Pre-Trial Detention and its Compensation in International and Pakistani Law

Author(s): Tauqeer HussainSource: Policy Perspectives , Vol. 15, No. 3 (2018), pp. 47-66
Published by: Pluto Journals

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 Pre-Trial Detention
and its Compensation
in International and Pakistani Law
Tauqeer Hussain

Abstract

Right to liberty is considered a basic human right and the pre-trial detention
curtails this right before the guilt is proven. Pre-trial is authorized by international
and domestic legal regimes as an unavoidable measure but with certain
precautions. Subsequent to pre-trial detention, international human rights law is
silent about compensating those who were falsely or mistakenly held by state
authorities. Certain states have recently realized the need of a compensation
mechanism. In Pakistan, the criminal procedure warrants certain precautions and
allows a form of compensation for pre-trial detention, yet the law lacks in certain
respects. Exploring evolution of the realization to compensate for the
apprehension before conviction, this paper looks for the convergence and
divergence of Pakistani and contemporary legislation on the issue of pre-trial
detention and its compensation. The paper suggests reforms through minimal use
of pre-trial detention and by providing compensation to the innocent victims of
pre-trial detention.

Introduction

The right to liberty is a basic human right. It is universally acknowledged

and embodied in several international, regional and national legal
statutes.1 Depriving an individual from this right has numerous and
serious implications for the individual, his family and for the society as a
whole. However, at the same time, the peace of society requires that
individuals who may cause disturbance and convulsion, be deprived of
this precious right.2 Therefore, despite sanctity of right to liberty, every


Research Officer, Institute of Policy Studies, Islamabad. The author is particularly
thankful to Khalid Rahman Director General, and Syed Nadeem Farhat Senior Research
Officer, Institute of Policy Studies for their valuable inputs during the course of writing
this paper.
1
For instance, see Articles 3 & 9 of Universal Declaration of Human Rights, 1948,
Article 9 (1) of the International Covenant on Civil and Political Rights (ICCPR), 1966,
Article 6 of African Charter on Human and Peoples’ Rights, 1981, Article 5 of European
Convention on Human Rights, 1950, Article 7 of American Convention on Human
Rights, 1969, Article 21 of the constitution of India 1950, and Article 9 of the
Constitution of Pakistan, 1973.
2
Centre for Human Rights Geneva and Crimes prevention and Criminal Justice Branch,
Professional Training Series No. 3_ Human Rights and Pre-trial Detention: A handbook
of international standards relating to Pre-trial detention, (New York and Geneva:
United Nation, 1994), pp 14-15.
[47]

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 Policy Perspectives Volume 15 Issue 3

society has to have a mechanism to prevent and control crimes through

arrest and detention.3

It is primarily for this reason that despite general recognition of

presumption of innocence for an accused, pre-trial detention is
universally practiced, particularly in criminal justice system. Though
definitions may vary, the term ‘pre-trial detention’ signifies “the period
during which an individual is deprived of liberty (including detention in
police lock-ups) through to conclusion of the criminal trial (including
appeal)”.4 The term is thus used for under-trial prisoners, as well.5

Pre-trial detention is aimed to safeguard the rights of other

people through protection of evidence, proper investigation and
unhindered trial.6 It is also intended to prevent further violation of law
and rights, and ensures presence of accused for investigation and trial
proceedings.7

The Plight with Pre-Trial Detention

Throughout the world, numerous people are arrested and detained in

prisons and jails while awaiting completion of investigation, inquiry and
trial with regard to the alleged offences. Individuals are kept in detention
for several days, weeks, months and even years before a court disposes
off their respective cases.8 While the general logic of the pre-trial
detention is quite understandable, this ‘must have’ mechanism of pre-

3
Black’s Law Dictionary defines arrest as “1. a seizure or forcible restraint. 2. the
taking or keeping of a person in custody by legal authority, esp. in response to a
criminal charge; specif., the apprehension of someone for the purpose of securing the
administration of the law, esp. of bringing that person before a court”. It defines
detention as: “the act or fact of holding a person in custody; confinement or
compulsory delay”. Henry Campbell, Black’s Law Dictionary, Brayan A. Garner, ed.,
(West Group, 2004)
4
Open Society Justice Initiative, Pre-trial Detention and Torture: Why pre-trial
detainees face the greatest risk (New York: Open Society Foundations, 2011), p. 53.
However, UN Human Rights Committee stated about the time limit of pre-trial
detention as “detention between the time of arrest of an accused and the time of
conclusion of trial in shape of judgment at first instance”. See UN Human Rights
Committee, General Comment No. 35: Article 9 (Liberty and security of person) of
International Covenant on Civil and Political Rights (United Nation: December 2014),
paragraph 37, accessed on September 08, 2015,
http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=C
CPR/C/GC/35&Lang=en.
5
Amnesty International, Justice Under Trial: A Study of Pre-trial Detention in India,
Amnesty International, India, 2017, Accessed on September 25, 2017,
https://www.amnesty.nl/content/uploads/2017/07/UT_Final.pdf?x79902.
6
Rule 6 of United Nations Standard Minimum Rules for Non-custodial Measures (Tokyo
Rules), 1990
7
UN Human Rights Committee, General Comment No. 35, paragraph 38.
8
Centre for Human Rights Geneva, Human Rights and Pre-trial Detention, New York
and Geneva: United Nation, 1994, p. iii.
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 Pre-Trial Detention and its Compensation in International and Pakistani Law

trial detention has got a big irony attached to it; it is a penalty without
being convicted.

