Staff Reporter:
The Supreme Court (SC) on Thursday termed PTI Chairman Imran Khan’s arrest in the Al-Qadir Trust case “unlawful” and directed him to appear before the Islamabad High Court (IHC) Friday, reports Dawn.
“The manner of execution of the arrest warrant issued by the Chairman, National Accountability Bureau (NAB) dated 01.05.2023 in the Al-Qadir Trust case within the premises of the Islamabad High Court against the petitioner is invalid and unlawful,” the ruling said.
Imran was whisked away from the IHC premises by paramilitary forces on Tuesday, leading to violent protests across the country. The PTI chief had immediately approached the high court for release but it had declared his arrest legal.
The former premier’s lawyer, Barrister Ali Zafar, then petitioned the SC on his behalf for Imran’s release.
Key takeaways from today’s hearing:
# SC declares Imran’s arrest “unlawful”, directs him to appear before IHC at 11am tomorrow; written order to be released shortly
# CJP Bandial says PTI chief will be kept at the Islamabad Police Lines Guest House but would not be considered a prisoner
# Imran asks supporters to remain peaceful, says unaware of unrest
# Justice Bandial allows 10 people to stay with Imran over the night
Earlier today, a three-judge bench comprising the Chief Justice of Pakistan (CJP) Umar Ata Bandial, Justice Muhammad Ali Mazhar and Justice Athar Minallah took up Imran’s petition and had directed NAB to present him before court.
Subsequently, the PTI chief 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.
In the written verdict, a copy of which is available with Dawn.com, the top court said that the execution of NAB’s arrest warrant violated the petitioner’s right of access to justice and “the sanctity and safety of the court as he had already surrendered to the court for seeking judicial relief against the action taken by NAB in the Al-Qadir Trust case”.
In this regard, it highlighted that the fundamental rights of the petitioner under Articles 4, 9, 10-A and 14 of the Constitution had been infringed.
“The petitioner is directed to be produced before the Islamabad High Court tomorrow i.e. 12.05.2023 at 11am for hearing of his Writ Petition filed to challenge the NAB action against him in the Al-Qadir Trust case.
“The NAB authorities and the ICT Police shall ensure foolproof security to the petitioner until his production in the Islamabad High Court in this regard,” the court order stated.
The apex court also directed the registrar of the IHC to place the matter before IHC CJ Justice Aamer Farooq for the constitution of a bench to hear the case.
It went on to say that to secure Imran’s security until his appearance at the IHC tomorrow, he “shall remain in the premises where he is presently retained in police custody, namely, the Police Lines Guest House, H-11, Islamabad (Police Guest House)”.
“Whilst the petitioner is in the Police Guest House, he shall be entitled to meet up to 10 guests, whose particulars shall be provided by him to the concerned Police Officer, subject to security check by the police. These persons shall be allowed to stay with the petitioner as long as desired by him.”
The order further said that these directives will “remain valid until the production of the petitioner before the high court” tomorrow and “shall be subject to any order that is passed by the high court”.
“This order shall not cause any prejudice to the proceedings of investigation being conducted by the NAB in the matter of the Al-Qadir Trust,” it added.
Imran asks supporters to remain peaceful
During the hearing today, Imran said that no harm should be caused to the country and asked his supporters to remain peaceful. “We only want elections in the country,” he maintained.
The PTI chief stated that he was told by his lawyers a day earlier that “there is anarchy in the country” and asserted: “We don’t want anarchy in the country.”
He further said that people approached the court for justice, but contended that he was instead hit with batons. “Even murderers are not treated this way,” Imran stated.
The ex-premier went on to say that he was unaware of what was happening in the country. “I was caught as if I am a terrorist,” he decried and asked, “How am I responsible for the protests?”
Separately, in an informal conversation with journalists after the proceedings, Imran was asked whether he was aware of the situation in the country.
“I am completely unaware of it,” the PTI chief replied.
To another question on whether anyone else apart from the NAB officials had met him during detention, Imran replied in the negative with a smile.
The PTI chief also expressed his ignorance of the deaths during recent protests across the country. “I did not have access to the television or telephone,” he told reporters.
Imran also expressed surprise at the arrest of PTI leader Asad Umar. “Nobody informed me about these matters,” he said.
The PTI chief further lamented that more than 100 cases were registered against him and contended that a party that wanted elections could never want anarchy. “Those who want anarchy are against elections.”
The hearing
During the hearing today, the CJP called the PTI chairman to the rostrum and said: “Good to see you.”
“There have been incidents of violence after your arrest,” Justice Bandial said, stating that the court wanted peace in the country. “It is being said that your [PTI] workers came out in rage,” he said 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.”
The CJP said: “Twenty-three million people are waiting for the leader to sail this ship forward. You help with moving this ship forward.”
“According to the Constitution, a person serving the nation is ameen (honest),” he remarked. “Your rival may not seem to be right, but they are a reality.”
The CJP asked that he expected the other party to play its role as well, stressing that “we are sure that you want the rule of law”. Justice Bandial also said that he was threatened and told to “wait for an attack” on him.
Subsequently, the court ruled 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).
Justice Mazhar said that the SC would direct the high court to fix a hearing for 11am tomorrow, while the CJP stated that Attorney General for Pakistan (AGP) Mansoor Usman Awan would be the guarantor for security.
At that, the AGP said that he was told the Islamabad Police Lines had been declared a sub-jail.
“Is he staying there in a bungalow or guest house?” Justice Mazhar asked, to which Islamabad IG replied that Imran had been kept at a guest house.
“Are lawyers and others allowed to meet him?” Justice Bandial asked. The IG replied that he was unaware of that and only NAB could respond to the question.
Here, the CJP stated that these matters would be decided by the court now and then asked Imran to provide a list of people he wanted to meet. “If someone wants to stay the night, we will give them permission.
“Ten people will stay with you … spend time with them and go to sleep,” he added.
At one point, Imran appealed to the court to let him stay at his Banigala residence in Islamabad but the CJP told him that he was under the court’s supervision.
“We don’t want you to be harmed,” Justice Bandial said. “Imran Khan will stay at the guest house as a guest [and] his protection would be the government’s responsibility,” he added.
“The case will resume from where the matters became complicated,” the top judge remarked, adding that a written order will be issued soon.
At the outset of the hearing — which commenced 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.
Subsequently, the CJP said the court would issue an “appropriate order” today. He added that the court was “very serious” about the matter.
Security tightened outside SC
Ahead of Imran’s arrival in SC, 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.
Meanwhile, the PTI asked its supporters to stay away from the top 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.
