Arrest Unchecked (An Investigative Report, Legal Analysis) - 2005

Profile OF Mohammad Yasin (the accused)

• Name: Mohammad Yasin

• Age: 60 yrs

• Resident Of: “Dhodha”, a village near Chakwal

• Physical Description: A lean old man with very weak eye-sight.

• Cleanly Dressed

• Self-employed

LAHORE Tuesday 23rd March, 2004

Mohammad Yasin, aged 60, resident of “Dhodha”, a village near Chakwal traveled to Lahore to visit his brother in order to get money for the monthly domestic expense. He was detained by a police mobile while he was crossing the road at the traffic signal opposite Ganga Ram Hospital at 1:45 pm Tuesday here. Upon asking his fault he was beaten up badly and was told later that he has been arrested on the grounds of beggary.

Yasin was taken to the “Thana Civil Lines” and the FIR was filed against him on the grounds of beggary under Article 9 of Ordinance XX of 1958. The old man cried and tried to explain his position that he came to meet his brother and as a proof he showed the ticket of the bus via which he traveled and this event took place right after 45 min of his arrival to Lahore.

However he was locked up and his NIC, cash 150, a lawyer’s visiting card and the bus ticket were confiscated by the SHO at the thana. Yasin was not allowed to talk to anyone or contact his brother. He was kept there for one night.

The lockup was hardly 6 feet by 11 feet and 30 prisoners were locked up there. One could only sit with folded legs; the toilet and the drinking water were provided in the same room. The prisoners were never offered food.

The next morning he was taken to the magistrate at Cantt Kachehri. He was never taken physically before the magistrate so he didn’t get the chance of defending him for something he nevr committed. But he got to know that they are sending him to Kot Lak Pat Jail … Luckily a lawyer Mian Nasir, allowed him to contact his brother so that he could come to Cantt and apply for Yasin’s Zamanat. Yasin’s brother was unable to reach there in time and hence he was taken to the Kota Lak Pat Jail.

Thirsty and Hungry Yasin was locked up again in the jail for one whole day and night. When food was offered he was asked to bring a plate, which he didn’t have. The Daal offered was like water that no one can hold on the bread. So he didn’t eat anything neither did he drink anything. Next evening he was set free by the Jail authorities. The jail authorities didn’t return his belongings, including the cash worth Rs150. This starving, exhausted, traumatized old man traveled on foot from Kot Lak Pat to Chaburji as he had no money.

Since the case is in the court, the lawyer took Rs 2000 for Zamanat, Rs 750 for the proceedings of the court and Rs 750 as a fine of against his offense, which Yasin has already paid to get rid of the catastrophe in his life.

Yasin was asked to be at the court on 7th April for his first hearing but the lawyer didn’t show up that day hence Yasin couldn’t see the magistrate …

Now legally if Yasin admits the said offence, that he never committed, then he will be convicted for the rest of his life but the plus point is that he doesn’t have to come to Lahore again and again and the case will be closed … though he paid the fine Rs 750 for that but the lawyer has quitted from the scene.

Yasin is unaware of the later effects of the issue if he is proved convicted.

Neither, Yasin has got the money back nor the case has been resolved. So he is standing nowhere, the magistrate has changed… and he is coming to Lahore from Chakwal again and again ... spending more money for an offence he never committed.

While working on this case I came across many situation where a question popped in my mind as what our Law says about all this ….

So here is my analysis…

Definition of a Vagrant

• Who is the vagrant by our Law?

• By Ordinance XX 1958 a vagrant is some one who is …

1. Solicits or receives alms in the public place.

2. Exposes & exhibits any sore, wound, injury, deformity or disease in a public place for the purpose of receiving alms.

3. Allows him to be used as an exhibit for the purpose of receiving alms.

4. Enters on any private premises without the invitation of the occupier for the purpose of receiving alms.

Which condition satisfies the vagrancy of Yasin? Not even a single one …

My Analysis – Based on Constitution

• According to our Constitution (1973)

• Article 15 Freedom Of Movement

• Every citizen has the right to move freely throughout Pakistan and to reside and settle in any part thereof (subject to some reasonable restriction imposed by law in the public interests).