More ironic - rather painful - is the fact that consequences of pre-

trial detention work in favor of the one who is ultimately found guilty and
not the one who turns out to be innocent at conclusion of criminal
litigation. On the proof of guilt of an accused, the suffering and distress
through which he might have undergone in his pre-trial detention, might
be recompensed through deduction of period of detention from sentence
handed down to him in final verdict of the court, as the further discussion
would indicate. Thus, when an accused is convicted and sentenced to
imprisonment, period of pre-trial detention, might not cause him
additional harm. However, if the accused is ultimately acquitted, then the
whole episode of pre-trial detention remains only as a trauma, torment
and stigma besides the financial and social costs for that person. Despite
proven not guilty, he suffers an enormous harm and irreparable loss (in
terms of health, time, wealth, reputation and liberty) that cannot be
compensated in shape of aforementioned deduction. More significantly,
such instances present a very serious question to the overall spirit and
scheme of the justice system. In principle, the guilty should not be
allowed to escape justice and the innocent must not be harmed, is
fundamental principle of every justice system. The Supreme Court of
Pakistan has also acknowledged this challenge in its judgment while
granting bail to the accused, as: “that in case any accused under
detention is acquitted at the end of the trial then, in no manner, the
wrong caused to him due to long incarceration in prison pending trial, he
cannot be compensated in any manner while on the other hand, in case
if he is convicted then he has to be rearrested and put behind the bars
to undergo his sentence and in that case no prejudice would be caused
to the prosecution/complainant”.9

The detention itself might either be bona fide or mala fide on

account of the police or other authorized state agencies. How a detainee
should be remedied for wrong or erroneous detention, is a question of
worth significance.

Corresponding monetary compensation may redress the

suffering, to some extent at least, for the harm and trauma suffered by
the victims of pre-trial detention. This paper aims to highlight and
analyze this aspect in the light of contemporary international human
rights law, while focusing on the provisions of Pakistan’s criminal
procedure. This may help or provoke the legislature and policy makers in

9
Adnan Prince vs. State PLD 2017 Supreme Court 147
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 Policy Perspectives Volume 15 Issue 3

Pakistan to understand and redress the grievance of the victims of pre-

trial detention in Pakistan.

Pre-trial Detention: A Universal Phenomenon

Pre-trial detention is a universal phenomenon. According to an estimate,

out of 10 million people in the prisons and jails in the world, there are
over 3 million in pre-trial detention at any moment of time, and in span
of one year, around 15 million people undergo the pre-trial detention in
its one form or the other.10 The ordeal and trauma through which they
undergo can be judged from the fact that suicide rate in pre-trial
detainees is three times higher than among convicted inmates, and ten
times higher than the outside community.11

With the better and effective police and judicial system, the
frequency and volume of this problem can be mitigated, however it
cannot be completely done away with. The phenomenon of pre-trial
detention exists even in developed societies and states of the world. 12
The problem, however, increases manifold in countries where law and
order situation, poverty, transparency, accountability and institutional
strength remain major problems. For instance, the figures of some Asian
countries show this fact as under:

Table 1: Pre-Trial Detention in Some Asian States

Country Pre-trial Total Prison Year

Detainees % Population
Bangladesh 77.7 83, 350 Nov. 2017
Pakistan 69.1 83,718 April 2015
India 67.2 4,19,623 Dec. 2015
Sri Lanka 53.4 20,598 Dec. 2017
South Korea 34.5 55,198 Dec. 2017
Indonesia 30.4 2,49,419 May 2018
Iran 25.1 2,30,000 Dec. 2014
Malaysia 25.8 55,413 Sep. 2017
Japan 11.0 56,805 Sep. 2016
Singapore 11.5 11,691 Dec. 2017
Source: Institute of Criminal Policy Research13

10
Open Society Justice Initiative, Presumption of guilt: The Global Overuse of Pre-trial
Detention, (New York: Open Society Foundation, 2015), p. 262
11
Ibid., p. 269
12
Institute for Criminal Policy Research, “Highest to Lowest- Pre-trial
Detainees/Remand Prisoners, Entire world”, World Prison Brief, accessed on
September 04, 2018, http://www.prisonstudies.org/highest-to-lowest/pre-trial-
detainees?field_region_taxonomy_tid=All
13
Institute for Criminal Policy Research, “Highest to Lowest-Pre-trial
Detainees/Remand Prisoners, Asia”, World Prison Brief, accessed on September 04,
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 Pre-Trial Detention and its Compensation in International and Pakistani Law

In case of Pakistan, the trend of pre-trial detention has always remained

alarming though fluctuating, as shown by the following table.

