IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) CPLA No. /2023 Qaisara Elahi Petitioner Versus Care-taker Govt. of Punjab through its Chief Secretary, Lahore & others .Respondents CONCISE STATEMENT ], | Subject Matter Law Constitution of Pakistan, 1973; West Pakistan Maintenance of Public Order Ordinance 1960; Police Rules 1934; Code of Criminal Procdure 1898; Pakistan Penal Code 1860 Il |Which side has filed|Petitioner filed before the High this Petition? Court TI] | Actual controversy IV COURT /FORUM | DATE OF WHO HAD FILED & DECISION WITH WHAT RESULT? Hon'ble Lahore | a. Petitioner’s constitutional High Court, Lahore | b. 06.09.2023 petition in the nature of habeas corpus for her husband (detenu) was disposed of on the basis of having become infructuous. Vv POINTS NOTED IN THE|TREATMENT OF POINTS IMPUGNED JUDGEMENT Whether the Single Bench of|That the Single Bench of the the Honourable Lahore High|Hon’ble Lahore High Court, Court erred in law by disposing|Lahore did not address this of the habeas petition on the|legal question, i.e., that the basis of having become|nature of the writ of habeas infructuous? corpus. Scanned with CamScannerWhether the Single Bench of the Honourable Lahore High Court erred in law by basing its decision for the disposal of the habeas petition on the subsequent event of arrest of the detenu (Petitioner’s husband) in a criminal case registered in Islamabad Capital Territory. That the Single Bench of the Hon’ble Lahore High Court, Lahore has disposed of the habeas petition in a sweeping manner on the basis of subsequent event of arrest of the detenu even after declaring the arrest of the detenu on 01- 09-2023 to be illegal. Whether the Single Bench of the Honourable Lahore High Court erred in law by basing its decision for disposal of the habeas petition on the jurisdictional constraints. That the Hon’ble Lahore High Court, Lahore has disposed of the petition on the basis of jurisdictional constraints without any deliberation on the legal point whether the order of the court for enforcement of fundamental rights has extra-territorial effect. QUESTION REQUIRING CONSIDERATION AND DECISION BY THE HON’BLE SUPREME COURT Whether the Single Bench of the Honourable Lahore High Court has erred in law and facts of the case while passing the impugned order dated 06.09.2023 (“Impugned Order”)? Whether the impugned order is arbitrary, and against the well- settled principles of law, amounting to a gross miscarriage of justice for the Petitioner’s husband, and hence requiring Supreme Court intervention? Whether the grounds upon which the Single Bench of the Honourable High Court has based the Impugned Order vexatious and violative of well-settled principles of law? Whether the Government of Punjab, or any other law enforcing agency within the Islamic Republic of Pakistan through its executive and prosecutorial authority should be allowed to arrest the Petitioner’s husband the day he is released by the order of the Court and continuously hold Petitioner's husband in indefinite detention? Whether the arrest after arrest of the Petitioner’s husband by the law enforcing agencies is violative of the fundamental rights of the Petitioner’s husband as guaranteed under the Constitution of Islamic Republic of Pakistan 1973? —_9¢anned with CamScannerPetitioner’s Whether the Impugned Order infringes 0m conetitutionally guaranteed right of access to justice? Whether the order passed by the Lahore High Court for the f the Petitioner’s husband has enforcement of fundamental rights © 2 effect on the extra-territorial jurisdiction of the Lahore High Court? Whether the Honourable Single Judge of Lahore High Court has erred at law while passing the impugned order wherein the constitutional petition in the nature of habeas corpus was disposed of on the basis of having become jnfructuous, despite the fact that the Court had already declared the arrest of the detenu illegal in the same constitutional petition? Whether the relief in the writ of habeas corpus was discretionary or mandatory, especially when the arrest of the detenu (Petitioner’s husband) was declared illegal and the matter remained only for the production of the detenu before the Court? is concise Statement Certified that I have myself drafted this {and that it is corrected SETTLED & DRAWN BY FILED BY Sardar Muhammad Latif Khan Khosa Anis Muhammad Shahzad Advocate on Record Senior Advocate Supreme Court of Pakistan Supreme Court of Pakistan Enrol No. 283 Islamabad AD SHAHZAD ANS Hem need supreme court of Pakistan ‘siamabad Enrollment No. 267 Scanned with CamScannerIN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) C.P.L.A.No._____ 2023 Qaisara Elahi w/o Parvez Elahi r/o House 30-C, Zahoor Elahi Road, Gulberg-II, Lahore. boesseia Petitioner Versus 1. Care-taker Government of Punjab through its Chief Secretary, Civil Secretariat, Lower Mall, Lahore. 2. Home Secretary Punjab, Lahore. 3. Inspector General of Punjab Police, Lahore. 4. Deputy Inspector General (Investigations) Punjab Police Lahore. 5. Deputy Inspector General (Operations) Punjab Police, Lahore. 6. Capital City Police Officer (“CCPO”), Lahore. 7. Superintendent of Police (SP), Model Town Division, Lahore. .....-Respondents 8. SP Security, Lahore High Court Lahore, Lahore. 9. Inspector General Islamabad Police, Islamabad. 10. Chief Commissioner Islamabad, Islamabad. 