CONFLICT BETWEEN FUNDAMENTAL RIGHTS AND LAW ON ARREST AND DETENTION
ABSTRACT:
The article is about the fundamental rights, especially the rights of liberty; safeguards as to arrest and detention; fair trial and due process; dignity and their apparent conflicts with the law on pre-trial/pending trial incarceration (physical and judicial remand of accused), and that of bail. The provisions of Chapter 1 (Fundamental Rights) of Part II of the Constitution as well as number of provisions of Code of Criminal Procedure, 1898 (Act No. V of 1898) regarding pre-trial/pending trial incarceration including bail have been discussed in this treatise and the conclusion of the whole discussion is that the law on pre-trial/pending trial detention and bail, as interpreted by the Courts is not in conformity with the personal rights guaranteed under the Constitution and the same needs to be revamped and brought in line with the fundamental rights of the citizens of Pakistan.
INTRODUCTION:
Although, the law requires a specific timeline for submission of police report (Challan) in the Court, however, meeting this timeline is not always possible and in some cases the investigation agencies take months and sometimes years to conclude the investigation and during this whole period the accused remains under detention, unless released on bail. In case a person is accused of cognizable and non-bailable offence which does not fall within prohibitory clause, then usually he is granted bail after undergoing physical remand (although in some cases he has to remain incarcerated for a considerable time), but if he is accused of an offence which falls within prohibitory clause then he can only be released if his case fits in within the ambit of “further inquiry” or on ground of statutory delay in conclusion of trial. This article has been written in this background, with the purpose to resolve the apparent conflict between the approach of the Courts and the fundamental rights guaranteed under the Constitution.
The theme of this write-up is to analyse certain provisions of Code of Criminal Procedure, 1898 ("CrPC"), to verify whether the Courts by allowing pre-trial/pending trial incarceration of an accused are cognizant of the fundamental rights of accused as guaranteed under the Constitution?
The concept of bailable and non-bailable offences and the purpose behind this classification; duties of Magistrate granting or refusing physical remand; provisions of CrPC which are similar to the constitutional provisions of Chapter 1 of Part II of the Constitution on the issue under consideration, are also subject of discussion.
A part of this article is about case law which has been rendered by the Courts during the pre-constitutional era and even in the constitutional era without taking into consideration the constitutional provisions.
HISTORY:
The Indian subcontinent was a British Colony and the Parliament of the United Kingdom was the ultimate lawgiver for the whole British India. There was no concept of constitutionally guaranteed fundamental rights either in the United Kingdom (which is the case even today) or in its colonies, as there was no written constitution the fundamental rights of citizens, and the concept of parliamentary supremacy was in full swing. In this scenario the British Parliament promulgated CrPC for the Indian subcontinent which is still the law of the land in Pakistan.
After the independence, Pakistan adopted its first Constitution in 1956 wherein for the first time the fundamental rights were recognised for the citizens. In the second Constitution which was promulgated in 1962, the same rights were guaranteed to the citizens and now, in the present Constitution which was promulgated in 1973, Chapter 1 of Part II has provided the list of fundamental rights available to the people of Pakistan.
Despite the fact that Pakistan adopted three Constitutions wherein certain rights were guaranteed to persons facing criminal prosecution, but the provisions of CrPC, which is a pre-constitutional law was not taken into consideration by the legislature in order to verify that whether the provisions of CrPC, especially provisions with regard to pre-trial/pending trial incarceration and bail, are complementary to the constitutional guarantees or the same are in conflict with the same?
POWER OF ARREST:
For the purpose of the present discourse we need to see that in which cases the law has authorised law enforcement agencies to arrest a person without warrant issued by a Court or a Magistrate and for this purpose we need to go through the relevant provisions of CrPC.
As per Section 4(f) CrPC the police has the authority to arrest a person who is accused of commission of cognizable offence without warrant while Section 4(b) read with Second Schedule of CrPC prescribes two types of offences viz. bailable and non-bailable.
It is usually considered that if a person is accused of a cognizable but bailable offence then he may not be arrested by the police, if he is ready to submit bail bond as per the satisfaction of the Court or the Officer In-charge of Police Station, whereas, in case of cognizable but non bailable offence it is believed that police has a right to arrest the accused unless he is granted pre-arrest bail by the Court.
BAILABLE & NON BAILABLE OFFENCES:
Why have some offences been declared bailable while others are non-bailable? Is there any justification for classifying the offences in this category apart from one mentioned in the preceding para?
In my view, there is at least one additional and more important reason for this classification viz. the legislature if consider an offence bailable then it is presumed that investigation of that offence may be concluded without taking physical custody of accused whereas, in case of non-bailable offence, it is presumed that while investigating such an offence the police "MAY" arrest an accused for proper investigation of the case.
