMPACT ON LOCAL GOVERNMENT AND LAW AND ORDER

Conclusion

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POLICE LAW IN PAKISTAN

INTRODUCTION

The police have a abnormal status in Pakistan. Without much authority, they have
much responsibility and much blame to share. In this backdrop, more often than
not, the police are treated as the face of criminal justice system, and with the
installation of every new government, renewed claims are made to reform the
police. Since 1947 more than twenty one official initiatives to improve/reform the
police have been undertakeni. The central point of many a report has been to
improve the law relating to the police to ensure sustainable structural and
functional reform. However, a major development in this regard was taken in 2002
by the introduction of the Police Order, 2002, which ultimately got diluted through
subsequent governmental actions and plethora of amendments. The instant article
intends to explore the state of policing laws in Pakistan in the year 2014; this,
however, is done after highlighting some fundamental concepts related to police
laws in Pakistan.
LITERATURE REVIEW

The twenty one reports/initiatives referred to above become, by default, integral

part of literature review on the subject. However, out of these, the Police
Committee Report (1985) was anchored by police officers exclusively and
therefore got general endorsement from serving and retired police officers as most
of them emphasize and refer to itii. In 1990 an Implementation Committee to assess
the implementation of the Police Committee Report (1985) was constituted, which
opined:

“There are three categories of Reform viz: those requiring changes in law,
those requiring funds and those which need Government or departmental
action by way of restructuring…”iii

The analysis of the above paragraph reveals that the authors of Implementation
Committee Report envisioned reforms in police law as one category of the reform.
In pursuance thereof, ultimately, the Police Order, 2002 was implemented. Suddle
(2012) pinned hopes on the Police Order and recommended that the law’s
implementation be extended to other parts of Pakistan iv; he opined:The present

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state of affairs is, however, different. Mr. Ahmer Bilal Soofi, a senior Advocate
Supreme Court of Pakistan and former federal law minister observed that there was
no uniformity in the emerging police laws of the country; he called it the ‘one of
the most startling revelations’ for him during his office as the federal law minister v.
Not much different is the observation of Mr. Tariq Khosa, former Inspector
General of Police, Baluchistan. He observed that the Sindh, the Balochistan,
Islamabad, Azad Jammu & Kashmir (AJK) and Gilgit-Baltistan (GB) operated in
‘19th century’ whereas, the Punjab and Khyber Pakhtunkhwa (KPK) lived with
‘truncated’ Police Order, 2002vi. The gap between the legal status of police laws in
different parts of Pakistan and the expectations of criminal justice system and
citizens at large exists, which needs elaborate research. The instant article is
exploratory in nature and will try to document the legal status of the police laws
and related issues. The article has been divided into three parts: Part I will examine
some preliminary and fundamental issues related to criminal and policing laws,
while Part II will snapshot the state of police organizational laws in different parts
of Pakistan. Part III will briefly recommend the available options to bring
semblance of uniformity in the police organizational laws.
MAJOR ISSUES

Before embarking upon the state of affairs of policing laws in Pakistan, it is

necessitated to adumbrate, in brief, some preliminary and fundamental issues
related to policing laws in Pakistan. These issues include a description of police
legal framework, elucidation of two types of policing laws, Eighteenth
Amendment to the Constitution of Pakistan vis-à-vis policing laws and
constitutionality of police organizational law in Pakistan.
LEGAL FRAMEWORK

The police legal framework comprises various laws. Substantive and procedural
legislation along with case-law become operative when dealing with a police issue.
The bedrock is the Constitution of Pakistan especially Article 4 read with the
Fundamental Rights partvii. However, the jurisprudential and academic distinction
between substantive and procedural legislation is not retained in practice in a razor
sharp manner. Besides, the international law on human rights and counter-
terrorism laws also become applicable because of some legislation that has
nationalized Pakistan’s international obligations. Within this legal framework,
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there are two types of policing laws: the organizational law and the empowering
law. The organizational law establishes and constitutes a police organization and
also defines its relationship with the government; on the other hand, the
empowering law delineates the powers of the police. The organizational law of the
police in Pakistan was the Police Act, 1861, which was substituted by the Police
Order, 2002; however, the former has resurfaced in new garbs. The empowering
law to the police is found in different legislation. The most important and omnibus
in the legislation is the Code of Criminal Procedure Code, 1908. Other legislations
include Qanoon-e-Shahdat Order, 1984, the Hudood Ordinances of 1979, the Anti-
Terrorism Act, 1997, the Arms Ordinance, 1965 and the Motor Vehicles
Ordinance, 1965 that specifically provide powers to police. Any attempt to
understand the constitutional status of Policing law is based on comprehending the
above stated distinction. Finally, the Punjab Police Rules 1934 that have been
adopted by all the provinces and the territories also constitute the part of the police
legal framework.
CONSTITUTIONALITY OF ORGANIZATIONAL LAW

