April 9th, 2021 

By Ahmad Saeed 


The Supreme Court held that protection against arbitrary arrest and detention is part of one’s right to liberty and fair trial, clarifying that the lack of incriminating material against an accused or non-existence of sufficient rationale including a valid purpose for making the arrest would constitute grounds for allowing a pre-arrest bail.

This was observed by a three member bench comprising of Justice Manzoor Ahmad Malik, Justice Syed Mansoor Ali Shah and Justice Amin-ud-Din Khan, on hearing a criminal petition seeking pre-arrest bail in a murder case. The petitioner was accused of hatching a conspiracy to kill a person, in order to avenge the murder of his (the petitioner) brother.

The verdict, authored by Justice Shah, grants pre-arrest bail to the petitioner on the grounds that despite all the evidence submitted , the prosecution failed to prove his presence at the occurrence.

The apex court added that the reluctance of the courts in terming pre-arrest bail as an extraordinary relief and their insistence only on showing mala fide on part of the complainant, or the police, for granting pre-arrest bail does not appear to be correct.

“Despite non-availability of the incriminating material against the accused, his (an accused) implication by the complainant and the insistence of the police to arrest him are the circumstances which by themselves indicate the mala fide on the part of the complainant and the police, and the accused need not lead any other evidence to prove mala fide on their part,” the order reads.

Nomination in FIR doesn’t warrant an arrest

The bench also held that although under section 54 of the Code of Criminal Procedure (Cr.P.C.), the police have the power to arrest any accused, but it should also have some sufficient grounds for exercise of that power.

“A police officer that makes arrest of a person must be able to justify the exercise of that power in making the arrest, apart from his having the power to do so. He cannot make arrest of a person, only because he has the power to do so.”

“Ordinarily, no person is to be arrested straightaway only because he has been nominated as an accused person in an FIR or in any other version of the incident brought to the notice of the investigating officer by any person until the investigating officer feels satisfied that sufficient justification exists for his arrest”, the judgment states.

The order also directed that the investigating officers should not automatically arrest the accused, rather they must apply their mind on facts and circumstances of the case and consciously consider the question: “what purpose will be served and what object will be achieved by arrest of the accused person?”

As the Opposition accuses the government and NAB of political witch-hunting and arresting them on flimsy grounds, legal experts believe that this judgment will have long-term impact in guarding people from arbitrary arrests.

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

Eminent lawyers Abid Saqi and Kamran Murtaza expressed their concern on the judgment and argued that given the 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.