The word "MAY" is highlighted in order to put emphasis on the settled preposition of law that the investigating officer is not bound to arrest a person who has been accused of committing cognizable and non-bailable offence if he considers (rightly or wrongly) that he may conclude the investigation without arresting the accused.
CODE OF CRIMINAL PROCEDURE, 1898, A PRE-CONSITUTIONAL LEGISLATION:
In order to properly appreciate the scheme and interpret the provisions of CrPC we should not lose sight of an important fact that CrPC is a pre-constitutional legislation and since its very inception, the law on pre-trial/pending trial incarceration, including bail and remand (physical and judicial) is being developed keeping in view its provisions and pre-constitutional common law and customs. Even after coming into force of the Constitution the pre-constitutional law developed by our Courts is still reigning the judicial landscape. Almost all the leading case law on the subject of bail and remand which are still being followed by our Courts have been given either by the Courts in the era when there were no constitutionally guaranteed fundamental rights or, even after coming into force of any Constitution (all three Constitutions), without taking into consideration the fundamental rights.
ARREST AND PRODUCTION OF ACCUSED BEFORE MAGISTRATE FOR REMAND:
After the arrest of an accused by a police officer he is produced before the nearest Magistrate within twenty-four hours of arrest. If we go through the Courts' records we would find that accused are produced before the Magistrates under Sections 60 and 61 of the CrPC and the Magistrates extend the period of detention or refuse to extend the same while exercising powers under Section 167 of CrPC. In case of refusal of further detention, the Magistrates send the accused to judicial lockup till the time of his release on bail or conclusion of trial.
There is another and more important provision of production of an accused before a Magistrate within twenty-hour hours of arrest i.e. Article 10(2) of the Constitution, but I am unable to find even a single order by any Magistrate who has passed an order of remand after seeking guidance from this Article. The provision of Article 10(2) of the Constitution is reproduced here under for ready reference:
"(2) Every person who is arrested and detained in custody shall be produced before a Magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the nearest Magistrate, and no such person shall be detained in custody beyond the said period without the authority of a Magistrate."
The above provision guarantees a fundamental right (not only legal right) regarding safeguards as to arrest and detention which unequivocally declares that detention in police custody beyond twenty-four hours shall not be without the authority of a Magistrate, which means that the Magistrate has the constitutional authority to extend the detention period or refuse to extend the same.
Here, now the question arises what are the duties of the Magistrate in order to safeguard the fundamental rights of an arrested accused. Is it his only duty to see whether further extension of detention should be ordered or not or whether he is bound to do something more to protect the rights of the accused?
DUTIES OF MAGISTRATE IN ORDER TO SAFEGUARD FUNDAMENTAL RIGHTS OF THE ACCUSED:
It is astonishing to note that superior Courts has considered the function of granting or refusing physical remand by Magistrates as an executive exercise of authority, whereas, as it has already been stated above, they perform constitutional function of safeguarding fundamental rights of accused and their duties under Article 10(2) ibid require them to pass a judicious, well reasoned and speaking order which cannot be termed as executive exercise. I have hardly found any order granting physical remand of the accused which may be termed as judicial order as the Magistrates usually pass stereotype orders without taking into consideration the facts of the case, while, in my view they are required to do the following acts in order to safeguard the fundamental rights of the accused:
There may be a situation when Magistrate comes to a conclusion that there is a legal justification of arrest of an accused and he also considers it appropriate that further custody of the accused is necessary for proper investigation of the case, then, after the conclusion of investigation or when the custody of accused is not further required, what would be the duties of Magistrate?
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Before searching for the answer it should be kept in our mind that the right of liberty is also a fundamental right guaranteed under Article 9 of the Constitution which cannot be taken away lightly and the answer to the above question lies therein.
I have stated in the earlier part of this essay that the purpose of declaring any offence non-bailable, inter alia, is that police may arrest an accused where his arrest would be necessary for proper investigation of the case, otherwise the process of investigation may be hampered, hence, the purpose of arrest is not to penalise the accused but to conduct a proper investigation and to collect the evidence which may be useful for bringing guilt home to the accused. So, when the Magistrate concludes that further custody of an accused is not necessary, then he must pass a judicious and well reasoned order ascertaining whether, as required under Article 9 ibid, is there any "legal justification" for sending him to judicial lockup? If he finds such a justification then he should send him to judicial custody, however, if he finds no such justification then he should release the accused forthwith.
