Abuse of the process of law continues – 13 Jul 2022

Has anything changed in terms of human rights in the Land of Pure ever since its birth?

They say change is constant, but has anything changed in terms of human rights in the Land of Pure ever since its birth? As cases continue to be registered against certain individuals, it once again brings to the fore the issue of lack of enforcement of fundamental rights in the country. As if a reenactment of what was happening during the previous regime, Express News anchorperson Imran Riaz Khan was arrested from Islamabad Toll Plaza on Tuesday despite the fact that he had obtained a pre-arrest bail from a court of law.

Imran Riaz’s arrest — a typical case of harassment wherein multiple FIRs are registered against the same person on the same charges in different jurisdictions of courts and police station — has reignited debate on the abuse of the process of law with intent to discourage enforcement of fundamental rights. In this context, it is not out of place to mention that access to justice is a fundamental right which is not possible without an efficient, effective and vigilant justice system. Creating obstacles to approaching courts through various means is tantamount to denial of justice.

Choudhry Manzoor Elahi v the Pakistan etc (PLD 1975 SC 66) is a case in point. Choudhry Manzoor Elahi was arrested from his house in Lahore by the Punjab police on 12 November 1973 and without producing him before the magistrate. He was shifted to Kohlu to be tried by a tribunal (jirga) under the Frontier Crimes Regulations over there. This was in outright violation of due process of law with the ulterior motive to oust the jurisdiction of Lahore High Court as contended in a writ petition filed in the Supreme Court under Article 184(3) of the Constitution.

The top court, in the landmark judgment, held that under Article 9 no person can be deprived of life and liberty, save in accordance with law; therefore, depriving him of his right was against the law. Secondly, by not producing him before a Magistrate within 24 hours of his arrest, breach of Article 10(1) of the Constitution had occurred. By that action not only his right of knowing the charges but also his right to consult and to be defended by a legal practitioner of his choice was violated. The main point in that judgment was that the Lahore High Court had not lost its jurisdiction to grant relief to Choudhry Manzoor Elahi, as he had been illegally taken out of the territorial limits of that High Court.

Holding the whole act as mala fide, the Supreme Court released him on interim bail. Discouraging the tendency of the multiplicity of FIR considering it as abuse of the process of law, Supreme Courts in both India and Pakistan have given detailed judgments, applying the principle of sameness. In the judgment of Surendra Kaushik and Others vs State of Uttar Pradesh (2013), the court applied the ‘Sameness Test’ by saying that if the second FIR alleged the improved version of the same offence, it could not be permitted whereas ‘rival version’ of the same incident in multiple FIR can be permitted.

For instance in the case of Arnab Goswami, a renowned Indian broadcast journalist, several FIRs were lodged. But the Supreme Court took the discretion of quashing the various complaints filed in diverse jurisdictions, except an FIR lodged in Maharashtra. The judgment declared that it was an abuse of process as the facts were identical in every complaint. While applying this principle of sameness, the court has to examine the relationship of the incidents with each other or transactions of occurrence to ascertain the sameness of the incidents. The second FIR can be quashed if it is found that one incident is the part of same. Avoidance of double jeopardy being a constitutional obligation and a universally recognised notion is based on the principle of nemo debet bis vaxari: nobody can be vexed twice for the same cause.

Therefore, bar on the registration of multiple FIRs is to ensure the implementation of Article 13 of the Constitution of Pakistan and Article 20 of the Constitution of India. The Supreme Court of Pakistan in its judgement in the Sughra Bibi vs the State case, authored by Justice Asif Saeed Khosa, has also held that no separate FIR is required even for new version after registration of first criminal case in any incident followed with a direction to send copies to all Inspectors General. Therefore, Inspectors General are under obligation to prevent the abuse of the process.

From the aforementioned discussion, the impression which emerges is that nothing has changed. We still have to go a long way to ensure that due process of law is not violated. Therefore in such circumstances, it is obvious that the people look towards the Supreme Court of Pakistan to take notice of such violations and enforce fundamental rights under Article 184(3) of the Constitution of Pakistan.

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