TANVEER AHM AD SHEIKH, J: Petitioner (Zubaida Bibi), through the present petition under Article 199 of Constitution of Islamic Republic of Pakistan, 1973, read with Section 491 of Cr.P.C. has sought the recovery of her son Zeeshan Akhtar and nephew Shahbaz, maintaining that on 29.04.2025, they were taken away forcibly from the house by respondent No.2 (Incharge, CCD, District Vehari) and respondent No.3 (Station House Officer, Police Station Saddar, Vehari). Further added that heavy bribe was demanded from petitioner for the release of detenues, which she was unable to pay being a poor lady.
2. Detenues were ordered to be produced physically, vide my order dated 08.05.2025.
3. On 12.05.2025, D.P.O. District Vehari (Muhammad Afzal), D.S.P. Circle (Rizwan) and S.H.O. Police Station Saddar, District Vehari (Raouf, S.I.) entered appearance. They submitted a report claiming that Zeeshan-detenue (son of petitioner) was a criminal with flags. He was having previous involvement in multiple cases of theft/robbery etc. and he alongwith his companions opened an attack upon police party, making straight fire shots and was killed by the fire shot of his own companion, for which case F.I.R. No. 1486/2025 dated 03.05.2025 for offences under Section 302/324/353, 186 and 34 of PPC read with Section 13-2(a)20 of the Punjab Arms Ordinance, 1965 was registered with Police Station Seetal Mari, District Multan. They further apprised that Shahbaz- detenue (nephew of petitioner) was also a criminal desperate and accused of twenty one cases of theft/robbery, who also launched a murderous assault upon police party alongwith his companions and got injured by the fire shots of his own companions and a case F.I.R. 327/2025 dated 03.05.2025 for offences under Sections 324, 353, 186 and 34 of PPC read with Section 13- 2(a)20 of the Punjab Arms Ordinance, 1965 was registered with Police Station Thingi, District Vehari in this regard and he was lying in District Headquarter Hospital, Vehari in injured condition.
4. Report submitted by D.P.O. Vehari was made part of this file.
5. Investigating Officers of both the cases were directed to record cross version of petitioner.
6. Learned counsel for petitioner maintained that present case was covered by "Torture and Custodial Death (Prevention and Punishment) Act, 2022" and only Federal Investigation Agency was competent to enquire into and investigate the matter under Federal Investigation Agency Act, 1974.
7. The learned counsel for respondents/police officials claimed that neither Zeeshan (son of petitioner), nor Shahbaz (nephew of petitioner) were killed in police custody. They launched a murderous assault upon police party alongwith their companions and received injuries at the hands of their own companions, for which above said two F.I.R.s were already registered, wherein cross version of petitioner was also recorded, as such the matter was not amenable to the jurisdiction of F.I.A.; further added that if petitioner feels herself aggrieved, she may avail equally efficacious remedy of filing a private complaint, and the present petition has become infructuous in the light of said peculiar circumstances, hence be disposed of accordingly.
8. For the disposal of present petition and in order to better appreciate the contentions of both the sides, I think it appropriate to have a look of the Torture and Custodial Death (Prevention and Punishment) Act, 2022 (herein after called Act, 2022) and to examine its salient features, as such the same is being produced below for the facility of reference:- "THE TORTURE AND CUSTODIAL DEATH (PREVENTION AND PUNISHMENT) ACT, 2022 ACT NO.XXVIII OF 2022 WHEREAS, Pakistan is a party to the United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishments 1984 and it is imperative to make law for its effective implementation; AND WHEREAS, the Constitution of the Islamic Republic of Pakistan guarantees the dignity of man as mentioned in Article 14; AND WHEREAS, it is expedient to enact a law for the prevention and criminalization of all acts of torture; It is hereby enacted as follows:--
1. Short title, extent and commencement.-- (1) This Act may be called the Torture and Custodial Death (Prevention and Punishment) Act, 2022.
(2) It extends to the whole of Pakistan.
(3) It shall come into force at once.
2. Definitions.-- (1) In this Act, unless there is anything repugnant in the subject or context,
(a) "Agency" means The Federal Investigation Agency constituted under the Federal Investigation Act, 1974 (VIII of 1975);
(b) "Code" means the Code of Criminal Procedure, 1898 (Act V of 1898);
(c) "complaint" means allegations made orally or in writing to the Agency that a public official or a person working in an official capacity has committed an offence under this Act;
(d) "complainant" means any person filing a complaint, upon having reliable information of the commission of an offence under this Act, or his representative as the case may be;
(e) "concerned division" means the Ministry or department to which the business of the Act stands allocated;
(f) "custody" includes all situations where a person is detained or deprived of his liberty by any person, including a public official or by any other person working in an official capacity irrespective of legality nature and any place of such detention.
