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Official Citation: 2024 PHC 26
Court / Jurisdiction: Peshawar High Court
Year of Decision: 2023
Decision Date: 2023-12-31
Parties: Asad Qaiser vs Government of Khyber Pakhtunkhwa, Through Chief JUDGMENT
Ruling Summary: This decision was rendered by the Peshawar High Court on 2023-12-31, officially reported as 2024 PHC 26. In this matter between Asad Qaiser and Government of Khyber Pakhtunkhwa, Through Chief JUDGMENT, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024PHC26
Court Name: Peshawar High Court Judge(s): Ishtiaq Ibrahim, Muhammad Ibrahim Khan (C.J) Title:Asad Qaiser vs Government of Khyber Pakhtunkhwa, Through Chief
JUDGMENT
Reported As: 2024 PHC 26 Result: Petition Disposed of Judgment
JUDGMENT ISHTIAO IBRAHIM, J.- By invoking the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution"), Asad Qaiser, the former Speaker National Assembly of Pakistan (to be referred hereinafter as the petitioner), seeks issuance of the following writ: "It is, therefore, most humbly prayed that on acceptance of this writ petition, the respondents be directed to provide him information about criminal cases and inquiries registered and pending against him. Any other relief which this honourable court deems just and appropriate in the circumstances of the case and not specifically asked for, may also be granted in favour of the petitioner." 2. During pendency of the instant writ petition, the petitioner also filed Civil Misc. No.2615-P of 2023 on 28.11.2023, seeking therein the following relief:- "It is, therefore, most humbly prayed that on acceptance of this petition, the respondents be restrained from arresting the petitioner in already registered old FIRs. Any other relief, which this honourable court deems just and appropriate in the circumstances of the case and not specifically asked for, may also be granted in favour of the petitioner." Notice of the said application was accepted by the worthy AAG present in the court on the same date and he was directed to file reply to the same. 3. As per averments in the writ petition, petitioner being a senior member of a political party, namely, Pakistan Tehreek-e-Insaf ("PTI"), was elected as Speaker Provincial Assembly Khyber
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Pakhtunkhwa in the year 2013 and then Speaker National Assembly of Pakistan in the year 2018; that during his political career, the petitioner made endeavors for supremacy of the Constitution and played a vital role in every key legislation of the country; that after removal of the PTI's government in center in the year 2020-2021, leader of the PTI and its workers faced unprecedented crack down, harassm ent, humiliation through the State Institutions; that false and frivolous criminal cases/FIRs were registered and unfounded inquires were initiated against the petitioner by the Anti-Corruption Department; that petitioner obtained ad-interim pre-arrest bail in cases FIR No.1 dated 02.06.2023 and FIR No.2 dated 03.08.2023, both registered under sections 409, 162, 163 PPC and section 5 (2) Prevention of Corruption Act at Police Station Lahor, but despite that he was arrested in Islamabad in another criminal case vide FIR No.4 dated 02.11.2023, registered under sections 409, 162, 163 PPC and section 5(2) Prevention of Corruption Act at Police Station ACE Swabi by the Anti-corruption Establishment Khyber Pakhtunkhwa, in which case he applied for his post arrest bail before the court of competent jurisdiction. Petitioner alleged that he being a citizen of Pakistan, under Article 19-A of the Constitution has inalienable right of access to information, therefore, he approached this court in the instant constitutional petition seeking an appropriate writ to the effect that respondents be directed to provide him information about all criminal cases registered and inquiries pending/initiated against him so that he may be able to get relief from the court of law available to him under the law. 4. This writ petition came up for hearing before the court on 21.11.2023, on which date Mr. Danial Khan Chamkani, worthy AAG and Mr. Muhammad Ali, worthy ADPG for the NAB were directed to submit report/information in respect of cases registered against the petitioner on the next date of hearing i.e. 07.12.2023 and the case was fixed with Writ Petition No.5366-P of 2023, for arguments in light of order dated 29.11.2023, which is reproduced below:- "It is as important to bring it into limelight which has since been a practice of the prosecution that when an accused is arrested in one of the numerous cases registered against him, such an accused when granted bail, the prosecution before such accused is to be released, re-arrest him in the next case and so on in grant of bail all the arrest continue. Whether it is unlawful and unwarranted and needs to be deprecated as to maintain the rule and supremacy of law". Barrister Amir Khan Chamkani and Mr. Shabbir Hussain Gigyani, Advocate, were appointed as Amicus Curiae to assist the court on the aforesaid legal point. The case along with connected matters was posted to 12.12.2023 with direction to the respondents that no adverse action shall be taken against the petitioner(s) in all cases registered against him till 29.11.2023. On 12.12.2023, due to absence of the worthy Advocate General KP, case was adjourned to 14.12.2023 and from 14.12.2023 it was adjourned to 19.12.2023 due to strike of the lawyers' community. 5. We have heard the arguments of learned counsel for the parties and worthy Amicus curiae. 6. Main thrust of the arguments of learned counsel for the petitioner was that petitioner being a senior member of a political party, namely, PTI is being hounded by the Law Enforcing Agencies in various frivolous criminal cases and inquires for the sole reason to refrain him from carrying out his political activities which action of the respondents is against the mandates of Articles 4, 10 and 10- A of the Constitution which deals with right of individuals to be dealt with in accordance with law, safeguards as to arrest and detention and right to fair trial, respectively. Learned counsel further contended that under Article 19A of the Constitution every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law. 7. Though writ sought by the petitioner in the petition in hand is very simple and straightforward. He seeks that respondents be directed to provide him information of all criminal cases and inquires registered, pending and initiated against him, however,
