PESHAWAR: Declaring the practice of law-enforcement agencies to repeatedly arrest an accused in multiple cases illegal, the Peshawar High Court on Thursday ruled that a person once arrested was deemed to be held in all the cases already registered against him.

A bench consisting of Chief Justice Muhammad Ibrahim Khan and Justice Ishtiaq Ibrahim stopped law-enforcement agencies, including police and anti-corruption establishment, from re-arresting former National Assembly Speaker Asad Qaiser, after his release, in other cases registered against him before his arrest.

It declared that the judgement applied to all other residents of Khyber Pakhtunkhwa.

“… a person once arrested is deemed to be arrested in all cases registered against him prior to his arrest. Arrest of an accused person involved in so many criminal cases of the same province after his release on bail in another case amounts to a colourful exercise of power which cannot be countenanced at any cost.

Stops LEAs from re-arresting PTI leader Qaiser

“Courts are the guardians of the fundamental rights of citizens which also includes liberty of citizens. To control executive action, so as to bring it in conformity with the law, the power has been conferred on the High Court to exercise it under Article 199 of the Constitution,” it declared in its 28-page detailed judgement authored by Justice Ishtiaq Ibrahim.

The court declared that the repeated arrest of the petitioner in different cases amounts to violation of their fundamental rights and whenever the executive acts were a violation of the law, an appropriate order could be passed by the high court by invoking the jurisdiction under Article 199 of the Constitution so to relieve the citizen of the effects of the illegal action.

The court had reserved its verdict on Dec 19 over a petition of PTI leader Asad Qaiser, seeking information about criminal cases and inquiries registered and pending against him and also to restrain the respondents including police, ACE, National Accountability Bureau from arresting him in already registered old FIRs.

The bench directed the respondents to provide information to the petitioner about all the cases registered and inquiries pending against him.

The petitioner was first arrested in Islamabad from his residence in Banigala on Nov 3, 2023, in connection with a case registered by the ACE at its police station in Swabi. He was re-arrested multiple times after being given bail by the relevant courts. He was freed on Dec 20.

The bench ordered the relevant branch of the high court to send a copy of the judgement to all district and sessions judges for circulation among judicial officers for information and strict compliance and declared that violation of the directives by officials should be dealt with in accordance with the law.

For arguments, the bench had formulated a law point, “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.”

Advocate Syed Sikandar Hayat Shah represented the petitioner, whereas senior lawyers well-versed in criminal law Shabbir Hussain Gigyani and Barrister Amir Khan Chamkani appeared as amicus curiae.

Provincial advocate general Aamir Javed, additional attorney general Sanaullah Khan and NAB additional deputy prosecutor general Mohammad Ali appeared for their respective respondents.

The bench has elaborately discussed different provisions of the Code of Criminal Procedure, Constitution of Pakistan and Police Rules.

It ruled: “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.”

The bench observed that the CrPC and Police Rules didn’t declare anywhere that a person required in more than one case when arrested would be deemed to have been arrested in one case only and that he or she couldn’t be arrested simultaneously in more than one case.

It also pointed out that under Section 167 of CrPC, the longest period for which an accused could be ordered to be detained continuously in police custody by one or more such orders of a magistrate was just 15 days.

“The detention of the accused person required in more than one case already registered against him for more than fifteen days will be illegal,” it ruled.

Discussing the Constitution’s Article 10-A that deals with a fair trial, the bench observed that the fair trial included all stages starting from registration of case to arrest to investigation to inquiry, if any directed in that case, and trial.

Published in Dawn, January 19th, 2024

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