When Naqeebullah Mehsud was murdered in Karachi in January 2018, it sparked nationwide protests against enforced disappearances and extrajudicial killings of Pashtuns. In Khyber Pakhtunkhwa (KP), it saw the launch of a movement.
The main accused in the case, Senior Superintendent of Police Malir Rao Anwar, was ultimately acquitted, but the trial continues with an Anti-Terrorism Court fixing the date to indict the other officials who were accused.
The judgment, however, was silent on declaring the First Information Report (FIR) false under 'B' Class; a 2018 inquiry report submitted before the Supreme Court of Pakistan (SCP) about the main accused killing 444 persons in 192 fake encounters; and an inquiry report dated October 25, 2018, in the FIR against the main accused, demonstrates the difficulties in prosecuting officials for actions which can cause prolonged anguish for families of victims.
In September 2023, villagers from the Malir Jalbani village protested against the Sindh Rangers for killing four innocent people and injuring several others. The Human Rights Commission of Pakistan concluded that security forces were responsible for mismanagement, miscommunication and abuse of process.
In 1992, Mai Jindo's two sons and son-in-law were killed in a fake encounter over a land dispute in Tando Bahawal. To protest the egregious abuse of official power, her two daughters set themselves on fire, paying a heavy price for justice.
The British used section 144 of the Code of Criminal Procedure (CrPC), 1898, to suppress protests. The very law is still used to ban protests, a right guaranteed under the 1973 Constitution
In this context, we come to the ongoing protest in Islamabad by Baloch families, headed by Dr Mahrang Baloch, against Balach Mola Baksh's extrajudicial murder. The case highlights issues and failures of the Commission of Inquiry on Enforced Disappearances, formed under the Pakistan Commissions of Inquiry Act, 1956; harassment of women protestors, like in Egypt; and death squads such as Al-Shams and Al-Badr which Senator Mushtaq Ahmad Khan acknowledged, his party had supported in the past.
FIRs have been lodged against Dr Mahrang Baloch and other protestors; the Balochistan government has suspended 44 employees for supporting the protest. Caretaker Prime Minister Anwar-ul-Haq Kakar - who also hails from Balochistan - wrongly justified extrajudicial killings and enforced disappearances against terrorism whilst making a statement about protestors and their supporters being aligned with militants. It advocates violence against Pakistani citizens for exercising their constitutional right of protesting peacefully and whose only demand is to be protected by their state.
Such callous behaviour from the top-most elected public official is not new. In the past, former prime minister Imran Khan said that he will not be blackmailed by the Shia Hazara community's protest and refusal to bury their dead unless he meets with them. Such statements by heads of state or government amounts to hate speech, constituting persecution, as held by the International Criminal Tribunal for Rwanda.
The British used section 144 of the Code of Criminal Procedure (CrPC), 1898, to suppress protests. The very law is still used to ban protests, a right guaranteed under the 1973 Constitution, which was then reiterated and reaffirmed at the Constitution's Golden Jubilee. Section 153-B of Pakistan Penal Code (PPC), 1860, still prevents students from participating in political activity and protesting.
The CrPC, PPC, and the Qanun-e-Shahadat Order, 1984, which repealed the Evidence Act of 1872, were authored by colonial masters and used to control and rule over locals through force, fear and intimidation. It protected, instead of prosecuting, officials for extrajudicial killings. The Criminal Tribes Act, sections 107 to 126-A CrPC, and sections 326 and 327 PPC, which define "Thugee", are used to criminalise, arrest and detain locals on apprehension and belonging to particular communities rather than for actually committing crimes.
Practices of surveillance, violating privacy, and collecting data without consent by Britishers under the Thuggee and Dacoity Suppression Act continue even today in the absence of any law which regulates and prosecutes officials responsible for gathering intelligence for abusing their powers.
The judiciary's approach towards this issue is fundamentally flawed. Usually, an FIR is lodged under court directions in cases of extrajudicial killings after refusal from the police. However, the National Judicial (Policy Making) Committee, under the chairmanship of the Chief Justice of Pakistan (CJP) Asif Saeed Khosa, decided on March 11, 2019, that courts would not issue such directions to police unless first decided by the District Superintendent of Police. This decision allowed the police to abuse its powers by refusing to lodge FIRs, protect fellow officers, and destroy the safeguard which empowered judges as Ex-Officio Justice of the Peace, to issue directions to lodge FIRs under sections 22-A and 22-B CrPC in cases of extrajudicial killings.
Pakistan should accept the Optional Protocol of the Convention against Torture; and the Second Optional Protocol to the International Covenant on Civil and Political Rights aiming to the abolition of the death penalty
At the Oxford Union Society, CJP Qazi Faiz Isa said that judges are not the administration nor the executive, and they do not have the police force; being dependent, they can only pass orders regarding the government.
If we take a look at Islamic law, it imposes a duty upon courts to make a declaration about a missing person or 'Mafqood,' for his/her inheritance or to dissolve the marriage of a wife whose husband has been missing for four years under the Dissolution of Muslim Marriages Act, 1939.
If a missing person is murdered by a private person or public official, only legal heirs can either forgive or prosecute culprits. Legal heirs' right to possession of a missing person's dead body for proper burial is a collective obligation or 'Farḍ Kifāyah' on all Muslims and the state. The court, therefore, is obligated to make a declaration on the status of missing persons if approached by their legal heirs. Articles 123 and 124 of the Qanun-e-Shahadat Order will not apply in such cases as the burden is upon accused officials and not the missing person's legal heirs.
Caliph Hazrat Umar Farooq (RA) had this to say about the state's responsibility towards protecting citizens: that if a dog dies hungry on the banks of the River Euphrates, he will be responsible for dereliction of duty.
Advocate Colonel (Retired) Inamur Rahim's detention for raising his voice for missing persons was a test case for the judiciary. In that case, CJP Qazi Faiz Isa adopted a new approach by live broadcasting a case of enforced disappearances.
Further, Pakistan should ratify the International Convention for the Protection of All Persons from Enforced Disappearance. Pakistan has an obligation to curb this epidemic for being party to Universal Declaration of Human Rights; the International Covenant on Civil and Political Rights; the Convention on the Prevention and Punishment of the Crime of Genocide; and the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT). It should accept the Optional Protocol of the Convention against Torture; and the Second Optional Protocol to the International Covenant on Civil and Political Rights aiming to the abolition of the death penalty.
Besides making new laws to protect citizens, Pakistan should reform its colonial-era laws to hold law enforcement agencies accountable for extrajudicial killings. The only remedy available against enforced disappearances is to file a Habeas Corpus petition under section 491 CrPC. Besides the National Assembly, Sindh, KP, and Balochistan can legislate on this issue under Article 142 of the 1973 Constitution, after the 18th Amendment, as they fear systemic persecution — even though extrajudicial killings are also rampant in Punjab.
Pakistan should create a centralised database of missing persons; discard officials' impunity for abusing powers and making hate speeches against victims; reparations and apology laws for victims and their families; laws for protecting victims, especially women, when protesting or appearing before the commission or any constitutional body; reforms the Commission of Inquiry on Enforced Disappearances, ensuring its supervision by courts, international legal institutions, and the Committee against Torture which monitors CAT's implementation; cooperation with Working Group on Enforced or Involuntary Disappearances, as right to life is sacred under international and constitutional law, and does not violate state sovereignty.
Pakistan, therefore, should recognise victims' right to protest, reform colonial-era laws, and make new laws to prosecute officials, otherwise this epidemic will spread and have fatal consequences.