"Every civilized system of government requires that the State should make available to all its citizens a means for the just and peaceful settlement of disputes between them as to their respective legal rights. The means provided are courts of justice to which every citizen has a constitutional right to access in the role of plaintiff to obtain the remedy to which he claims to be entitled in consequence of an alleged breach of his legal or equitable rights by some other citizen, the defendant." - Lord Diplock[1] TARIQ SALEEM SHEIKH, J. The Petitioner, Malik Azmat Ullah, is one of the nominated accused in case FIR No. 350/2016 dated 17.10.2016 registered at Police Station Satrah; District Sialkot, for offences under sections 302, 148, 149, P.P.C. The Petitioner left Pakistan shortly after registration of the said FIR and is living abroad since then. During his absence from the country his arrest warrants were issued and later he was declared a proclaimed offender, his name was entered in the Exit. Control List (ECL) and, on the recommendation of Respondents Nos. 2 to 5, the INTERPOL issued his Red Warrant. Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the Petitioner seeks protective/transitory bail so that he can approach the competent court and surrender before it.
2. The learned counsel for the Petitioner contended that the Petitioner was innocent and Respondent No.10 had implicated him in case FIR No. 350/2016 with ulterior motives. He further contended that he was declared a proclaimed offender without due process of law and the subsequent placement of his name in the ECL and issuance of the Red Warrant were uncalled for.
The learned counsel submitted that the Petitioner wanted to come back to Pakistan and face the trial but apprehended that he would be arrested at the airport. He argued that it was his fundamental right under Articles 9 (right to life and liberty), 10A (right to fair trial) and 14 (right to dignity) of the Constitution to approach the court of competent jurisdiction.
3. The learned Assistant Attorney General vehemently opposed this petition and contended that the Petitioner was a fugitive from law and not entitled to the relief prayed for.
4. The learned Additional Advocate General contended that the Petitioner had committed the alleged offence and fled from the country to avoid justice. He was declared a proclaimed offender after fulfilling all the legal requirements. Since he had not come to the Court with clean hands, this petition was not maintainable.
Discussion
5. 'Access to justice' is a basic human right and a means to protect other universally recognized human rights.[2] According to the United States Institute of Peace, "access to justice is more than improving an individual's access to the courts or guaranteeing legal representation. Access to justice is defined as the ability of the people to seek and obtain a remedy through formal or informal institutions of justice for grievances in compliance with human rights standards. There is no access to justice where citizens (especially marginalized groups) fear the system, see it as alien, and do not access it; where the justice system is financially inaccessible; where individuals have no lawyers; where they do not have information or knowledge of rights; or where there is a weak justice system. Access to justice involves normative legal protection, legal awareness, legal aid and counsel, adjudication, enforcement, and civil society oversight. Access to justice supports sustainable peace by affording the population a more attractive alternative to violence in resolving personal and political disputes."[3]
6. The Universal Declaration of Human Rights (1948) has recognized 'access to justice as a basic human right. The relevant Articles are 'reproduced below: Article 6: Everyone has the right to recognition everywhere as a person before the law.
Article 7: All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
Article 8: Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
Article 10: Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
The International Covenant on Civil and Political Rights, the European Convention and other regional conventions also contain provisions recognizing the aforementioned right and reaffirming its importance.
7. According to Inter-American Commission on Human Rights, "international human rights law has developed standards on the right of access to judicial and other remedies that serve as suitable and effective grievance mechanisms against violations of human rights. In that sense, States not only have a negative obligation not to obstruct access to those remedies but, in particular, a positive duty to organize their institutional apparatus so that all individuals can access those remedies. To that end, States are required to remove any regulatory, social, or economic obstacles that prevent or hinder the possibility of access to justice."[4]
8. In England, it is argued, the right of access to justice has roots in common law but Magna Carta (1215) formally committed to it. In R v. Secretary of State for the Home Department ex parte Leech, [19941 QB 198, Steyn LJ held that "it is a principle of our law that every citizen has a right of unimpeded access to a court." In R v. Lord Chancellor ex parte Wiltham [1998] QB 575, Laws J. held that the common law gives special protection to the citizen's right of access to the courts and could be likened to a constitutional right. Hence, it cannot be limited without an Act of the Parliament.
9. Pakistan's Constitution of 1973 does not specifically mention the term 'access to justice' but it has always been considered as one of the basic constitutional values and a part of various enumerated fundamental rights. It is an integral part of rule of law.[5] In Miss Benazir Bhutto v.