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while hearing this and connected identical matter, this court deemed it appropriate to render an authoritative judgment on the legal point of arrest and re-arrest of a citizen in various criminal cases registered against him before his arrest. 8. Record depicts that prior to the instant writ petition, the petitioner along with others had filed Writ Petition No.4679-P of 2023 before this court wherein he had sought issuance of an appropriate writ to the effect that the respondents be directed to provide him details/information of all criminal cases/FIRs registered against him. The writ petition (ibid) was disposed of vide order dated 25.10.2023, in the following terms: "On 24.10.2023, keeping in view the prayers of the petitioners, the learned AAG was directed to furnish details/report qua the FIRs/cases registered against them by 25.10.2023. Today, the learned AAG produced before the court a detailed report of respondent No.2 (Inspector General of Police Khyber Pakhtunkhwa, Peshawar), wherein it has categorically been mentioned that except Mardan Region, where the petitioners are booked in case FIR No.235 dated 09.05.2023 u/s 341/342/379/427/436/148/149/395/109 PPC, section 7 ATA, PS Lahor (Swabi) and FIR No.732 dated 07.08.2023 u/s 120-B/188/148/149/505 PPC, PS Swabi, no other FIRs/cases have been registered or any enquiry pending against the present petitioners in other regions of the Province. The said report also reveals that in both the above referred FIRs, the petitioners have been granted bail by the courts of competent jurisdiction vide orders dated 22.09.2023 & 14.09.2023, respectively. Learned counsel appearing on behalf of petitioners was also provided the copy of aforesaid report of respondent No.2 for the information of petitioners. On this, the learned counsel expressed his satisfaction. In such view of the matter, we understand the instant petition has served out its purpose and is disposed of accordingly." 9. Record reveals that after disposal of the writ petition (supra), the petitioner was arrested in case FIR No.4 dated 02.11.2023, registered under sections 409, 162, 163 PPC and section 5(2) Prevention of Corruption Act at Police Station ACE Swabi, however, he was granted bail vide order dated 23.11.2023 by the court of competent jurisdiction but before release of the petitioner in the case (ibid), he was again arrested in case FIR No.286 dated 09.05.2023, registered under sections 120B, 121-A, 123, 123-A, 124-A, 144, 145, 147, 148, 149, 341 PPC and 16 MPO at Police Station Prang Charsadda. Chapter-V of the Code of Criminal Procedure, 1898 ("Cr.P.C."), particularly, its section 46 deals with arrest, escape and re-taking of a person whose arrest is required, which for the sake of convenience and ready reference is reproduced below:- "Arrest how made:- (1) In making an arrest the police-officer or other person making the same shall actually touch or confined the body of the person to be arrested, unless there be a submission to the custody by word or action. (2) Resisting endeavour to Arrest:- If such person forcibly resists the endeavour to arrest him or attempts to evade the arrest, such police-officer or other person may use all means necessary to effect the arrest. (3) Nothing in this section gives a right to cause the death of person who is not accused of an offence punishable with death or imprisonment for life. Section ibid provides that in making an arrest, the Police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action. Under sub-section (2) of section 46 Cr.P.C. if such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest. Under sub-section (3) of section 46 Cr.P.C., nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or imprisonment for life. Similarly, section 54 Cr.P.C. provides
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mechanism of arrest of a person in cognizable offence in different circumstances which is reproduced below:- "S.54. When police may arrest without warrant:- (1) Any police-officer may, without an order from a Magistrate and without a warrant, arrest: Firstly, any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned. Secondly, any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking; Thirdly, any person who has been proclaimed as an offender under this Code or by order of the Provincial Government; Fourthly, any person in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; Fifthly, any person who obstructs a police-officer while in the execution of his duty or who has escaped, or attempts to escape from lawful custody. Sixthly, any person reasonably suspected of being a deserter from the armed forces of Pakistan. Seventhly, any person who has been concerned in, or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been concerned in any act committed at any