FIR can be revoked if custodial torture case transferred to FIA before trial: LHC

By Talha Saeed

LAHORE: Lahore High Court Judge Justice Tariq Saleem Sheikh has cancelled an FIR filed by the police in a case involving the custodial torture or death of a suspect, after it was transferred to the FIA before the trial began.

The judge thrashed out a new legal principle, stating that the government has failed to take measures to raise awareness or provide training to public officials under the Custodial Torture and Death (Prevention and Punishment) Act.

Amicus curiae Quratulain Afzal said that the FIA can begin investigations even without an FIR.

Who investigates custodial torture and death cases — police or FIA?

Justice Sheikh laid down legal guidelines in a 29-page decision issued on the bail plea of constable Muhammad Aftab.

The court ruled that if a case involving torture or abuse of a detainee is registered by the police but is later transferred to the FIA, the police may cancel the FIR.

In such cases, the FIA must register a fresh FIR. The court also noted that the government has not taken adequate steps to implement the Custodial Torture and Death Act or to train public servants accordingly. It directed the Punjab chief secretary and other relevant officials to take immediate steps for enforcement.

However, if a trial has already commenced, the police FIR cannot be cancelled, and the FIA does not need to register a new FIR. The filing of an FIR by police under the act does not harm the trial process.

If the case is transferred to the FIA before submission of the challan, the agency should compile its own report after reviewing all material. If the police have already submitted the challan, the FIA may submit a supplementary report to the court.

The judge also granted bail to the police officer accused in the custodial torture case. He noted that the court had to consider key legal questions regarding which offences under the Torture and Custodial Death Act 2022 can be investigated, what the process is for transferring such a case from police to the FIA if it’s filed under the Pakistan Penal Code, and what becomes of the police’s investigation once the case is transferred.

Due to the complexity of the issues, the court summoned the Attorney General, Advocate General, and Prosecutor General Punjab, and appointed Barrister Haider Rasool Mirza and Advocate Quratulain Afzal as amici curiae.

According to the Advocate General Punjab, such cases should be investigated by the FIA under the supervision of the Human Rights Commission. He also argued that FIRs against public officials should only be filed after an inquiry and with the approval of the relevant authority.

He said the transfer of cases from police to the FIA might be made possible through police rules, and that evidence collected by police prior to such a transfer may still be used in trial. A wrongly filed FIR does not compromise the investigation or trial.

The federal government’s counsel stated that the FIA should verify such cases before initiating investigations against public officials. However, Barrister Haider Rasool Mirza noted that delays and institutional filtering often lead to the loss of evidence.

Cases filed by local police may be transferred to the FIA in multiple ways. The Inspector General of Police can devise a mechanism for such transfers. The FIA may assert jurisdiction on its own, or a magistrate may issue directions for the FIA to investigate cases involving custodial torture, death, or abuse.

Advocate Quratulain Afzal argued that the FIA can begin investigations even without an FIR and can submit its report to court upon completion. The court, based on such a report, may summon the accused and initiate proceedings.

In the present case, the court observed that although the FIR was improperly filed, the trial is ongoing and there is no indication of bias or illegality against the accused police official. The prosecution witnesses have made general allegations but none directly accuse Constable Aftab of personally torturing the detainee, Shahroz Haider.

The court granted bail to Constable Aftab Mehmood against surety bonds of Rs200,000. He was booked along with other officials in a case of custodial torture, registered at Lorry Adda Police Station in Gujrat in 2025.

The defence argued that under the Torture and Custodial Death Act, only the FIA has jurisdiction to investigate such cases. They also contended that the police were not authorised to register the FIR and failed to fulfil legal requirements while doing so.