Table 2: Pre-Trial Detention in Pakistan

Year Number of pre-trial Percentage of prison

prisoners population
1999 61, 241 77.6 %
2004 51,433 67.8 %
2009 57,556 70.7 %
2015 55, 429 69.1 %
Source: Institute of Criminal Policy Research14

The historical trend of Pakistan’s prisons population consistently shows

high rates of pre-trial detention.15 According to the figures provided by
the Law and Justice Commission of Pakistan for the month of April 2018,
there were 49,692 under-trial prisoners among the total 80,139
prisoners in the country. The phenomenon is not confined to one
province. Among the, under-trial prisoners were 27,469 in Punjab,
13,947 in Sindh, 7,150 in Khyber Pakhtunkhwa and 1,126 in Balochistan.
More strikingly, many of these prisoners were behind the bars for several
months and even for many years.16 According to a recent report of
National Counter Terrorism Authority (NACTA), the rate of pre-trial
prisoners in Pakistan is about 66% which is significantly higher than the
global median average rate of 27%.17 Another worrying aspect is that
the proportion of pre-trial prisoners among women and juveniles is much
higher, i.e. 68% and 91% respectively.18

To this state of affairs, United Nations Human Rights Committee

has also expressed concerns in its comment adopted by at its 120th
session (July 03-28, 2017) over the deprivation of liberty and lengthy
pre-trial detention in Pakistan.19

2018, http://www.prisonstudies.org/highest-to-lowest/pre-trial-detainees?field_
region_taxonomy_tid=16.
14
Institute for criminal policy research, “Pre-trial/Remand Prison Population: Trend,
Pakistan”, World Prison Brief, Accessed on September 04, 2018,
http://www.prisonstudies.org/country/pakistan.
15
NACTA, ICRC & CODE, Addressing Overcrowding in Prisons by Reducing Pre-
conviction Detention in Pakistan, May 2018, p. 8.
16
Law & Justice Commission of Pakistan, Performance Statistics: jail Inmates,
Accessed on August 15, 2018, http://ljcp.gov.pk/nljcp/assets/dist/news_pdf/ji.pdf.
17
NACTA, Addressing Overcrowding in Prisons, May 2018, p. 8.
18
ibid
19
United Nations, Human Rights Committee, Concluding observations on the initial
report of Pakistan, July 28, 2017, paragraphs 27 & 28, accessed on September 20,
2017,
http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=C
CPR%2fC%2fPAK%2fCO%2f1&Lang=en
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 Policy Perspectives Volume 15 Issue 3

Pre-Trial Detention under International Law

The right to liberty is embodied in numerous domestic and international

laws but the irony of pre-trial detention is attached to it. More disturbing
dimension is that it is rarely, if ever, highlighted. So much so that the
Open Society Foundation had to describe the right to liberty in these
words: “No right so broadly accepted in theory, but so commonly violated
in practice. It is fair to say that the global overuse of pre-trial detention
is the most overlooked human rights crises of our time”.20

Despite this lack of attention towards the plight of those who are
suffering on account of some suspicion, malicious, frivolous or even
mistakenly initiated litigation, no conscious society can completely ignore
this anguish.

Due to high reverence to the right of liberty on one hand, and the
widespread and overuse of pre-trial detention in many states on the
other, the pre-trial detention has become a global concern and several
international legal standards and interpretive materials have emerged to
regulate the use of pre-trial detention and to protect the rights of pre-
trial detainees.21 According to these International legal standards, the
pre-trial detention can be exercised or employed only as a last resort in
criminal proceedings.22 The international law provides that “no one shall
be subjected to arbitrary arrest or detention. No one shall be deprived of
his liberty except on such ground and in accordance with such procedure
as are established by law”.23

Further, article 9(3) of the International Covenant on Civil and

Political Rights (ICCPR), 1966 specifically states that “anyone arrested or
detained on a criminal charge shall be brought promptly before a judge
or other officer authorized by law to exercise judicial power and shall be
entitled to trial within a reasonable time or to release”. In reviewing the
legislation of Yamen, the Human Rights Committee implied that a six
month limit on pre-trial detention was too long to be compatible with
article 9 (3) of the Covenant.24 It is further stated in the article that “it
shall not be the general rule that the persons awaiting trial shall be
detained in custody, but release may be subject to guarantees to appear
for trial, at any other stage of the judicial proceedings, and should
occasion arise, for execution of the judgment‫ ”۔‬The UN Human Rights

20
Open Society, Presumption of guilt, 2015, p. 269.
21
For instance, See Centre for Human Rights Geneva, Human Rights and Pre-trial
Detention, 1994. The same is referred as ‘Handbook of International Standards relating
to Pre-trial Detention’.
22
Rule 6.1 of Tokyo Rules,1990
23
Article 9 (1) of the International Covenant on Civil and Political Rights (ICCPR), 1966
24
Centre for Human Rights Geneva, Human Rights and Pre-trial Detention, 1994, p.17
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 Pre-Trial Detention and its Compensation in International and Pakistani Law

Committee interpreted this article stating that pre-trial detention is an

‘exception rather than a rule’.25 More so, instead of employing pre-trial
detention, the international law makes emphasis and requires the states
to develop or adopt alternative measures to imprisonment especially at
pre-trial stage.26 Thus, pre-trial detention is an exceptional measure to
be exercised only in exceptional cases and that too for a limited period.

