Arresting accused from court premises unlawful: Supreme Court

ISLAMABAD: The Supreme Court decreed on Friday that arresting an accused from the high court premises will not only deny him the right to access a competent court to safeguard his fundamental right of liberty but also invite the police officials/investigating agencies to treat the court premises as the hunting ground for capturing accused persons, especially when the latter seek judicial oversight of their pending arrests.

A three-member bench of the apex court, headed by Chief Justice Umar Ata Bandial, issued a detailed judgment on the petition filed by PTI Chairman Imran Khan challenging the order of the Islamabad High Court that declared his arrest as lawful.

Justice Muhammad Ali Mazhar and Justice Athar Minanallh were the two other members of the bench.

The bench on May 11, 2023 declared Imran’s arrest from the Islamabad High Court premises in Al Qadir Trust case as illegal.

“For the reasons to be recorded later, this Misc. Application is allowed, Criminal Petition be numbered accordingly and the same is converted into appeal and disposed of in the following terms,” the court had announced in its short order on May 11.

The court held that the manner of execution of the arrest warrant issued by the NAB chairman, dated 01.05.2023, in the Al-Qadir Trust case within the premises of the Islamabad High Court against the petitioner was invalid and unlawful.

The court further noted in its short order that the warrant execution violated the petitioner’s right of access to justice and the sanctity and safety of the court, as he had already surrendered to the court for seeking judicial relief against the action taken by NAB in the Al-Qadir Trust case.

“In this regard, the fundamental rights of the petitioner under Articles 4, 9, 10-A and 14 of the Constitution of Islamic Republic of Pakistan have been infringed,” the bench had announced.

The court had directed the petitioner — PTI Chairman Imran Khan — to appear before the Islamabad High Court on Friday at 11am for the hearing of his writ petition challenging the NAB action against him in the case.

On Friday, the 22-page detailed judgment authored by Chief Justice Umar Ata Bandial held that it would encourage police highhandedness and thereby expose the courts to executive machinations in future, adding that such a narrow interpretation of the fundamental right of access to justice could not be approved by this court and so was categorically rejected.

The court noted that the high courts had routinely afforded the relief of protective bail to accused persons to enforce their fundamental rights of access to justice and liberty by ensuring their unobstructed access to a competent court.

“In the present case, if the petitioner’s arrest from the high court’s premises is endorsed, his application for pre-arrest bail filed in the AQT Case before that court will be rendered futile notwithstanding the fact that he surrendered before the high court and invoked its jurisdiction,” the detailed judgment reads.

The court held that this will not only deprive the petitioner of his right to access a competent court to safeguard his fundamental right of liberty but will also invite the police officials/investigating agencies to treat the court premises as the hunting grounds for capturing accused persons, especially when the latter seek judicial oversight of their pending arrests.

“Accordingly, the petitioner’s arrest from the biometric verification room of the high court is declared invalid and unlawful on the touchstone of violating his Fundamental Rights under Articles 4, 9 and 10A of the Constitution. Directions issued in the short order,” the detailed judgment held.

The court noted that in the facts and circumstances of the case and to remedy the injustice that had been visited upon the petitioner, this court took the decision to reverse the clock and ordered the police to produce him before the high court so that his pre-arrest bail application in the AQT Case may be heard by the high court for decision.

“This court is of considered view that only such a course of action will caution the police officials/investigating agencies to abstain from similar conduct in future that infringes both the dignity, sanctity and safety of the courts and the fundamental right of the citizens of Pakistan to enjoy liberty in accordance with law,” the court maintained.

At the same time, the court noted that to ensure the petitioner’s safe transportation to the high court the next morning, this court directed the ICT Police to retain his custody at his present place of confinement.

“The text of the short order dated 11.05.2023 affirms the above purpose of this court,” the court held, adding that in order to ensure the security of the petitioner until his appearance in the high court tomorrow i.e. 12.05.2023 at 11:00 am, he shall remain on the premises where he was presently retained in police custody, namely, the Police Lines Guest House, H-11, Islamabad (Police Guest House).

Likewise, the court held that to facilitate his legal defence before the high court, this court allowed the petitioner to meet up to 10 guests, including members of his legal team, whilst in police custody.

To counter the afore-stated directions that this court was inclined to pass in its order, the learned attorney general submitted that an intervening event had taken place i.e., an accountability court had granted an eight-day physical remand of the petitioner to the NAB which order had not yet been challenged by him,” the detailed judgment further noted.

However, the court noted that this contention of the learned attorney general was not relevant in the present context because this court had not adjudicated on any order issued by the accountability court in respect of the petitioner.

The detailed judgment further held that only the execution of the arrest warrant dated 01.05.2023 had been scrutinised and declared illegal.

As a direct result thereof, the petitioner’s pre-arrest bail application filed in the AQT Case stands revived before the high court.

“That direction does not in any way interfere with the remand order passed by the accountability court which merely has been made subject to the high court’s determination of the pre-arrest bail application,” the court held.

The court converted the instant Crl. Petition into an appeal and disposed it of in terms of the directions issued in its short order of even date.

The court directed that copies of these detailed reasons shall be forwarded to the departments concerned of the federal and provincial governments for their information.