place out of Pakistan which, if any law relating to extradition or otherwise, liable to be apprehended or detained in custody in Pakistan. Eighthly, any released convict committing a breach of any rule made under section 565 sub- section (3). Ninthly, any person for whose arrest a requisition has been received from another police officer, provided that the requisition specifies the person to be arrest and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition. Section 54(1) Cr.P.C. provides that any police officer may, without an order from a Magistrate and without a warrant, arrest; firstly, any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned. Section 54 Cr.P.C. conferred sufficient powers to police officer, but such powers can be exercised only in those cases where a police officer is possessed of some evidence indicating involvement of a person under the four situations mentioned in Section 54 (1) of Cr. PC. But in most of the cases it is noticed that the police officer arrested the person without collecting any material connecting with commission of the offences. Under the provisions contained in the Cr. PC that once a person concerned or suspected to have committed a cognizable offence is arrested by a police officer it is expected of him that he would complete the investigation without any loss of time and at least complete the investigation within twenty-four hours of his arrest as laid down in section 61 Cr.P.C. which for the sake of convenience and ready reference is reproduced below: "S.61 Persons arrested not to be detained more than twenty-four hours:- No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's court." Under Section 62 of Cr.P.C. every public officer Incharge of police station is required to report to the Zila Nazim, District Superintendent of Police and District Public Safety Commission set up under the Police Act, 1861, simultaneously the cases of all persons arrested without warrant, within the limits of
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their respective stations, whether such persons have been admitted to bail or otherwise. Provided that in the application of this section to the districts where the local Government elections have not been held or the Zila Nazim has not assumed charge of office, any reference in this section to the Zila Nazim shall be read as reference to the District Coordination Officer in relation to such districts. Section 62 Cr.P.C. read as under:- "S.62. Police Officer to report apprehensions:- Officer in charge of Police Station shall report to the Zila Nazim, District Superintendent of Police and District Public Safety Commission set up under the Police Act, 1861 (V of 1861) the cases of all persons arrested without warrant, within the limits of their respective station, whether such persons have been admitted to bail or otherwise. Provided that in the application of this section to the districts where the local Government elections have not been held, or the Zila Nazim has not assumed charge of office any reference in this section to the Zila Nazim shall be read as a reference to the District Coordination Officer in relation to such districts. Provided further that the aforesaid proviso shall cease to have effect and shall be deemed to have been repealed, at the time when local Governments are installed in the district as aforesaid. It is the responsibility of the concerned Magistrate to scrutinize the report of arrest made by the police officer and find out if the action can be justified in law. Section 167 of Cr. P.0 authorizes the detention of any person by the police beyond 48 hours upto maximum of fifteen days subject to the orders of a Magistrate in cases where police is unable to complete the investigation within twenty-four hours of the arrest. Section 167 Cr.P.C. is reproduced below for ready reference:- 167. Procedure when investigation cannot be co mpleted in twenty-four hours.(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty four hours fixed by section 61, and there are grounds for believing that that accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation if he is not below the rank of sub-inspector shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case from time to time authorize the detention of accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole. If he has not jurisdiction to try the case or sent it for trial, and considers further detention unnecessary he may order the accused to be forwarded to a Magistrate having such jurisdiction. Provided that no Magistrate of the third class, and no Magistrate of the second class not specifically empowered in this behalf by the Provincial Government shall authorize detention in the custody of the police. (3) A Magistrate authorizing under this section detention in the custody of the police shall record his reasons for so doing. (4) The Magistrate giving such order shall forward a copy of his order, with his reasons For making it, to the Sessions Judge. (5) Notwithstanding anything contained in section 60 and 61 or hereinbefore to the contrary, where the accused forwarded under subsection (2) is a female, the Magistrate shall not, except in the cases involving qatl or dacoity supported by reasons to be recorded in writing, authorize the detention of the accused in police custody, and the police officer making an investigation shall interrogate the accused referred to in subsesection (1) in the prison in the presence of an officer of jail and a female police-officer. (6) The officer in charge of the prison shall make appropriate arrangements for the admission of the investigating police officer into the prison for the purpose of interrogating the accused.