As for right to compensation against pre-trial detention for an

accused held in custody lawfully or unlawfully, it would be appropriate to
look at international human rights law on this subject.

Compensation against Unlawful Pre-Trial Detention

As indicated, pre-trial detention does not generally cause a harm to the

interests of a person who is subsequently sentenced with imprisonment
as the time spent in pre-trial detention is adjusted in the period of
imprisonment. But the accused who is subsequently acquitted, can get
no such compensation.27 Realizing this and other repercussions of pre-
trial detention, provisions have been incorporated in International and
regional human rights instruments to provide compensation against
arbitrary and unlawful pre-detention.28 Compensation is also articulated
and voiced through other expressions such as ‘reparation’.29

Many treaties contain specific provisions which expressly provide

for the right to compensation for unlawful and arbitrary pre-trial
detention. Article 9(5) states that “anyone who has been the victim of
unlawful arrest or detention shall have an enforceable right to
compensation”. Further Article 9(5) of ICCPR, 1966 states that “anyone
who has been the victim of unlawful arrest or detention shall have an
enforceable right to compensation”.

25
UN Human Rights Committee, General Comment No. 35, paragraph 38.
26
See Rules 1.5, 6.1 and 6.2 of Tokyo Rules, 1990
27
The term ‘compensation’ is understood to mean a “specific form of reparation
seeking to provide economic or monetary awards for certain losses, be they of material
or immaterial, of pecuniary or non-pecuniary nature”. See also, International
Commission of Jurists, The Right to a Remedy to Reparation for Gross Human Rights
Violations: A Practitioners’ Guide, (Colombia: Ediciones Anthropos, Bogota, June
2007), p.123
28
For instance, see Principle 20 of Basic Principles and Guidelines on the Right to a
Remedy and Reparation for Victims of Gross Violations of International Human Rights
Law and Serious Violations of International Humanitarian law, 2005; Principle 35 of
Body of Principles for the Protection of All Persons under Any Form of detention or
Imprisonment, 1988.
29
For Example, see Principles 18, 19, 21 and 22 of Basic Principles and Guidelines on
the Right to a Remedy and Reparation, 2005.
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 Policy Perspectives Volume 15 Issue 3

In the same words, the Rome Statute of the International

Criminal Court (ICC), also concedes the right of compensation for the
victim of unlawful arrest or detention as “anyone who has been the victim
of unlawful arrest or detention shall have an enforceable right to
compensation”.30 The right of appropriate remedy in shape of
compensation was upheld by International Criminal Tribunal for Rwanda
in The Prosecutor vs. Andre´ Rwamakuba.31

As for the regional human rights instruments, article 5(5) of the

European Convention on Human Rights, (ECHR), 1950 also contains this
right stating as “everyone who has been the victim of arrest or detention
in contravention of the provisions of this Article shall have an enforceable
right to compensation”.32 Similarly, the Arab Charter on Human Rights,
1994 incorporates the right to compensation against unlawful arrest or
detention as “anyone who is the victim of unlawful arrest or detention
shall be entitled to compensation”.33

American Convention on Human Rights, (ACHR), 1969

acknowledges the right of compensation for miscarriage of justice as
“everyone has the right to be compensated in accordance with the law in
the event he has been sentenced by a final judgment through a
miscarriage of justice”.34

The right to compensation against the violation of human rights

is recognised by the UN Human Rights Committee, a treaty body of UN,
even if it is not explicitly stated in provisions of any particular treaty, and
the Committee also recommends the states to award compensation ‘as
a matter of practice’.35

The recommendation seems in the compliance of ICCPR which

provides for and guarantees the right to a remedy stating that states are
bound “to ensure that any person whose rights or freedom as herein
recognized are violated shall have an effective remedy, notwithstanding
that violation has been committed by persons acting in an official
capacity”.36 ICCPR enjoins upon the states to ensure an effective remedy
against the violation of rights and freedoms recognized by it or by the

30
Article 85 (1) of Rome Statute of the International Criminal Court (ICC), 1998.
31
The Prosecutor vs. Andre´ Rwamakuba, Case No. ICTR-98-44C-T, Decision on
Appropriate Remedy, (January31, 2007), the same decision was held by appeal
chamber on September 13, 2007.
32
Article 5(5) of the European Convention on Human Rights, (ECHR), 1950.
33
Article 16 of the Arab Charter on Human Rights, 1994
34
Article 10 of American Convention on Human Rights, (ACHR), 1969.
35
International Commission of Jurists, the Right to a Remedy to Reparation, June
2007, p.125.
36
Article 2(3) (a) of International Covenant on Civil and Political Rights, 1966.
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 Pre-Trial Detention and its Compensation in International and Pakistani Law

“persons acting in an official capacity”.37 The right to “remedy” stated in

article 2(3)(a) has been interpreted as “comprising compensation” by the
Committee and it has directed the states to implement the compensation
measures in its country reports and award ‘adequate compensation’.38
The Committee did not however, specify any defined amount of
compensation or reparation to be awarded to the aggrieved person.