Explanation I.- It includes judicial custody and all forms of temporary and permanent restraint upon the movement of a person by law or by force or by other means; and Explanation II.- A person shall be deemed to be in custody during search, arrest and seizure proceedings;
(g) "cruel" or "inhuman" or "degrading treatment" means and includes any deliberate or aggravated treatment inflicted by a public official or a person acting on his behalf against a person under their custody, causing suffering, gross humiliation or degradation of the person in custody;
(h) "custodial death" means the death of a person while in custody, directly or indirectly caused by and attributable to acts of torture committed upon the deceased while in custody; Explanation I.- Custodial death includes death occurring in police, private or medical premises, in a public place or in a police or other vehicle or in jail. It includes death occurring while a person is being arrested or taken into detention or being questioned; and Explanation II.- Custodial death also includes all cases where the death of a person after his release from custody is directly caused by and may be substantially attributed to acts committed upon the deceased while in custody;
(i) "custodial rape" means and includes any person taking advantage of his position and committing rape or sexual abuse on a person in his custody or in custody of a public official subordinate to him;
(j) "Government" means the Federal Government or the Provincial Government, as the case may be;
(k) "malafide complaint" means a complaint filed against any person, including a public official with malafide intentions or other ulterior motives or to harass such person or public official;
(l) "person" shall have the same meaning as assigned thereto in section 11 of the Pakistan Penal Code, 1860 (Act XLV of 1860);
(m) "public official" for the purpose of this Act means every person who holds any office by virtue of which he is empowered to place or keep any person in confinement, every officer of the Government whose duty it is, as such officer, to prevent offences, to investigate, and to give information of offences. Explanation.- Wherever the words "Public official" occur, they shall be understood as every person who is in actual possession of a public office, whatever legal defect there may be in that person's right to hold that position;
(n) "torture" means an act committed by which severe physical pain or physical suffering, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions; and
(o) "victim" or "aggrieved person" means any person who alleges that an offence under this Act has been committed against him.
(2) All the words and phrases used but not defined in this Act shall have the same meaning as defined in the Pakistan Penal Code, 1860 (Act XLV of 1860).
3. Inadmissibility of statement extracted through torture.-- (1) Any statement, information or confession obtained by a public official as a result of torture or cruel, inhuman or degrading treatment shall be inadmissible evidence in any proceedings against the person making it.
(2) A public official who knowingly uses such information under sub-section (1) shall be liable for imprisonment which may not exceed one year or with fine which may not exceed hundred thousand rupees of both.
(3) Notwithstanding anything contained in sub-sections (1) and (2), any information or confession obtained as a result of torture or cruel, inhuman or degrading treatment shall be admitted as evidence against a person accused of committing the offence of torture. These provision shall be in addition to the provisions of section 37 and 38 of the Qanoone-Shahdat, Order 1984 (P.O. No. X of 1984).
4. Custody of females.-- (1) No female shall be detained in order to extract information regarding the whereabouts of a person accused of any offence or to extract evidence from such female.
(2) No female shall be taken or held in custody by a male except by a female public official lawfully authorized to do so.
5. Investigation of offences.-- (1) Notwithstanding anything contained in any other law for the time being in force, the Agency shall have the exclusive jurisdiction to investigate the complaints against any public officials who have committed offence under this Act: Provided that the Agency shall investigate the complaints under the supervision of National Commission for Human Rights.
(2) If at any time, including during the grant of physical remand under the Code, the Magistrate has reasonable grounds to believe that the offence under this Act is committed or a complaint of torture is lodged by the person in custody, he shall order a medical examination and if the results of such examination reveal infliction of torture, he shall notify the Agency to investigate such offence.
(3) The Agency, while investigating the offences under this Act, shall have the same powers and shall follow the same procedure as prescribed in the Federal Investigation Agency Act, 1974 (Act VIII of 1975) and the rules made thereunder.
6. Trial of offences.-- (1) Notwithstanding anything contained in any other law for the time being in force, the Court of Sessions shall have exclusive jurisdiction to try offences under this Act.
(2) No adjournment shall be granted during the trial save for the interest of justice, provided that if such an adjournment is granted it shall be not more than thirty days.
7. Intimation to the concerned Government department and transfer or suspension of public official.-- (1) The Agency, while investigating a public official who is accused of an offence under this Act, shall within twenty-four hours of arrest, inform the competent authority to which the public official is accountable, of the nature of the proceedings against him.
