Strange behaviour of the Pakistan Supreme Court Judges

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Guest Blogging

Strange behaviour of the Pakistan Supreme Court Judges

Justice Markandey Katju

May 11, 2023

Strange behaviour of the Pakistan Supreme Court Judges

A bench of the Pakistan Supreme Court today declared Imran Khan’s arrest by the Pakistan Rangers, on a warrant of the NAB relating to a corruption charge regarding Al-Qadir Trust, illegal, and ordered his release.

https://www.youtube.com/watch?v=q1Vhk6DeYC4

https://www.hindustantimes.com/world-news/elxpak-pm-imran-khans-arrest-declared-illegal-by-supreme-court-101683810589623.htm

I agree that the arrest was illegal, though for reasons different from that given by the court. However, before I give my reasons, I would like to comment on the strange behavior of the judges on the bench hearing the case.

From the internet it appears that on seeing Imran Khan in court, the Chief Justice remarked ” We are very happy to see you ” ( Aap ko dekh kar badi khushi hui )

https://www.youtube.com/watch?v=XZhdxTQNps0&pp=ygUQcmVwdWJsaWMgdHYgbGl2ZQ%3D%3D

With great respect to Justice Bandial, this remark was totally uncalled for and unwarranted, and it tends to convey a wrong signal that the CJP and Imran Khan are buddies.

Francis Bacon, a Lord Chancellor of England once remarked ” A much talking judge is like an ill tuned cymbal ”, and all judges should keep that in mind. The less they talk in court the better.

There was widespread violence in Pakistan following Imran Khan’s arrest

https://www.aljazeera.com/news/2023/5/11/pakistan-top-court-orders-nab-to-present-imran-khan-in-an-hour

The CJP observed that he did not approve of the manner of the arrest.

https://www.businesstoday.in/latest/world/story/big-relief-for-imran-khan-as-pakistans-supreme-court-nullifies-his-arrest-380954-2023-05-11

Now an act being improper, and it being illegal, are two very different things. The court can interfere only if it is illegal, and cannot interfere merely because it is improper.

If the Supreme Court regarded the arrest illegal, then it should have clearly mentioned in its order which specific law did it violate ? Is there any law in Pakistan which says no arrest can be made in a court building ? I doubt it. There is none in India, and the Pakistani Penal Code and Criminal Procedure Code broadly follow the law in India.

After declaring the arrest illegal and setting Imran Khan free, the Supreme Court directed him to appear the next day before the Islamabad High Court. What for ? If the arrest was illegal, why should he be made to appear in the High Court ? The Supreme Court should have itself granted him bail using its suo motu powers, as well as its power under Article 187(1) of the Constitution which states ” the Supreme Court shall have power to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it ”.

Now I may give my own reasons why I regard the arrest illegal.

Section 157 of Pakistan’s Criminal Procedure Code ( which is identical to section 157 of the Indian Cr.P.C. ) states :

” Procedure where cognizable offence suspected: (1) If from information received or otherwise, an officer incharge of a police-station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police-report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the Provincial Government may, by general or special order, prescribe in this behalf to proceed, to the spot, to investigate the facts and circumstance of the case, and, if necessary, to take measures for the ‘discovery and arrest of the offender ”.

The last few words in this provision clearly imply that arrest is not a must in every case. This is evident from use of the words ” if necessary ”. So if an investigation can be done without arresting a suspect, e.g. by questioning him at his residence or place of work, an arrest would be unnecessary and unwarranted, and would violate section 157.

https://indiankanoon.org/doc/1638274/

In India and Pakistan policemen who arrest a person are often complying with an order received from some higher police or political authority. Are they bound to carry out such an order? All arrests are not legal. What usually happens in India ( or Pakistan ) is that the moment an FIR of a cognizable offence is lodged in a police station, the police rush to arrest the accused. But what is the correct legal position?

In Joginder Kumar vs. State of U.P. (AIR 1994 S.C. 1349), the Indian Supreme Court observed: “No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest, apart from his power to do so.

Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer, in the interest of protection of the constitutional rights of a citizen, and perhaps in his own interest, to ensure that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest.

Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.”

The last sentence is important, though usually ignored by policemen. In the same judgment, the Supreme Court has observed that the power to arrest is a major source of corruption for the police, and that according to the Third Report of the National Police Commission, about 60 per cent of arrests in our country are either unnecessary or unjustified.

The observations of the Supreme Court are, in fact, in accordance with Section 157(1) of the Criminal Procedure Code, which I have quoted above.

The CrPC deliberately uses the words “and, if necessary, to take measures for the discovery and arrest of the offender.” The caveat “if necessary” indicates that the law does not authorise the police to arrest a suspect in every criminal case. The reality in India ( and probably also in Pakistan ), however, is that the moment an FIR of a cognisable offence is lodged, the police rush in to arrest, ( and often demand money for not doing so ).

The correct position in law is that they must refuse to carry out an illegal order, failing which the policemen concerned will themselves have to face severe criminal as well as civil penalties.

In R. vs. Commissioner of Police for the Metropolis, ex parte Blackburn, (1968), Lord Denning observed that the police are under a duty to follow the law. It follows that if there is a conflict between the law and an order issued by an executive authority, the police must ignore the illegal order of the executive authority, however high.

In the Nuremberg Trials held after the Second World War, the Nazi war criminals took the plea that they were only carrying out orders of their superior authority, Hitler. This plea, that ‘orders are orders ‘ was rejected by the International Tribunal, and many of the accused were sentenced to be hanged.

So if a policeman gets an illegal order, whether from a higher police authority, or a political authority, it is his duty to refuse to carry it out, otherwise he will have to face criminal and civil liability. To make an illegal arrest is a crime (wrongful restraint and wrongful confinement) punishable under sections 341 and 342 I.P.C.

A wrongful arrest is violative of Article 21 of the Indian Constitution, which guarantees life and liberty to all persons. In Deepak Bajaj vs. State of Maharashtra ( 2008 ) the Indian Supreme Court observed:

“The purpose of Article 21 is to safeguard the liberty of the citizen which is a precious right not to be lightly transgressed by anyone. The imperative necessity to protect those precious rights is a lesson taught by all history and all human experience. Our founding fathers had lived through bitter years of the freedom struggle and seen an alien government trample upon the human rights of our citizens. It is for this reason that they introduced Article 21 in the Constitution ”.

In Ghani vs. Jones (1970)1 Q.B. 693 (709) Lord Denning observed:

“A man’s liberty of movement is regarded so highly by the law of England that it is not to be hindered or prevented except on the surest ground”

This observation has been quoted with approval by the Indian Supreme Court in Govt. of Andhra Pradesh vs. P. Laxmi Devi J.T. 2008 (2) SC 639 (vide para 90).

The above is the reasoning which I would have given in my order if I had heard Imran Khan’s case for quashing his arrest. I would have held that there was no need to arrest him, and he could be questioned by the police at his residence. Hence the arrest was illegal.

However, having said all this, I wish to applaud the Pakistan Supreme Court for having shown the courage to stand up for justice by setting aside Imran Khan’s illegal arrest, despite the atmosphere of fear, trepidity, and consternation prevailing in Pakistan.