Compensation against Wrong or Mistaken Pre-Trial Detention

As indicated above, the international law provides compensation

mechanism only in cases of arbitrary or unlawful pre-trial detention. It
does not expressly provide any such remedy to acquitted persons against
any lawful but wrong or mistaken arrest and pre-trial detention caused
by relevant agency on some accusation. Apparently, there is a lack of
legislative mechanism at the international level to redress or provide
compensation to such vulnerable people. Thus, there needs a realization
to develop and incorporate a compensation mechanism against pre-trial
detention in international law for such persons.

A few states, however, have established different compensation

mechanisms to award compensation for the acquitted pre-trial
detainees.39 For instance, Swedish law explicitly provides for the
compensation for the acquitted persons after their pre-trial detention,
when they are not proven guilty, despite the remaining suspicion.
However, for obvious reasons, compensation is not awarded if pre-trial
detention is intentionally caused by the accused or if there exist other
reasons which reasonably require no such compensation.40 The approach
of compensation has been adopted by Austria and Norway in their legal
justice systems, provided acquitted persons are proven innocent.41 Now
recently, Indian Law Commission has also proposed a bill to legislate on
compensating innocent accused persons who suffer injuries or harm due
to wrong or malicious prosecution and ultimately have an honorable

37
Ibid.
38
International Commission of Jurists, the Right to a Remedy to Reparation, June
2007, pp.125-126
39
Amongst the countries that provide compensation to the acquitted accused are
Norway, Germany Sweden, Austria, Denmark, Netherlands, Italy, Iceland and Latvia,
see John David Michels, “Compensating Acquitted Defendants for Detention before
International criminal Courts”, Journal of International Criminal Justice, (May 2010),
Volume 8, Issue 2, pp. 407-424.
40
Gabriel Domenech-pascual & Miguel Puchades- Navarro, “Compensating acquitted
pre-trial detainees”, International Review of Law and Economics, Volume 43, 2015,
accessed on October 17, 2016,
https://www.uv.es/gadopas/2013.Compensating.acquitted.pretrial.detainees.pdf.
41
Ibid
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 Policy Perspectives Volume 15 Issue 3

acquittal after the trial.42 A private member bill “Miscarriage of Justice

(Compensation) Act, 2017 was also moved in Senate of Pakistan but it
has not been passed yet.43

Thus, under International law, a pre-trial detainee has an

enforceable right of compensation against illegal pre-trial detention. It,
however, does not provide compensation mechanism to acquitted
persons against mistaken or erroneous pre-trial detention by relevant
agency on some accusation.

Unwarranted Arrest and Detention in Pakistan (Legal

Framework)

A major cause of pre-trial detention is the overuse of arrest and detention

in criminal justice policies. The police in Pakistan tend to over-arrest for
a variety of reasons including over-implication, meeting performance
evaluation targets and frivolous litigation.44 Contrary to this practice,
several provisions in the Constitution of Pakistan, 1973 relating to
sanctity and protection of liberty, freedom and dignity of an individual,
provide safeguard from unlawful and arbitrary arrest and detention.
Articles 4, 9, and 10 of the Constitution provide about the protection of
law to every person, security of person and his liberty and safeguard
against arbitrary and unlawful arrest and detention respectively.

Under the framework of the Constitution, the Code of Criminal

Procedure (CrPC), 1898 is the main law that deals with penal procedures
including the pre-trial detention. The law covers various forms and stages
of detention, from powers of police to arrest and detain the accused
person, police remand and jail remand, to the conclusion of trial at
acquittal or conviction. The provisions in Pakistani laws also provide for
alternatives to pre-trial detention in form of bail for offences classified as
bailable under the CrPC.45

The phenomenon of pre-trial detention has been discussed below

in the light of legal provisions and judicial interpretation.

42
The Law Commission of India, Government of India, Report No. 277: Wrongful
Prosecution (Miscarriage of Justice): Legal Remedies, August 2018, Accessed on
September 04, 2018,
https://drive.google.com/file/d/1eXWmWBGFGsfbzKqB8ymfOayxxlWvOk5C/view.
43
The bill was introduced by Senator Azam Khan Swati on August 21, 2017, Accessed
on September 04, 2018,
http://www.senate.gov.pk/uploads/documents/1503334797_194.pdf.
44
NACTA, Addressing Overcrowding in Prisons, May 2018, p. 8.
45
For instance, sections 169, 426, 496, 497 and 498 of Code of Criminal Procedure
(CrPC), 1898.
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 Pre-Trial Detention and its Compensation in International and Pakistani Law

