Form No: HCJD/C-121

ORDER SHEET
IN THE LAHORE HIGH COURT, LAHORE
(JUDICIAL DEPARTMENT)

Case No. Writ Petition No.45360 of 2023

Parvez Elahi Versus Care Taker Government of Punjab etc.

Sr. No. of order/ Date of Order with signatures of Judge, and that of parties or
Proceedings order/ counsel, where necessary.
Proceedings

13.07.2023 M/s. Asif Mehmood Cheema and Amir Saeed

Rawn, Advocates for the petitioner.
Mr. Muhammad Anwar Khan, Assistant
Attorney General.
Mr. Ghulam Sarwar Nahung, Additional
Advocate General, Mr. Sittar Sahil, Assistant
Advocate General, Mr. Imran Abbas Sahi, AAG
and Mr. M. Farrukh Khan, AAG.
Malik Khuda Yar, Inspector Legal.
Ahmad Waqar, Inspector, FIA/AML/Lahore,
Shouzab, SI. Ch. Riaz, Deputy Director Legal
Anti-corruption and Waseem Sadiq, Assistant
Superintendent District Jail, Lahore.

Through this writ petition, the petitioner has requested for

information about details of criminal cases and pending
inquiries against him with further prayer to supply copies of
said FIRs and inquiries; get the petitioner’s Stress Nuclear
Sestamibi scan done; provision of well-ventilated vehicle for
transportation to the concerned Courts and finally that the
petitioner may not be arrested in unknown criminal cases with
ensued consequences for grant of opportunity to approach the
concerned Court, if any cases are found registered.

2. Learned Counsel (s) for the petitioner contend that as a last

hope they have knocked the door of this Court and invoke the
extra ordinary jurisdiction under Article 199 (1)(c) of the
Constitution of the Islamic Republic of Pakistan, 1973 which
authorizes to pass an appropriate order on the application of
any aggrieved person for enforcement of his fundamental
Writ Petition No.45360 of 2023 2

rights, and the petitioner being in the age of 76 years

beseeching the grandeur of this Court, as in pain due to tyrant
act of caretaker government making him prey of political
victimization. He is being traumatized through registration of
successive FIRs and once, he succeeds to obtain bail or
discharge order in any case he is immediately arrested in
other cases there and then and this trauma is continued for
the last 1½ months. Learned counsel (s) have submitted in a
chronological order the facts of petitioner’s arrest, his
appearance before the Court, grant of bail or discharge order
and re-arrest soon after every expedition; however, state that
as per list of cases provided by the respondents, all FIRs
against the petitioner have almost been exhausted wherein he
has successfully obtained release orders except in two cases
i.e., FIR No.5/23 P/S ACE Gujrat and FIR No.1150/2023 P/S
Ghalib Market, Lahore. Though he had applied for pre-arrest
bail in case FIR No.1150/2023 P/S Ghalib Market, Lahore but it
was dismissed due to non-prosecution; therefore, later he
applied for post arrest bail in such FIR but application was
dismissed on the stance of police that he is not under arrest in
such case. They further state that at present petitioner is
behind the bars in FIR registered at FIA, Lahore but has also
succeeded to obtain bail in that case wherein his release order
is being processed through dialogue between concerned Court
and Superintendent Jail, but petitioner apprehends that the
moment he comes out of the jail, he would be arrested in FIR
No. 5/23 ACE, Gujrat and FIR No.1150/2023, P/S Ghalib Market,
Lahore. Apprehension is further extending to the pending
inquiries which can be formalized into an FIR at any moment of
time by Anti-corruption establishment; though he has not been
associated in such inquiries nor he knows about nature of
allegations therein, therefore, he has made above
submissions/prayers mentioned in the opening paragraph of
Writ Petition No.45360 of 2023 3

this Petition. Learned counsel (s) have relied on case titled “Ali
Muhammad Khan Versus Director Anti-Corruption Mardan and other”
passed in Writ Petition No.2790-P/2023 by the Peshawar High
Court, Peshawar whereby an interim restraining order dated
05.07.2023 has been passed in favour of the petitioner therein,
as not to arrest him in unknown FIRs. The learned Counsel (s),
In the meantime, have also placed on record copy of order
dated 11.05.2023 passed in petition for pre-arrest bail filed by
the petitioner before the learned ATC, Lahore in case FIR No.
1150/2023 P/S Ghalib Market, Lahore supra.

