Supreme Court rules against arrest without incriminating evidence

Published October 5, 2021
A file view of the Supreme Court building. — SC website
A file view of the Supreme Court building. — SC website

ISLAMABAD: The Supreme Court has held that arresting and detaining a person without any incriminating material offend his or her right to dignity.

“The human dignity encapsulates the notion that every person has inherent equal worth; no one’s life and liberty are more important than any other person’s,” Justice Syed Mansoor Ali Shah observed in a judgement he wrote against the backdrop of common practice of detaining individuals by the National Accountability Bureau (NAB) without complete evidence against them.

Justice Mansoor Shah was a member of a three-judge bench also comprising Justice Umar Ata Bandial and Justice Aminuddin Khan.

The bench had taken up an appeal filed by Muhammad Iqbal Khan Noori against the June 26, 2019 Islamabad High Court order which had dismissed his bail plea.

Grants bail to petitioner arrested by NAB during investigation into fake bank accounts scam

The appellant was arrested and detained by NAB during the course of an investigation which is still going on against persons involved in the fake bank accounts scam for obtaining loans as well as misappropriation by Parthenon (Pvt) Ltd, Park Lane Estates (Pvt) Ltd and others.

The petitioners had filed two separate writ petitions in the IHC under Article 199 of the Constitution, asking for release on bail till a final decision on the case, but the high court dismissed the petitions on June 26, 2019.

While deciding the case, Justice Mansoor Ali Shah highlighted a familiar maxim in criminal justice: presumption of innocence — the principle that a person is presumed innocent until proven guilty by a court of law. He observed that this principle was pillared on constitutional right to liberty, fair trial and human dignity. This presumption can only be dislodged if there is sufficient incriminating material against a person as underlined and reinforced by different constitutional rights.

Over the years, reasonableness and proportionality have also come to be recognised as established grounds of judicial review of the executive action. Justice Shah explained that while exercising jurisdiction under Article 199, the high court had to examine the order of arrest and detention passed by the NAB chairman and to consider whether it passed the constitutional mandate. The high court, while exercising its jurisdiction under Article 199 for the enforcement of fundamental rights, could pass appropriate orders which included an unconditional release or release on bail or to grant the relief to the aggrieved person.

Therefore, material/evidence must be sufficient enough to persuade the constitutional court to deprive an individual of his fu­­­ndamental right, Justice Shah emphasised.

“Under our democratic constitutional scheme, firmly anchored in the rule of law, the constitutional courts are to jealously protect and safeguard the fundamental rights of a person. The high court, under Article 199, has the power to judicially review the order passed by the chairman NAB or some other authorised officer of NAB regarding arrest and detention of a person,” he said.

Article 4 mandates that no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with the law, whereas Article 9 is a cherished fundamental right of a person which, inter alia, guarantees right to liberty, which may be curtailed but in accordance with the law.

Therefore, the judgement said, not only should the procedural requirements of the law be fully met but also its substantive content i.e. there must be sufficient material/evidence on the record that could justify the application of such a law.

“The requirement of sufficiency of material is also echoed in the right guaranteed under Article 10 which requires that any person who is arrested shall not be detained in custody without being informed of the grounds for such arrest.

“The word ‘grounds’ used in Article 10 is not limited to mere allegations but means allegations supported by sufficient material/evidence connecting the person with the offence justifying his arrest and detention. Article 10-A creates a constitutional obligation to conduct a fair trial and ensures due process.

“Thus the spectrum of fair trial and due process is extensive and overarching and arrest and detention of a person without any sufficient incriminating material/evidence would offend his right to fair trial,” the judgement said, adding that the right to dignity under Article 14 was an absolute constitutional standard, which was not subject to law because dignity inherited in a human person and not granted by the law or could not be taken away by the law. Justice Shah observed that arresting and detaining a person without any incriminating material offended his or her right to dignity.

The National Accountability Ordinance (NAO) requires the NAB chairman to form an “opinion” if proceedings are to be initiated against any person and the matter referred for inquiry or investigation.

“If the court is not satisfied that there exist reasonable grounds to believe that the accused is guilty, the court is to grant bail in enforcement of the fundamental rights,” Justice Shah emphasised, adding that the pre-trial arrest and detention of the accused cast a heavy burden on the conscience of the court.

If after the trial the accused is acquitted there is no recompense or reparation for the loss of his valuable years spent behind bars, including economic, social and psychological impact on the accused as well as his family or near ones due to denial of bail.

Consequently, the Supreme Court granted bail to the petitioner subject to furnishing bail bonds in the sum of Rs1 million each with one surety each in the like amount to the satisfaction of the accountability court.

Published in Dawn, October 5th, 2021

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