LAHORE: The Lahore High Court has ruled that a suspect on bail cannot be rearrested in the same case merely on the basis of a new charge inserted by an investigating agency.

“Allowing police to arrest an accused who has already been granted bail by merely adding new offences to the case, without first seeking the cancellation of existing bail, would effectively grant law enforcement agencies the unrestricted authority to circumvent judicial orders,” Justice Ali Zia Bajwa asserted in a judgement.

The judge said this practice, if left unchecked, portends a shift towards a regime where the liberties of individuals are held in abeyance by the caprices of prosecutorial discretion.

He noted that the jurisprudence surrounding bail is predicated on the presumption of innocence and serves as a bulwark against the potential for arbitrary detention. Permitting law enforcement agencies to nullify this judicial safeguard by mere expedient of adding charges post hoc is to erode the foundations of the legal system, he observed.

Law enforcement agencies can’t be given unrestricted authority to circumvent judicial orders, notes judge

The judgement reproduces Rule 26.21(6) of Punjab Police Rules, 1934, which says, “No police officer has power to re-arrest an accused person who has been released on bail under Section 497, Code of Criminal Procedure.”

When re-arrest is deemed necessary, the police shall apply to a competent court for the cancellation of the bail and the issue of a warrant in accordance with the provisions of Section 497(5) of the CrPC, according to the police rule.

Justice Bajwa rejected an argument of a government’s law officer that the rule 26.21 (6) only deals with the cases where an accused is released on bail after arrest and not before arrest. “I am afraid the objection raised by the learned law officer is highly misconceived, stemming from a bare and superficial reading of the rule ibid without grasping its underlying essence and purpose,” he remarked.

The judge said the government’s argument overlooked the fundamental principles of justice and liberty that the police rule seeks to protect.

He maintained that the essence of the rule was protection of the liberty of an accused who has been deemed eligible for bail, regardless of the bail’s temporal stage — before or after arrest.

The judge explained that the principle of not re-arresting a suspect on bail without seeking cancellation of his bail aligns with broader legal principles of fairness, predictability, and respect for judicial decisions.

He asserted that extending this principle to pre-arrest bail cases does not represent a departure from established legal norms but rather an affirmation of the law’s inherent values.

Justice Bajwa also declared illegal the re-arrest of a petitioner’s son in the same case after bail on the basis of additional charges added by the police.

While appearing before the court, the DIG (Organised Crime, Lahore) said he had taken cognisance of the matter.

He admitted that the detainee should not have been arrested without filing an application for cancellation of his bail granted by the court. He assured the court that a proper inquiry shall be carried out and delinquent police official(s) shall be dealt with strictly as per the law.

Published in Dawn, March 4th, 2024

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