3. On the other hand, Mr. Ghulam Sarwar Nehung, learned

Additional Advocate General states that every time petitioner
brings a lis before this Court with one pretext or the other
without any substantive ground or material. Further states that
no law prohibits the law enforcement agencies to arrest the
accused in number of cases one after another and passing of
omnibus order for not arresting the petitioner in any unknown
FIRs is without any legal justification.
4. Arguments heard. Record perused.

5. Perusal of report submitted by the Director General Anti-

Corruption Establishment Punjab, Lahore shows that certain
FIRs are registered and some inquiries are pending against the
petitioner which are as follows: -
Writ Petition No.45360 of 2023 4

Similarly, Director FIA, Lahore Zone has submitted report that

the petitioner is involved in following two FIRs: -

1. FIR No.18/2023 dated 20.06.2023 u/s 161,162 PPC,

5(2)47 PCA, 5,23 FERA r/w section 3/4 AMLA, PS
FIA AMLC Lahore;

2. FIR No.3/2023 dated 13.02.2023 u/s 3/4 AMLA

2010, PS FIA AMLC Lahore.

As per report submitted by the AIG/Legal for Inspector General

of Police Punjab Lahore, the petitioner is involved in case FIR
No.1150/23 u/s 324/353/506-B/440/436/ 427/212/ 186/
147/148/149 PPC, 7-ATA Police Station Ghalib Market, Lahore.

6. The petitioner has secured bail or discharge order in all

cases registered by the Punjab Anti-Corruption Establishment
except in FIR No. 5/23 ACE, Gujrat whereas in two cases of FIA,
he has also secured bail, yet in one case his release is under
process. One case behind him is the FIR No.1150/2023 P/S
Ghalib Market, Lahore in which he earlier approached the Anti-
terrorism Court Lahore but on chase by police in another case
he could not appear on 11.05.2023 before the Court, therefore,
his petition for pre-arrest bail was dismissed due to non-
prosecution. Order of Learned Judge Anti-terrorism Court was
examined which shows that dispensation was sought on
medical grounds, learned Court though tentatively assessed
the medical certificate yet neither provided opportunity to
place on record the proof in respect of such contention nor
summoned the accused. Learned Additional Advocate General
says that there is no law for summoning of accused on the eve
of his absence in above proceedings, and petitioner was not
under arrest on the day when he absented himself from the
Court; therefore, cannot be considered as in captivity. It is not
necessary that one must be in the captivity to define it as in
Writ Petition No.45360 of 2023 5

custody, rather restriction on his freedom of movement due to

fear of arrest or threat to life amounts to, as in the custody.
Full Bench of this Court in a case reported as “SHABBIR AHMAD
versus THE STATE” (PLD 1981 Lahore 599) explains this term with
following expression;

“I would like to explain here the word `custody'. It should not

be construed as physical custody. If a person is in restraint or
he apprehends arrest in a case which is cognizable obviously
his custody is intended by the Police Officer who can arrest
him without warrant.”

Therefore, when one cannot reach to the Court due to fear of

arrest, his absence be given an opportunity for an explanation
particularly in sheer or extreme cases of real exigency. The
opportunity for explanation has been focused in cited case in
following terms;

“The absence of the accused for a genuine cause has to be

taken into consideration by the Court and it should not take
hasty steps without affording a reasonable opportunity of
showing cause for his absence.”

Similar view was expounded by the Supreme Court in a case

reported as “SHAHZAIB and others Versus The STATE” (PLD 2021
Supreme Court 886) which is as follows;

“However, in case some explanation is furnished for his

nonappearance, the Court may, if it finds that explanation to
be satisfactory, exempt his presence for that day and adjourn
the hearing of the petition for a short period.”

Even if the accused is arrested in another case when he was

on interim pre-arrest bail in one case, his petition should not
be dismissed due to want of appearance rather a direction be
passed for his production before the Court as held by this
Court in a case reported as “FARHAN MASOOD KHAN versus STATE
etc.” (PLJ 2021 Cr.C. (Lahore) 550); therefore, contention of
learned Additional Advocate General is without any legal force,
Writ Petition No.45360 of 2023 6

and learned ATC, Lahore had also lost sight of above dictum of
the Superior Courts.

