Thursday March 23, 2023

What to do when the court calls

By Ali Tahir
March 18, 2023

The law-enforcement contingents sent to arrest PTI leader Imran Khan from his Lahore house had been told to withdraw by the Lahore High Court after a civil war-like situation erupted outside his residence at Zaman Park.

While engaging in violent clashes with dozens of enraged PTI supporters for more than a day, law-enforcement officers returned empty-handed from Zaman Park even though a non-bailable warrant was issued for his arrest. The questions that have been asked frequently the last few days are: what really is a non-bailable warrant? Why and when is it issued? And once it is issued what options are available to the police and the subject of those warrants, in this case former prime minister Imran Khan? Through this piece, I want to engage with that very question – and try and answer it.

The first point that needs to be made here is that a person – whether an accused or a witness – can be compelled to appear before the court. Chapter VI of the Code of Criminal Procedure, 1973 deals with the process to compel appearance. The said chapter is divided into four parts. Part A relates to summons; Part B relates to warrant of arrest; Part C relates to proclamation and attachment; and Part D relates to other rules regarding processes.

The merits or demerits of the case have nothing to do with compelling to appear before the court itself and must therefore be seen in isolation. The point whether the case against Imran Khan is strong or weak is not of relevance to the principle that when he is summoned to appear before the court he must effect appearance. That is exactly what the enunciation of rule of law, so greatly used in rhetoric by Imran Khan over the year, translates into. When a competent court calls, a law-abiding citizen must appear.

The first mode to compel appearance remains summons, issued by the court under Section 68 of the Code of Criminal Procedure. A summons is nothing but a notice to the party or accused person to appear before the court. The court must thoroughly investigate if the criminal complaint or FIR was submitted with an ulterior purpose. In complaint cases, the court shall require that the summons be served together with a copy of the complaint in the first instance. If the accused seems to be dodging the summons, the court should issue a bailable warrant in the second instance.

In the third situation, where the court is completely sure that the accused is purposefully evading the court's proceedings, the procedure of issue of the non-bailable warrant should be employed. Since personal liberty is fundamental, the courts have to take great caution to avoid issuing non-bailable warrants, as per the laws of Pakistan, unless there is certainty that the accused person is disregarding the court’s order to appear before it. This is what happened in the case of Imran Khan, when he kept evading such summons and bailable warrants, the non-bailable warrants were issued against him.

Yet, Imran Khan was given special treatment again, something the average Joe cannot imagine. As he evaded his arrest through his party workers and supporters, the Islamabad High Court heard his criminal revision applications twice to suspend the non-bailable warrants and in the first instance the non-bailable warrants of arrest which were issued by the court on March 7, 2023 were suspended till March 13, 2023 with observations and directions that Imran Khan shall appear on the said date failing which the court shall proceed in accordance with law. Despite such orders, Imran Khan chose not to appear before court and filed an exemption from appearance application.

There is no cavil to the proposition that if a person’s liberty is to be restricted, the restriction must be carried out precisely in line with the constitution and law. As a result, the court must record its satisfaction that the legal requirements for issuing an arrest warrant have been met and the process has been followed. In other words, the court must be convinced that the person against whom such non-bailable warrants are issued does not intend to appear before the court, otherwise than coercively be brought before it.

As the law demands, the police had no option but to arrest Imran Khan and bring him before the court. Due to the workers of his party not letting the police do so a further question is raised, what if Khan sahib keeps his present conduct and the police are unable to arrest him at all?

The next steps would be proclamation and attachment. Section 82 of the Code of Criminal Procedure clearly provides that if the court reaches the conclusion that a person against whom a warrant of arrest has been issued is absconding or is concealing himself, and it is not possible for the authorities to execute the warrant of arrest they may issue a proclamation.

This is known in Urdu as being an ‘ishtihari’, majorly for the reason that ads in newspapers are published regarding such a person, who now becomes an absconder.

If Imran Khan does not appear before the court and the police are unable to arrest him, he will then become a proclaimed absconder. The step after this is attachment of his properties. However, let’s hope that better sense prevails and Imran Khan surrenders before the court rather than challenge the court’s orders and by automatic effect, the writ of the state.

The writer is a Karachi-based barrister practising constitutional and administrative law.