ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

C.P. No.D-916 of 2015.

DATE

OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE

1. For orders on office objection.

2. For Katcha Peshi.

04.9.2015

Petitioner No.1 present in person.

Mr. Rizwan Dodani, advocate filed Vakalatnama on behalf of petitioner No.1.

-.-.-.-.-.-.-

Through instant petition by invoking jurisdiction of this Court, the petitioners pray as under :

a) To grant pre-arrest / protective / anticipatory bail to the petitioners No.1 and 2,

b) To direct the respondents to place on the record of this Hon’ble Court the complete information regarding all pending cases, inquiries and investigations against the petitioners and their present status, if any, and to quash all pending enquiries and proceedings.

c) To declare that the failure of respondents to communicate factum of allegations to the petitioners is illegal, unlawful, unconstitutional and discriminatory and is in violation of principles of natural justice, equity and fir play,

d) To restrain the respondents, their agents, officers, representatives or anybody acting on their behalf from causing harassment to the petitioners and from implicating them in any false cases / enquires without permission of this Hon’ble Court.

e) To direct respondents No.6, 7, 8 & 11 for providing security and protection to the petitioner No.1 and to the petitioner No.2 on his arrival in Pakistan from airport to his destination and further direct respondents No.7 and 11 to continuously provide protection to the lives and properties of petitioners and their family members at their cost.

2. Precisely, relevant facts as setout in this petition are that the petitioner No.2 is a prominent businessman of Pakistan and was previously a professional banker who worked at several local and international banks in Pakistan and overseas at various senior positions. He was led a distinguished career of over 30 years in the field of banking and after seeking an early voluntary retirement he established businesses that include, inter alia, Sugar and Cement manufacturing, power generation, corporate farming and distillery (hereinafter collectively referred to as the “Omni Group”. The petitioner No.1 is his cousin and also an employee working in the “Omni Group” in the capacity of Director and Group Chief Operating Officer; that on 27^th May 2015 the petitioner No.2 a senior citizen aged about 73 years left Pakistan for England in connection with Medical Treatment of Serious Arthritis and in his absence some News channels flashed breaking News regarding issuance of Red Warrants against petitioner No.2 by FIA working under respondents No.2, 5 & 6 and such News was also published in various newspapers; that the petitioner No.1 is being harassed and humiliated by the respondents by making him phone calls from unknown numbers thus he is being continuously threatened and there is every likelihood of his arrest at the hands of respondents in the false and fabricated cases; that since couple of days the respondents have been raiding the houses of petitioners No.1 & 2 for their arrest but due to non-availability of petitioners, their families and staff have been directed to convey the petitioners that they are required in some criminal cases and they must surrender themselves before the Law Enforcement Agencies. On the request of family members and staff of petitioners the respondents failed to provide details of cases registered against the petitioners; that the petitioners fear that they might be involved in false and frivolous cases and they might be arrested, humiliated and disgraced at the hands of respondents which certainly is infringement of their fundamental right as guaranteed under the Constitution ; that the petitioner No.2 has also instructed the undersigned over phone from his mobile No. 00 44 740041 to move the bail application /constitution petition on his behalf as he apprehends that the moment he will land at Karachi he will be arrested and as such precedent is also in existence where petitioner Hassan Suhail was admitted on protective bail by this Court in his absence on the application filed by his advocate reported in 2006 YLR 3116 Karachi.

3. It is further revealed that by order dated 21.8.2015 instant petition to the extent of petitioner No.2 converted into protective bail and he was granted protective bail for a period of fifteen days. Thereafter on 27.8.2015 a fresh application was moved for suspension of red warrants during stipulated period of protective bail, on that day this Court while deciding such application observed as under:

“In view of the above submissions made by learned Counsel for the petitioners and grounds mentioned in the application under Section 151, C.P.C, it is ordered that the order dated 21.8.2015 passed in favour of petitioner No.2 shall remain in the field upto 05.9.2015 with addition that the operation of the red warrants, if any, issued against the petitioner No.2 shall also remain suspended upto 05.9.2015.”

4. Learned counsel for the petitioners inter alia contends that there is apprehension that petitioner No.1 would be implicated in false cases due to his association with petitioner No.2, albeit he is business partner in “Omni Group” but he has not committed any crime, hence respondents may be restrained from any coercive action. On query, learned counsel for the petitioners failed to place any record showing any action taken by respondents against the petitioners No.1 & 2.

