LHC orders transfer of torture, custodial death cases to FIA, nullifies police FIRs

Court deems issues involving law interpretation and right to fair trial under Article 10-A of PPC of public importance

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LAHORE:

The Lahore High Court (LHC) has ruled that first information reports (FIRs) registered by local police under general laws, despite falling within the scope of the Torture and Custodial Death (Prevention and Punishment) Act, 2022, must be cancelled and the matter transferred to the Federal Investigation Agency (FIA), provided that the courts have not yet taken cognisance.

The ruling came from Justice Tariq Saleem Sheikh during the hearing of a post-arrest bail petition filed by a police official, Aftab Mehmood. The accused, along with colleagues, allegedly tortured a suspect, Shehroze Haider, in custody during a robbery case, resulting in serious injuries that led to his death.

Following the incident, Lorry Adda Police Station in Gujrat registered an FIR under Sections 302, 342, and 34 of the Pakistan Penal Code (PPC), along with Section 155-C of the Police Order, 2002.

The FIR, however, was registered under general penal laws, despite the fact that it falls within the ambit of Torture and Custodial Death (Prevention and Punishment) Act 2022, which designates the FIA as the investigating authority.

The court examined three legal questions:

(i) What is the procedure for prosecuting offences under the 2022 Act?

(ii) If an FIR alleging custodial death, torture, or rape is registered under general law (PPC) by local police in contravention of the 2022 Act, can it be transferred to the FIA? If so, what is the legal mechanism for such a transfer?

(iii) If such a transfer is permitted, what is the legal status of the investigation conducted by the local police and the evidence collected before the transfer?

These issues were deemed by the court to be of immense public importance, involving the interpretation of statutory law and the constitutional right to a fair trial under Article 10-A.

Justice Sheikh observed that while the Police Rules do not apply to the FIA by default, the agency may adopt analogous procedures, such as Rule 25.7 of the Police Rules.

Where the local police have already submitted a report under Section 173 of the Criminal Procedure Code (CrPC), the next steps depend on whether a trial court has taken cognisance.

“If cognisance has not been taken, the case may still be transferred to the FIA, preferably with the court’s permission. In that event, the local police shall cancel the FIR and the FIA shall register a new one,” Justice Sheikh ruled.

“On the other hand, if cognisance has already been taken and trial proceedings have commenced, the FIR registered with the local police remains in the field and cannot be cancelled, nor is the FIA required to lodge a fresh FIR,” he added.

Regarding the legal status of investigations conducted by local police in cases governed by the 2022 Act, Justice Sheikh stated that the issue must be assessed under two scenarios:

(a) where the Section 173 CrPC report has not been submitted, or has been submitted but the trial has not commenced;

(b) where the court has taken cognisance and the trial has commenced.

He further stated that an investigation carried out by an agency lacking proper jurisdiction constitutes a procedural irregularity. However, under Section 156(2) CrPC, actions by police in cognisable cases cannot be challenged on grounds of lack of authority, provided the accused has not been prejudiced and no miscarriage of justice has occurred.

Rules 25.5 and 25.6 of the Police Rules also support the preservation of proceedings and evidence collected by the local police. Therefore, procedural irregularity alone does not invalidate the trial.

If a case is transferred to the FIA before the submission of the report under Section 173 CrPC, the FIA is authorised to evaluate the existing material and prepare its report.

In cases where the police have already submitted a report before the transfer, the FIA may submit a supplementary report if deemed necessary, even after trial proceedings have begun.

Justice Sheikh also clarified that cognisance taken by a competent court is legally distinct from the investigation process. Once cognisance has been taken, any earlier procedural misstep, such as an FIR registered by an unauthorised agency, does not vitiate the trial.