Why should the accused be released forthwith if there is no legal justification for his continuous incarceration when there is no such express provision in law? The answer is simple; he is as innocent as any other person, unless convicted by a court of competent jurisdiction. Neither any accusation of offence nor anything discovered during the investigation takes away the presumption of innocence of such an accused, hence, he is entitled to all benefits which are available to any other person. Even otherwise, the wording of Article 10(2) of the Constitution highlighted above gives authority to the Magistrate to pass an order of release as incarceration beyond twenty-four hours requires authorisation from the Magistrate which means that if the Magistrate has the authority to authorise, then he has the authority to refuse to authorise the detention which would result in release of accused.
LEGAL JUSTIFICATION:
In many jurisdictions law provides a complete mechanism for pre-trial/pending trial hearing in which the Court passes an order, either to release the accused pending trial or to keep him under detention. For instance United States Code, Title 18, Section 3142 (18 U.S. Code § 3142 - Release or detention of a defendant pending trial | U.S. Code | US Law | LII / Legal Information Institute (cornell.edu) has prescribed a procedure of pre-trial/pending trial hearing in which clear guidelines have been provided for the Courts to pass appropriate orders about release or detention of accused during trial for the reasons to be recorded as required. As there is no such law available in Pakistan, therefore, the phrase "legal justification" in the present context may only be defined by judicial lawmaking process and I earnestly hope that our judiciary would take up this task and would lay down the principles on which the Magistrates may exercise their constitutional jurisdiction under Article 10(2) ibid. It is also expected that these guidelines would be given keeping in view not only Articles 9 and 10 but also Articles 10-A and 14 of the Constitution.
FACTORS RELEVANT FOR PRE-TRIAL/PENDING TRIAL DETENTION:
In my view, the paramount factor for determining the legal justification for continuous pre-trial/pending trial imprisonment is when "Public Interest" outweighs the personal rights of liberty of an individual. The determination of public interest vis a vis private right is a complex process and no straight jacket formula may be devised in this regard. Broad guidelines may be provided in this regard, however, keeping in view the presumption of innocence in favour of accused, the burden to establish that accused should not to be released in public interest must be on the prosecution.
MAGISTRATE PERFORMING CONSTITUTIONAL FUNCTION:
Here I want to reiterate that a Magistrate while dealing with the pre-trial detention issues under Article 10(2) of the Constitution performs constitutional duty and any sub-constitutional law which places restrictions on his powers is liable to be ignored being void and of no legal effect. This issue has gained paramount importance due to passing of certain laws which have restricted the powers of Magistrates/Courts regarding release of accused on bail.
For instance, Section 9(b) of the National Accountability Ordinance, 1999 (before coming into force of National Accountability (Amendment) Act, 2022) debarred the Courts to grant bail to any person who has been arrested by NAB while Section 24(d) gives the power to NAB to seek physical remand of the accused for ninety days. Though a number of amendments have been introduced by the Parliament through National Accountability (Amendment) Act, 2022 and the Court has been allowed to grant bail and the period of physical custody has been reduced from ninety days to fourteen days, however, for our present discussion the un-amended provisions which remained operative for about twenty-two years are relevant.
Since the enactment of National Accountability Ordinance, 1999 (the “Ordinance”) till the passing of National Accountability (Amendment) Act, 2022, the Accountability Courts had no power to release an accused on bail and, keeping in view the wording of the Section 24(d) of the Ordinance the Courts had no power to discharge any accused at the pre-trial hearing and the only function of Courts was either to grant physical remand to NAB authorities or to send the accused to judicial lockup and the accused has to invoke the constitutional jurisdiction of High Court for his release.
The provisions of Section 9(b) and 24(d) of the Ordinance and the practice of the Courts while implementing those provisions was the classic example of the violation Article 10(2) of the Constitution and the reason for this violation is that the Courts while dealing with the arrest of an accused did not perform their constitutional duties as required under Article 10(2) ibid and restricted itself to the sub-constitutional law i.e. the Ordinance. As I have explained above, the Magistrate is duty bound under the Constitution to satisfy himself that whether the authority who has arrested the accused had legal justification to arrest, or if there was a legal justification, then after conclusion of investigation, is there any legal justification to continuous incarceration of accused pending trial and if he reaches to a conclusion that either the arrest was unjustified or continuous incarceration would be in violation of constitutional rights of the accused, then he would be bound to release the accused either conditionally (i.e. submission of bail bond) or unconditionally (in Khan Asfandyar Wali and others Vs. Federation of Pakistan (PLD 2001 SC 601), though Section 24(4) came under discussion but the aspect of the power of Magistrate as discussed in this article has not been discussed). So all such laws which place restrictions on the powers of Magistrate/Court at pre-trial detention hearing are void and of no legal effect and the Magistrates/Courts are bound to follow the Constitution and not the conflicting sub-constitutional legislation (Marbury Vs. Madison reported as 5 U.S. (Cranch) 137 (1803).