Legal Mechanism of Pre-Trial Detention in Pakistan

The CrPC categorizes the offences into cognizable and non-cognizable,

and into bailable and non-bailable offences. In cognizable offences, a
police officer can arrest a suspect on his own cognizance without
requiring issuance of warrant from court.46 In non-cognizable, however,
police cannot arrest an accused or suspect without judicial warrant. 47
Section 54 of CrPC authorizes the police to arrest an accused or suspect
in cognizable offences on different grounds but subject to reasonability
and credibility.48 The police officer making an arrest is supposed to have
some evidence indicating his involvement in given cognizable offence. In
absence of any such material suggesting involvement of detenu in the
offence, his arrest and detention would be “patently without lawful
authority and of no legal effect”.49 However, a police officer who makes
wrong or erroneous arrest with bona fide intention is protected and such
arrest does not vitiate the trial of the given case. 50

Once an accused is detained by police, whether in cognizable or

in non-cognizable case, article 10(2) of the Constitution of Pakistan
stipulates that the accused is not to be detained or held in such custody
beyond “a period of twenty- four hours” without prior authority of a
Magistrate.51 This time limit, however, does not include “the time
necessary for the journey from the place of arrest to the Magistrate’s
court”.52 Sections 60, 61 and 81 of CrPC provide operational details of
this constitutional provision. Article 10(2) of the Constitution is, however,
not applicable to an alien enemy and to a person under preventive
detention.53

In case, police cannot complete investigation in the alleged

offence within twenty-four hours of arrest of an accused, it has to present
him with relevant record before nearest magistrate and apply for remand
of the accused. A magistrate, irrespective of his jurisdiction in the case,
can remand the accused in police custody for a term not exceeding fifteen
days as a whole.54 But if the magistrate is not satisfied with the diaries

46
See Section 4(1)(f) of CrPC, 1898.
47
See Section 4(1)(n) of CrPC, 1898
48
Abdul Qayyum Vs. S.H.O Police Station Shalimar, Lahore, 1993 P.Cr.L.J. 91
49
Mazharuddin Vs. State 1998 P.Cr.L.J 1035
50
Muhammad Mazhar Hassan Nizami, The Code of Criminal Procedure with
Commentary, (Lahore: PLD Publishers, 2009), p. 53
51
Article 10(2) of the Constitution of Pakistan states that “Every person who is arrested
and detained in custody shall be produced before a magistrate within a period of
twenty-four hours of such arrest”.
52
Section 61 of CrPC, 1898
53
Article 10 (3) and 10(9) of the Constitution
54
Section 167(1) and (2) of CrPC,1898
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 Policy Perspectives Volume 15 Issue 3

or record of police, or finds further detention unnecessary, he can refuse

to grant remand in the custody of police and trial may begin forthwith.55

In cases where an accused is not discharged or granted bail, he

is sent to judicial lock-up waiting for his trial. At trial stage, the law
authorizes the trial court to remand the accused for a term not exceeding
fifteen days at a time.56 The law however, lays stress that adjournment
in a case should be granted only for “reasonable” time and it aims to
avoid unnecessary delay and adjournments to ensure speedy decision. 57

Contrary to legal provisions, the practice is far different. A

criminal case may take years till the conclusion of its trial in shape of
final judgment.

Length of Pre-trial Detention under Criminal Law of Pakistan

Pre-trial detention of an accused may cover a considerable range of time

starting from when he is arrested, and covers police remand and jail
remand till the court decides about the guilt or innocence of the accused
through its judgment. Till 2011, the law did not stipulate a time limit for
criminal trial which meant that pre-trial detention too could continue
without a fix time table. To take care of this lacuna, the right of bail on
the basis of statutory delay was implanted in sections 426 and 497 of
CrPC in 2011 to restrict the length of pre-trial detention. This amendment
fixed the maximum time for which a person may be kept in pre-trial
detention during pendency of trial from six months to two years;
depending upon the gender, behaviour of accused, and prescribed
punishment for the alleged offence.58

The benefit, however, cannot be availed to an accused who is a

previously convicted offender of an offence punishable with death or
imprisonment for life. Similarly, the bail on the ground of statutory delay
is not granted to “a person who, in the opinion of the court, is a hardened,
desperate or dangerous criminal or accused of an act of terrorism
punishable with death or imprisonment of life”.59

A worth-noting initiative was taken in January 2016, when a bill

(Criminal Laws (Amendment) Act 2016) was introduced in the Senate
which limits the maximum duration of a trial to six months and puts bar

55
State vs Ubaid Ullah 2005 MLD 1883
56
Section 344 of CrPC, 1898
57
Muhammad Hussain vs State PLD 1959 (W.P.) Lahore 322
58
Sections 426 (1A) and 497 (1) of CrPC, (Act No. VIII of 2011), 1898
59
Section 497(1) of CrPC,1898
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 Pre-Trial Detention and its Compensation in International and Pakistani Law

on adjournments.60 The bill, however, could not yet succeed its

enactment.

Compensation against Pre-Trial Detention

On the conclusion of trial or appeal, when the court decides a case, apart
from those who are condemned to a sentence, a good number of the
accused either escape punishment on the pretext of benefit of doubt or
are honorably acquitted. A convict, if sentenced with imprisonment, can
be compensated under the law against his pre-trial detention through
reimbursement or settlement in the total period of imprisonment
awarded.61 Even those sentenced with life imprisonment for murder can
avail such benefit.62 Conversely, the one who is found innocent, finds no
compensation for the misery, loss of liberty and integrity, likely loss of
health, job and even job prospects. What the family had suffered and
would further suffer is another part of the story.