7. The practice of police to arrest the accused intermittently

at their wish in different cases one after another for
conducting investigation separately amounts to denial of
fundamental rights to life and liberty. It has also taken notice
of Honourable Supreme Court of Pakistan and expressed
serious concerns in a case reported as “GOVERNMENT OF SINDH
through The Chief Secretary, Karachi and 4 others versus RAEESA
FAROOQ and 5 others” (1994 SCMR 1283); it dictates that when
action of law enforcement agencies by their act seems
malafide, High Court must come into the rescue of an
aggrieved person; such dictates of Hon’ble Supreme Court is
cited as follows;

“Where the action and proceedings are not bona fide and with
ulterior motive to obtain information about an absconding
accused and arrest after arrest is made involving same
person in different blind reports lodged much earlier and no
explanation is provided for such series of actions in seriatum
one after the other, the High Court is empowered to afford
protection to the citizen against frivolous and mala fide
actions by imposing conditions on the erring authorities and
agencies.”

The High Court under Article 199(1)(c) of the Constitution of the

Islamic Republic of Pakistan, 1973 is competent to pass
appropriate orders on the application of any aggrieved person
yet this appropriation must not violate any provision of law.
However, when there is no express provision in the context of
remedy sought for or which could cater to a situation as the
justice demands then the Court can exercise powers ex debito
Justitiae and can grant a relief not specifically prohibited by
law; reliance is on case reported as “Mian MUHAMMAD NAWAZ
SHARIF versus PRESIDENT OF PAKISTAN and other” (PLD 1993
Supreme Court 473). Ex debito Justitiae means “of or by
reason of an obligation of justice” and it commands that the
Writ Petition No.45360 of 2023 7

way of justice is paved with truth (Justitiae via strata veritate).

This court in a case reported as “MUHAMMAD NAEEM versus THE
STATE” (1980 P Cr. L J 377) (Lahore) while exercising powers
ex debito justitiae granted interim bail to the accused and held
that this power can be invoked under Article 203 of the
Constitution.

8. In a case reported as “Mst. RAZIA PERVAIZ and another versus

THE SENIOR SUPERINTENDENT OF POLICE, MULTAN and 5 others”
(1992 P Cr. L J 131), this Court has embarked upon the practice
of police to arrest the accused in more than one cases one
after another and declared as under;

“Before parting with the judgment, I feel constrained to

observe that the provisions of section 54, Cr.P.C. relating to
the arrest of the accused by the police and the provisions of
section 167, Cr.P.C. pertaining to the remand of the accused
person to police custody have been misused and old
unwarranted police tactics of arresting the accused person
repeatedly in more than one cases, have been played in the
instant case, although the law does not authorise the police
to arrest an accused required in more than one cases, in one
case and to wait for his arrest in the other case till the expiry
of the period of remand under section 167, Cr.P.C. or till he is
released on bail in the first case. This commonly committed
mischief not only defeats the object of section 167, Cr.P.C. of
limiting the period of physical detention of an accused person
to fifteen days but is obviously a joke with the powers of the
Magistrate in the matter of remand and custody of an accused
person.”
(Emphasis supplied)

The matter of blind FIRs was also subject of a case reported as

“JAM SAQI Versus PROVINCE OF SINDH through Secretary, Home
Department, Karachi and 6 others” (2005 P Cr.L.J 1626) wherein the
Hon’ble Division Bench has observed that If an action is taken
with malafide intention then the powers exercised by the State
functionaries cannot be treated as the powers they can
exercise with bonafide intentions in ordinary course of law.
The Division Bench finally directed in following terms;

“We direct that the entire police administration in the whole of

Province of Sindh shall not arrest the petitioners and Mst.
Akhtar Sultana in any blind FIR or in any FIR which is pending
Writ Petition No.45360 of 2023 8

for more than one year against the petitioners and Mst.
Akhtar Sultana until and unless the necessary particulars of
FIR are placed before this Court and appropriate orders are
sought from this Court.”

