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The Supreme Court (SC) on Thursday ordered the “immediate release” of PTI Chairman Imran Khan after terming his arrest in the Al-Qadir Trust case “unlawful”.
The top court also directed the former prime minister to approach the Islamabad High Court (IHC).
The directives were issued by Chief Justice of Pakistan (CJP) Umar Ata Bandial as the court resumed hearing Imran’s plea against his arrest.
Earlier in the day, a three-member SC bench including the CJP, Justice Muhammad Ali Mazhar and Justice Athar Minallah directed the National Accountability Bureau to present Imran before the court.
“The court will issue an appropriate order today,” the CJP said during the hearing, adding that the court was “very serious” about the matter.
Subsequently, Imran was presented in court amid tight security a little after 5:45pm. A Dawn.com correspondent present at the scene said that the former prime minister was taken inside the SC via the judges’ gate.
Ahead of Imran’s arrival, security was tightened outside the apex court, with contingents of the Rangers and police, and bomb disposal squads called in. Only lawyers and journalists already present in courtroom number 1 — where the hearing was held — are allowed inside the room.
The media also reported that the Islamabad DIG (security) had reached the court to review the security situation.
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Meanwhile, the PTI asked its supporters to stay away from the top court.
Today’s hearing
When the hearing resumed, after Imran’s arrival in court, the CJP called the PTI chairman to the rostrum and said: “Happy to see you.”
“There have been incidents of violence after your arrest,” Justice Bandial said, adding, “We want peace in the country.”
CJP Bandial said, “It is being said that your [PTI] workers came out in rage” and told Imran that the court wanted to hear him.
The top judge observed that the PTI chief was present in the IHC’s biometric courtroom on May 9. “When a person comes to the court of law, it means that he surrenders before the court.”
Justice Bandial then remarked that Imran’s arrest was “illegal” and directed the PTI chief to approach the IHC. “You will have to accept the high court’s decision,” the top judge said, reiterating that Imran had to appear before IHC tomorrow (Friday).
At the outset of the hearing — which began a little after 2pm — one of Imran’s counsels, Hamid Khan, came to the rostrum and informed the apex court that his client had approached the Islamabad High Court (IHC) for pre-arrest bail.
His lawyer said that Imran was in the process of getting his biometrics done when he was arrested. “Rangers misbehaved with Imran Khan and arrested him,” the lawyer said.
CJP Bandial observed that court records showed that the case had not been fixed for hearing. The lawyer told the court that the appeal could not be filed without completing the biometric process.
Here, Justice Minallah observed that Imran had indeed entered the court premises. “How can anyone be denied the right to justice?” he asked.
CJP Bandial said that there was a certain “respect” for the courts. Recalling a past incident, he said, “NAB had arrested a suspect from the Supreme Court’s parking [lot]. The court had then reversed the arrest.”
The CJP asked Imran’s counsel about the number of Rangers personnel who had carried out the arrest of the former premier. Imran’s lawyer responded that “100 rangers personnel entered court premises” in order to arrest the PTI chief.
“What dignity remains of the court if 90 people entered its premises? How can any individual be arrested from court premises?” he asked.
“In the past, action has been taken against lawyers for vandalism inside the court,” he observed. “If an individual has surrendered to the court, then what does arresting them mean?”
He further said that NAB had committed “contempt of court”. “They should have taken permission from the court’s registrar before the arrest. Court staffers were also subjected to abuse,” he added.
CJP Bandial emphasised that courts should be accessible to everyone for relief and that individuals should feel safe to approach the courts.
Imran’s lawyer then demanded that his client be released from NAB custody, stating that the arrest was made without an investigation officer present.
The chief justice noted that the court was currently examining the manner in which the arrest was conducted and whether contempt had taken place.
Imran’s lawyer then said that the PTI chief was on terrorists’ “radar”. Only after the arrest was made did it emerge that the warrant was issued on May 1, he said.
Imran’s other lawyer, Advocate Salman Akram Raja, told the court that the interior ministry’s secretary had said he had not yet received the warrants for their execution.
At this point, the CJP said that whatever had happened after Imran’s arrest should have stopped.
