New Delhi, 26 September 2023: Justice Markandey Katju, a retired judge of the Supreme Court of India, has written a letter to the Judges of the Pakistan Supreme Court.
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| Why did Justice Katju write a letter to the Judges of the Pakistan Supreme Court? |
To: <dir.hrc@supremecourt.gov.pk>, <mail@supremecourt.gov.pk>
To CJP Qazi Faez Isa and his Companion Judges of the Pakistan Supreme Court
Islamabad
Dear Brothers/Sisters
I regret I have to write this strong letter to you, but I must.
You have all taken an oath to uphold the Pakistan Constitution, which has a right to life and liberty ( vide Article 9 )..
So it is your solemn duty to order release of Imran Khan ( also ordering that he not be arrested on his release on other charges ), as well as the 10,000 people arrested on concocted charges after the events of 9th May.
If you cannot do that please pack up, resign, and go home, as you are disloyal to your oath, and are consequently unfit to be judges.
It may be mentioned that even when an FIR is filed against a person, the police is not bound to arrest him/her. This is clear from section 157 of the Pakistan Criminal Procedure Code which states :
'' Procedure where cognizable offence suspected: (1) If from information received or otherwise, an officer incharge of a police-station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall proceed in person to the spot, to investigate the facts and circumstance of the case, and, if necessary, to take measures for the discovery and arrest of the offender ''.
The use of the word '' if necessary '' at the end of this provision implies that the police should not arrest someone unless it is necessary. The police can question the accused at his home or place of work, without arresting him/her. But it is evident that the police arrested these 10,000 persons who are in jail without even considering whether it was necessary to arrest them.
In Joginder Kumar vs. State of U.P. (AIR 1994 S.C. 1349), the Indian Supreme Court observed:
“No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest, apart from his power to do so.
Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer, in the interest of protection of the constitutional rights of a citizen, and perhaps in his own interest, to ensure that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest.
Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.”
The last sentence is important, though usually ignored by policemen. In the same judgment, the Indian Supreme Court has observed that the power to arrest is a major source of corruption for the police, and that according to the Third Report of the National Police Commission, about 60 per cent of arrests in India are either unnecessary or unjustified. The same must be the position in Pakistan
To make an illegal arrest is a crime (wrongful restraint and wrongful confinement) punishable under sections 341 and 342 I.P.C.
A wrongful arrest is violative of Article 9 of the Pakistan Constitution, which guarantees life and liberty to all persons. In Deepak Bajaj vs. State of Maharashtra ( 2008 ) the Indian Supreme Court observed:
“The purpose of Article 21 of the Indian Constitution ( which is akin to Article 9 in the Pakistan Constitution ) is to safeguard the liberty of the citizen, which is a precious right not to be lightly transgressed by anyone. The imperative necessity to protect those precious rights is a lesson taught by all history and all human experience. Our founding fathers had lived through bitter years of the freedom struggle and seen an alien government trample upon the human rights of our citizens. It is for this reason that they introduced Article 21 in the Constitution “.
In Ghani vs. Jones (1970)1 Q.B. 693 (709) Lord Denning observed:
“A man’s liberty of movement is regarded so highly by the law of England that it is not to be hindered or prevented except on the surest ground”
The above observation has been quoted with approval by the Indian Supreme Court in Govt. of Andhra Pradesh vs. P. Laxmi Devi J.T. 2008 (2) SC 639 (vide para 90).
Apart from the above, in State of Rajasthan vs Balchand, 1977 the Indian Supreme Court held that bail, not jail, is the normal rule, unless the accused is charged with a heinous offence or is likely to abscond or tamper with the evidence
This rule has been consistently followed thereafter e.g. in Dataram vs State of UP, 2018
In Satender Kumar Antil vs CBI the Indian Supreme Court observed :
'' Any imprisonment before conviction has a substantial punitive content ''. This is because criminal trials in India ( and in Pakistan ) usually take a long time to conclude, often years, and if the accused is ultimately found innocent who will restore him/her the time spent in jail ?
In England, when a case is filed in the High Court relating to individual liberty ( habeas corpus or bail ), the Judge sets aside the files of all other cases and takes up that case on priority basis.
So it is your solemn duty to take up the cases of Imran Khan and the other 10,000 persons in prison, and order their release, failing which you will be branded as the modern Judge Jeffreys and traitors to your own institution
Former Judge, Indian Supreme Court
26.9.2023