11. District Magistrate Islamabad, Islamabad. ....Pro-Forma Respondents CIVIL PETITION UNDER ARTICLE _185(3)_OF THE CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN FOR LEAVE TO APPEAL AGAINST ORDER OF THE LAHORE HIGH COURT, LAHORE DATED 06.09.2023 PASSED IN W.P. NO. 54396/2023. Respectfully Sheweth: Scanned with CamScannerQUESTIONS OF LAW I, That the following important question of law are involved in this Petition and merit determination by this Honourable Court: 1, Whether the Single Bench of the Honourable Lahore High Court has erred in law and facts of the case while passing the impugned order dated 06.09.2023 (‘Impugned Order’)? 2. Whether the impugned order is arbitrary, and against the well-settled principles of law, amounting to a gross miscarriage of justice for the Petitioner’s husband, and hence requiring Supreme Court intervention? 3. Whether the grounds upon which the Single Bench of the Honourable High Court has based the Impugned Order vexatious and violative of well- settled principles of law? 4. Whether the Government of Punjab, or any other law enforcing agency within the Islamic Republic of Pakistan through its executive and prosecutorial authority should be allowed to arrest the Petitioner’s husband the day he is released by the order of the | Court and continuously hold Petitioner’s husband | in indefinite detention? 5. Whether the arrest after arrest of the Petitioner’s husband by the law enforcing agencies is violative of the fundamental rights of the Petitioner’s husband Scanned with CamScanneras guaranteed under the Constitution of Islamic Republic of Pakistan 1973? 6. Whether the Impugned Order infringes on Petitioner’s constitutionally guaranteed right of access to justice? 7. Whether the order passed by the Lahore High Court for the enforcement of fundamental tights of the Petitioner’s husband has effect on the extra- territorial jurisdiction of the Lahore High Court? 8. Whether the Honourable Single Judge of Lahore High Court has erred at law while passing the impugned order wherein the constitutional petition in the nature of habeas corpus was disposed of on the basis of having become infructuous, despite the fact that the Court had already declared the arrest of the detenu illegal in the same constitutional petition? 9. Whether the relief in the writ of habeas corpus was discretionary or mandatory, especially when the arrest of the detenu (Petitioner’s husband) was declared illegal and the matter remained only for the production of the detenu before the Court? BRIEF FACTS That the brief facts relevant to the case are that: 1. That the Petitioner’s husband, Chaudhry Parvez Elahi, is a 77-year-old, career statesman who has dedicated his life to the betterment of his country, Scanned with CamScannernp having served most recently as the Chief Minister for the Province of Punjab from July 2022 to January 2023. That the Petitioner’s husband, in a malafide abuse of authority, is being subjected to repeated detentions and arrests-upon-discharge in frivolous cases unbeknownst to him. Additionally, legal provisions of criminal procedure, such as 24-hour remand, are being employed as tools to keep petitioner perpetually detained by lodging a new First Investigation Report (‘FIR’) the same day Petitioner obtains _— protective _ bail, pre- arrest/anticipatory _ bail, different FIR, or released from the preventive post-arrest bail in a detention. That a FIR No. 06/2023 ACE, Lahore was registered against the Petitioner’s husband, alleging that he had received kickbacks in respect to certain road construction projects. The Petitioner's husband accordingly sought pre-arrest bail against his potential arrest in said FIR No. 06/2023 ACE, Lahore from learned Special Judge Anti-Corruption, Lahore, in which pre-arrest bail was granted to him on 28.04.2023. That on 28.04.2023, it came to the notice of Petitioner’s husband that an FIR, FIR No. 06/2023 ACE, Gujranwala, dated 27.04.2023 had been registered against him. In this regard, Petitioner's husband filed a petition for protective bail before the Honourable Lahore High Court in FIR No. 06/2023 ~ Scanned with CamScannerACE, Gujranwala (Cril. Misc. No. 28185-B/2023) on 28.04.2023. Accordingly, Petitioner’s husband was granted protective bail in FIR No. 06/2023 ACE, Gujranwala till 06.05.2023 vide order dated 28.04.2023. That, despite the protective bail in FIR No. 06/2023 ACE, Gujranwala vide order dated 28.04.2023, in the night of 28.04.2023, around 10 PM, into the early hours of 29.04.2023, Additional Director General Anti-Corruption Establishment along with the police force raided and entered the house of Petitioner. They declared that they were there to arrest Petitioner’s husband in FIR No. 06/2023 ACE, Gujranwala. Petitioner’s husband’s counsel, present there, responded that the he has been granted an order of protective bail by the Honourable Lahore High Court Lahore in FIR No. 06/2023 ACE, Gujranwala vide order dated 28.04.2023, however the police did not accept the affidavit of lawyer as to the veracity of protective bail order. The police proceeded to break down the doors of Petitioner’s home and carry forth with their raid in a manner as they were conducting an operation against the terrorists in the tribal areas of Kacha in District Rahim Yar Khan. That the police wrongfully alleged that there was resistance from the Petitioner's