5. Perusal of record reflects that petitioner No.2 was granted protective bail, candidly such protective bail was not granted in any crime as at no times the petitioners had placed any FIR, wherein the bail was being sought. It was general order whereby the petitioner was allowed fifteen days protective bail thereby red warrants were suspended. It is worth to mention here that the petitioner No.1 failed to place air ticket of petitioner No.2 about his arrival from England to Pakistan, even he failed to place any FIR, Call up notice which could have shown that petitioner No.1 or 2 are required by respondents. Besides, it is pleaded that petitioner No.2 authorized petitioner No.1 for moving protective bail. Still the petitioner No.2 is seeking extension of protective bail which was granted in general terms (extended upto 05.9.2015.)

6. The plea of grant of bail or protective bail in constitutional jurisdiction, requires to be attended carefully within parameters of the Article-199 of the Constitution. In that regard, it is pertinent to mention that in criminal administration of justice the attendance of the accused cannot be substituted through attorney though Section 205, Cr.P.C provides mechanism whereby a Magistrate may dispense with personal attendance of the accused but this in our view cannot be taken to expand the jurisdiction of the Court to grant bail which, per Section 497 of the Code is subject to arrest, detention, appearance, or his bringing before a Court, as is evident from language wherein the Section 497 of the Code has been couched:

‘When any person accused of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought-before a Court’

Thus, before seeking a bail, there must have been arrest, detention, appearance (for pre-arrest) or his bringing before a Court. Since, there can be no denial to the well established principle of ‘interpretation’ that subsequent provisions are always explanatory to former one(s), thus, to make above legal position a referral to Section 498-A of the Code, being relevant, is made hereunder:-

498-A. No bail to be granted to a person not in custody, in Court or against whom no case is registered, etc.: Nothing in Section 497, or Section 498 shall be deemed to require or authorise a Court to release on bail, or to direct to be admitted to bail, any person who is not in custody or is not present in Court or against whom no case stands registered for the time being and an order for the release of a person on bail, or a direction that a person be admitted to bail, shall be effective only in respect of the case that so stands registered against him and is specified in the order or direction.

7. The above provision restricts the authority of the Court that provision of Section 497 and 498 of the Code would not require or authorize a Court to release or direct to be admitted to bail if :

i) person, seeking bail, is not in custody or is not present in Court;

ii) against whom no case stands registered;

Thus, for purpose of pre-arrest or post arrest bail the above two conditions must co-exists. However, in extra-ordinary situation, in matter of pre-arrest bail the condition-I (as referred above) might be relaxed only for certain period or to enable the accused to approach proper Court of law but the condition-II (as referred above) cannot be relaxed even in pre-arrest bail because the provision of Section 498-A of the Code has limited ‘effectiveness’ of an order, passed under Section 497 or 498 Cr.PC to :

‘shall be effective only in respect of the case that so stands registered against him and is specified in the order or direction.’

The constitutional jurisdiction is available to all citizens in the matters of infringement of fundamental rights as it is the duty of the Court to protect Fundamental Rights, guaranteed in the Constitution and Article 199 of the Constitution empowers this Court to issue any appropriate directions for the enforcement of Fundamental Rights, conferred by the Constitution in its Chapter-I of Part-II but to invoke the ‘constitutional jurisdiction’ of this Court one is required to first qualify the test of being ‘aggrieved person’ (if matter is not one of public interest litigation) and then to show that his / her case falls in any of the categories, so defined by the Article 199 and that there is no other alternate legal remedy else the petition shall not be competent.

8. In view of above legal position couple with reference to provisions of Sections 497 to 498-A of the Code, we feel ourselves quite safe to hold bail be not granted in matter where condition-i and ii (name of accused in a case and his appearance) are not co-existing, or in matter of ‘protective bail’ the relaxation of condition (appearance ) may be relaxed but it shall require the applicant to establish extra-ordinary circumstances, justifying non-appearance despite firm intention of applicant to surrender. The above discussion allows us further to say that relief of ‘bail’ be not granted normally in constitutional jurisdiction as it would amount to stepping over the jurisdiction, created by provisions of Section 497 to 498-A of the Code. We are also strengthened in our such view with the case law, relied upon by the learned counsel for the petitioners, as it also shows that it was an application for bail not ‘constitution petition’ and accused in that matter had sought bail in a specific crime (FIR), hence the reference of said case law, in no way, helps the petitioners to insist for a license against all ‘Law Enforcing Agencies’ depriving them all from a lawful jurisdiction / authority i.e ‘to inquire, investigate and arrest an accused’ which order otherwise shall have no validity per restriction of Section 498-A of the Code, as it does not specify the case wherein bail is being ordered / granted. Here, it is worth to add that an order for grant of ‘protective bail’ can , in no way, equate the term ‘release’ or ‘direct to be admitted to pre-arrest bail’ because the object of ‘protective bail’ is nothing more than that an order enabling the accused to approach the proper court within a ’specific period’. An order of protective bail does not require a formal order of termination to follow but comes to an end on moment the accused succeeds in approaching proper court or the period, specified in order, comes to an end.