Almost a similar view was already in place which was

reported through case titled as “Maulana ABDUS SATTAR KHAN
NIAZI versus THE STATE” (PLD 1974 Lahore 324); the case deals
with an injunctive order, as not to arrest the petitioner in
unknown cases; which High Court declared can be passed
under Article 102 of the Constitution of Pakistan, 1962. In the
recent case “Ali Muhammad Khan Versus Director Anti-
Corruption Mardan and other” passed in Writ Petition No.2790-
P/2023 by the Peshawar High Court, Peshawar, an interim
injunctive order was passed as not to arrest the petitioner
therein in unknown FIRs.

9. The uncalled practice for arrest after arrest cannot be

weighed in the light of object of law enforcement agencies,
rather from the actions which speak intentions, alive in this
case, and many others, they were so prompt and swift so as to
leave desperation as foot prints in the book of history. Without
collecting proper information and sufficient material rushing
for an arrest stands in complete negation of dictum of
Honourable Supreme Court in a case reported as “Mst.
SUGHRAN BIBI versus The STATE” (PLD 2018 Supreme Court 595)
which otherwise is binding on every organ of the State as per
Article 189 of the Constitution of the Islamic Republic of
Pakistan, 1973. Any deflection of such dictum in the given
situation amounts to a malafide action couched in ulterior
motives for keeping the petitioner behind the bars at every
cost. The Honourable Supreme Court in supra case
Government of Sindh etc. versus Raesa Farooq (1994 SCMR
1283) regarded that such like actions of police are for extorting
confession or information from accused through ulterior
Writ Petition No.45360 of 2023 9

motives. Such practice is a source of nuisance and causes

harm to mind and reputation of a person which in turn is
synonymous to causing hurt; according to section 332 PPC hurt
includes injury, and injury defined in section 44 PPC means
“any harm whatever illegally caused to person, in body, mind,
reputation or property”. Therefore, causing injury for extorting
information or confession is an offence u/s 337-K PPC which is
reproduced for reference;

337K. Causing hurt to extort confession, or to compel

restoration of property: Whoever causes hurt for the
purpose of extorting from the sufferer or any person
interested in the sufferer any confession or any information
which may lead to the detection of any offence or misconduct,
or for the purpose of constraining the sufferer, or any person
interested in the sufferer, to restore, or to cause the
restoration of, any property or valuable security or to satisfy
any claim or demand, or to give information which may lead
to the restoration of any property, or valuable security shall,
in addition to the punishment of qisas, arsh or daman, as the
case may be, provided for the kind of hurt caused, be
punished, having regard to the nature of the hurt caused, with
imprisonment of either description for a term which may
extend to ten years as ta'zir.
(Emphasis supplied)

Putting somebody in captivity with threatened incarceration, of

course indicate design either to obtain required information or
to secure forced confession of alleged or supposed crime.
People resist against injustice with inner strength both
physical and mental but are prone to rely on support from
outside world like friends, relatives, colleagues, community or
general masses; therefore, captivity, particularly illegal,
disconnects the person from outside world and breaks him
down so badly as to accept everything before him to avoid
danger to his health, mind, property and most of all the family.
Producing such effects amounts to commission of offence u/s
337K of PPC which is a cognizable offence; therefore, arrest
after arrest also falls in the same category.
Writ Petition No.45360 of 2023 10

10. In the light of above discussion, it can be said that in this

digital age when sharing information is so simple and cheap,
its dissemination has become so rapid and effective either
through social media account or online information available at
respective Police Information System Software, the record of
criminal cases of an accused can be obtained easily. Even
otherwise, a Crime Investigation Agency (CIA) is in existence
whose primary duty is collection of information relating to
investigation of every case registered in the district that does
include information of arrest as per Rule 21.35 of Police Rules,
1934 and it also talks about arrest of accused in all cases and
not in one. On receiving an information of arrest of an accused
CIA is duty bound to inform the Incharge Police Station about
any other cases registered against him in the district;
therefore, Station house officer can also develop contact with
CIA of other districts or provinces so as to collect information
about number of cases registered against him throughout the
country. Therefore, once an accused is arrested, he can be put
into investigation for all cases registered against him and if the
investigation cannot be completed within stipulated period
during a physical remand, it can well be continued during
judicial custody of accused in the jail with all just legal
exceptions, of course with the permission of concerned
Magistrate; therefore, arrest after arrest or successive
remands in different cases amounts to denial of fundamental
rights to life and liberty and also opposes to principle of due
process. It is held that if it spurs out from the record that
arrest in different cases is not being sought for the purpose of
investigation but to keep the accused in physical custody of
law enforcement agency for a longer period in order to kneel
down him to their terms, then it is not only illegal but an
offence, and bona fide of police for arrest in different cases is
Writ Petition No.45360 of 2023 11

reflected if they put remand request with criminal record of

accused.