• Article 10(1-2) Safeguard as to Arrest/Detention

• No person who is being arrested shall be detained in custody without being informed of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.

• He should be produced before the magistrate with in 24 Hrs.

• Nothing in the above said clauses shall apply to any person who is arrested or detained under any law provided for prevention detention.

• Article 4 (a)

• No action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with the law.

A Conclusion - Yasin’s Case

• So Yasin’s arrest was against …

• Article 15 Freedom Of Movement

• Article 10 Safeguard as to Arrest/Detention

• Section (1)

• Section (2)

• Article 4 Liberty/Reputation

• Section (a)

• Article 25 Equality of Citizens

As Yasin was neither allowed to inform his relatives nor he was produced before the magistrate…

The look of a person who seems a vagrant is not reasonable ground for his arrest. Incase of the detentions, when the accused is innocent, its not only him who suffering but also the his family who depend upon him. This offence is purely bases on the fact that he is poor.

Analysis-Ordinance XX of 1958

• According to this Ordinance of vagrancy

• Article 7 Powers Of The Police To Arrest

• Any police without the magistrate’s order or a warrant can arrest anyone who appears to him to be a vagrant and may seize anything found about that person which he has reason to believe to be liable to confiscation under this Ordinance.

• Article 11 Presumption

• If a person has no apparent source of survival and wanders about or remains in public place in such condition a reasonable suspicion that he is there to receive alms, it shall be presumed, unless the contrary is proved that such a person is vagrant.

• Article 9

• If the magistrate finds that the person is a vagrant, such person shall be punished with imprisonment of either description for a period not exceeding 3 years …

Conclusion

Certain Articles of the VAGRANCY ORDINANCE 1958 Namely 7,8,9,11,14 violate the Fundamental Rights guaranteed by our Constitution in Article 10,15 and 25 i.e unlawful arrest, prohibiting free movement of a citizen at a public place

and inequality of citizens respectively.

According to our Constitution (1973)

• Article 38 (d)

• The state shall provide the basic necessities of life such as food, clothing, housing, education & relief, for all such citizens irrespective of sex, caste, race, as are permanently or temporarily unable to earn their livelihood on account of infirmity, sickness and unemployment.

Since the state of Pakistan has failed to provide Education, Health Care, Employment benefits etc. to their citizens, there was no justification for imposing such restriction on the poor and needy citizens of the country; that instead of providing basic necessities to the citizens which is a pre-requisite for a good Government, they are being jailed without any lawful justification.

The terms of the Ordinance are in the violation of the Fundamental Rights guaranteed by our Constitution. It has been claimed in Article 10 of the Constitution, no one can be arrested or detained under the law providing for preventive detention unless procedure laid down in the sub-Article 10(4) is strictly compiled with. As the Ordinance clearly provides for prevention detention it obviously violates the provisions of Article 10; that Ordinance seeks to penalize a particular and a selected class of citizens hence it was discriminatory and offended against the provisions of Article 25 of the constitution and so also the essence of Article 15 of the Constitution by restricting free movement of a citizen; that the accused who was destitute citizen and was absolutely innocent have been deprived of his liberty illegally; this action is certainly against the spirit of Article 2-A of the Constitution which envisages that the principle of democracy, freedom, equality, tolerance and social justice as pronounced by Islam shall be fully observed, because the accused was detained without having been involved in committing any crime. Islamically such poor people could not have been detained rather State would have been responsible for providing them sustenance being resource less and needy.

The shabby look of a person who seems a vagrant is not reasonable ground for his arrest.

SOURCES

• First Hand Information

• Constitution 1973

• Ordinance XX 1958

• Advocate Shan Gul

• Advocate Asma Jahangir

Investigated, Created & Presented by Sabeen Amjad