(2) Notwithstanding anything contained in any other law for the time being in force, a public official when accused of an offence under this Act shall forthwith be suspended or transferred to a different location from the location in which the alleged offence was committed, after completion of a departmental enquiry within 7 days, giving a finding that there is prima facie evidence of commission of offence under this Act by the public official.
(3) Notwithstanding anything contained in any other law for the time being in force, a public official when convicted of an offence under this Act shall not perform any public duty unless acquitted by the appellate court.
Explanation I.- In this section, the "competent authority" shall mean the appointing authority as prescribed in the service rules of the relevant Government.
Explanation II.- It is clarified that this section, except sub-section (3), shall only apply when a court of law finds a strong prima facie evidence against a public official with regard to the commission of an offence under this Act.
8. Punishment for torture.-- Any public official who commits or abets or conspires to commit torture shall be punished with the same punishment as prescribed for the type of harm provided in Chapter XVI of the Pakistan Penal Code.
Explanation.- The offence under this section shall be cognizable, non-compoundable and non- bailable within the meaning of the Code.
9. Punishment for custodial death.-- Whoever commits or abets or conspires to commit the offence of custodial death, shall be punished with the same punishment as prescribed in section 302 of the Pakistan Penal Code.
Explanation. The offence under this section shall be cognizable, compoundable and non-bailable within the meaning of the Code.
10. Punishment for custodial rape.-- Whoever commits or abets the offence of custodial rape, shall be dealt with and punished under the 6 law and procedure for rape, and the provisions of this Act shall also be applicable to the accused, mutatis mutandis.
Explanation.- The offences under this section shall be cognizable, compoundable and non-bailable within the meaning of the Code.
11. Punishment for filing malafide complaints.-- Whoever files a malafide complaint shall, after it is established that the complaint was malafide, be punished with the same punishment as is prescribed under section 8 for the perpetrators under this Act.
12. Appeals.-- (1) An appeal against a conviction or acquittal of an offence under this Act shall be presented before the respective High Court within thirty days from the date on which copy of the order passed by the Court of Sessions is supplied to the appellant.
(2) An appeal against conviction shall not be admitted unless part of the amount, imposed in the form of fine as directed by the appellate court, is deposited in the court.
13. Time limit for investigation, trial and appeal.-- (1) The investigation of the offences under this Act shall be completed within thirty days from the date of submission of the complaint.
(2) If the investigation of an offence under this Act is not completed within thirty days, the Agency shall call for a report for explaining the delay in completion of the investigation and if satisfied with the causes of delay, may grant maximum five days for completion of the investigation or if the Agency is not satisfied with the causes of delay, may transfer the investigation to another investigating officer who shall take up and complete the investigation from the same stage where it was left by his predecessor.
(3) If investigation of an offence is not completed with thirty days, the Agency shall also file an interim report before the Court of Session and the court may decide to initiate the trial on the basis of such information.
(4) The trial of offences under this Act shall be completed within three weeks from the date of submission of challan before the relevant court.
(5) The appeal against the offences under this Act shall be decided within thirty days from the date of filing of such appeal.
14. Special protection.-- (1) Any person, including the victim or complainant or any witnesses, who allege that he requires protection 7 from a person accused of having committed an offence under this Act or from any of his associates, shall file a petition to the Court of Session in this regard.
(2) The court receiving the petition, after giving notice to the concerned parties, shall hear the matter and pass an order on the petition within three days.
(3) The court while disposing of such a petition as mentioned in sub-section (1) shall make such orders as deemed necessary and appropriate according to the facts and circumstances of the case.
15. Act not to prejudice civil remedies.-- Nothing in this Act shall prejudice the civil remedies available to the victim by virtue of any other law for the time being in force.
16. Overriding effect.-- The provisions of this Act shall have effect notwithstanding anything contained in any other law for the time being in force.
17. Provisions of the Code to apply.-- The provisions of the Code shall apply to the proceedings under this Act.
18. Duties of the Government.-- The Government shall take all measures to ensure that the provisions of this Act are given wide publicity through media at regular intervals and; the relevant public officials are given periodic sensitization and awareness training on the issues addressed in this Act.
19. Removal of difficulties.-- If any difficulty arises in the implementation of the provisions of this Act, the concerned division may make such orders, not inconsistent with the provisions of this Act, as may appear to it to be appropriate for removing such difficulty: Provided that no such order shall be made after the expiry of a period of two years after the enactment of this Act.
