P L D 2016 Sindh 547

Before Salahuddin Panhwar and Syed Saeeduddin Nasir, JJ

Khawaja MUHAMMAD SALMAN YOUNIS and another---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Law and 10 others---

Respondents

Constitutional Petition No.D-916 of 2015, decided on 4th September, 2015.

(a) Criminal Procedure Code (V of 1898)---

----Ss. 205, 497 & 498---Constitution of Pakistan, Art.10-A---Due process of

law---Protective bail---Attendance of accused---Necessity---Attorney
whether could be substituted for accused---Petitioner was aggrieved of
Red Notices issued by Interpol for his arrest and had sought protective
bail---Validity---Plea of grant of bail or protective bail in constitutional
jurisdiction required to be attended carefully within parameters of
Art.199 of the Constitution---Attendance of accused could not be
substituted through attorney though S.205, Cr.P.C., provided mechanism
whereby a Magistrate could dispense with personal attendance of
accused--- Such provision could not be taken to expand jurisdiction of
High Court to grant bail which per S.497, Cr.P.C. was subject to arrest,
detention, appearance or his bringing before a Court---Provisions of Art.
10-A of the Constitution insisted for fair trial which object could not be
achieved without providing accused an opportunity to face the charge.
particularly where accused himself volunteered to do so---If accused of
cognizable offence showed his intention to face his trial and resorted to
constitutional jurisdiction for the purpose of enabling him to land at
Pakistan to approach proper courts, then he could resort for such
purpose---Purpose of Red Notices was to seek location of a wanted person
and his or her detention, arrest or restriction of movement for purposes
of extradition, surrender or similar lawful action---Such by itself was not
meant to declare the 'innocence or guilt' of the person against whom a
Red Notice was issued nor it was in any way prejudice the rights of fair
trial of such person---Intention of petitioner was to face charges and it
would serve the purpose of Red Notice touching the object of fair trial as
enshrined in the Constitution through insertion of Art.10-A of the
Constitution---High Court declined to grant bail to the petitioner but
enabled him to land at the lands of Pakistan and to immediately
approach the proper Court for bail---Constitutional petition was disposed
of accordingly.

2006 YLR 3116 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Term 'aggrieved person'---Scope---To

invoke Constitutional jurisdiction of High Court, one is required to first
qualify the test of being 'aggrieved person' (If matter is not one of public
litigation) and then to show that his/her case falls in any of the
categories, so defined by Art.199 of the Constitution and there is no other
alternate legal remedy else petition is not competent.

(c) Words and phrases---

----"Coercion"---Defined.

Black's Law Dictionary Ninth Edn. rel.

(d) Administration of justice---

----Legal action---Scope---To avoid a legal action, plea of coercive action is

not available.

Ghulam Fareed v. State 2009 SCMR 929 rel.

(e) Constitution of Pakistan--

----Art.199---Constitutional petition---Writ of mandamus---Scope---Writ of

mandamus cannot be issued for a relief which otherwise amounts to
restrain a person from doing a lawful and permitted legal act.

Petitioner No.1 present in person.

Rizwan Dodani filed Vakalatnama on behalf of Petitioner No.1.

Date of hearing: 4th September, 2015.

ORDER

Through instant petition by invoking jurisdiction of this Court, the

petitioners pray as under :
 (a) To grant pre-arrest/protective/anticipatory bail to the
petitioners Nos.1 and 2.

(b) To direct the respondents to place on the record of this Hon'ble

Court the complete information regarding all pending cases,
inquiries and investigations against the petitioners and their
present status, if any, and to quash all pending enquiries and
proceedings.

(c) To declare that the failure of respondents to communicate

factum of allegations to the petitioners is illegal, unlawful,
unconstitutional and discriminatory and is in violation of
principles of natural justice, equity and fair play,

(d) To restrain the respondents, their agents, officers,

representatives or anybody acting on their behalf from causing
harassment to the petitioners and from implicating them in any
false cases / enquires without permission of this Hon'ble Court.

(c) To direct respondents Nos.6, 7, 8 and 11 for providing security

and protection to the petitioner No.1 and to the petitioner No.2 on
his arrival in Pakistan from airport to his destination and further
direct respondents Nos.7 and 11 to continuously provide
protection to the lives and properties of petitioners and their
family members at their cost.