11. It is trite that section 54 of Cr.P.C. empowers the police to

arrest without a warrant any person required in nine situations
mentioned therein but it is only permissible and cannot be
used as substitute of might is right, therefore, for effecting
arrest, a warrant should be obtained and as per section 75 (2)
of Cr.P.C. it remains operative until executed or cancelled by
the Magistrate/Court concerned. therefore, whenever any
arrest is required, law enforcement agencies are duty bound to
submit information of all cases in which the arrest of accused
is being sought. This command of law in fact provides
opportunity to ensure the compliance of dictum laid down by
Honourable Supreme Court in “Sughran Bibi Case” supra for
collection of sufficient material before making arrest. The
concerned Magistrate/Court are the Guardian of the
Constitution and shall accord permission to arrest only if it
does not oppose to fundamental right to ‘safeguards as to
arrest and detention’ as enshrined in Article-10 of the
Constitution. The request of police must be supplemented by
an opinion of concerned prosecutor so as to convince the
Magistrate/Court that material is or isn’t available to give a go
to the request of police. Mentioning the criminal antecedents of
an accused in a request of remand helps the police to obtain
physical custody and also resist bail there or at subsequent
stage because maintaining criminal history is one of the
grounds to decline bail to the accused, as being hardened or
dangerous, in order to avoid repetition of the offence;
therefore, non-mentioning of record sometimes gives
premium to accused to seek bail successfully, that irks the
police to obtain successive remands.
Writ Petition No.45360 of 2023 12

12. So far as the request of learned counsel (s) for the

petitioner that the protective bail may be granted in remaining
two cases i.e., FIR No. 5/23 P/S ACE, Gujrat and FIR No.
1150/2023 P/S Ghalib Market, Lahore. which was seriously
opposed by the learned Additional Advocate General that
petitioner is not before the court therefore, he cannot be
granted protective bail which was responded by the other side
that the petitioner being in jail is in the notice of Court,
therefore, he can be summoned before this court or he can be
treated like an accused who applies bail for landing into the
country in order to surrender before the Court of law and
Court usually grants such opportunity as held in case reported
as “SHARJEEL INAM Versus FEDERATION OF PAKISTAN and others”
(2017 YLR 2423). The request of learned counsel (s) for the
petitioner is acceded to, petitioner is granted protective pre-
arrest bail for approaching to the Court concerned within 10
days after his release from the jail. Earlier the petition for pre-
arrest bail of the petitioner in case FIR No. 1150/2023 P/S
Ghalib Market, Lahore was dismissed due to non-prosecution;
though as per ratio in above Case laws the petition should be
considered as pending but as said order of dismissal has not
been challenged, therefore, while relying on case laws cited
above, it is directed that petitioner shall not be arrested in
case FIR No. 1150/2023 P/S Ghalib Market, Lahore who shall
approach the concerned Court with a fresh application within a
period cited above which shall be decided in accordance with
law. The petitioner shall submit personal surety bond in the
sum of Rs.50,000/- each in above FIRs, for the satisfaction of
Deputy Registrar (Judl.) of this Court.
13. The net result of above discussion is that this writ petition
is allowed in the above terms with the direction that petitioner
shall not be arrested in any blind or unknown FIRs or in
pending inquiries which shall be completed after providing
 Writ Petition No.45360 of 2023 13

statement of allegations and opportunity of hearing to the

petitioner under the Punjab Anti-Corruption Rules, 2014 or
Federal Investigation Agency Act, 1974. The matter for his
Stress Nuclear Sestamibi scan and provision of well-
ventilated vehicle for transportation to the concerned Courts is
forwarded to the Additional Chief Secretary (Home) for
decision in accordance with law.

Muhammad Amjad Rafiq

Judge
Approved for reporting:

Muhammad Amjad Rafiq

Judge

This order was pronounced on 13.07.2023

however, after dictation and preparation,
it was signed on 14.07.2023.

M. Azhar*