The Constitution of Pakistan, 1973 Developed by Zain Sheikh

Per Saleem Akhtar, J.

(a) Constitution of Pakistan (1973), Article 199 & 185(3)
r/w Criminal Procedure Code (V of 1898), Ss. 497(5) & 561-A

Leave was granted to consider the following questions:—

“(i) Whether the High court was justified in allowing the above Constitution petition in the above terms after having been informed that the above four detenus were allegedly involved in the above F.I.Rs.;

(ii) whether the High Court was justified in dismissing the above criminal miscellaneous application for cancellation of bail summarily without recording any finding, whether the allegation of the State that the four detenus jumped the bail was correct or not.” [p. 1290]A

The learned counsel for the appellants contended that the impugned order passed on 4-11-1992 granting bail to respondents Nos. 3 to 6 should not have been passed in exercise of Constitutional jurisdiction after the appellants had laid information before the Court that the detenus were involved in criminal cases under the F.I.Rs. registered in the police stations. From the nature of the proceedings instituted by the respondents it is clear that they had invoked the writ jurisdiction of the High Court challenging the detention or respondents Nos. 3 to 6 as illegal, mala fide and without jurisdiction. The High Court in exercise of this jurisdiction issued notice to the appellants for laying down information about the whereabouts of the detenus and also laying down the facts and reasons for detention if they were under arrest. From the impugned order it seems clear that the appellants were under arrest. From the Court by producing authentic and relevant documents, particularly statement of two witnesses on the basis of which the detenus were involved in a case under section 302, P.P.C. in which originally they were not named in the F.I.R. Considering the facts and circumstances of the case the learned Judges came to the conclusion that the arrest was a mala fide act intended to pressurise the respondents to disclose the whereabouts of Dr. Imran Farooq who was wanted by the Police in certain criminal cases. In these circumstances, respondents Nos. 3 to 6 were allowed bail, but no order was passed holding that the proceedings initiated against them were illegal or without jurisdiction. In fact the order allowed the prosecution. When the Court came to the conclusion that the action was mala fide and merely to harass the respondents, they were justified in granting relief to the respondents as not only that the grounds for grant fo bail which will be discussed later, were available, but also the Court would have been would have been cognisant of the fact that question of liberty of citizens was involved and also to protect such persons from highhandedness and illegal actions perpetrated with mala fide intention. Under Article 4 every citizen has an inalienable right to be treated in accordance with law and to enjoy the protection of law. Furthermore, under Article 9 no person shall be deprived of life or liberty save in accordance with law. Article 10 provides safeguards against arrest and detention. It provides that no person who is arrested shall be detained in custody without being informed as soon as may be of the ground for such arrest and every person who is arrested and detained in custody, shall be produced before a Magistrate within 24 hours of such arrest excluding the time necessary for journey from the place of arrest to the Court of nearest Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate. These provisions do not apply to preventive detention, but this is not the case here. Article 14 provides that the dignity of man and subject to law the privacy of home shall be inviolable. It in clear terms prohibits that no person shall be subjected to torture for the purpose of extracting evidence. These provisions which confer fundamental rights on a citizen whenever violated and complaint is made to a High Court about their violation, the Court must step in to investigate such facts under the discretionary jurisdiction conferred on it under Article 199 and pass such order as may be found just, legal and equitable taking into consideration the facts and circumstances of each case. In the present case we would refrain from commenting upon the merits of the case and will restrict ourselves only to the observation that the High Court on consideration of facts and documents and also the conduct of the prosecution in withholding material statement of two witnesses came to the conclusion that the action initiated against the respondents prima facie was mala fide. It was a tentative observation for purposes of deciding the petition. In fact the whole proceedings culminated in release of the detenus on furnishing personal bond. [p. 1290, 1291, 129] B, C & D

It is now settled principle of law that where petition under Article 199 is filed challenging the arrest and detention of any person, the High Court will not straightaway refuse to exercise jurisdiction the moment an information is laid that the detenue is involved in any criminal case registered with the Police. The High Court has the jurisdiction to examine the facts and information laid before it to determine prima facie that it does not lack bona fides, is not a cooked up or manipulated affairs, the detenue has not been illegally detained without a proper and legal remand order where it is required and there appear reasonable grounds for believing that the detenue is involved in the crime charged with. If once it is conceded that on receipt of information as supplied the High Court should refuse to exercise its Constitutional jurisdiction without conferring power of judicial review will be frustrated. The High Court is custody without lawful authority or in an unlawful manner. This can be achieved only when the Court examines the information, reasons, facts and causes leading to detention. While examining the High Court will not act as an appellate Court nor will it make sifting investigation. In such Constitution petition the prosecution is bound to disclose the material upon which it has acted and the Court is to satisfy itself that such action is lawful and not in violation of law and fundamental rights. Reference can be made to Abdul Baqi Baloch v. Government of Pakistan (P L D 1968 SC 313) in which the appellant had challenged his detention under the Defence of Pakistan Rules, 1965 by filing Constitution petition in the High Court under Article 98(2)(b) of the Constitution of 1962 (Article 199(1)(b) of Constitution of 1973) which was dismissed. While accepting appeal Hamoodur Rahman, J. (as he then was made the following observation which is applicable to the present case as well:–

“This Court has pointed out that whatever may have been the position under the English Law or the Government of India Act, 1935, the position under the present Constitution of Pakistan is wholly different, for, by Article 98(2)(b)(i) of the Constitution, a duty has been cast upon the High Court, whenever a person detained in custody in the Provinces is brought before that Court to ‘satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner’. Can this Constitutional duty be discharged merely by saying that there is an order which says that he is being so detained? Can the High Courts be expected to be satisfied on the mere ipse dixit of the detaining authority? If this could be so, then this ‘judicial power’ would as pointed out in taht case, be ‘reduced to a nullity if laws are so worded or interpreted that the executive authorities may make what statutory rules they please thereunder and may use this freedom to make themselves the final Judges of their own ‘satisfaction’, for imposing restraints on the enjoyment fo the fundamental rights of citizens, and Article 2 of the Constitution itself would be ‘rendered meaningless’. If the mere so satisfied, was to be held to be sufficient also to ‘satisfy’ the Court perform in the discharge of this duty”.