home, including stones being thrown, and on the same morning of 29.04.2023, an FIR No. 1150/2023 Ghalib Market, Lahore was filed against the Petitioner’s in Police Station Ghalib Market, Lahore. It is important to Scanned with CamScannermention here that in the said FIR police stated that they had come to arrest Petitioner's husband in FIR No. 06/2023 ACE Gujranwala and alleged that Petitioner had committed offenses under section 7 of the Anti-terrorism Act, and other offenses were added with the allegation that the Petitioner's husband ran away from the police and incited violence against the police. That the Petitioner’s husband filed a Contempt Petition (Cril. Orig. No. 28596/2023 in Cri. Misc. 28185-B/2023), for disobedience of the Honourable Court’s order dated 28.04.2023 granting protective bail to him in FIR No. 06/2023 ACE, Gujranwala, as well as passing contemptuous remarks against the Honourable Court. To wriggle out of the contempt Proceedings, it was responded to by the police that they have mistakenly written in the content of the FIR No. 1150/2023 Ghalib Market, Lahore that they were there to arrest the Petitioner’s husband in FIR No. 06/2023 ACE, Gujranwala, but instead intended to arrest him in FIR No. 07/2023 ACE, Gujranwala. That after it came to the notice of the Petitioner’s husband in the court that the aforementioned FIR No.07/2023 ACE, Gujranwala had been lodged against him, he sought protective bail in FIR No. 07/2023 ACE, Gujranwala on 02.05.2023 from the Honourable Lahore High Court, Lahore. The Honourable Lahore High Court, Lahore, in Cr. Misc. No. 28592-B/2023 vide Order dated 02.05.2023 granted the Petitioner’s husband with Scanned with CamScanner10. protective bail in FIR No. 07/2023 ACE, Gujranwala till 15.05.2023. That fearing the malafide intentions of the executive authorities and the appearance of unknown FIRs, the Petitioner’s husband filed a Writ Petition (“W.P.”) No. 28765/2023 dated 02.05.2023, praying, inter alia, that the Government of Punjab should be directed to inform Petitioner’s husband of any other FIRs or pending inquiries/investigations against him apart from FIR No. 06/2023 ACE, Gujranwala, FIR No. 07/2023 ACE, Gujranwala, and FIR No. 1150/2023 Ghalib Market, Lahore; and to not to arrest him in any new cases without due process. In this petition the Honourable Lahore High Court, Lahore passed an Order dated 02.05.2023 stating that the Petitioner’s husband should not be arrested in FIRs registered till to date (02.05.2023). That the Petitioner’s husband, as afore stated, had obtained protective bail in FIR No. 06/2023 ACE, Gujranwala. He, accordingly, filed for pre-arrest bail in FIR No. 06/2023 ACE, Gujranwala, in the Court of Judge Anti-Corruption, Gujranwala who passed an order dated 03/05/2023 granting pre-arrest interim bail in favour of the Petitioner’s husband. That, as afore stated, the Petitioner’s husband had also obtained protective bail in FIR No. 07/2023 ACE, Gujranwala. He also applied for anticipatory bail in this FIR and obtained an interim pre-arrest bail order dated 04/05/2023 from the ATC Lahore. wai Scanned with CamScannerThat the Petitioner's husband accordingly filed a pre-arrest bail application in FIR No. 1150/2023 Ghalib Market, Lahore. However, the pre-arrest bail of the Petitioner in FIR No.1150/2023 was fixed for hearing before the ATC Lahore on 11.05.2023 but the Petitioner’s husband could not appear before it due to a sickness, which was not granted. Accordingly, the ATC, Lahore dismissed the pre- arrest bail application of the Petitioner’s husband for non-prosecution on 11.05.2023. That, unbeknownst to the Petitioner’s husband, one more FIR No.07/2023 ACE, Lahore dated 11.04.2023 was registered against him before the Anti-Corruption Lahore, again alleging kickbacks in respect of other road contracts. Since this FIR was registered prior to the Order dated 02/05/2023, it was covered in that Order and, hence, the Petitioner’s husband could not be arrested in the afore-stated FIR. That on 11.05.2023, the pre-arrest bail applications of the Petitioner’s husband in respect of FIR No. 06/2023 ACE, Gujranwala and FIR No. 07/2023 ACE Gujranwala, were also fixed before learned Special Judge Anti-Corruption Gujranwala but he could not appear due to his illness. The learned Special Judge Anti-Corruption © Gujranwala adjourned but did not dismiss the petition. That however on 01.06.2023 the Petitioner’s husband was arrested under FIR No. 07/2023 ACE, Lahore. Scanned with CamScanner16. That on the next day ic., 02.06.2023, the Petitioner's husband was produced before the learned Magistrate Section-30 District Courts Lahore in FIR No. 07/2023 ACE, Lahore with the request for extension in physical custody. The learned Magistrate, while rejecting the request for extension in physical custody, discharged the Petitioner’s husband from the case on the ground that at this stage there is no incriminating material against the accused/Petitioner’s husband. That as soon as the Petitioner's husband was discharged on 02.06.2023, he was arrested on the same day under FIR No. 06/2023 ACE, Gujranwala and FIR No. 07/2023 ACE, Gujranwala. The Petitioner's husband was produced before the learned Duty Magistrate Gujranwala in these FIRs on 03.06.2023 and an extension in physical custody was requested. The learned Duty Magistrate Gujranwala while rejecting the request for extension in physical remand in both the above-mentioned FIRs, discharged the Petitioner's husband in these FIRs for want of incriminating material against him. That on the same day i.e., 03.06.2023, while the Petitioner’s husband was being discharged by the learned Duty Magistrate Gujranwala, a new FIR No. 09/2023 ACE, Lahore, dated 03.06.2023, was registered alleging that the Petitioner’s husband as the Speaker of the Provincial Assembly for the Province of Punjab had made illegal appointments in the Assembly. The Petitioner’s husband was Scanned with CamScanner20. 