Most people learn what their rights are on arrest after the arrest has happened, from someone who is guessing. The rights are specific, they are written down in the Constitution and the Code of Criminal Procedure, 1898, and knowing them changes what happens in the first day.
You must be told why
Article 10(1) of the Constitution requires that a person who is arrested be informed, as soon as may be, of the grounds of the arrest. Section 54 CrPC governs arrest without warrant, and section 46 governs how an arrest is actually made - the police may touch or confine the body of the person, and may use only such force as is reasonably necessary.
You may consult a lawyer of your choice
Article 10(1) also guarantees the right to consult and be defended by a legal practitioner of your choice. This right attaches on arrest, not at the first hearing. In practice, the single most useful thing a family can do in the first hour is to instruct counsel and inform the police that counsel has been instructed.
Twenty-four hours
Article 10(2) of the Constitution and section 61 CrPC both require that an arrested person be produced before a Magistrate within twenty-four hours of arrest, excluding the time reasonably necessary for the journey from the place of arrest to the court. The police cannot detain beyond that period on their own authority. Further detention requires a Magistrate's order.
This is the provision most frequently breached, usually by not recording the arrest at the time it occurs. If the arrest is not entered in the register, the clock does not appear to start. Where a person has been picked up and not produced, the remedy is a habeas corpus petition to the High Court under Article 199(1)(b)(i), which requires the person to be produced before the court.
Remand is not automatic
When produced, the police may seek remand - custody for the purposes of investigation - under section 167 CrPC. The Magistrate may authorise detention, but:
- The total period of detention under section 167 is capped at fifteen days in the whole.
- Remand must be justified on the case diary. The Magistrate is required to apply their mind, not to sign as a formality.
- Physical (police) custody and judicial custody are different things, and the ordinary course after the initial period is judicial custody.
Search and seizure
Section 103 CrPC requires that searches be conducted in the presence of respectable inhabitants of the locality, and that a memo of recovery be prepared and signed. The absence of independent witnesses to a recovery is one of the most common defects raised at trial, and it is worth noting at the time who was present.
Women and children
- A woman may not be arrested at night except in circumstances the law permits, and the arrest and search of a woman must be conducted by a woman police officer with strict regard to decency, under section 52 CrPC.
- A person under eighteen is dealt with under the Juvenile Justice System Act, 2018, which requires separate handling, prohibits handcuffing of a juvenile, and provides for juvenile courts and probation.
Confessions
A confession made to a police officer is not admissible against the accused. A confession has to be recorded by a Magistrate under section 164 CrPC, after the Magistrate has satisfied themselves that it is voluntary and has warned the person that they are not bound to make it. Article 13(b) of the Constitution protects against self-incrimination. Anything signed at a police station under pressure is not evidence of guilt, and saying so early matters.
What the family should do in the first hours
- Establish where the person is held and get the fact of arrest recorded. Ask for the FIR number and a copy of the FIR.
- Instruct counsel immediately - before the first production, not after.
- Note the time of arrest and who witnessed it. This is what a habeas corpus petition or a challenge to remand is built on.
- Arrange sureties in advance - CNICs and proof of means - so that bail, if it is available, is not delayed by paperwork.
- Do not sign anything that has not been read, and do not sign blank paper.
If rights are breached
Unlawful detention is addressed by habeas corpus in the High Court. Custodial violence is a criminal offence in its own right and can also be taken to the Federal or Provincial Ombudsman and to the relevant police complaint authority. A breach does not automatically end the prosecution, but it is material to bail and to the weight the trial court gives to what was recovered or recorded during that detention.
This article describes general rights on arrest under Pakistani law. It is not advice on any specific case. Consult an advocate as early as possible.