ISLAMABAD: A two-member bench of the Supreme Court on Thursday suspended an order of the Peshawar High Court (PHC) that had granted blanket bail to PTI leader Asad Qaiser and others in cases pertaining to violence instigated after the arrest of party chief Imran Khan on May 9.
Justice Sardar Tariq Masood and Justice Mussarat Hilali, while hearing an appeal by Khyber Pakhtunkhwa (KP) against the PHC order, took exception to the blanket relief granted by the high court and suspended the order, passed on Aug 4, 2023, till next hearing.
It may be noted that in addition to granting bail to the PTI leaders, the high court had also barred the police and prosecution department from arresting the respondents — Asad Qaiser, Rangaiz Ahmed, Aqibullah, and Attaullah — not only in the instant case but also in any other criminal case. The court had also issued a circular to all judicial officers of the province in this regard.
However, the SC bench on Thursday suspended this circular and issued notices to the respondents.
Advocate Sher Afzal Marwat was present in Courtroom No.2 to represent the respondents, but the court asked him to advance his arguments when notices were issued to them.
KP Additional Advocate General Mohammad Nisar informed the apex court that the respondents were nominated in the FIR registered at the Swabi police station on June 2, 2023, under sections 409, 162 of the Pakistan Penal Code as well as Section 5(2) of the Prevention of Corruption Act (PCA) 1947. In a separate case, the respondents were booked under terrorism charges for their alleged involvement in the May 10 incidents.
To approach the relevant anti-corruption court, the respondent filed a writ petition before the Islamabad High Court (IHC) under Section 498 of the Criminal Procedure Code (CrPC) for transitory bail. On July 17, the IHC granted bail — to expire on July 24 — with a direction that respondents should approach the court concerned.
Mr Nisar contended that the respondents did not comply with the order and never approached the respective court.
In the meantime, the IHC order was received by the Swabi sessions judge. On Aug 2, the respondents filed another application before the Abbottabad sessions judge and allegedly concealed the earlier filing of the transitory bail.
The sessions judge while issuing transitory bail directed the respondents to approach the anti-corruption court concerned. Instead of approaching the anti-corruption court, the PTI leaders moved the PHC, which granted them bail despite the fact that the earlier order was in the field, argued the KP AAG.
Rangaiz was arrested when he was going to Swabi. Subsequently, the matter was taken up by a PHC judge who referred the case to the PHC chief justice.
The CJ issued directions to the authority concerned to produce Rangaiz, who was consequently brought to the court.
The AAG contended that the way the bail was granted by the high court, in fact, “meant to stifle the entire scheme of the criminal procedure code” since the high court, while releasing Rangaiz without any bail application or any bail bond, ordered authorities not to arrest him in this case or in any other criminal case.
AAG Nisar also referred to the extracts of the PHC order, which barred the arrest of the respondents, saying when they were set at liberty by the court after the grant of pre-arrest interim bail, no arrest could be affected in any other criminal case unless prior permission was sought from the court concerned.
On the basis of the order, the PHC also sent a circular to all the district and sessions judges.
“Thus the PHC order was full of illegalities,” AAG Nisar said, adding that setting at liberty the accused on a “cognisable offence without bail application or mandate of Section 498-A of CrPC through an omnibus order of not arresting the accused who may be on an interim bail on a petty matter was against the law”.
The blanket order for not arresting any person….is against the scheme of the criminal procedure, the AAG said.
It merits mentioning that on Oct 5, Justice Sardar Tariq Masood-led bench took exception to the tendency of granting blanket bail orders by the Lahore High Court and had sought assistance on the legal sanctity attached to such orders barring arrest of an individual even on unknown FIRs.
He had made these observations while hearing a petition filed by the spouse of ex-Punjab chief minister Parvez Elahi.
Published in Dawn, October 20th, 2023