21, 22. arrested in this FIR as soon as he was discharged on 03.06.2023, That on 04.06.2023 the Petitioner’s husband was Produced before the learned Magistrate Section-30, District Courts Lahore in FIR No, 09/2023 ACE, Lahore. The learned Magistrate however did not allow the requested extension in physical remand but sent the Petitioner's husband to judicial custody, That accordingly on 05.06.2023 the Petitioner’s husband filed for bail after arrest in FIR No. 09/2023 ACE, Lahore, in which post-arrest bail was granted to him by the Special Judge Anti- Corruption Lahore vide order dated 20.06.2023. That, however, on the same day i.e., 20.06.2023 another FIR No. 18/2023 FIA AML Circle, Lahore was registered against the Petitioner’s husband, this time under the Anti-Money Laundering Act with the FIA AML Circle Lahore alleging that the money earned from kickbacks in the road projects was being laundered. The FIA went to the Magistrate and sought physical custody of the Petitioner’s husband, which request of the FIA was rejected and the Petitioner’s husband was sent to judicial custody in the above-mentioned FIR. That the Petitioner’s husband then applied for post- arrest bail in FIR No. 18/2023 FIA, Lahore on 21.06.2023, which post-arrest bail was granted to | == Scanned with CamScanner23. 24, him by the learned Judge Special Court (Central-I) vide order dated 24.06.2023. That, however, at this time the Petitioner's husband did not file a surety bond on 25.06.2023 and remained in jail. The reason for this was that on 21.06.2023 a W.P. No 42963/2023, had been filed before the Honourable Lahore High Court Lahore by the son of the Petitioner, which was pending, in which prayer was made for a direction by the court that the Government of Punjab should tell the petitioner what cases are pending against his father, and therefore Petitioner’s husband did not find it wise to post a surety bond just to be arrested again. That unbeknownst to the Petitioner’s husband there was another FIR No. 03/2023 FIA, Lahore, dated 13.02.2023 registered against certain persons which did not include the Petitioner’s husband. The guard of the Petitioner’s husband was picked up and a supplementary statement of the guard was recorded on 18.06.2023 who alleged that he used to give money to certain persons on behalf of the Petitioner’s husband. The name of the Petitioner’s husband as an accused in this anti-money laundering case was added on the basis of this supplementary statement in FIR No. 03/2023 FIA AML Circle, Lahore. On 26.06.2023 the FIA requested the learned Magistrate Lahore to grant the physical custody of the Petitioner’s husband (who was already in Camp Jail Lahore in FIR No. 18/2023 FIA AML Circle, Lahore), which request of FIA was rejected and the Petitioner’s husband was Scanned with CamScannersent to the judicial custody in FIR No. 03/2023 FIA AML Circle, Lahore. 25. That, in the meantime, in W.P. 42936/2023, on 26.06.2023, a report had been submitted in which nine FIRs against the Petitioner’s husband were listed as follows: (a) | Before FIA AML Circle, | | FIR No.18/2023 and FIR Lahore No.03/2023 (b) | Before Anti-Corruption FIR No.06/2023 and FIR No.07/2023, Gujranwala FIR No.06/2023, FIR No.07/2023. and FIR No.09/2023, Lahore. FIR No.05/2023, Gujrat. (c) | FIR No.1150/2023 Police Station Ghalib Market, Lahore. However, no information was provided about any pending inquiries. 26. That accordingly, on 27.06.2023, the Petitioner’s husband applied for post-arrest bail in FIR No. 03/2023 FIA, Lahore, which was granted to him by the learned Judge Special Court (OIB-II) on 11-07- 2023. 27. That however this time the Petitioner’s husband did not file a surety bond and remained in jail for similar reasons as highlighted above, in that the Petitioner’s husband was unaware of any pending or unknown FIRs. Scanned with CamScanner28. That during the presence of the Petitioner's husband in the judicial custody, it came to light that the State has not only played a significant role in political victimization by arresting the petitioner's husband in one FIR after another, but has also tried to politically pressurize the Petitioner’s husband by depriving him of the fundamental facilities to be provided to an under-trial prisoner in accordance with the provisions of the Punjab Prison Rules, 1978, thereby, committing a serious violation which can be evidenced through the following writ petitions: a) Writ Petition No. 40046/2023 filed by the Petitioner before the Honourable Lahore High Court Lahore praying therein the better class facility for her husband in the Camp Jail Lahore, which Petition was disposed of on 20.06.2023 on the basis of the report on behalf of Additional Chief Secretary and the statement of the Deputy Superintendent informing the