9. The record shows that petitioners had worded their grievance in the petition while insisting ‘coercive action’ on part of the respondents (Law Enforcing Agencies) hence, at this juncture, it is necessary to make it clear that though the term ‘coercive’ appears to be having negative impression yet it is not always so because a lawful action / order for its enforcement may require coercive measures. The term ‘Coerce’ , per Black’s Law Dictionary Ninth Edition, defined as ‘To compel by force or threat’ while the term ‘COERCION’ is defined as: ‘Compulsion by physical force or threat of physical force’. Following the plain meaning, we can safely say that an act even got done by physical force or threat of physical force cannot, at all times, be declared ‘illegal’ because under certain circumstances and situations the law itself permits use of physical force or threat thereof. One can competently use physical force to save a person attempting to commit suicide, if circumstances/situations so demand. A reference to Chapter IV of the Pakistan Penal Code, 1860, titled as ‘General Exceptions’ would be sufficient to make view clear. Further, a reference to Chapter V of the Criminal Procedure Code, which, even authorizes breaking open any outer or inner door or window of any house or place and that of Chapter-VI of the Criminal Procedure Code, permitting compulsion for appearance of witnesses even through course of arrest and detention, would also help in stamping said view. These actions though prima facie appear to be coercive but cannot be said to be illegal because the definition of ‘legal act’, per Black’s Law Dictionary Ninth Edition is:

‘Any act not condemned as illegal. 2. An action or undertaking that creates a legally recognized obligation; an act that binds a person in some way.’

We can safely conclude that to avoid a legal action, the plea of coercive action shall not be available. A reference to the case of ‘Ghulam Farid v. State’ (2009 SCMR 929) shall make the point further clear that wherein honourable Supreme Court of Pakistan held as under :-

“19. When an accused….Anyone who either sees the person committing such an offence or finds him running away immediately thereafter would be entitled to arrest the said persons under the mandate of section 59 of the Cr.P.C. If such a person causes hurt or death with a view to resist such apprehension, he cannot plead to have acted in self defence. To lay down otherwise would not only give license to criminals but would also discourage public spirit to act in aid of law in apprehending the accused which spirit even otherwise, we may add with regret is on decline. The right of self defence cannot justifiably be claimed by such an offender.’

10. If plea of ‘coercive action’ is considered in above discussion, we find ourselves unable to incline the relief of issuing a license to the petitioners whereby restraining all Law Enforcing Agencies from a legal and authorized act i.e to arrest an ‘accused of cognizable offence’. It is pertinent to mention that Authorities/Enforcement Agencies are legally permitted and authorized to take coercive action even against the delinquent persons but within four corners of law and law alone. The position, being so, gives rise to a proposition that:

‘whether such a constitutional petition can sustain?

To properly respond the above proposition, it would be material to refer the Article 9 of the Constitution which reads as:

‘Article-9. Security of Person.—No person shall be deprived of life, or liberty, save in accordance with law.’

The deliberate use of the phrase ‘save in accordance with law’ is sufficient to indicate that though the life and liberty of a person is undeniably to be protected but when the law demands the same then this would be no help for a convict to avoid ‘death penalty’ or for an accused of cognizable offence to avoid ‘arrest’.