Compensation against Arbitrary or Unlawful Arrest and Detention

The High Courts, in many cases of illegal and unlawful arrest and
detention by police, have invoked writ jurisdiction to grant relief to the
victims of illegal or unlawful detention in shape of compensation. For
instance, Sindh High Court has held in one such case: “Apart from a civil
action to tort to recover compensation for unlawful detention or malicious
prosecution, our legal system has always recognized the concept of
instant compensation to the victim without having resort to separate
legal proceedings. Sections 35-A and 95, C.P.C. speak of compensatory
costs for vexatious proceedings and compensation for expense or injury
to the victim of arrest or attachment effected on insufficient grounds.
Section 250 of the CrPC enables a Magistrate to award compensation to
the extent of Rs.25, 000 to person charged on the basis of a false
accusation upon his acquittal. Such compensation is in addition to and
not in derogation of any civil or criminal liability, which the wrongdoer
might have incurred”.63

Similarly, in Mst. Afsana case, Sindh High Court took a very

exemplary action against the delinquent officers, stating that: “Since the
action of the police officers has caused humiliation and mental torture to
the detenus and their illegal arrest has resulted in undue expenses, the

60
Senate of Pakistan, Criminal Laws (Amendment) Act 2016, January 18, 2016,
Accessed on September 04,2018,
http://www.senate.gov.pk/uploads/documents/1457510265_924.pdf.
61
Section 382-B of CrPC, 1898
62
Ramazan vs State PLD 1992 Supreme Court 11
63
Mazharuddin vs State 1998 P.Cr.L.J 1035
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 Policy Perspectives Volume 15 Issue 3

police officers present in the court are liable to compensate the three
persons. The persons who remained in illegal police custody are entitled
to Rs. 5,000 each for every day they remained in the custody from both
the police officers. The conduct of the police officers is against the public
policy and we direct that they may be immediately removed from the
post of S.H.O. and S.I.O. and in future they may not be assigned any
field posting at least for the next three years”.64

Further about the scope of action taken under section 491 of

CrPC., the Court stated that “there are several reported cases in which
the Courts while dealing cases of illegal detention under section 491,
CrPC. have allowed compensation”.65 In fact, there are many other
instances where courts in Pakistan have granted monetary compensation
against arbitrary or unlawful arrest and detention.66

Compensation against Mistaken or Wrong Pre-Trial Detention

The courts, as stated above, have been awarding compensation only in

cases of unlawful and illegal detention. The concern of pre-trial detention
of an innocent person, however, does not cease to exist as many a times
an accused suffers by the mistaken action, even if bona fide, of police or
judicial authority. Hence, when a person gets acquitted after or before
the conclusion of their trial, such person is left with no compensation
from the state or from its officials.

A prima facie remedy to such acquitted accused person is

provided under section 250 of CrPC, at the time of his discharge or
acquittal by magistrate, against false and frivolous or vexatious
accusation of a complainant. Maximum compensation amounts to merely
twenty-five thousand rupees in the provinces and one hundred thousand
rupees in the Islamabad Capital Territory.67 This compensation is to be
paid by the complainant or informant to the innocent accused on the
order of the magistrate.68

It seems, however, that the said remedy is inadequate and

insufficient, if not redundant to the extent of the provinces so the
compensation amount should be enhanced and commensurate with
damages suffered by the acquitted accused. Further it has limited scope

64
Mst. Afsana versus District Police Officer, (Operation), Khairpur 2007 YLR 1618
65
Ibid.
66
For example, Province of Sindh vs. Roshan Deen PLD 2008 Supreme Court 132, Riaz
Ahmad vs. I.G of Police 2006 MLD 1093, Syed Hassan Ali Shah vs. SHO, Police Station
Dadu PLD 2006 Karachi 425 and Mazharuddin vs State 1998 P.Cr.L.J 1035
67
Section 250 of CrPC as amended through the Cost of Litigation Act 2017 on May 27,
2017.
68
Section 250 (2) of CrPC, 1898.
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 Pre-Trial Detention and its Compensation in International and Pakistani Law

in the sense that it does not consider the situation when a person is
suspected and arrested by the police on its own motion by virtue of any
suspicion etc. Besides, it has no consideration of pre-trial detention which
is a separate factor apart from false and frivolous or vexatious
accusations.

In fact, there is no legislation or express provision of law so far,

through which victims of pre-trial detention can seek compensation
against the mistaken and erroneous actions of police or judicial
authorities. Conversely, the state as well as public servants are immune
from any civil liability in such cases under the garb of ‘mistake of fact’ or
‘good faith’.69

Summing up

The right to liberty and personal freedom is universally recognized as a

basic and fundamental right of every individual. It is acknowledged under
international as well as Pakistani law that this right cannot be limited or
denied except in accordance with law and the state is bound to protect
this and other basic rights of people along with its responsibility to
establish and maintain peace and tranquility in the society. Arrest and
detention of an accused is warranted only if there exists some material
evidence in shape of reasonable suspicion or credible information
indicating his involvement in the alleged offences. The state is under the
obligation to ensure non-discrimination, rule of law and fair trial while
prosecuting the accused against the alleged offence.