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(7) If for the purpose of investigation, it is necessary that the accused referred to in subsection (1) be taken out of the prison, the officer in charge of the police station or the police officer making investigation not below the rand of sub-inspector, shall apply to the Magistrate in that behalf and the Magistrate may, for the reasons to be recorded in writing, permit taking of accused of out the prison in the company of a female police officer appointed by the Magistrate. Provided that the accused shall not be kept out of the prison while in the custody of the polic e between sunset and sunrise. The provision of Section 167 Cr. P.C. being in the nature of an exception and also amounting to put restriction on the right of personal liberty granted under the constitution has to be very strictly construed and unless all the requirements of section are complied with a remand cannot be granted. Production of an accused person under custody of a police officer along with entries made by them in the diaries, before a Magistrate is mandatory requirements of law. The purpose behind production of a person before the Magistrate for obtaining remand is that he can notify to the Magistrate if any excess has been committed against him by the police officer in violation of provision contained in section 50 or 53 of Cr.P.C. or any other illegal action taken by police for the purpose of extorting confessions or any other act. Similarly, section 167 Cr.P.C. does not visualize successive and repeated arrest of a person required in more than one cases. An accused required in more than one criminal case when arrested will be deemed to have been arrested in all the cases registered against him. There is no legal bar for interrogating an accused person with regard to the allegations against him in another case. It is rather desirable that when a person required or accused in more than one cases or whether more than one FIRs are registered against him is arrested and remanded to physical custody then he should be interrogated about the allegations against him in all the cases. Reliance in this regard can be placed on case titled, "Mst. Razia Pervez and another Vs the Senior superintendent of Police Multan and 05 others" (1992 P Cr LJ 131). 10. In the instant case we have noticed that instead of acting strictly in accordance with law, the Law Enforcing Agencies are following the illegal practice of arresting the petitioner after his release on bail in other criminal cases registered against him prior to his arrest. It is no where stated in the Criminal Procedure Code and Police Rules that a person required in more than one case when arrested will be deemed to have been arrested in one case only and he cannot be arrested simultaneously in more than one case. Section 167 Cr.P.C. simply says that whenever a person is arrested or detained in custody, the Magistrate may authorize his detention in such custody for a term not exceeding fifteen days in the whole. The section does not talk of "case". It speaks of custody only. The longest period for which an accused can be ordered to be detained continuously in police custody by one or more such orders is only fifteen days. So, the detention of the accused person required in more than one case already registered against him, for more than fifteen days would be illegal. It would be quite in accordance with law that when a person required in more than one criminal case is arrested in one case, he shall be deemed to have been arrested in all the cases registered against him. 11. Moreover, Rule 26.8 of Chapter-XXVI of Police Rules, 1934, provides that under section 62 of the Code of Criminal Procedure an officer in charge of a Police Station is required to report to the District Magistrate, sub-Divisional Magistrate or such other Magistrate as the District Magistrate may direct, all arrest without warrant made by himself or in his jurisdiction. Sub-rule (2) of Rule 26.8 of the Rules (ibid) speaks that reports of such arrests shall be made in Form 26.8(2) whether the person arrested has been admitted to bail or not and may be sent by post. The Form No.26.8(2) of the Rules ibid is reproduced below:- Form No.26.8(2) Police Station (Name) Report of Arrest
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(Under section 62 Criminal Procedure Code) He the honour to report ---- that son of ---- caste-----------resident of------has been apprehended (or detained as the case may be) this day at------- O'clock as he is accused of---- Dated------ The------- Sub-Inspector Besides rule 23.17 of the Police Rules 1934, information sheets in Form 23.17(1) shall be used by an officer for the double purpose of obtaining and communicating information about residents of other police station jurisdictions who are known or believed to have visited his police Station jurisdiction with criminal intent. Under sub-rule (2) of rule 23.17 of the Rules ibid, information sheets shall be issued by an officer in charge of a police station as a means of ascertaining the antecedents of person who are genuinely believed to have committed an offence whether or not they have been or are to be arrested. 12. It would not be out of context to refer here section 551 of the Cr.P.C. which deals with the powers of superior officer of Police. According to section 551 Cr.P.C. Police officer superior in rank to an officer-in-charge of a Police Station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his Station. 13. Under Article 4 of the Constitution, to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan; that no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law; that no person shall be prevented from or be hindered in doing that which is not prohibited by law; and no person shall be compelled to do what the law does not require him to do. Under Article 9 of the Constitution, no person shall be deprived of life or liberty, save in accordance with law. Similarly, Article 10 of the Constitution also deals with the safeguards as to arrest and detention, according to which no person who is arrested shall be detained in custody without being informed, as soon as may be,…
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