The constitutionality of organizational law has been subject matter of many a legal
debate and adjudication. On this issue, the Supreme Court of Pakistan passed an
unequivocal judgement in IGP v. Mushtaq Ahmed Warriahviii. CJ Muhammad
Haleem declared:

“…the Police Act is now a Provincial Act by reason of the subject within the
legislative competence of the Provincial Legislature…”

With this declaration, there is little room left to doubt the constitutionality of
organizational law of police. What kept the declaration away from later
generations of legal minds within police and Law Ministry is not known to an
outsider; anyone who was not privy to the official discussions can only surmise.
Based on guesstimates, it may be stated that since the Police Act 1861 remained
applicable in all the provinces without much change, therefore, the general
perception of treating it as a federal legislation continued till 2002. In 2002, when
the new police law was to be promulgated, the debate about its constitutionality re-
emerged. Perhaps the debate was intense and in order to reconcile the differing

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factions, the legislative device of ‘Presidential Order’ protected under Sixth

Schedule was adopted.

LEGALITY OF THE POLICE ORDER 2002

Though the Police Order was promulgated in 2002, it got its temporal legal
sanction from Section 9 of the Constitution (Seventeenth Amendment) Act, 2003,
which amended Article 268 of the Constitution of Pakistan 1973. Article 268 of the
Constitution provided that certain laws shall not be altered, repealed or amended
expressly or impliedly without previous sanction of the President accorded after
consultation with the Prime Minister. The ‘certain laws’ were enlisted in the Sixth
Schedule of the Constitution, wherein Police Order was shown as ‘Entry 35’.
Further, the proviso to Article 268(2) of the Constitution provided that Entry 35
(i.e., Police Order 2002) shall stand omitted after six years. These ‘six years’ came
to an end on 31st December 2009. The legal position, therefore, is that the Police
Order 2002 is sans legal protection. There are, however, people within the police
who claim that the Police Order 2002 is still in force and is protected by Article
270-AA (2) of the Constitution which was introduced through the Constitution
(Eighteenth Amendment) Act, 2010ix which came into force on 20th April 2010.
They fail to appreciate that by operation of Section 9 of the Constitution
(Seventeenth Amendment) Act, 2003, the Police Order 2002 ‘stood omitted’ by
31st December 2009. It is important to note that Section 94 of the Constitution
(Eighteenth Amendment) Act, 2010 repealed Article 268(2) of the Constitution
altogether; however, important point to be underlined is that by the time the
Eighteenth Amendment to the Constitution (i.e. by April 2010) was made, the
operation of ‘omission’ of the Police Order 2002 had already set in (on 31 st
December 2009), therefore, in order to keep the Police Order 2002 alive, no
constitutional legislative cover is available as of today. Nevertheless, police
officers in the Punjab and KPK stick to the legal status of Police Order, 2002 and
argue its protection under Article 270-AA(2) as introduced by the Constitution
(Eighteenth Amendment) Act, 2010 without appreciating the timelines indicated
above.

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EIGHTEENTH AMENDMENT AND CRIMINAL LAW

The general perception is that the Eighteenth Amendment is a watershed

legislation as far as inter-provincial issues are concerned as the Concurrent List
which appeared on the Fourth Schedule of the Constitution was abolished. The
core of Concurrent List abolition lied in narrowing the legislative competence of
the Federal Legislature and hence expanding the space for Provincial Legislatures,
which could, in application, culminate into provincial autonomy. The general
perception, however, did not address the nuanced point introduced by Article
142(b) of the Eighteenth Amendment. The modified Article 142(b) reads:

“Majlis-e-Shoora (Parliament) and a Provincial Assembly shall have power

to make laws with respect to criminal law, criminal procedure and
evidence.”