BAIL:
Now I want to discuss the issue of bail. The law of bail has also been developed without taking into consideration the fundamental rights guaranteed under Article 9, 10, 10-A and 14 of the Constitution. Our Courts are still following the law laid down by the superior judiciary in the pre-constitutional era.
PRE-ARREST BAIL:
The basic judgment which has laid down the principles of grant or refusal of pre-arrest bail was rendered by the Full Bench of the Lahore High Court, Lahore in Hidayat Ullah Khan Vs. The Crown (PLD 1949 Lahore 21) in the year 1949 and the said judgment is still being followed by the Courts. The parameters for grant or refusal to grant pre-arrest bail as laid down by this judgment should not be religiously followed as those are in contrast with the fundamental rights guaranteed under the Constitution.
One of the conditions for grant of pre-arrest bail is the mala fide of the prosecution in its attempt to arrest the accused. This mala fide is required to be established by the accused failing which he would not be entitled for the grant of bail. Such a condition is in complete contrast with the Article 9 & 10-A of the Constitution. It is the duty of the prosecution to establish the fact that there is sufficient material available which provides a "legal justification" for the arrest of the accused. In case the prosecution fails to satisfy this requirement, the accused should be granted bail before arrest.
The other requirement for grant of pre-arrest bail, as laid down by pre-constitutional judgments is that the accused would be bound to establish that his arrest would result in irreparable loss and damage. In my view, when as per Article 9 ibid the liberty of a person cannot be taken away except in accordance with law then every wrong and unjustified arrest would be violative of the fundamental right of a person which would definitely result in irreparable loss to that person.
If we go through the law reports, it would not be difficult to deduce that the approach of the Courts in pre-arrest bail matters is pro prosecution whereas, it should be in favour of the accused. The Courts, while deciding pre-arrest bail petitions should consider whether the arrest of accused is necessary for proper investigation and if they come to a conclusion in affirmative then, keeping in view the public interest a bail should be refused, but not otherwise.
BAIL AFTER ARREST:
Same is the case with bail after arrest. The law on the subject developed by our Courts is based on the interpretation of section 497 CrPC without taking into consideration.
The issue of release or continuous custody of accused after the conclusion of investigation, which I have already discussed, is very much relevant for deciding the post arrest bail matters. Post arrest bail, irrespective of the offence with which the accused has been charged may only be refused in circumstances when the Court, after meticulously perusing the record, reaches to a conclusion that there is legal justification for the accused's continuous incarceration. The question of public interest vis a vis individual rights would also be a relevant factor.
The concept of "Further Inquiry" as available in section 497 CrPC is also against the spirit of Article 9, 10 & 10-A of the Constitution. The Courts require the accused to establish the further inquiry instead of asking the prosecution to establish the legal justification for continuous detention of the accused.
The Supreme Court of Pakistan in Khawaja Salman Rafique Vs. National Accountability Bureau (PLD 2020 SC 456) has interpreted Articles 9 and 14 of the Constitution in pretext of arrest and detention in a manner which is more in line with the constitutional scheme which seems to be a giant first step in the right direction, however, we need to work hard to unlearn all what we have learnt our the past century or so.
BAIL HEARING BY MAGISTRATES WHILE CONDUCTING HEARING UNDER ARTICLE 10(2) OF THE CONSTITUTION:
In case of arrest of an accused when he is produced before a Magistrate, the Magistrate decides about further physical remand of the accused and in case he refuses to extend physical remand, then he passes an order for shifting the accused to jail on judicial remand. In some cases, where the Magistrate seems that the case against the accused is not made out, he can discharge the accused even in a case which is not triable by him. The question which begs answer here is that, if a Magistrate, during hearing under Article 10(2) of the Constitution can discharge an accused then why he cannot release an accused on bail, not only in cases which are triable by him but also those which are triable by any other Court?
In my view this is not only allowed rather, as per the constitutional scheme, it is the duty of the Magistrate to conduct a proper pre-trial hearing and if he is not convinced to grant or extend physical remand then he should pass any of the following orders:
CONCLUSION:
In the light of the above analysis of provisions of Constitution, CrPC and ractice of the Courts, I have no hesitation to draw a conclusion that law on pre-trial/pending trial incarceration needs to be revamped and the Courts being guardians of the fundamental rights of the citizens should take all steps to guarantee the fundamental rights of liberty, safeguards against arrest and detention, due process and fair trial and to protect the dignity of individuals and for this purpose the law of remand (physical and judicial) and bail needs to be reinterpreted.