Federation of Pakistan and another (PLD 1988 SC 416) Muhammad Haleem, CJ. wrote: "... 'access to justice to all ... is not only an internationally recognized human right but has also assumed constitutional importance as it provides a broad based remedy against the violation of human rights and also serves to promote socio-economic justice which is pivotal in advancing the national hopes and aspirations of the people permeating the Constitution and the basic values incorporated therein, one of which is social solidarity, i.e. national integration and social cohesion by creating an egalitarian society through a new legal order."[6]
10. In Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others (PLD 1993 SC 341) the Hon'ble Supreme Court of Pakistan approvingly cited the following excerpt from Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another (PLD 1989 Karachi 404) decided by 7-Member Bench of the Sindh High Court: "The right of 'access to justice to all' is a well-recognized inviolable right enshrined in Article 9 of the Constitution. This right is equally found in the doctrine of 'due process of law'. The right of access to justice includes the right to be treated according to law, the right to have a fair and proper trial and a right to have an impartial court or tribunal. This conclusion finds support from the observation of Willoughby in Constitution of the United States, Second Edition, Vol. II at page 1709 where the term 'due process of law has been summarzied as follows:
(1) He shall have due notice of proceedings which affect his rights.
(2) He shall be given reasonable opportunity to defend.
(3) That the tribunal or court before which his rights are adjudicated is so constituted as to give reasonable assurance of his honesty and impartiality, and
(4) That it is a court of competent jurisdiction."
11. In Aftab Shahban Mirani v. President of Pakistan and others (1998 SCMR 1863) the apex Court lance again cited the above passage and added: "The above extract indicates what are the basic requirements of the doctrine of due process of law' which is enshrined inter alia in Article 4 of our Constitution. It is intrinsically linked with the right to have access to justice which this Court has held inter alia in the above report as a fundamental right. This right inter alia includes the right to have a fair and proper trial and a right to have an impartial Court or Tribunal. A person cannot be said to have been given a fair and proper trial unless he is provided a reasonable opportunity to defend the allegation made against him."
12. In Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Ministry of Law and others (PLD 2013 SC 501) the apex Court held: "It is to be noted that the right of 'access to justice to all' is a well recognized inviolable right enshrined in Article 9 of the Constitution and is equally found in the doctrine of 'due process of law'.
It includes the right to be treated according to law, the right to have a fair and proper trial and a right to have an impartial court or tribunal."[7]
13. Life and personal liberty are the most prized possessions of an individual and life is not worth living without honour and dignity.[8] Arrest and detention have a great impact on one's life so elaborate principles have developed over time to protect the people from the excesses of public authorities. This has also given rise to the concept of bail. According to American Jurisprudence, Second Edition (2009), Volume 8A, page 298, it is a device to "ensure society's interest in having an accused answer to a criminal prosecution, without unduly restricting the accused's liberty and ignoring the right to be presumed innocent." At page 300 the said book explains that "the purpose of bail is to ensure the presence or secure the attendance of the accused at trial, that is, to guarantee the appearance of the accused before the court at such times as the court may direct.
Furthermore, it has been said that the ultimate purpose of bail is to deter the flight of the defendant, while allowing the defendant to be released pending trial or approval. Another object is to allow an accused the opportunity to prepare a defense, while also serving to ensure the accused's presence at trial, while preserving the presumption of innocence. The purpose of a pretrial bond has been said to be to prevent punishment before conviction, and to secure the appearance of the person in court for trial to answer the charges and respond to the judgment."[9]
14. The fundamental rights guaranteed by Pakistan's Constitution of 1973 are not mere enunciations of cherished principles. They have great sanctity and can be syncopated only in accordance with valid law.[10] Fundamental rights can neither be surrendered nor waived. In particular, no right which is based on public policy can be waived.[11] In Rustom Cavasjee Cooper v. Union of India (AIR 1970 SC 564), while considering various provisions of the Indian Constitution, the Supreme Court of India ruled that the fundamental rights granted by it are not water-tight compartments and added: "The enunciation of rights either expressly or by implication does not follow a uniform pattern. But one thread runs through them; they seek to protect the rights of the individual or groups of individuals against infringement of those rights within specific limits." This holds true of our Constitution.
15. The Code of Criminal Procedure, 1898 (Cr.P.C.), does not contain any provision for protective/transitory bail but the High Courts in our country have invoked section 561-A, Cr.P.C. and Article 199 of the Constitution to accommodate the accused to enable them to approach the concerned court for a remedy. The High Court does not touch the merits of the case while allowing such requests. Thus, protective bail has a limited purpose and is for a fixed period. It is not in the nature of anticipatory or pre-arrest bail granted under section 498, Cr.P.C. Importantly, when the accused appears before the concerned court it deals with him independently and protective bail does not entitle him to pre-arrest bail as of right. In Naseer Ahmed and another v. The State (2009 PCr.LJ 1430) a learned Single Judge of this Court held that the order of protective bail essentially restrains the police from arresting the accused for a certain period so technically it is not a bail.
16. The history of protective bail shows that the High Courts were initially hesitant in entertaining applications for it but with the passage of time they became more liberal. Lately, they have also allowed relief to the accused even in respect of an offence committed in a province other than over which they have jurisdiction.[12]
17. The concept of protective/transitory bail must be examined in the constitutional context of liberty, dignity, access to justice and fair trial elaborated above - and the right to be treated in accordance with law. Refusal to grant protective bail denies these rights to the accused person.
The courts are the guardians of the fundamental rights of the people and Article 199 of the Constitution empowers the High Courts to issue appropriate directions for their enforcement.