Honourable Court that Cell No.1 and Cell No. 2 in District Jail Lahore have been declared as Better Class status for the Petitioner’s husband. b) While finding the above-said statement given by the Deputy Superintendent before the Honourable Court to be untrue, a contempt petition (Crl. Orig. No. 43138-2023) was filed by the Petitioner, wherein, to wriggle out of the contempt proceeding, on 26.06.2023, a report Scanned with CamScanner¢) was submitted on behalf of the superintendent of District Jail Lahore informing the Honourable Court that better class facilities, like surgical bed along with mattress, portable A.C. (recommended by the Medical Officer of Jail), LCD, reading table along with chair, one attendant, room with separate toilet/bath, have already been provided to the husband of the Petitioner, thereby, the contempt petition was disposed of in light of the above- mentioned report. Even after the above-said statement in the contempt petition mentioned above, the Respondents did not stay away from taking away the better class facilities from the Petitioner’s husband, therefore, this time the Petitioner’s husband himself filed a writ petition No. 45879/2023 before the Honourable Lahore High Court Lahore, which petition was disposed of on 11.07.2023 with certain directions to the Prison authority and the Government of Punjab; the Honourable Court also observed that the statements of the Inspector General Punjab Prisons is a conceding statement in regards to non- availability of the facilities as were informed to the Honourable Court on 26-06-2023 in Cri. Orig. No. 43138/2023 in W.P. No. 40046 /2023. 29. That on 06/07/2023 another writ Petition No.45360/2023 had been filed by the Petitioner’s Scanned with CamScanner30. 31. husband himself. This petition was filed under Article 199(1)(c) in which it was prayed as follows: - (a) Since there is a political victimization going on, hence, the due process, as enshrined, inter alia, in Article 10-A, requires that the Petitioner's husband be made aware of all cases against him. (b) A list of all pending cases against the Petitioner’s husband be given. (c) Due facilities to be provided to the Petitioner’s husband in the Camp Jail Lahore. (d) Protective bail be granted to the Petitioner’s husband to get access to a court for anticipatory or pre-arrest bail. That in this case on 13.07.2023 the reports were submitted by the Respondents containing therein the exhaustive list of the criminal cases and pending inquiries against the Petitioner’s husband. That on 13.07.2023 the Hon’ble Lahore High Court, Lahore passed the following orders: In FIR No. 1150/2023 and FIR No. 05/2023 the Petitioner’s husband was given protective bail for 10 days starting from the day of release (a) to get anticipatory bail from the relevant court. —— ~ Scanned with CamScanner32. 33. 34, 35. (b) The second portion of this order provided that the Petitioner’s husband shall not be arrested in any blind or unknown FIRs. (c) The third aspect provided that in respect of the pending inquiries the Petitioner’s husband should not be arrested. The inquiries should be completed after providing a statement of allegations and hearing to the Petitioner's husband. This order dated 13.07.2023 was given by the court to prevent the systematic abuse of coming up with FIRs to ensure the Petitioner’s husband’s arrest. That the Court also had relied on the Division Bench judgment of the Peshawar High Court dated 05.07.2023 passed in W.P. No. 2790-P/2023 in which the interim order has been passed to this effect. That upon receiving the order of 13.07.2023 on 14.07.2023, the Petitioner’s husband submitted a surety bond on 15/07/2023. The Petitioner’s husband should have been released on 15.07.2023 but he was not released by the Respondents and instead kept under illegal detention. That instead on 16.07.2023 (after the Petitioner’s husband had been illegally detained for two days), a detention order was passed by the Deputy Commissioner Lahore. In the detention order it was mentioned that the Punjab Police has filed a request referring to three registered FIRs namely FIR No. Scanned with CamScanner36. 37. 38. 1150/2023 at Police Station Ghalib Market, Lahore, FIR No. 604/2022 and FIR No. 1822/2022 both at Police Station Qilla Gujar Singh, Lahore, against the Petitioner's husband stating that if he is released then 9th May 2023 mayhem will be repeated. (It may be noted that the Petitioner's husband was not aware of these two FIRs namely FIR No.604/2022 and FIR No.1822/2022, which were not submitted in any of the reports before the High Court). However, based on this report, the Deputy Commissioner issued a detention order under Section 3 of the Punjab Maintenance of Public Order Ordinance, 1960. That the Petitioner’s husband challenged the detention order under Writ Petition No. 47410/2023 filed on 17.07.2023. Then the Petitioner also challenged the detention order against her husband on 19.07.2023 under Writ Petition No. 48046/2023, which petition is still pending despite the fact that detention period of 30 days has expired on 14-08- 2023. That, in the circumstance, on 17.07.2023, the Government of Punjab filed an appeal hearing Intra- Court Appeal (“ICA”) No. 47355/2023 against the order dated 13.07.2023, passed in W.P. No. 45360/2023, which Intra-Court Appeal was dismissed by the honourable division bench on 21- 08-2023. That on 14-08-2023, the Petitioner’s husband was arrested by the National Accountability Bureau Scanned with CamScanner39. 