Extralegal killings have been a significant component of the policing and investigative culture rampant in our society for decades. A rapid increase in the number of such killings in recent times is not only incidental to the ever-changing security situation in Pakistan but is also a natural consequence of the newly legislated laws, such as the Protection of Pakistan Act 2014, to curb the rising menace of terrorism.

Though our legislature, courts and law enforcement agencies are finally moving towards dealing with terrorism head on, they lack the capacity to plan for eventualities arising out of this conundrum. A pervasive regime of the de-facto impunity is the single most important reason for rampant use of extralegal killings by the police and other state authorities as a means of bringing alleged criminals to justice.

Such killings are widespread in Pakistan, partly due to the fact that police and other law enforcement agencies enjoy impunity because of the support they receive from their higher-ups. Even when action is taken, only lower ranking staff is punished. The case of extralegal killings by paramilitary forces, for instance the recent case of Aftab Ahmed, where the accused died in the custody of Sindh Rangers after a 90 day remand was given, is even worse. Lack of transparency in such matters often leads to results which bolster unlawful conduct on the part of law enforcement agencies.

In order to understand the reasons for an increase in such killings and the subsequent failure of the state to account for such blatant human rights violations, a critical evaluation of current laws is necessary.

According to law, Sec 60 (Arrest without warrant) and Sec 81(Arrest with warrant) of the Criminal Procedure Code read with Article 10(2) of the Constitution of Pakistan require that every person arrested and detained shall be produced before a magistrate no later than a period of 24 hours of the arrest. The magistrate then has to assess the necessity for a remand in police custody.

This requirement of 24 hours is frequently ignored by the police official/law enforcement agencies and the custody also remains unacknowledged, in violation of law. The police, while holding the alleged accused or persons on mere suspicion, use torture that sometimes leads to the death of the person in custody.

The police, in such cases, later try to legitimise such killings as genuine encounter killings. Though our judicial process has made provisions for such incidents, they are used sparingly. In cases where the police do not act on their own to probe the matter, the concerned magistrate may also initiate inquiry under Sec 176 read with sec 174 of the Criminal Procedure Code which provides that when any person dies in police custody, the nearest magistrate is empowered to hold an inquiry, instead of or in addition to the investigation held by the police.

Sec 174 of the CrPC enumerates instances where an officer in charge of a police station (SHO) is under obligation to intimate the nearest magistrate of any such incident. However, it has been observed that most magistrates feel powerless before the police, and conclude cases in a mechanical manner. They usually accept the report compiled by the police and their version of events.

With the state of Pakistan tightening its grip by introducing strict anti-terrorism laws, it is pertinent to devise a mechanism to deal with the menace of extralegal killings. The phenomenon of impunity, i.e., the exemption from punishment is one of the main factors contributing to the continuing pattern of extralegal killings.

By bringing criminal charges against the perpetrators of violations of the right to life, the government will send a clear message that such violations will not be tolerated and that those found responsible will be held accountable. When investigations into such violations are not pursued, a self-perpetuating cycle of violence is set in motion resulting in continuing violations.

Therefore, external civilian oversight is necessary to minimise, if not end, extralegal killings. Due to the inevitable bias inherent in internal police investigations and available internal disciplinary mechanisms, the government should have the power to enforce its recommendations and decisions.

A strong external oversight body, either in the form of office of police ombudsman or complaints authority or commission with necessary powers, will be able to enforce the proposed disciplinary measures. Such a mechanism should be authorised by legislation to receive complaints from any person.

Police should be required by law to report all deaths in police custody or due to police action to the external oversight body, and there should be penalties for delayed reporting and non-reporting. The body should be authorised to undertake investigations into complaints received and to record and track complaints and abuses. It should have full investigatory powers and must be able to compel police cooperation.

The body must be able to refer cases for criminal prosecutions and suggest binding disciplinary measures to the police. It should also be able to provide security or refer witnesses to witness protection where necessary. The body should have the power to propose general reform measures on policing to the police and the government. Arrangements must be made for the body to be adequately resourced and funded, and provided sufficient funds to allow it to carry out comprehensive investigations.

This mechanism should have full operational and hierarchical independence from police, and be free from executive or political influence. Apart from this, financial independence should be secured by having the body’s budget approved by the legislature, with statutory guarantees.

Specific comprehensive legislation should be introduced to enable the courts and/or external oversight body to order for grant of compensation to the heirs of the victims of extralegal killings. While the need for forgiveness and reconciliation cannot be overemphasised in a civilised society, need to reconsider the whole framework provided under the Qisas and Diyat laws are overdue.

As an immediate step, the law of Diyat should be made inapplicable in cases of human rights violations, especially the right to life, by eliminating the possibility of a compromise between the heirs of victims and law enforcement agencies.

Where a police officer causes the death of a person, acting or purporting to act in the discharge of official duties or in self-defence, it amounts to the commission of a cognizable offence. Such cases must be registered as a First Information Report (FIR) obligating investigation in accordance with the Criminal Procedure Code.

In cases where the existence of circumstances fall within exceptions in the Pakistan Penal Code 1860, such as the exercise of the right of private defence, the final report submitted by the police to the magistrate should not be considered conclusive. The only way for such cases to be determined is through the appropriate judicial proceedings.

In case of armed conflicts, such as the operation in KP, Fata, Balochistan and now Karachi, a parliamentary committee should oversee the military operations. The police should also be trained and educated in humane investigative techniques and in human rights protection. Lastly, legal safeguards need to be strengthened and brought in line with international standards to put an end to the menace of extralegal killings.