2. Precisely, relevant facts as setout in this petition are that the petitioner
No.2 is a prominent businessman of Pakistan and was previously a
professional banker who worked at several local and international banks
in Pakistan and overseas at various senior positions. He was led a
distinguished career of over 30 years in the field of banking and after
seeking an early voluntary retirement he established businesses that
include, inter alia, Sugar and Cement manufacturing, power generation,
corporate farming and distillery (hereinafter collectively referred to as
the "Omni Group"). The petitioner No.1 is his cousin and also an
employee working in the "Omni Group" in the capacity of Director and
Group Chief Operating Officer; that on 27th May 2015 the petitioner No.2
a senior citizen aged about 73 years left Pakistan for England in
connection with Medical Treatment of Serious Arthritis and in his
absence some News channels flashed breaking News regarding issuance
of Red Warrants against petitioner No.2 by FIA working under
respondents Nos.2, 5 and 6 and such News was also published in various
newspapers; that the petitioner No.1 is being harassed and humiliated by
the respondents by making him phone calls from unknown numbers,
thus he is being continuously threatened and there is every likelihood of
his arrest at the hands of respondents in the false and fabricated cases;
that since couple of days the respondents have been raiding the houses
of petitioners Nos.1 and 2 for their arrest but due to non- availability of
petitioners, their families and staff have been directed to convey the
petitioners that they are required in some criminal cases and they must
surrender themselves before the Law Enforcement Agencies. On the
request of family members and staff of petitioners the respondents failed
to provide details of cases registered against the petitioners; that the
petitioners fear that they might be involved in false and frivolous cases
and they might be arrested, humiliated and disgraced at the hands of
respondents which certainly is infringement of their fundamental right
as guaranteed under the Constitution; that the petitioner No.2 has also
instructed the undersigned over phone from his mobile No. 00 44 740041
to move the bail application /constitution petition on his behalf as he
apprehends that the moment he will land at Karachi he will be arrested
and as such precedent is also in existence where petitioner Hassan
Suhail was admitted on protective bail by this Court in his absence on the
application filed by his advocate reported in 2006 YLR 3116 Karachi.

3. It is further revealed that by order dated 21.8.2015 instant petition to

the extent of petitioner No.2 converted into protective bail and he was
granted protective bail for a period of fifteen days. Thereafter on
27.8.2015 a fresh application was moved for suspension of red warrants
during stipulated period of protective bail, on that day this Court while
deciding such application observed as under:

"In view of the above submissions made by learned Counsel for the
petitioners and grounds mentioned in the application under
Section 151, C.P.C, it is ordered that the order dated 21.8.2015
passed in favour of petitioner No.2 shall remain in the field up to
05.9.2015 with addition that the operation of the red warrants, if
any, issued against the petitioner No.2 shall also remain suspended
up to 05.9.2015."

4. Learned counsel for the petitioners inter alia contends that there is
apprehension that petitioner No.1 would be implicated in false cases due
to his association with petitioner No.2, albeit he is business partner in
"Omni Group" but he has not committed any crime, hence respondents
may be restrained from any coercive action. On query, learned counsel
for the petitioners failed to place any record showing any action taken by
respondents against the petitioners Nos.1 and 2.

5. Perusal of record reflects that petitioner No.2 was granted protective

bail, candidly such protective bail was not granted in any crime as at no
times the petitioners had placed any FIR, wherein the bail was being
sought. It was general order whereby the petitioner was allowed fifteen
days protective bail thereby red warrants were suspended. It is worth to
mention here that the petitioner No.1 failed to place air ticket of
petitioner No.2 about his arrival from England to Pakistan, even he failed
to place any FIR, Call up notice which could have shown that petitioner
No.1 or 2 are required by respondents. Besides, it is pleaded that
petitioner No.2 authorized petitioner No.1 for moving protective bail.
Still the petitioner No.2 is seeking extension of protective bail which was
granted in general terms (extended up to 05.9.2015.)