40. (NAB), on the basis of a warrant of arrest issued by the Chairman NAB on 11-08-2023 in pursuance of converted into inquiry dated investigation on 18-07-2023. 09-06-2023, That since NAB was impleaded as a Respondent by the Petitioner’s husband in W.P. No. 45360/2023, wherein the respondents were prohibited from arresting the Petitioner’s husband in any unknown or blind FIR, or inquiry, and also prohibited to convert any pending inquiry into criminal case without providing the Petitioner’s husband with statement of allegations and the opportunity of hearing, the Petitioner’s husband, under the impression of his arrest to be violative of the order dated 13-07-2023 passed in W.P. No. 45360/2023, filed an implementation petition (W.P. 53749/2023), wherein the Honourable Lahore High Court was pleased to set the Petitioner’s husband at liberty vide order dated 01-09-2023 with the further directions that the Petitioner’s husband shall not be arrested in terms mentioned in the order dated 13- 07-2023 by the NAB- or any _ other authority/agency/office, etc., nor shall be detained under any law relating to preventive detention. That on the apprehension of the Petitioner’s husband that he may be arrested or abducted on the way to his house, the Honourable Court instructed the Registrar Lahore High Court for ensuring the safe travel of the Petitioner’s husband to his house. In this regard, Respondents No. 4,58 — Scanned with CamScanner8were directed to travel along with the Petitioner's husband for the purpose of avoiding any arrest or illegal abduction. 41. That the Respondents No.4 & 8, and one of the counsels for Petitioner’s husband, namely, Tahir Nasrullah Warraich along with Senior Advocate Supreme Court Sardar Latif Khan Khosa, were travelling with the Petitioner’s husband in the same vehicle when a Toyota Prius suddenly blocked way of the Petitioner’s husband’s vehicle, and within no time, a large number ofunknown muffled face persons surrounded the Petitioner’s husband’s vehicle. Therein, the Respondent No.4 opened the gate of the vehicle and handed over the Petitioner's husband to two unknown muffled face persons, who tossed the Petitioner’s husband into that Toyota Prius and disappeared from there. This whole ction was later on transpired, to be arrest of the episode of abdu through media channels, Petitioner’s husband by the Islamabad Police in detention order dated 01-09-2023 passed by the District Magistrate Islamabad. That on 04-09-2023, the Petitioner filed two petitions before the Honourable Lahore high Court Lahore, one criminal original under Article 204 of the Constitution of Islamic Republic of Pakistan 1973 (Criminal Original No. 54300/2023), and the other constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 in 42. ~ Scanned with CamScannerthe nature of writ of habeas corpus(W.P. 54396/2023). That on 04-09-2023, the Honourable single bench of the Lahore High Court passed an order in W.P. No. 54396/2023, wherein declaring the arrest of the Petitioner's husband illegal, the District. and Sessions Judge, Attock was appointed as bailiff of the Court to recover the Petitioner's husband (detenu) from the custody of superintendent jail Attock and produce the same before the Court on 43. 05-09-2023, That on 05-09-203, the bailiff of the Court (District and Sessions Judge Attock) submitted his report before the Court stating that before his reaching to the central jail, Attock, the detenu (the Petitioner’s to capital territory in 44, husband) was shifted Pursuance to notification dated 01st September 2023 issued by the District Magistrate, Islamabad Capital Territory and at present he (the detenu) has been kept in Police Lines, Islamabad, which is declared as sub jail by the Chief Commissioner Islamabad vide notification dated 04 September 2023. In response to the report of the bailiff, the Court while observing the endeavours of the Chief Commissioner Islamabad to frustrate the court’s order, directed the Chief Commissioner Islamabad as well as Inspector General Islamabad Police to produce the detenu (the Petitioner’s husband) before the Court on 06.09.2023. Scanned with CamScanner45. That simultancously, the detention order dated 01- 46. 47, 09-2023 passed against the Petitioner’s husband by the District Magistrate Islamabad was also challenged by the Petitioner’s husband himself before the Islamabad High Court in W.P. No. 2678/2023. In which petition, the court was pleased to pass an order on 05-09-2023 suspending the detention order dated 01-09-2023 and directing the immediate release of the Petitioner’s husband. That although the Petitioner’s husband was released in pursuance to the order dated 05-09- 2023 passed by the Islamabad High Court in W.P. No. 2678/2023, he was taken into custody in case FIR No. 03/2023 dated 18 March 2023 registered at Police Station Counter Terrorism Department, Islamabad. That on 06-09-2023, the honourable single bench of Lahore High Court disposed of the habeas petition (W.P. No. 54396) by observing that the same has become infructuous on the basis of; (i) approaching the Islamabad High Court for challenging the detention order dated 01-09-2023 issued by the District Magistrate, which court has taken the cognizance and