Therefore, when a person is outside Pakistan and wishes to surrender before the country's court(s) to face any criminal proceedings that may be pending against him, the High Court has ample powers to protect him from being arrested on his arrival and allow him transitory bail. Even from the practical point of view protective bail may be justified because without it the accused may choose not to surrender at all and remain a fugitive (or become one). In Javed Iqbal Mirza v.
National Accountability Bureau (2007 PCr.LJ 1230) the Sindh High Court granted relief to the accused who was in America and wanted to defend the reference before the Accountability Court.
In an unreported case the Hon'ble Supreme Court vide order dated 9.1.2020 passed in C.P. No. 1662/L of 2018 titled Muhammad Rafique Virk v. Secretary Interior, Government of Pakistan, Islamabad and others also admitted the accused living abroad to protective bail so that he could join the proceedings in Pakistan in a case registered under sections 302, 324, 109, 427, P.P.C. and section 7 of the Anti-Terrorism Act, 1997. Further reference may be made to Hasan Sohail v. The State (2006 YLR 3116); Muhammad Jamal v. Federation of Pakistan and 2 others (2012 YLR 167) and Mrs. Asma Alamgir v. Federation of Pakistan and others (2017 YLR 1626).
18. In the instant case, the Petitioner has not only expressed his intention to face trial in FIR No. 350/2016, ibid, but has submitted copies of his air tickets showing the precise dates when he would travel to Pakistan. On my query his learned counsel has stated that the Petitioner is ready to furnish appropriate surety to this Court that he would surrender before the competent court within the stipulated time.
19. The main thrust of the learned Law Officers opposition to this petition is that the Petitioner is a fugitive from justice. In Shahna Khan v. Aulia Khan and others (PLD 1984 SC 157) the Hon'ble Supreme Court held that a person who eludes law enforcement loses some of the normal rights provided by law. Some authorities hold that "unexplained noticeable" abscondence also disentitles a person to the concession of bail notwithstanding the merits of the case. However, in The State v. Malik Mukhtar Ahmad Awan (1991 SCMR 322) the apex Court observed that abscondence is a relevant factor in a plea for bail but it is not an absolute rule that a fugitive should under no circumstances be granted the concession. In my opinion, the issue raised by the Law Officers is not relevant for the purpose of protective bail because, as already noted, technically speaking, it is a time-bound restraint order and not a pre-arrest bail. It is a means to provide the accused an access to justice. In Mian Muhammad Shahbaz Sharif v. Federation of Pakistan through Secretary Ministry of Interior, Government of Pakistan, Islamabad and others (PLD 2004 SC 583) the apex Court held that even a proclaimed offender has a right to be tried according to law and this right cannot be taken away from him.
20. In view of the above, I have accepted this petition vide short order dated 8.10.2021 and granted the Petitioner protective/transitory bail for three days - 23rd to 25th October 2021 - to enable him to surrender before the competent court for seeking pre-arrest bail. He was required to furnish two sureties in the sum of Rs.1,000,000/- (Rupees one million) to the satisfaction of the learned trial court.
1. Bremer Vulkan Schiffbau (Ind Maschinenfabrik v. South India Shipping Corporation Ltd. [1981 AC 909 = 1981 (1) All ER 289]
2. Human Rights and Access to Justice, Available at: https://www.americanbar.org/ advocacy/rule of law/what-we-do/human-rights-access-to-justice/
3. Necessary Condition: Access to Justice, Available at: https://www.usip.org/guiding-principles- stablization-and-reconstruction-the-web-version/rule-of-law/access-justice
4. Access to justice as a guarantee of economic, social and cultural rights, Available at: cidh.oas.org/countryrep/AccesoDESCO7eng/Accesodesci-ii.eng.htm
5. Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahab-ul-Khairi and others (PLD 1996 SC 324); Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others (PLD 2001 SC 607); Watan Party and others v. Federation of Pakistan and others (PLD 2012 SC 292) and Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Ministry of Law and others (PLD 2013 SC 501).
6. These observations were approvingly cited in Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Ministry of Law and others (PLD 2013 SC 501).
7. These observations were reaffirmed in Justice Qazi Faez Isa and others v. The President of Pakistan and others (PLD 2021 SC 1 at p. 85).
8. Siddharam Satlingappa Mhetre v. State of Maharashtra and others (AIR 2011 SC 312) and Khawaja Salman Rafique and another v. National Accountability Bureau through Chairman and others (PLD 2020 SC 456).
9. Internal citations omitted.
10. Pakistan Muslim League (N) through Khawaja. Muhammad Asif, MNA and others v.
Federation of Pakistan through. Secretary Ministry of Interior and others (PLD 2007 SC 642).
11. ibid.
12. Ch. Allah Ditta v. The State (1989 PCr.LJ 2152); Malik Mukhtar Ahmad Awan v. The State (1990 PCr.LJ 617); Sabir Hussain and 3 others v. The State (1999 MLD 2208) and Sharjeel Main v.
Federation of Pakistan and others (2017 YLR 2423).