6. The plea of grant of bail or protective bail in constitutional jurisdiction,

requires to be attended carefully within parameters of the Article 199 of
the Constitution. In that regard, it is pertinent to mention that in criminal
administration of justice the attendance of the accused cannot be
substituted through attorney though Section 205, Cr.P.C. provides
mechanism whereby a Magistrate may dispense with personal
attendance of the accused but this in our view cannot be taken to expand
the jurisdiction of the Court to grant bail which, per Section 497 of the
Code is subject to arrest, detention, appearance, or his bringing before a
Court, as is evident from language wherein the Section 497 of the Code
has been couched:
'When any person accused of any non-bailable offence is arrested
or detained without warrant by an officer in charge of a police
station, or appears or is brought- before a Court'

Thus, before seeking a bail, there must have been arrest, detention,
appearance (for pre-arrest) or his bringing before a Court. Since, there
can be no denial to the well established principle of 'interpretation' that
subsequent provisions are always explanatory to former one(s), thus, to
make above legal position a referral to Section 498-A of the Code, being
relevant, is made hereunder:-
498-A. No bail to be granted to a person not in custody, in Court or
against whom no case is registered, etc.: Nothing in Section 497, or
Section 498 shall be deemed to require or authorise a Court to
release on bail, or to direct to be admitted to bail, any person who
is not in custody or is not present in Court or against whom no
case stands registered for the time being and an order for the
release of a person on bail, or a direction that a person be admitted
to bail, shall be effective only in respect of the case that so stands
registered against him and is specified in the order or direction.

7. The above provision restricts the authority of the Court that provision
of Sections 497 and 498 of the Code would not require or authorize a
Court to release or direct to be admitted to bail if :
 i) person, seeking bail, is not in custody or is not present in Court;

OR

ii) against whom no case stands registered;

Thus, for purpose of pre-arrest or post arrest bail the above two
conditions must co-exists. However, in extra-ordinary situation, in
matter of pre-arrest bail the condition-I (as referred above) might be
relaxed only for certain period or to enable the accused to approach
proper Court of law but the condition-II (as referred above) cannot be
relaxed even in pre-arrest bail because the provision of Section 498-A of
the Code has limited 'effectiveness' of an order, passed under Section 497
or 498 Cr.P.C. to :
'shall be effective only in respect of the case that so stands
registered against him and is specified in the order or direction.'

The constitutional jurisdiction is available to all citizens in the matters of

infringement of fundamental rights as it is the duty of the Court to
protect Fundamental Rights, guaranteed in the Constitution and Article
199 of the Constitution empowers this Court to issue any appropriate
directions for the enforcement of Fundamental Rights, conferred by the
Constitution in its Chapter-I of Part-II but to invoke the 'constitutional
jurisdiction' of this Court one is required to first qualify the test of being
'aggrieved person' (if matter is not one of public interest litigation) and
then to show that his/her case falls in any of the categories, so defined by
the Article 199 and that there is no other alternate legal remedy else the
petition shall not be competent.

8. In view of above legal position coupled with reference to provisions of

Sections 497 to 498-A of the Code, we feel ourselves quite safe to hold bail
be not granted in matter where conditions i and ii (name of accused in a
case and his appearance) are not co-existing, or in matter of 'protective
bail' the relaxation of condition (appearance) may be relaxed but it shall
require the applicant to establish extraordinary circumstances, justifying
non-appearance despite firm intention of applicant to surrender. The
above discussion allows us further to say that relief of 'bail' be not
granted normally in constitutional jurisdiction as it would amount to
stepping over the jurisdiction, created by provisions of Sections 497 to
498-A of the Code. We are also strengthened in our such view with the
case law, relied upon by the learned counsel for the petitioners, as it also
shows that it was an application for bail not 'constitution petition' and
accused in that matter had sought bail in a specific crime (FIR), hence the
reference of said case law, in no way, helps the petitioners to insist for a
license against all 'Law Enforcing Agencies' depriving them all from a
lawful jurisdiction/authority i.e 'to inquire, investigate and arrest an
accused' which order otherwise shall have no validity per restriction of
Section 498-A of the Code, as it does not specify the case wherein bail is
being ordered/granted. Here, it is worth to add that an order for grant of
'protective bail' can , in no way, equate the term 'release' or 'direct to be
admitted to pre-arrest bail' because the object of 'protective bail' is
nothing more than that an order enabling the accused to approach the
proper court within a 'specific period'. An order of protective bail does
not require a formal order of termination to follow but comes to an end
on moment the accused succeeds in approaching proper court or the
period, specified in order, comes to an end.