suspended the operation of said notification in pursuance to which the detenu (Petitioner’s husband) was released but again taken into custody by the Islamabad Police in the case FIR No. 03/2023 dated 18 March 2023 registered at Police Station Counter Terrorism Department, Islamabad, and (ii) the detenu (the Scanned with CamScanner48, Petitioner’s husband) is not in confinement in the proceedings initiated by NAB or any criminal case registered within the jurisdiction of this province rather he has been taken into custody in the first instance by virtue of notification issued by the District Magistrate Islamabad and then in the criminal case referred hereinabove. That through the instant civil petition for leave to appeal, the Petitioner challenges the impugned order dated 06-09-2023 passed by the Honourable Single Bench of the Honourable Lahore High Court Lahore in W.P. No. 54396/2023. The Impugned Order is liable to be set aside on, inter alia, the following: GROUNDS A. That the Impugned Order is illegal, unlawful, and void ab initio on the face of it and is liable to be set aside being not sustainable in law. B. The Impugned Order in the instant case is arbitrary, and against the well-settled principles of law, amounting to a gross miscarriage of justice for the Petitioner, and hence is liable to be set aside in exercise of the Supreme Court’s jurisdiction under Article 185(3). That it is a well settled principle of law that the writ of habeas corpus, as distinguished from other prerogative writs is one of right and not mere discretion. And, the first step in the _ Scanned with CamScannercise of the court's jurisdiction is to have exer or in the the body of the person detained, words of sub-clause {b)(i) of sub-Article (1) to Article 199 of the Constitution of Islamic Republic of Pakistan, to direct that the person is not being detained without lawful authority or in an unlawful manner. As was pointed out in well-known American case of Paul Ahrens V Clark [(1948) 335 US 188-210], wherein some 120 Germans were held for deportation to Germany, although the writ is directed to any person in whose custody the detenu is, yet, the scheme of the law contemplates a procedure which may bring the prisoner before the Court. Since in the impugned order, the honourable Single judge has disposed of the habeas petition without there being production of the detenu, and that too after the observation of the court that the arrest of the detenu (Petitioner’s husband) on 01-09-2023 was illegal, therefore, the Impugned Orderis unlawful and liable to be set aside. That the grounds on which the Impugned Order is based are vexatious and violative of well-settled principles of law. In the Impugned Order, the remedy of habeas corpus has been denied on the following two basis: (i) that the Petitioner's husband has himself approached the Islamabad High Court for challenging the detention order dated 01-09-2023 iia aa it. Scanned with CamScannerissued by the District Magistrate, which court has taken the cognizance and suspended the operation of said notification in pursuance to which the detenu (Petitioner’s husband) was released but again taken into custody by the Islamabad Police in the case FIR No. 03/2023 dated 18 March 2023 registered at Police Station Counter Terrorism Department, Islamabad. This reason for denying the remedy of habeas corpus in itself seems to be an impediment on the fundamental right of access to justice of the Petitioner’s husband as it suggests that the Petitioner’s husband should not have challenged the unjustifiable detention order issued against him before the Islamabad High Court in order for successful disposal of the habeas petition of the Petitioner. Secondly, the court itself has observed in its order dated 05-09-2023 that the Islamabad Police and authorities were endeavouring to frustrate the orders of the Court relating to the production of the detenu before the court, therefore, it would have been just if the court would have assessed the arrest of detenu in the new criminal case rather than disposing the habeas petition on the basis that Scanned with CamScannersubsequent event (arrest of the Petitioner's criminal case) has made the proceedings husband in any other before the court infructuous. the detenu (the Petitioner's husband) is not in confinement in the proceedings initiated by NAB or any criminal case registered within the jurisdiction of this province rather he has been taken into custody in the first instance by virtue of notification issued by the District Magistrate Islamabad and then in the criminal (ii) case referred hereinabove. The single judge has erred at law by not considering the legal point that the order of a high court which pertains to the enforcement of fundamental rights of a citizen has the extra territorial effect. Even otherwise, the court in its order dated 04-09-2023 had itself declared the arrest of the detenu (Petitioner’s husband) as illegal and ordered for the production of the detenu before the court. And, further on 05-09-2023, the Court has itself observed that the Islamabad Police and the Chief Commissioner Islamabad are attempting to frustrate the court’s order directing them to produce the detenu (Petitioner’s husband), the court had left with no therefore, ensuring the discretion except for Scanned with CamScannerproduction of the Petitioner's