A SUPREME Court verdict announced on Thursday spelled out what might be considered a self-evident truth in any well-ordered society. According to the five-page judgement authored by Justice Mansoor Ali Shah, a police officer must have due cause to arrest an individual without a warrant and place him under detention. The authority afforded to him by the law to take this action is permissive, not obligatory. At issue was a case concerning the murder of three people who were shot dead in December 2019; five brothers and three unidentified individuals had been nominated in the FIR as the assailants. On March 3, 2020, a sixth brother, who was nominated as an abettor, petitioned the Supreme Court against the cancellation of his pre-arrest bail by the Lahore High Court. The LHC in its ruling had declared such relief to be extraordinary, one that could only be extended to an innocent person implicated in the case on mala fide grounds, but the accused, it said, had failed to prove such ill-intent. The Supreme Court, however, has held that mala fide being a state of mind cannot always be established through direct evidence and must be inferred with the help of the circumstances of the case. The verdict points out that the relevant section of Police Order 2002 lays down this legal position when it stipulates that it is the duty of every police officer to “apprehend all persons whom he is legally authorised to apprehend and for whose apprehension sufficient grounds exist”.
What might seem an obvious truth in a more equitable society needs to be underscored in a country where the coercive power of the state is far too often employed not to maintain law and order, but to control and suppress. A police in service of various pressure groups can round up ‘troublesome’ citizens on the strength of mere allegations or fake FIRs. Political opponents can be conveniently silenced and removed from the public eye in the same way. The manner in which the powers of arrest are exercised has a bearing on the fundamental rights to liberty and due process and therefore must be used judiciously. The Supreme Court judgement rightly asserts that pre-arrest bail acts as a check on the police’s power to arrest people. By assessing whether the material before it is incriminating enough to justify arrest, the courts can be a bulwark against injustice.
Published in Dawn, April 11th, 2021