9. The record shows that petitioners had worded their grievance in the
petition while insisting 'coercive action' on part of the respondents (Law
Enforcing Agencies) hence, at this juncture, it is necessary to make it
clear that though the term 'coercive' appears to be having negative
impression yet it is not always so because a lawful action/order for its
enforcement may require coercive measures. The term 'Coerce' , per
Black's Law Dictionary Ninth Edition, defined as `To compel by force or
threat' while the term 'COERCION' is defined as: 'Compulsion by physical
force or threat of physical force'.

Following the plain meaning, we can safely say that an act even got done
by physical force or threat of physical force cannot, at all times, be
declared 'illegal' because under certain circumstances and situations the
law itself permits use of physical force or threat thereof. One can
competently use physical force to save a person attempting to commit
suicide, if circumstances/situations so demand. A reference to Chapter IV
of the Pakistan Penal Code, 1860, titled as 'General Exceptions' would be
sufficient to make view clear. Further, a reference to Chapter V of the
Criminal Procedure Code, which, even authorizes breaking open any
outer or inner door or window of any house or place and that of Chapter-
VI of the Criminal Procedure Code, permitting compulsion for
appearance of witnesses even through course of arrest and detention,
would also help in stamping said view. These actions though prima facie
appear to be coercive but cannot be said to be illegal because the
definition of 'legal act', per Black's Law Dictionary Ninth Edition is:
'Any act not condemned as illegal. 2. An action or undertaking that
creates a legally recognized obligation; an act that binds a person
in some way.'

We can safely conclude that to avoid a legal action, the plea of coercive
action shall not be available. A reference to the case of 'Ghulam Farid v.
State' (2009 SCMR 929) shall make the point further clear that wherein
honourable Supreme Court of Pakistan held as under:-
 "19. When an accused Anyone who either sees the person
committing such an offence or finds him running away
immediately thereafter would be entitled to arrest the said person
under the mandate of section 59 of the Cr.P.C. If such a person
causes hurt or death with a view to resist such apprehension, he
cannot plead to have acted in self defence. To lay down otherwise
would not only give license to criminals but would also discourage
public spirit to act in aid of law in apprehending the accused
which spirit even otherwise, we may add with regret is on decline.
The right of self defence cannot justifiably be claimed by such an
offender.'

10. If plea of 'coercive action' is considered in above discussion, we find

ourselves unable to incline the relief of issuing a license to the
petitioners whereby restraining all Law Enforcing Agencies from a legal
and authorized act i.e. to arrest an 'accused of cognizable offence'. It is
pertinent to mention that Authorities/Enforcement Agencies are legally
permitted and authorized to take coercive action even against the
delinquent persons but within four corners of law and law alone. The
position, being so, gives rise to a proposition that:

'whether such a constitutional petition can sustain?

To properly respond the above proposition, it would be material to refer

the Article 9 of the Constitution which reads as:
'Article 9. Security of Person.-No person shall be deprived of life, or
liberty, save in accordance with law.'

The deliberate use of the phrase 'save in accordance with law' is

sufficient to indicate that though the life and liberty of a person is
undeniably to be protected but when the law demands the same then
this would be no help for a convict to avoid 'death penalty' or for an
accused of cognizable offence to avoid 'arrest'.

11. We have sailed through the Article 199 of the Constitution and the
instant petition appears to have filed as a 'writ of mandamus'. This writ is
issued for government official where officials are not following the laws.
Simply it means an order 'to do an act which a person is bound by law to
do'. Since, as already discussed above, the Law Enforcing Agencies are
legally authorized and permitted to cause the arrest of a person, accused
of cognizable offence, hence a person legally cannot seek an exception to
the application of the law even by resorting to Article 199 of the
Constitution. One should always keep in mind that every single
individual is equal in the eye of law and guarantee to fundamental rights
is available to all persons hence mere status of an individual alone shall
not earn him an exception unless the law itself does so. A Law Enforcing
Agency does have power, jurisdiction and authority to inquire,
investigate an allegation/charge or cognizable offence which course does
include the authority to arrest the accused or even a suspect of
committing cognizable offence (Section 54 of the Code). These all actions
are permissible. Thus, we without any hesitation say that a writ of
mandamus even cannot be issued for a relief which could otherwise
amounts to 'restrain a person from doing a lawful and permitted legal
act' as such relief does not fall.