20. Power to make rules.-- The concerned division may, by notification in the official Gazette, make rules for the purpose of carrying out the objects and purposes of this Act."
9. Pakistan rectified the United Nations Convention Against Torture (herein after called as UNCAT) and other Cruel, Inhuman or Degrading Treatment or Punishment in 2010, in the compliance of which the Act, 2022 was promulgated.
10. Preamble of the Act, 2022 speaks about the protection given to a person during custody from torture etc perpetrated by public officials. When the act is read in its context, it also covers private persons, who happen to be the privy to the crime alongwith public official. Preamble of an enactment highlights the object for the achievement of which it is promulgated. It is key for the understanding of a statue.
11. Section 2 of the Act, 2022 defines key terms "complaint" "complainant" "custody" "cruel inhuman degrading treatment" "custodial death" "custodial rape" "malafide complaint" "public Official" "torture" "victim or aggrieved person".
Above said terms have not been defined earlier in any enactment, which have been given expensive meaning to ensure the wider net of the applicability of statue.
The word "complaint" signifies allegations made to Federal Investigation Agency (herein after called FIA) orally or in writing regarding the commission of an offence by a public official.
The term "complainant" has been given a wider meaning, so as to include therein his representative.
The word "custody" has covered all the situations of detention or deprivation of liberty including judicial custody and various forms of restraint. Explanation I and Explanation II attached herewith has given it very expensive and comprehensive meaning.
"Cruel inhuman or degrading treatment" encompasses deliberate or aggravated mistreatment causing suffering or humiliation by a public official or his agent. Said definition does not include therein mental torture, but when it is read in its context, it shall include therein all sort of mental sufferings.
The term "custodial death" refers to death occurring while in the custody directly or indirectly caused by torture. Explanation I and Explanation II provided thereunder give it extensive and comprehensive meaning in order to cover all sort of death occurring in private, or police custody, medical premises, or police van, or in the jail.
"Custodial rape" covers sexual abuse on a person in custody of public official.
"Public Official" was also given comprehensive meaning, so as to include therein all the individuals empowered to detain a person or prevent the offences.
"Torture" refers to intentional infliction of sever physical pain or suffering for various purposes by or with the consent of a public official or person acting officially.
12. The most important aspects of Act, 2022 are that the any statement, information or confession obtained from a person as a result of torture, etc was made inadmissible in evidence in any proceedings against the said person, rather it was admitted as an evidence against the accused committing the torture, vide Section 3 thereof. It was in consonance with the Article 14 of the Constitution of Islamic Republic of Pakistan, 1973, the sub-Article 2 of which provides that no person shall be subjected to torture for the purpose of extracting evidence.
Section 4 provides protection to the females and speaks that a female can be held in custody only by a female officer and she cannot be detained in order to extract information regarding the whereabouts of an accused person.
Under Section 5 of Act, 2022, only F.I.A. was empowered to the exclusion of all the other agencies to investigate the complaint against public officials committing the offence under the Act. Said provision was a non obstante clause starting from the words "Not withstanding", which gives the said provision an overriding effect. It further provides that investigation shall be supervised by National Commission for Human Rights (hereinafter called as Commission), although specifics of the supervisory mandate has not been defined. F.I.A., while investigating a crime, shall follow F.I.A.
Act, 1974 and the rules made thereunder.
The court of Sessions was given exclusive power/jurisdiction under Section 6 of the Act, 2022 to try the offences, which is also "non obstante" clause, hence excludes all the other courts.
No separate penal provision was made for the punishment of accused guilty of torture. Provisions contained in Chapter XVI of Pakistan Penal Code (Section 299 to 237H of PPC) have been borrowed by adopting the method of legislation through incorporation. I am of the view that said provisions shall be deemed to have been fully incorporated in the Act, 2022 as existing on the day of incorporation, as such any subsequent amendment in the said provision of PPC shall not be read in this later enactment.
Similarly under Section 9 of Act, 2022, the provision of Section 302 of PPC was adopted as penal clause for the punishment of an accused committing custodial death of a person.
Likewise no separate penal provision was provided for the offence of custodial rape, vide Section 9 of Act, 2022, which provides that offender shall be punished under the law and procedure for rape and provision of this Act, shall be applicable mutatis mutandis.
Prior to the Act, 2022, the Anti-rape (investigation and trial) Act, 2021 was introduced on 04.12.2021 for the expeditious redressal of rape and sexual abuse crime in respect of woman and children through special investigation team and special courts.
