• Detailed order on Imran Khan’s arrest from Islamabad High Court emphasises fundamental right of access to justice
• Trial court exempts PTI chief from appearance in Toshakhana case

ISLAMABAD: The Supreme Court on Friday night released the detailed order on PTI chief Imran Khan’s arrest from the premises of the Islamabad High Court (IHC) on May 9 and gave reasons for setting him free.

The apex court also warned the law enforcement agencies against arresting someone from within the premises of a court, especially after their surrender.

The three-member SC bench, comprising Chief Justice of Pakistan Umar Ata Bandial, Justice Moham­mad Ali Mazhar, and Justice Athar Minallah, declared Mr Khan’s arrest as illegal on May 9 and ordered his release from the custody of the Nat­ional Accountability Bureau (NAB).

The PTI chief was taken into custody and was on an eight-day physical remand with NAB in connection with a £190 million Al-Qadir Trust (AQT)corruption case.

The apex court ruled that it “treated the fundamental right of access to justice to encompass in it the right to invoke the court’s jurisdiction for appropriate relief. Assuring a person unimpeded access to the court when he/she has commenced the process of availing a judicial remedy effectively blocks preemptive executive action that attempts to curtail that person’s liberty and his/her right of access to justice”.

The apex court also referred to an order passed in Sharjeel Inam Memon’s bail petitions that acknowledged the adverse effects of limiting the ambit of access to justice to only that class of persons who are able to approach the courts.

In that case, the petitioner had invoked the constitutional jurisdiction of the high court to seek protective bail so that he could approach the competent court for suitable relief.

The SC said granting relief to a suspect was a routine practice “to enforce their Fundamental Rights of access to justice and liberty by ensuring their unobstructed access to a competent court”.

Discussing Mr Khan’s case, the bench was of the view that “if the petitioner’s arrest from the high court’s premises is endorsed, his application for pre-arrest bail filed in the AQT case before that court will be rendered futile notwithstanding the fact that he surrendered before the high court and invoked its jurisdiction”.

“This will not only deprive the petitioner of his right to access a competent court to safeguard his Fundamental Right of liberty but will also invite police officials/investigating agencies to treat court premises as hunting grounds for capturing accused persons, especially when the latter seek judicial oversight of their pending arrests,” the judgement said adding, “It would encourage police high-handedness and thereby expose courts to executive machinations in the future.”

Such a narrow interpretation of the fundamental right of access to justice cannot be approved by this Court and so is categorically rejected, the apex court ruled.

Accordingly, the petitioner’s arrest from the biometric verification room of the high court is declared to be invalid and unlawful on the touchstone of violating his fundamental rights under articles 4, 9 and 10A of the Constitution, the court declared.

Subsequently, the apex court decided to “reverse the clock and ordered the police to produce him before the high court so that his pre-arrest bail application in the AQT case may be heard by the high court for decision,” the judgement said.

This court was of the considered view that only such a course of action will caution police officials and investigating agencies to abstain from similar conduct in the future, that infringes both the dignity, sanctity and safety of the courts and the fundamental right of the citizens of Pakistan to enjoy liberty in accordance with law, it went on to say.

The SC also explained that Mr Khan was given into police custody for a day “to ensure the petitioner’s safe transportation to the High Court the next morning”.

“Likewise, to facilitate his legal defence before the High Court, this Court allowed the petitioner to meet up to 10 guests, including members of his legal team, whilst in police custody,” it added.

Toshakhana case

Separately, a trial court on Friday exempted Mr Khan in Toshakhana reference from appearance and also asked his counsel to argue on the maintainability of the case.

Additional District and Sessions Judge Humayun Dilawar resumed proceeding on an application of the PTI chairman that challenged the maintainability of the said reference sent to the trial court by the Election Commission of Pakistan (ECP) that accused PTI chief of concealing details of state gifts.

It was the second consecutive hearing; however, the lead counsel of Mr Khan namely Khawaja Haris Ahmed advocate, could not appear to argue on the maintainability.

Barrister Gohar Ali Khan, another counsel for the PTI chairman, requested the court to adjourn hearing till July 10, saying that Khawaja Haris was not available before the said period.

ECP Lawyer Amjad Pervaiz termed this delaying tactics, arguing that at least four lawyers were representing Mr Khan in this case and they were seeking adjournment due to absence of advocate Khawaja Haris.

The judge asked the lead counsel to argue the case and adjourned proceeding till today (Saturday).

Published in Dawn, July 8th, 2023