“This does not mean that we shut our eyes to an illegal action. Such a verdict should be given that applies to all. Access to justice is the right of every accused,” he said.
“No one can be arrested from the Supreme Court, a high court or an accountability court,” the CJP said.
Imran’s lawyer Hamid said that if that the party would not have approached the SC if the PTI chief had been arrested from outside his home or outside the court.
Here, Justice Mazhar asked if Imran had responded to the NAB notice, to which the lawyer replied in the affirmative.
“According to the law, an arrest cannot be made when an inquiry is still being carried out,” Hamid said.
Justice Minallah then said that NAB had arrested elected public representatives in a humiliating manner, adding that this needed to come to an end. “The act of surrendering to the court cannot be sabotaged,” he said.
“The real issue is not of the NAB warrant but of the manner in which it was executed,” he said. “NAB talks about the implementation of the law but does not act upon it itself.”
Justice Mazhar then noted that the NAB warrant had not been challenged and asked, “Why did Imran Khan not take part in the investigation?”
The PTI chief’s counsel said that the PTI chief had responded to the notice issued by the graft watchdog.
At this point during the hearing, Justice Mazhar observed, “It is clear that Imran Khan did not act upon the NAB notice. A NAB notice means that the receiver will be considered a suspect. Many people obtain bail upon receiving a NAB notice.”
“A March notice was responded to in May. Did Imran not violate the law?” he asked. At this, Imran’s counsel said that the PTI chairman had only received one notice.
Justice Minallah then said that Justice Mazhar was talking about the implementation of the law, adding that the matter at hand concerned access to justice.
NAB Prosecutor General Asghar Haider said that the accountability bureau respected the country’s courts.
But Justice Minallah said that NAB had “not learnt its lessons”. He observed that NAB had been accused of many things, including “political engineering”. “Had NAB taken permission from the registrar?” he asked, adding that a letter had been written to the interior ministry for the warrant’s execution.
The NAB official responded to the judge’s queries by saying that he was not aware of the realities and had been posted at 1:30pm.
Justice Minallah then said that a common citizen could also execute an arrest warrant. “Did NAB issue directives to arrest [Imran] from inside the court? How many notices were issued to Imran Khan?” he asked.
The prosecutor general responded by saying that only one notice had been issued to the PTI chief.
“It appears that NAB’s warrant was not in accordance with the law. Was an attempt to arrest made after the warrant was issued?” Justice Minallah asked.
CJP Bandial noted that the warrant was issued on May 1 and the arrest took place on May 9. “Why did NAB not try [to arrest Imran] itself for eight days? Did NAB want to arrest Imran from court? Why was a letter written to the interior ministry on May 8?” he asked.
He also asked who had carried Imran’s arrest. The NAB official replied that according to the IHC order, the arrest was overseen by the police.
Justice Minallah then asked why NAB didn’t write to the Punjab government regarding the warrant, observing that the bureau had contributed to the country’s destruction.
Attorney General of Pakistan (AGP) Mansoor Awan then appeared before the court at which the CJP remarked that they would hear his opinion on access to justice.
The AGP said that what NAB had done with the ex-premier had “become a norm”. He asserted that NAB was an “independent institution”, adding that it had requested Rangers to be posted.
He said, however, that NAB had requested Rangers to be present at the scene, not carry out the arrest.
Justice Minallah observed that NAB had put all the blame on the federal government.
“If an accused surrenders before the court and is arrested, then the court will be an easy place to carry out arrests,” the CJP said. “In the mind of the accused, the courts will become a facilitator for making arrests. The courts are free, a free court means to provide protection to citizens,” he said.
Justice Minallah remarked, “It is becoming difficult for you to defend. Other political parties have also been treated very badly. Every citizen is being affected by the recent arrest.
Justice Minallah went on to say, “Would it not be appropriate to restore the public’s trust in the judiciary? Would it not be appropriate that the court decides on Imran’s bail petition?
“A lot has happened in the country. The time has come for the rule of law to be established. The arrest will have to be reversed from where it was made,” he added.