It is also asserted under international law that an accused may

be arrested and detained only in exceptional circumstances as “a last
resort” in criminal proceeding and thus alternative measures to pre-trial
detention (such as bail, cognizance, GPS trackers, community service
etc.) are encouraged to employ. An accused must be brought to justice
without unreasonable delay and his trial should be concluded as early as
possible. The arrest and detention of accused must be under judicial
supervision or observation and the same should not be prolonged or
excessive as “the justice delayed is justice denied” though no strict limit
is defined in this regard in international human rights law. However, the
status and condition, treatment of accused should reflect the
presumption of his innocence until proved guilty and he should be
preferred with the benefit of doubt.

69
For instance, section 2(27) of the General Clauses Act 1956 states that “a thing shall
be deemed to be done in good faith where it is in fact done honestly, whether it is done
negligently or not”.
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 Policy Perspectives Volume 15 Issue 3

In case, the court determines that the accused was unlawfully

held in pre-trial detention, it is established under Pakistani as well as
international law that he must be compensated against his loss of liberty
and sufferings. Any person including public servant or official should be
personally liable in all cases where detention was made unlawfully, as
the state is not responsible for unlawful acts of its servants, for it does
not delegate authority for unlawful acts.

However, in cases where pre-trial detention is caused by

erroneous or mistaken action of state servants or an individual, the
international human rights law and Pakistani law are yet to provide any
compensation. Only a few states award compensation to the acquitted
defendant against pre-trial detention, if not caused by the defendant
himself intentionally. This compensation is awarded spontaneously on
the acquittal of accused defendant on the determination of his innocence.

As for standard or quantity of compensation, this varies from

county to country due to their economic and financial circumstances and
positions. Perhaps the same is practically feasible for a state to provide
compensation to the innocent defendant against their mistaken pre-trial
detention. However, the compensation awarded should be reasonable
and adequate in all circumstances. Notably, the compensation provided
against false and frivolous accusation under section 250 of CrPC, is not
an effective or suitable remedy for the innocent victims of pre-trial
detention. Therefore, an additional or corresponding remedy is needed
through legislation.

Recommendations

To control and minimize the phenomenon of pre-trial detention and to

provide appropriate compensation to the victims of unlawful and
erroneous pre-trial detention, a few measures are recommended here.
These suggestions and measures are not necessarily confined to the
precise focus of this paper; rather the attempt is that a package of
reforms and improvements is suggested in which pre-trial detention is
practiced diligently and compensation is ensured with compassion and
care.

Firstly, at administrative level, proper and effective measures

should be taken to control and check the crime ratio so the question of
pre-trial detention does not arise. Even in case of occurrence of crimes,
instead of employing pre-trial detention before an accused proven guilty,
viable alternative measures need to be adopted to minimize the use of
pre-trial detention, such as use of track record, bail, probation and
parole, community service, reconciliation committees etc. Reconciliation

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 Pre-Trial Detention and its Compensation in International and Pakistani Law

system should be revived and encouraged at police station or union

council level for minor/petty offences. The Alternative Dispute Resolution
Act, 2017 currently applicable only in Islamabad territory, should be
extended to other units and provinces of Pakistan.

Secondly, an active system of accountability should address the

issues of false accusation, malicious prosecution and maneuvering and
manipulating police powers of arrest and detention, through severe
penalty and strict liability. Legislation should be made to punish
conducting false or dishonest investigation to absolve someone who
might had committed crime or involved in commission of any offence
from criminal liability or to incriminate innocent in some offence.

Thirdly, the courts should have a balanced scheme to provide the

speedy justice without any undue delay and efforts should be done to
ensure justice at lower court level. This will result in saving time and cost
of litigation. In this respect, through the consultation of legal fraternity
and academia, a proper mechanism should be developed or improved to
avoid prolonged trial and false decisions.

Fourthly, the pre-trial detention being an exception and last

resort, should not be implied and practiced on wide scale. Further the
duration of pre-trial detention must be determined through proper
legislation, leaving no space for ambiguity or misuse of process. And the
party delaying or causing delay in the trial, must be held accountable and
liable for compensation to the aggrieved party. There should be heavy
fee for higher courts and the same is to be burdened on guilty party.

Fifthly, the compensation mechanism given under the law must

be improved to provide adequate relief to the innocent victims of pre-
trial detention caused by the mistaken or erroneous action of state
authorities or an individual. Delay in investigation or trial which is not
caused by the conduct of accused must not be left without compensation
or due relief. In this regard, the Miscarriage of Justice (Compensation)
Act, 2017 which is pending in the Senate, should be amended and
enacted accordingly.

Finally, the aggrieved family of the accused held in pre-trial

detention, must also be provided a reasonable subsistence especially in
case the detainee is a breadwinner for his family like the case of
preventive detention provided under Article 10 (8) of the Constitution of
Pakistan.

[63]

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 Policy Perspectives Volume 15 Issue 3

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