ISLAMABAD (APP): The Supreme Court on Thursday announced a decision in a pre-arrest bail case and ruled that no person could be arrested straightaway only because he had been nominated as an accused in an FIR or in any other version of the incident brought to the notice of the investigating officer by any person until the investigating officer feels satisfied that sufficient justification exist for his arrest.
The five page judgment authored by Justice Syed Mansoor Ali Shah stated that the investigating officers should not mechanically make the arrest of a person accused of having committed a cognizable offence, rather they must exercise their discretion in making the arrest of such person judiciously by applying their mind to the particular facts and circumstances of the case and consciously considering the question: what purpose would be served and what object would be achieved by arrest of the accused person?
“No doubt, a police officer has, under Section 54 of the CrPC, the power to arrest a person who has been involved in any cognizable offence or against whom a complaint has been made or credible information has been received or a reasonable suspicion exists of his having been so concerned. Having the power to arrest is one thing but the justification for the exercise of that power is quite another. A police officer that makes arrest of a person must be able to justify the exercise of that power in making the arrest apart from his having the power to do so. He cannot make arrest of a person, only because he has the power to do so. He must also show sufficient grounds for making the arrest,” reads the order.
The judgment stated that the power of the High Courts and the Courts of Sessions to grant pre-arrest bail, first and foremost, must be examined in the constitutional context of liberty, dignity, due process and fair trial. Pre-arrest bail was in the nature of a check on the police power to arrest a person and the non-availability of incriminating material against the accused or non-existence of a sufficient ground including a valid purpose for making arrest of the accused person in a case by the investigating officer would as a corollary be a ground for admitting the accused to pre-arrest bail, and vice versa.
It stated that reluctance of the courts in admitting the accused persons to pre-arrest bail by treating such a relief as an extraordinary one without examining whether there was sufficient incriminating material available on record to connect the accused with the commission of the alleged offence and for what purpose his arrest and detention is required during investigation or trial of the case, and their insistence only on showing malafide on part of the complainant or the Police for granting pre-arrest bail does not appear to be correct, especially after recognition of the right to fair trial as a fundamental right under Article 10A of Constitution of Pakistan, 1973.
It further reads that “Protection against arbitrary arrest and detention is part of the right to liberty and fair trial. This Court has, in many cases, granted pre-arrest bail to accused persons after finding that there were no reasonable grounds for believing their involvement in the commission of the alleged offences and had not required independent proof of malafide on part of the Police or the complainant before granting such relief.” Despite non-availability of the incriminating material against the accused, his implication by the complainant and the insistence of the Police to arrest him were the circumstances which by themselves indicate the malafide on the part of the complainant and the Police, and the accused need not lead any other evidence to prove malafide on their part, it added.
A three-member SC bench headed by Justice Manzoor Ahmed Malik and comprising Justice Syed Mansoor Ali Shah and Justice Amin-Ud-Din Khan had reserved a decision on pre-arrest bail plea of Shahzada Qaiser Arfat. The bench granted bail against two surety bonds Rs 0.1 million each.
It is to mention here that on December 7, 2019, three persons were shot dead on G.T. Road in Ferozewala, District Sheikhupura. Five brothers and three unknown persons were nominated in the first information report (FIR) to be the assailants; while their sixth brother, Qaisar (petitioner) and their father were nominated as abettors, alleged to have instigated and conspired the murders. As Shabbir Hussain (one of the deceased) was involved in the murder of their seventh brother, Asim, the motive alleged was that they wanted to avenge the murder of their seventh brother. Accused Qaisar, the alleged abettor, was the petitioner before the SupremeCourt. The Court of Sessions and the High Court had dismissed his petitions for pre-arrest bail.