11. We have sailed through the Article 199 of the Constitution and the instant petition appears to have filed as a ‘writ of mandamus’. This writ is issued for government official where officials are not following the laws. Simply it means an order ‘to do an act which a person is bound by law to do’. Since, as already discussed above, the Law Enforcing Agencies are legally authorized and permitted to cause the arrest of a person, accused of cognizable offence, hence a person legally cannot seek an exception to the application of the law even by resorting to Article 199 of the Constitution. One should always keep in mind that every single individual is equal in the eye of law and guarantee to fundamental rights is available to all persons hence mere status of an individual alone shall not earn him an exception unless the law itself does so. A Law Enforcing Agency does have power, jurisdiction and authority to inquire, investigate an allegation / charge of cognizable offence which course does include the authority to arrest the accused or even a suspect of committing cognizable offence (Section 54 of the Code). These all actions are permissible. Thus, we without any hesitation say that a writ of mandamus even cannot be issued for a relief which could otherwise amounts to ‘restrain a person from doing a lawful and permitted legal act’ as such relief does not fall .

12. It is also worth to add here that the protective bail order was extended with:

‘…..with addition that the operation of the red warrants, if any, issued against the petitioner No.2 shall also remain suspended upto 05.9.2015.

Thus, it appears from the record that not only the petitioner no.2 enjoyed protection of protective bail but also enjoyed suspension of the red warrants but at the same time it is also a matter of record that petitioner though obtained such order, having furnished requisite surety bonds, but neither traveled to Pakistan nor placed any proof for such traveling to Pakistan. Here, it is material to mention that it is not ‘red warrant’ but it is ‘red notice’. INTERPOL Notices are International requests for cooperation or alerts allowing Police in member countries to share critical crime-related information. Notices are published by INTERPOL’s General Secretariat (IPSG) at the request of National Central Bureaus (NCBs) and authorized entities. In the case of Red Notices, the persons concerned are wanted by national jurisdictions for prosecution or to serve a sentence based on an arrest warrant or court decision. INTERPOL’s role is to assist the national police forces in identifying and locating these persons with a view to their arrest and extradition or similar lawful action. Since it is a matter of record that the petitioner No.2, got the operation of ‘red notice’ suspended yet did not land at the lands of Pakistan for what purpose it was so insisted. Not only this, but till date he (petitioner No.2) did not place on record any material which could justify that there were compelling circumstances which prevented him to land despite suspension of red notice and an order, shielding him from being arrested. Thus, it appears that the petitioner No.2 did enjoy freedom of movement and traveling without letting his location known to respondents (requesting country for issuance of red notice) and even not landed at the lands of Pakistan to face the charges on which ground the protection was provided to him. This seems that the petitioner No.2 enjoyed such exceptions by making the Court a ‘tool’ which attitude cannot be achieved. This results in making us of the view that he breached the bail bonds, for which purpose it was executed hence the same is forfeited with a direction to recover the same.

13. However, while parting, it is worth to add here that since the Article 10-A of the Constitution does insist for ‘fair trial’ which object cannot be achieved without providing the accused an opportunity to face the charge, particularly where the accused himself volunteers to do so. Thus, if an accused of cognizable offence shows his intention to face his trial and resorts to constitutional jurisdiction for purpose of enabling him to land at Pakistan to approach proper Courts then he may resort for such purpose because the purpose of ‘red notice’ is to seek the location of a wanted person and his/her detention, arrest or restriction of movement for the purpose of extradition, surrender, or similar lawful action. This by itself is not meant to declare the ‘innocence or guilt’ of the person against whom a ‘red notice’ is issued nor it shall in any way ‘prejudice’ the rights of ‘fair trial’ of such a persons but only if:

i) he submits tickets, showing exact date of his traveling to a particular Airport of Pakistan to prove his intention to face the charge (s);;

ii) discloses his location at time of moving of such petition with undertaking to prior information about his movement to INTERPOLE, if his such request is allowed;

iii) undertakes to land directly to lands of Pakistan;

iv) undertakes to make immediate approach to proper courts for bail e.t.c; with an undertaking that he / she shall not leave the local territorial limit without intimating the LEAs (Law Enforcing Agencies);

v) shall mention the Crime Number and of offence or the name of Court where case is pending, if he / she knows;

vi) unconditional forfeiture and payment of amount of bond for such relief in case of failure to land on land of Pakistan or to change his location without prior information to quarter concern;

The said criteria would prima facie establish the intention of such a person to face the charges and in other words may serve the very purpose of red notice touching the object of ‘fair trial’ , as enshrined in the Constitution through induction of Article 10-A. Let us make it clear again that this however shall not term as ‘bail’ but purpose thereof shall remain confined to enable the person to land at lands of Pakistan and to immediate approach to proper Court(s) for bail.

Judge