12. It is also worth to add here that the protective bail order was
extended with:
....with addition that the operation of the red warrants, if any,
issued against the petitioner No.2 shall also remain suspended up
to 05.9.2015."

Thus, it appears from the record that not only the petitioner No.2 enjoyed
protection of protective bail but also enjoyed suspension of the red
warrants but at the same time it is also a matter of record that petitioner
though obtained such order, having furnished requisite surety bonds,
but neither traveled to Pakistan nor placed any proof for such traveling
to Pakistan. Here, it is material to mention that it is not 'red warrant' but
it is 'red notice'. INTERPOL Notices are International requests for
cooperation or alerts allowing Police in member countries to share
critical crime-related information. Notices are published by INTERPOL's
General Secretariat (1PSG) at the request of National Central Bureaus
(NCBs) and authorized entities. In the case of Red Notices, the persons
concerned are wanted by national jurisdictions for prosecution or to
serve a sentence based on an arrest warrant or court decision.
1NTERPOL's role is to assist the national police forces in identifying and
locating these persons with a view to their arrest and extradition or
similar lawful action. Since it is a matter of record that the petitioner
No.2, got the operation of 'red notice' suspended yet did not land at the
lands of Pakistan for what purpose it was so insisted. Not only this, but
till date he (petitioner No.2) did not place on record any material which
could justify that there were compelling circumstances which prevented
him and despite suspension of red notice and an order, shielding him
from being arrested. Thus, it appears that the petitioner No.2 did enjoy
freedom of movement and traveling without letting his location known
to respondents (requesting country for issuance of red notice) and even
not landed at the lands of Pakistan to face the charges on which ground
the protection was provided to him. This seems that the petitioner No.2
enjoyed such exceptions by making the Court a 'tool' which attitude
cannot be achieved. This results in making us of the view that he
breached the bail bonds, for which purpose it was executed hence the
same is forfeited with a direction to recover the same.

13. However, while parting, it is worth to add here that since the Article
10-A of the Constitution does insist for 'fair trial' which object cannot be
achieved without providing the accused an opportunity to face the
charge, particularly where the accused himself volunteers to do so. Thus,
if an accused of cognizable offence shows his intention to face his trial
and resorts to constitutional jurisdiction for purpose of enabling him to
land at Pakistan to approach proper Courts then he may resort for such
purpose because the purpose of 'red notice' is to seek the location of a
wanted person and his/her detention, arrest or restriction of movement
for the purpose of extradition, surrender, or similar lawful action. This
by itself is not meant to declare the 'innocence or guilt' of the person
against whom a 'red notice' is issued nor shall in any way 'prejudice' the
rights of 'fair trial' of such a persons but only it:

i) he submits tickets, showing exact date of his traveling to a

particular Airport of Pakistan to prove,' his intention to face the
charge (s);

ii) discloses his location at time of moving of such petition with

undertaking to prior information about his movement to INTER
POLE, if his such request is allowed;

iii) undertakes to land directly to lands of Pakistan

iv) undertakes to make immediate approach to proper courts for

bail etc.; with an undertaking that he/she shall not leave the local
territorial limit without intimating the LEAs (Law Enforcing
Agencies);

v) shall mention the Crime Number and of offence or the name of

Court where case is pending, if he/she knows;

vi) unconditional forfeiture and payment of amount of bond for

such relief in case of failure to land on laud of Pakistan or to
change his location without prior information to quarter
concerned;

The said criteria would prima facie establish the intention of such a
person to face the charges and in other words may serve the very
purpose of red notice touching the object of 'fair trial', as enshrined in
the Constitution through induction of Article 10-A. Let us make it clear
again that this however shall not term as 'bail' but purpose thereof shall
remain confined to enable the person to land at lands of Pakistan and to
immediate approach to proper Court(s) for bail.

MH/M-111/Sindh Order accordingly.

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