When read with Article 143, which holds that in case of non-conformity between
the provincial and federal legislations, the latter shall prevail. The combined legal
effect of the two Articles is that a new ‘Criminal Concurrent Field’ has been
established as far as ‘criminal law, criminal procedure and evidence’ are
concerned. The newly created Criminal Concurrent Field, when analyzed in the
legal hierarchy of rules, is found more deeply pegged into constitutional legality as
compared to the erstwhile Concurrent List, which derived its legality as part of
Fourth Schedule and not as a substantive constitutional provision. It is also worth
mentioning that in the pre-Eighteenth Amendment scenario, the ‘criminal law,
criminal procedure and evidence’ were reflected as items 1, 2 and 4 on the
Concurrent List respectively. The brevity of modified post Eighteenth Amendment
Article 142(b) has infused more ambiguity to the already confused terms of
‘criminal law, criminal procedure and evidence’. An illustration in point is the
recent debate in the Punjab over the meaning of ‘criminal law’ as a legislative
subject matter. The issue became a moot point when the present Government of the
Punjab tried to introduce a package of amendments to the Police Order, 2002. The
initiative met some resistance in the Punjab Police. Police officers contested the
legality of the proposed amendments on the grounds of modified Article 142 (b)
(as introduced by the Eighteenth Amendment) and Article 143 of the Constitution
of Pakistan. Taking note of the differing points of views between the Home
Department and Police officers, the Government of the Punjab opted to solicit legal
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opinion from the Office of the Advocate General of the PunjabThe crux of the
Opinion was that ‘police’ law was not a ‘criminal law’, and therefore, Articles
142(b) and 143 of the Constitution of Pakistan were not attracted to legislation on
police. The Opinion stated that the Provincial Legislature was fully competent to
legislate on the subject of ‘Police’. Based on the Opinion, the Provincial
Legislature, in July 2013, initially through the Punjab Police Order (Amendment)
Ordinance, 2013 got the amendments done to the Police Order, 2002.
Subsequently, the Ordinance was placed before the Punjab Assembly which passed
the law as an Act of the Assembly and the amendments were enacted through the
Punjab Police Order (Amendment) Act, 2013 on September 11 2013. The point
was settled administratively, but it is generally believed that the term ‘criminal
law’ as a subject matter for legislative competence is as ambiguous today as it was
prior to the Opinion. Chapters XVI and XVII (from Articles 139 to 159) of the
Police Order 2002 outline offences and punishments; such legal provisions are
squarely fall in the domain of ‘criminal law’. Likewise, Article 18 of the Police
Order 2002 that deals with the procedure for change of investigation is surely part
and parcel of the ‘criminal procedure’. Based on the foregoing, the constitutional
question that begs serious consideration is what can be categorized as ‘criminal
law’, ‘criminal procedure’ and ‘evidence’ for the sake of determining the subject
matter for legislative competence as envisioned under Article 142 (b) of the
Constitution of Pakistan, 1973.
CONSTITUTIONALITY OF EMPOWERING LAW

The constitutionality of the empowering law has never been in doubt. The omnibus
Code of Criminal Procedure was and is a provincial piece of legislation. Likewise,
different special and local laws by and large belong to provincial domain. The
criminal law was first item on the erstwhile Concurrent Legislative List of the
Fourth Schedule of the Constitution and post-Eighteenth Amendment of the
criminal law is that it belongs to provincial domain exclusively now.
POLICE ORGANIZATIONAL LAWS IN DIFFERENT PARTS OF PAKISTAN

The legal position of police organizational laws in different parts of Pakistan may
be highlighted by treating each part and province separately for the sake of clarity.
PUNJAB

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In the Punjab, the Police Order, 2002 in a truncated and amended form is
implemented. Most of the Police Order, 2002 is in non-complied form as many
mechanisms envisioned by the law were either not established, or if established,
are now dormant. The implementation of Police Order is in very few areas which
primarily include change of investigation, heavy top of police hierarchy, criminal
offences regarding police and partial implementation of Article 7 that allows entry
only three levels (Constable, Assistant Sub Inspectors and Assistant
Superintendents of Pplice). The Government of the Punjab has introduced an
amendment through an ordinance in this July that aims to amend Article 7 to allow
induction of Sub Inspectors in police.

SINDH

In Sindh, initially the Sindh (Repeal of the Police Order, 2002 and Revival of the
Police Act, 1861) Ordinance, 2011was introduced. Later, on 14th July 2011, The
Sindh (Repeal of the Police Order, 2002 and Revival of the Police Act, 1861) Act,
2011 was passed; hence, the applicable law is now the Police Act, 1861.