‘Will be unsurprising if SC sets aside high court’s decision’
Commenting on the SC’s proceedings, lawyer Mirza Moiz Baig told Dawn.com that the apex court had previously — in cases including that of Ali Moosa Gilani — deprecated the accused’s arrest after he had been arrested from the court’s entrance while approaching the court to seek pre-arrest bail.
“This view is consistent with the principle that a person cannot be penalised for surrendering himself to the law. While Chairman NAB may have some grounds to issue a warrant of arrest, arresting Imran Khan from the court’s premises is inconsistent with the precedents laid down by the Supreme Court,” he said.
“While the IHC’s decision acknowledges that the arrest from the court’s premises is improper, its view that the arrest is nonetheless legal departs from the law laid down by the Supreme Court and sets a dangerous precedent. It would, thus, be unsurprising if the Supreme Court sets the High Court’s decision aside,” Baig added.
Lawyer Rida Hosain told Dawn.com that there had been instances in the past where arrests carried out on court premises were reversed and contempt of court proceedings were initiated pursuant to the same.
“Over a period of time, it has been accepted that arrests will not be carried out on court premises. In the case of Imran Khan, this was not an ordinary arrest.
“Scores of rangers were called to court, court staff and lawyers on the premises were manhandled, and windows were broken down,” she said.
The lawyer added: “On the face of it, this was excessive use of force and the manner in which the arrest was carried out appears to violate the honour and dignity of the court.”
The petition
On Wednesday, an accountability court in Islamabad had handed Imran over to the National Accountability Bureau (NAB) for eight days in connection with the Al-Qadir Trust case.
Subsequently, he had approached the apex court to set aside the warrants issued by the National Accountability Bureau (NAB) chairman on May 1 for his arrest and to challenge the Islamabad High Court’s decision to declare the arrest “unlawful”
The appeal, which was filed on behalf of Imran through his counsel Raja Aamir Abbas, expressed apprehension about an imminent threat to the life and liberty of the petitioner.
It argued that the warrants appeared to be in violation of Article 10-A (a provision that guarantees right to fair trial), as the proceedings initiated by NAB and Imran’s subsequent arrest were intended to deprive the political party and its leadership of participating in and carrying out election campaign.
The petition contended that while the IHC held that by arresting the PTI chairman on the court premises on May 9, grave illegality had been committed, the court did not issue directions for his release from “unlawful custody”.
The court only issued contempt notices to interior secretary and Inspector General of Police, Islamabad, the petition pointed out.
While citing a 2009 judgement of the apex court, the petition argued the arrest made on court premises was illegal as the premises was the only sanctuary that citizens approach for redressal of their grievances and protection of their constitutional rights. Thus, it regretted, the entire proceedings initiated by NAB authorities and the arrest made thereunder in collusion with the present government, on the face of it was made with mala fide intention only to harass and damage the reputation of the petitioner.
The petition further argued the warrant issued by the NAB chairman under Section 24(i) of the National Accountability Ordinance, 1999 were “unlawful” also because warrants could only be issued during the investigation of a case or under Section 24(a)(i) when a suspect was intentionally or wilfully not joining the investigation after “repeated notices”. However, it claimed, not a single notice was issued to the petitioner after the inquiry against Imran was turned into an investigation on April 28.
The appeal recalled Imran in connection with his pre-arrest bail application was present inside the high court premises where the biometric procedure was being carried out when the Rangers personnel along with other officials broke in and shattered the windowpanes of the office to ‘unlawfully’ arrest the petitioner.
Subsequently, the matter was agitated before the IHC, which declined to declare the arrest “unlawful”, the petition recounted the events during and after the arrest.
The SC was further apprised that the issuance of warrants was unlawful since it was mandatory under Section 18(c) of the accountability ordinance that the inquiry report should be provided to the suspect before the commencement of the investigation in order to turn an inquiry into investigation. But no such report was ever prepared or handed over to Imran, the petition said.
In his petition, Imran claimed that the alleged amount of Rs190 million had already been deposited in the Supreme Court account apparently in relation to its May 4, 2018 judgement involving grant of 9,385-acre land by the Malir Development Authority to the Bahria Town Karachi in 2015 — about 9km from Karachi toll plaza on the superhighway.