The arrest and subsequent remand of Dr Shahbaz Gill went to the heart of many of the country’s problems, particularly those dealing with the respect of the citizens. It should not count that Dr Gill is an educated man, that he is a prominent public person, or even that he is accused of sedition, and that too of inciting mutiny in the armed forces.
All citizens are supposed to be equal before the law, and in a day, the debate over his torture should be irrelevant. No one subject to Pakistani law (which includes non-citizens for the time bring present in Pakistan) is supposed to be tortured in police custody. However, it is commonly assumed that the police routinely use third-degree methods, and are all the more under pressure to do so in a high-profile case of this sort. Whether or not the third degree was used on him, it is believed they were, because they are nothing special, and have been thoroughly routinized
The pre-censorship of Imran Khan’s speeches, which cannot now be broadcast live, but only after they have been cleared by PEMRA, is perhaps the first fruit of that third-degree interrogation. If there is a suspicion that Imran too would incite mutiny, this would be the kneejerk reaction of the military. It should be remembered that intelligence outfits the world over are interested in ‘actionable’ intelligence, information that will enable them to advise their masters (usually the commanders) on the course of action they should take.
Thus intelligence outfits wanting to know whether Dr Gill was acting on his own or on instructions from Imran, don’t need proof. They just wanted to know, so that they could advise their bosses what course of action should be taken. They did not need proof; that was something they left to the police.
The police do not merely arrest criminals or solve crimes. It generates the evidence necessary which will allow the trial court to decide whether the criminal did commit the offence. However, this process of gathering evidence must be in accordance with law. In the lawyers’ term, it must be such as to offer due process. The common-laws law of evidence, the Raj’s law of evidence and the Islamic Qanun-i-Shahadat all show that the defendant and the police are going to do their best to pervert the course of justice, and that is where the effort to follow due process comes.
That is why the identical statement is given different evidentiary value by a judge, depending on whether it was recorded by a police officer while making an enquiry (‘Section 161 PPC’) or by a magistrate (‘Section 164 PPC’). Now when an accused consents to make a statement under Section 164, the police, who would have him or her in their custody, rehearse it, making sure that the accused covers crucial ground establishing his guilt. It must include the magistrate explicitly asking him whether his statement is in any way made under the fear or pressure of the police. So much emphasis is placed on this that the magistrate has to include a statement that he has warned the accused making the statement, and has assured himself that it is made freely.
The Gill episode showed that we might have inched towards rule not by the Army but its agencies. This trend has arisen since 9/11, until now it seems irrelevant what anyone thinks; in the end, it appears that the agencies will decide. At the moment, everyone seems on the same page, so it might seem that it won’t matter who wins the elections. Whoever wins, the agencies will win.
Of course, an accused who has recorded a confessional statement under Section 164, is not without a defence. He can resile from the statement, claiming that there was hidden police pressure (such as loved ones in custody). The trial judge will not dismiss the statement, but will treat it as a statement under Section 161.
It may be remembered that a statement under Section 160 is of some evidentiary value, but5 the trial judge cannot rely upon it unless there is other evidence confirming it. For example, a statement under section 160 saying that the accused entered a house to rob it will not lead to conviction, but if the police can show that the accused’s fingerprints were there, unless the defence lawyer can explain how they got there (During an innocent previous visit for example), the judge can proceed to a conviction.
Therefore what Dr Gill is feared to do, is to make a statement under Section 164, and then stick to it in court till the time of trial. On the face of it, he has not made any such statement. Anyway, while it would be enough to convict him, it would only be treated as circumstantial evidence against Imran, if he has been named. To take any example, if A says that B stabbed C repeatedly in a statement under Section 164, while A is probably going to get at least life, the statement only lets the judge admit it as circumstantial evidence, and he will require the knife with which he did the stabbing, to be produced. If the police shows that his fingerprints were on it, he’s probably had it, unless his lawyer can establish that he handled the knife later, entirely innocently.
However, agencies do not need such definitive proof to act. In fact, Dr Gill need not have stated in so many words that Imran was responsible. He may have even denied it. But if the agent conducting the operation thinks he was, then that is the assumption on which the state machinery will operate, even though it cannot be proven in a court of law.
However, As Imran must be finding, this case is merely an addition to the large number of cases he is facing. Then there are the offences being alleged against him in connection with Dr Gill’s case, such as the threats he allegedly hurled against the judge in the case. He has already been called by the FIA in connection with the PTI accounts found by the ECP to have been not declared before the ECP, but operated by such party stalwarts as Asad Umer, Qaiser Mehmood and Qasim Suri. Thus far, he has resisted even appearing.
However, the ECP has also summoned him to answer a disqualification reference regarding his failure to declare the proceeds of the sales of Toshakhana gifts. That he retained and sold them may have been diplomatically uncouth, but not declaring the money is his annual statement to the ECP was illegal. One set of nomination papers has been rejected in the by-elections Imran wishes to contest next month, and it is now for the ECP to ensure there will be a uniform ruling.
The paradox of the Gill case is that it is perhaps the most serious case registered against any member of the PTI. The only things worse would be a PTI worker actually taking up arms, or perhaps members of the armed forces getting incited and conspiring to disobey ‘illegal orders., but Imran is not the prime accused. However, it now seems that the dithering of the PTI on whether to back him, or throw him under the bus, is turning into a defence.
That might be regretted later by the PTI itself. Elections will be held, and the clock is ticking ever louder. All that is left is the appointment of the next COAS. The PTI should have learnt from the incumbent that none is loyal to the political party, but to the institution, and to the government. It is beyond the ability of the government to appoint someone totally unfit, because the panel that will be put up, will consist of officers who have completed the requirements for the job. However, whoever is selected would have been opposed by the PTI, and it is possible that he will be cleaning up after the incitement episode.
Most dangerously though, the Gill episode showed that we might have inched towards rule not by the Army but its agencies. This trend has arisen since 9/11, until now it seems irrelevant what anyone thinks; in the end, it appears that the agencies will decide. At the moment, everyone seems on the same page, so it might seem that it won’t matter who wins the elections. Whoever wins, the agencies will win.