KPK

Like in the Punjab, the KPK is also adhering to the Police Order, which is partially
implemented and principally distorted through amendments.

BALOCHISTAN

Balochistan is divided into ‘A’ and ‘B’ areas. A-Area is policed by regular Police
department whereas B-Area is policed by levies. A-Area constitutes five percent of
Balochistan. In A-Area now the applicable law is not Police Order 2002, but it is
the Balochistan Police Act, 2011. The Balochistan Police Act, 2011 with some
minor modifications is a replica of the Police Act, 1861. It has reintroduced the
control of District Magistrate on Police.

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AJK, GB, ICT

The police law applicable in AJK, GB and ICT is the Police Act, 1861; these are
the areas where Police Order 2002 was never implemented.

The tabular picture of the above discussion is as follows:

S. No. Province/Territory Organizational Law Empowering Law
1. Punjab The Police Order, 2002 Cr. P. C and special and local
laws
2. Sindh The Police Act, 1861 Cr. P. C and special and local
through The Sindh (Repeal laws
of the Police Order, 2002
and Revival of the Police
Act, 1861) Act, 2011
3. KPK The Police Order, 2002 Cr. P. C and special and local
laws
4. Balochistan The Balochistan Police Act, Cr. P. C and special and local
2011 laws
5. AJK The Police Act, 1861 Cr. P. C and special and local
laws
6. GB The Police Act, 1861 Cr. P. C and special and local
laws
7. ICT The Police Act, 1861 Cr. P. C and special and local
laws

IMPACT ON LOCAL GOVERNMENT AND LAW AND ORDER

The reviving of the Police Act, 1861 and manipulations with the Police Order,
2002 have created an asymmetry which has affected the would-be local
government system and the law and order of the country. The unrepresentative
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nature of would-be local government has been reinforced and the law and order
responsibilities further diluted and fragmented. The basic management principle of
no responsibility without authority has once again been militated: generalists have
again taken all the authority; specialists held responsible without authority.

Conclusion
In the backdrop of turf battles of powerful occupational groups of civil service and
an imbalanced civil-military relationship, the way forward is apparently bleak. The
case of Police Order, 2002, if taken in totality and examined as a case study,
evinces that it is a case of one step forward and two steps back. On the other hand,
if one is constrained to offer solace by offering suggestions, the point of departure
would be principal decisions on legal responsibility of internal security in the
country, transforming the generalist civil service to specialist and on treating
citizenry of Pakistan as the central point of all state actions. As far as the role of
federal government in coordinating a uniform police law for whole of Pakistan is
concerned, two courses are open with the extant system:

First option is to get approved the basic features of uniform organizational law for
the whole of Pakistan at the forum of the Council for Common Interests. This is
recommended in view of the new dispensation after Eighteenth Amendment that
has according to eminent constitutional lawyer Mr. S. M. Zafar empowered CCI as
‘a new tier of government’ in Pakistan;

The second option is to get prepared a model police law through the National
Police Bureau (NPB), which is the research and development arm on Policing and
is under the Ministry of Interior. The model police law thus drafted can be
forwarded to provincial assemblies for consideration. However, it is not likely to
yield results as NPB is often treated as a dumping place for police officers and is

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not empowered to or encouraged to undertake the role of coordination effectively

as far as uniform law and standards and practices of policing are concerned.

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i

References

Touseef Mughal Advocate High Court Lahore

Azhar Baloch Advocate Lahore High Court

Junaid Gujjar Sub Inspector Punjab Police Faisalabad

ii

iii

iv

Suddle, Muhammad Shoaib, in Obstacles to Reform, Stabilizing Pakistan through Police Reform, Asia Society,
Abbas, Hassan, Editor (2012), pp 40.
v

Soofi, Ahmer Bilal, Police Challenge, daily English newspaper Dawn, 27th June, 2013
vi
Khosa, Tariq, Who will Police the Police, daily English newspaper Dawn, 9th July, 2013
vii

Articles 8 to 28 of the Constitution of Pakistan cover Fundamental Rights, which include newly introduced
Right to fair trial through Article 10-A , constitutional protection against double jeopardy and against self-
incrimination.
viii
ix

Section 96 of the Constitution (Eighteenth Amendment) Act, 2010