……………

“However, as I have said earlier, my reading of the majority decision in Ghulam Jilani’s case to which I am a party, is that it alters the law laid down in Liversidge’s case (1941) 3 AER 338 only to the extent that it is no longer regarded as sufficient for the executive authority, merely to produce its order, saying that it is satisfied. It must also place before a Court the material upon which it so claims to have been satisfied so that the Court can, in discharge of its duty under Article 98(2)(b)(i) be in turn satisfied that the detenu is not being held without lawful authority or in an unlawful manner. The wording of clause (b)(i) of Article 98(2) shows taht not only the jurisdiction but also the manner of the exercise of that jurisdiction is subject to judicial review. If this function is to be discharged in a judicial manner, then it is necessary that the Court should have before it the materials upon which the authorities have purported to act. If any such material is of a nature for which privilege can be claimed, then that too would be a matter for the Court to decide as to whether the document concerned is really no privileged. In exercising this power the High Court does not sit as an appellate authority nor does it substitute its own opinion for the opinion of the authority concerned.” [p. 1292, 1293] E

The principles laid down not only govern the cases of preventive detention but apply to all such cases where detention or arrest has been challenged in the Constitutional jurisdiction of the High Court. The Courts have to safeguard the fundamental rights of every citizen and to protect the life and liberty from illegal, unauthorised and mala fide acts of omission and commission by any authority or person. In the instant case the information laid before the High Court was deficient and no substantive material was produced to satisfy it that till then there existed reasonable grounds that the detenue had committed the crime. In fact the statement of two witnesses was not produced which was basis for involving the detenus in a crime committed five months back report of which did not mention the names of the detenus. The prosecution therefore failed to produced material statement which was the basis for the arrest of the detenus. How could in such circumstances the High Court close its eyes to the glaring illegalities perpetuated in the background of the failure to arrest Dr. Imran Farooq. In the circumstances, the High Court was justified to reasonably conclude that the arrest was mala fide and intended to extract information about the whereabouts of Dr. Imran Farooq and therefore exercised its Constitutional jurisdiction in a limited manner by releasing the detenus on furnishing surety bond and leaving the leaving the prosecution free to make further investigation, if necessary. The High Court had thus corrected actions of the investigating agencies in the right direction without in any manner interfering with the investigation. These observations find support from the following dictum of Hamoodur Rahman, C.J. in Mst. Shahnaz Begum v. Hon’ble Judges of the High Court of Sindh and Balochistan (P L D 1971 SC 677):–

“If an investigation is launched mala fide or is clearly beyond the jurisdiction of the investigating agencies concerned, then it may be possible for the action of the investigating agencies to be corrected by a proper proceeding either under Article 98 of the Constitution of 1962 or under the provisions of section 491 of the Criminal Procedure Code, if the applicant is in the latter case in detention, but not by invoking the inherent power under section 561-A of the Criminal Procedure Code.” [p. 1293, 1294] F

The other aspect of this case is that respondents Nos. 3 to 6 were released on furnishing bail bonds. This has also been challenged by the appellants, A Court considering a bail application has to tentatively look to the facts and circumstances of the case and once it comes to the conclusion that no reasonable ground exists for believing that the accused has committed a non-bailable offence, it has the discretion to release the accused on bail. In order to ascertain whether reasonable grounds exist or not, the Court should not probe into the merit of the case, but restrict itself to the material placed before it by the prosecution to see whether some tangible evidence is available against the accused which if left unrebutted, may lead to inference of guilt. Mere accusation of non-bailable offence would not be sufficient to disentitle an accused from being bailed out. There should be reasonable grounds as distinguished from mere allegations of suspicion. As observed in Ch. Abdul Malik v. The State (PLD 1968 SC 349), however, strong the suspicion may be, it would not take the place of reasonable ground. The words ‘reasonable grounds’ are words of higher import and significance than the word ‘suspicion’. It is for the prosecution to show reasonable grounds to believe that the accused has committed the crime. If the Court is not satisfied with the material placed before it that there exist reasonable grounds to believe that the accused is guilty, then the Court has the discretion to grant bail. In the present case as discussed above, the learned Judges came to the conclusion that the action being mala fide and also the material documents not having been produced, no reasonable grounds existed to believe, that the accused had committed the crime. This Court rarely interferes with the discretion exercised properly, judicially and legally by the High Court. In our view, considering the facts and circumstances of the case and the material produced, the learned Judges were justified in releasing the detenue on furnishing personal bond. In cases where the liberty of a citizen is involved, the action initiated by the police/prosecution is found to be mala fide and intended to extract evidence or information from the detenue the superior Courts should not be reluctant to step in and grant relief to the citizens. [p. 1294, 1295] G, H & I