husband (detenu) before the Court, as it had become a right of the detenu to be produced before the court. That the Impugned Order, in effect, operates as an unlawful way for the executive authorities to deny access to justice, a Fundamental Right enshrined in Articles 4,9 and 10-A of the Constitution of Pakistan, 1973. Without prejudice to the ground raised that the order of the court for the enforcement of fundamental right has the extra-territorial effect, it is submitted that the court has erred at law and fact by not considering the fact that the subsequent arrest of the detenu in another case was just an attempt of the Islamabad Police to wriggle out of the territorial jurisdiction of the Lahore High Court, which if allowed would undermine the public confidence on the judiciary. Therefore, the Impugned Order is unlawful and liable to be set aside. That if the Impugned Order is allowed to stand, then the Petitioner’s husband’s subsequent arrest after his release in detention order will become validated usurping the Petitioner’s husband’s lawful right to approach the Court for protective bail in the case FIR No. 03/2023 Police station CTD Islamabad. Protective bail originates from the constitutional concepts of liberty, dignity, and a — ~ Scanned with CamScannerfair trial, ensuring citizens the open access to courts of any jurisdiction without the fear of arrest before they have a chance to even appear in court. If the impugned order is allowed to stand, the Petitioner’s husband will be denied of his fundamental right of access to the court for protective bail. The Impugned Order abridges Petitioner’s fundamental right of access to justice and is, therefore, liable to be set aside. That the impugned order has been passed in violation of the well-settled principle of law that the pendency of trial or subsequent custody of a prisoner does not automatically validates the initial arrest of a detenu if such arrest was illegal. For that the reliance is being placed on the Manzoor Elahi case [PLD 1975 SC_66], wherein the detenu was arrested in Lahore in connection with an offence to be tried in Kohlu, a tribal area in Baluchistan. His arrest was illegal, but it was argued on behalf of the State that the initial illegality in the arrest of detenu was not material as he was being detained at Kohlu for trial on charges under section 120, 121 etc of Pakistan Penal Code, which contention of the state was repelled by Honourable Justice Muhammad Yaqoob Ali in the following words: “We are not concerned at this stage with the legality of the trial of the prisoner which has not san ii Scanned with CamScanneryet commenced but we are dealing with the legality of his arrest. If it is found to be illegal the prisoner will be discharged though he may again be taken into custody in accordance with law and placed for trial before a court of competent jurisdiction.” That the Impugned Order creates a precedent H. the state functionaries to which allows frustrate the court’s order by the technical execution of their duties, thereby technically infringing upon the fundamental rights of the citizens as guaranteed under the Constitution of Islamic Republic of Pakistan 1973. Hence, the Impugned Order is liable to be set aside. ‘That the Impugned Order is unlawful because it denies the Petitioner’s husband’s right to be set at liberty, which right of the Petitioner’s husband had accrued firstly, when the Single Judge in their Order dated 13.07.2023 passed in W.P. No. 45360/2023, prevented the arrest of the Petitioner’s husband in any blind, unknown FIRs or pending inquiries, secondly, when the single bench in its order dated 01- 09-2023 passed in W.P. No. 53749/2023 once again prohibited the arrest of the Petitioner’s husband, and lastly, when the arrest of the I. Petitioner’s husband was declared to be illegal in the order of the single bench dated 04-09- 2023 passed in W.P. No. 54396/2023. Since the matter pertains to the fundamental rights Scanned with CamScannerthe Supreme protect the Petitioner's of the Petitioner's husband, Court should intervene to Fundamental Rights of the husband by setting aside the Impugned Order and setting the Petitioner’s husband at liberty. ‘That the Impugned Order is contrary to the concepts of: life and liberty, as well as due process enshrined in the Constitution; prevention of injury under sections 42, 332, and 337(k) of the Pakistan Penal Code (“PPC”); and lawful investigations under Rule 21.35 of the Police Rules, 1934. The Single Member Bench in its order dated 13.07.2023 analysed and incorporated all the laws and rules. The Impugned Order allows for repeated arrests without bail, abuse of executive authority through repeated 24-hour remands and detentions and causes mental and physical injury through repeated infliction of stress and trauma. Therefore, the Impugned Order is contrary to the Constitution and the law and is liable to be set aside. PRAYER It is therefore, respectfully prayed that leave to appeal may very kindly be granted against the Impugned Order dated 06.09.2023 passed in W.P. No. 54396/2023, in the interest of justice, and the same may be set aside being unconstitutional, illegal, void ab initio, and without lawful jurisdiction. It is further prayed that the Respondents may kindly be directed to produce the detenu (Petitioner’s husband) before Sila tae Scanned with CamScanner