Dignity, sanctity and safety of the courts:

The detailed judgment noted that it was a well-settled principle that dignity, sanctity and safety of the courts for the benefit of all concerned stakeholders were inviolable and could not be compromised.

“This is because courts of law are sanctuaries which the people approach to seek justice with the assurance that they will be able to pursue their relief freely in a safe, orderly and dignified environment”, the judgment says, adding that the breach of this assurance undermines effective dispensation of justice by deterring people from seeking the resolution of their disputes from the courts.

Therefore, to safeguard the peoples’ right to access the Superior Courts and accordingly to seek justice, Article 204 of the Constitution has conferred this Court (and the High Courts) with the power to punish any person interfering with or obstructing the process of the Superior Courts in any way or prejudicing the determination of a matter pending before them”, the judgment maintained.

In the present case, the judgment noted that the petitioner was at the stage of completing the process of the High Court for registration of his pre-arrest bail application in the AQT Case in that court adding that his application for pre-arrest bail had been issued a diary number by the Institution Branch of the High Court but the final step i.e., the bio-metric verification had not yet been completed.

“However, in our considered view by filing the pre-arrest bail application, by receiving a diary number on the application, by having his bio-metric conducted and by filing a separate application for early hearing, the petitioner on 09.05.2023 essentially surrendered before the High Court to invoke its jurisdiction and also initiated the process to have his pre-arrest bail application fixed for hearing before the High Court on the very next day i.e., 10.05.2023”, says the judgment

Having surrendered before the high court to invoke its jurisdiction, the court noted that petitioner’s arrest from the high court premises preemptively blocked his recourse to the judicial relief of pre-arrest bail and thereby violated his fundamental right of access to justice.

“Indeed, such action also interfered with the working of the high court, intervened in the exercise of its lawful jurisdiction and obstructed its process”, says the judgment adding that the manner and mode in which the arrest was executed, namely, the breaking of the door, glass partitions and windows of the bio-metric verification room and the manhandling and injuring of a number of lawyers, high court staff and police personnel undermined and lowered the authority of the high court and disturbed its decorum.

“As a result thereof, the short order dated 11.05.2023 declared the arrest of the petitioner to be invalid and unlawful for violating the dignity, sanctity and safety of the high court”, says the judgment.

The judgment noted that its short order dated 11.05.2023 declared the arrest of the petitioner invalid and unlawful for violating his fundamental right of access to justice adding that the said right was now well-enshrined in the jurisprudence of this court and formed an integral part of Article 9 (Life and liberty of person) and Article 4 of the Constitution (Right of persons to be dealt with in accordance with law, etc.).

“In fact, a person’s fundamental right of access to justice has been strengthened by the insertion of Article 10A (Right to due process) into the Constitution by the 18th Amendment (2010),” the judgment held.

The court noted that judicial support for an accused person to have unimpeded access to the courts for seeking the relief of pre-arrest bail is recognised in the case of Niaz Mohammad (supra). However, the blocking or interruption of such access by police officers in that case was regarded as ‘an interference with the proper working of [the] court, an unwarranted intervention in the exercise of its lawful jurisdiction and an obstruction of its process.

“Nonetheless, it may be observed with confidence that on a fair interpretation of fundamental rights, in particular the right of access to justice, it becomes clear that the protection of such rights of the people is a constitutional obligation of the courts that prevails over their duty to defend the dignity, sanctity and safety of their premises”, says the detailed judgment.

The court noted that this view was most clearly reflected in the case of Syed Ali Musa Gillani Vs. State wherein this court vide judgment dated 12.10.2012 did not proceed in the contempt petition filed by the accused against the officers of the Anti Narcotics Force (as the same was not pressed) but did grant the accused pre-arrest bail observing that:

We however would deprecate the conduct of the investigating agency for arresting the petitioner, Syed Ali Musa [G]illani, on the doorstep of the Supreme Court building when he was to appear for his pre-arrest bail. Such conduct amounts to depriving an aggrieved person of access to justice.

In arriving at its aforesaid conclusion, this court treated the Fundamental Right of access to justice to encompass in it the right to invoke the court’s jurisdiction for appropriate relief”, says the judgment.

The detailed judgment also cited a case of one Sharjeel Inam Vs. Federation of Pakistan (2017 YLR 2423) wherein the sitting judge of the Supreme Court Justice Athar Minallah) whilst sitting as a Judge of the High Court acknowledged the adverse effects of limiting the ambit of access to justice to only that class of persons who are able to approach the courts.

In that case, the court noted that the petitioner had invoked the constitutional jurisdiction of the high court to seek protective bail so that he could approach the competent court for suitable relief.

Allowing the petition, the high court held that in the instant case, the petitioner was merely seeking protective bail and he had shown his bona fides by surrendering himself before this court.

The learned counsel for the petitioner has made a statement before us that the latter could not land at Karachi due to serious threats to his life… We are of the opinion that access to a competent court is a fundamental right guaranteed under the Constitution. We feel that refusal to grant protective bail would tantamount to denial of the right of access to justice. Access to justice is fundamental to, and an integral part of the rule of law.

Meanwhile, Justice Muhammad Ali Mazhar noted in the detailed judgment that he concurred with the reasons in paragraphs 11 to 24 but he would record his own reasons separately.