Act 2021 was given an overriding effect regarding the offences mentioned in schedule II attached herewith by virtue of Section 28 thereof, which was a "non obstante" clause. So far as the offences enumerated in schedule I thereof were concerned, it was not given an overriding effect, rather it was kept in addition to and not in derogation of the other laws for the time being in force. Said state of affairs may result in creating anomalous situation in some cases.
On the other hand Act, 2022 was given an overriding effect completely through Section 16 thereof, which is also a "non obstante" clause starting from the word "notwithstanding".
13. When both the above enactments are kept into juxta position to each other, the Act, 2022 being latter in the event of time carrying complete overriding effect shall be given preference over the former Act, 2021, which contains "non obstante" clause partially, as such I feel no hesitation in holding that cases of the custodial rape shall be inquired into and investigated by F.I.A. under the Act, 2022 read with F.I.A. Act, 1974 and the rules made thereunder and the provisions of Anti-rape (Investigation and Trial) Act, 2021 shall be given secondary importance and applicability.
14. In the case in hand, learned counsel appearing on behalf of respondents/police officials claimed with proud of strength that since Zeeshan /detenue/deceased son of petitioner was killed of the firing made by his own companions and similarly Shahbaz/detenue (nephew of petitioner) also got injured receiving the fire shots of his own party men, as such Act, 2022 was not applicable, because no police encounter took place as evident from the F.I.R.s registered regarding the death of Zeeshan/detenue and regarding the fire arm injuries to Shahbaz/detenue; further maintained that when the F.I.Rs have already been registered with local police, wherein version of petitioner was also recorded, there was no scope for F.I.A. to investigate the matter.
14. Surprisingly the term "encounter" or "police encounter" have not been defined anywhere in the Act, 2022, as such I shall seek guidance from its ordinary/dictionary meaning. "Encounter" as defined in oxford dictionary reads as "unexpectedly be faced or experience (something hostile or difficult)."--meet (someone) unexpectedly.
16. The term "police encounter" refers to police confrontation or police clash. It refers to a situation, where the police comes into conflict or engage in a confrontation with someone involved in criminal activities.
17. Both the above Zeeshan-deceased and Shahbaz injured received fire arm injuries during the process of interaction with the police officials. Explanation-II attached with the definition of "custody" speaks that "a person shall be deemed to be in custody during search, arrest and seizer proceedings". The episode, wherein Zeeshan met his death was comprising of the proceedings for capturing him. Similar was the position of episode/proceedings wherein Shahbaz-detenue received fire arm injuries. Claim of the police officials that both the above said detenues received fire arm injuries at the hands of their own companions, was their defence plea, which could only be adhered to during the trial.
18. When petitioner has leveled specific allegations that detenues were taken away by police officials and they were lying in their confinement, that was sufficient to bring the matter within the definition of "custodial death" and "custodial torture", hence, the Act, 2022 was fully applicable to the present case, as such the F.I.A. was empowered and bound to inquire into and investigate the matter.
19. When Hamad-ur-Rehman, Deputy Director, F.I.A. Multan was confronted with the situation and asked as to whether he was aware about his duties under the Act, 2022, he replied that he was not capable to initiate the action unless complaint is made to him/F.I.A. He further added that he was having no suo motu power to make a probe into the matter. Reply of the Deputy Director, F.I.A. was meaningful and a question mark. He happened to be more loyal to the kingdom than the king himself. It is made clear to him for academic purpose that Section 4 of the Act, 2022 enjoins a duty upon F.I.A. to investigate the complaints received under the Act, 2022. It does not mean that the F.I.A. shall investigate the crime only on a complaint made to them. The F.I.A. has suo motu powers to enquire into and investigate a crime amenable to its jurisdiction under the F.I.A. Act and the rules made thereunder, as such F.I.A. was bound to take up the matter even if no complaint is moved to them.
20. In the light of above discussion, I hereby direct that police files of said cases F.I.R. No. 1486/2025 of Police Station Seetal Mari, District Multan and of case F.I.R. No.327/2025 of Police Station Thingi, District Vehari be transmitted to F.I.A. authorities immediately without any delay. The Director, F.I.A.
Multan is directed to take up and to probe into the matter, providing complete opportunity of audience to petitioner and all the concerned and to proceed further strictly in accordance with law and complete the investigation within stipulated period adhering to the provisions of the Torture and Custodial Death (Prevention and Punishment) Act, 2022, under the supervision of National Commission for Human Rights.
21. Petition disposed of in above terms. Copy of the order be transmitted to the C.P.O. Multan, D.P.O.
Vehari and the Director F.I.A. Multan for compliance.
Another copy be also transmitted to the Office of National Commission for Human Rights.