January 30th, 2021

By Hamid Riaz 


While hearing a petition filed by two Federal Investigation Agency (FIA) officers, a three-member bench of the Supreme Court (SC) re-asserted that those accused in criminal cases cannot be granted pre-arrest bail until and unless mala fide is “manifestly intriguing upon the intended arrest”.  

The petitioners (two FIA officers) were arrested in a case filed against them by the FIA’s own Anti-Corruption Circle (ACC) in Karachi. The two federal agents are accused of receiving a bribe of Rs24 million from one Sheikh Muhammad Munawar who defrauded the utility store corporation using fake ISO certifications.  

The judgment, authored by Justice Qazi Muhammad Amin Ahmed, declares that it is a well-established principle of the law that pre-arrest bail should never be awarded in instances  where granting bail has the potential to “subvert or undermine investigative procedure/process.”

In simpler terms, the court observed that the two accused have significant authority at their disposal to damage or disturb evidence required for this investigation. Hence the court declared their arrest necessary “in order to bring the statutory exercise to its logical end for effective and meaningful prosecution of the offense, through collection of information or evidence consequent upon arrest.”

Advocate Abid Saqi firmly asserts that given the current politico-legal environment whereby fake FIRs are being used as a political tool to systemically silence dissent, taking away people’s right to a pre-bail arrest is tantamount to “judicial exploitation”.

Though this is far from being the only judgment in Pakistan’s case law pertaining to pre-arrest bails, an issue that has especially become contentious considering the current politico-legal atmosphere, legal experts are looking at this judgment as tilting towards a “literalist” approach towards adjudication.  Considering the current environment, legal experts have expressed diverging views over this judgment.

Broader implications for civil liberties in the country

Senior advocate and former president of the Supreme Court Bar Association (SCBA), Kamran Murtaza expressed his concern over the judgment and stated that “Fake first information reports (FIRs) are a sad reality of our legal system and, on top of that, we have observed that many of these fake FIRs result in arrests. In such an environment, a pre-arrest or anticipatory bail is the only legal recourse available to citizens. This is why narrowing down the definition of anticipatory arrests can have negative implications for the civil rights situation in the country.”  

“In an already deteriorating space for civil liberties in the country, where politicians, activists, and journalists opposing the state and government are implicated in fake FIRs, pre-arrest bail becomes an important legal recourse for victims of false accusations,” he goes on to explain. 

Advocate Kamran also asserts that there are alternatives available to the courts, based on which they can prevent the suspect from leaving the country. “You can place someone on the Exit Control List (ECL) or you can confiscate their passport. In our society being arrested becomes a lifelong social stigma even if you are later released, and the courts should keep this social reality in mind.”  

However, he also clarifies that each case has its own merits and the courts have to keep in mind the context before penning down a judgment.

Abid Saqi, former Vice-chair (VC) of the Pakistan Bar Council (PBC) echoed Kamran Murtaza’s concerns regarding the judgment. “There is no exact clause in the CrPC pertaining to pre-arrest bails. So in the past courts have decided these matters on a case to case basis. But these recent judgments are attempts to squeeze the pre-arrest bail law so that the scope of the law becomes narrower and narrower,” explains Saqi.

“It is a sad reality of our time that the courts themselves are infringing upon the civil liberties they are supposed to protect. This judgment is a part of this broader trend. The courts should keep in mind that undue arrest and arrests with mal-intent are a big reality today, taking away the citizen’s only recourse is obviously detrimental to civil liberties in the country,” asserts Amjad Shah, former VC PBC.  

The judgment is justified by context and will not negatively impact the rights of citizens

“The legal principle that pre-arrest bail should be granted only when mal-intent is explicit has been around since the 1950s and there is nothing new about this. I do agree that there is an environment in the country whereby state and non-state actors try to silence journalists and other dissenters using fake or fabricated FIRs, and that is condemnable. But this is exactly what the judgment stipulates: you are eligible for a pre-arrest bail if the case against you is obviously fabricated,” explains Qamar Ramay, an advocate of the high court’s working with the Asma Jahangir Legal Aid cell.

“For instance, if a fake FIR is registered against a journalist for speaking the truth, that journalist has the complete freedom to go to the court before their arrest and prove that mal-intent is involved. I think there is space for these scenarios in this judgment,” he asserts. “Normally pre-arrest bail is awarded in cases where the court can sense that the accused can easily be granted bail even after the arrest, which is a balanced principle.”