سپریم کورٹ کا سائفر کیس میں بانی پی ٹی آئی عمران خان اور وائس چیئرمین شاہ محمود قریشی کی ضمانت منظور کرنیکا مکمل تحریری فیصلہ۔
تحریری فیصلہ جسٹس اطہر من اللہ کے اضافی نوٹ سمیت کل نو صفحات پرمشتمل ہے۔
عدالتی فیصلہ
جسٹس سید منصور علی شاہ نے تحریر کیا ہے جوکہ چار صفحات پر مشتمل ہے جس سے اتفاق
کرتے ہوئے جسٹس اطہر من اللہ نے مزید پانچ صفحات کا اضافی نوٹ تحریر کیا ہے
Grant of bail to Imran Ahmed Khan Niazi and Makhdoom Shah
Mahmood Qureshi in Cypher case.
جسٹس سید
منصور علی شاہ کے فیصلہ سے اہم نکات
۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔
The offences of wrongful communication of the official
confidential information, etc., as defined in defined in clause (a) to (d) of
Section 5(1) of the Official Secrets Act 1923 (“Act”) are generally punishable,
under clause (b) of Section 5(3), with imprisonment for a term which may extend
to two years, or with fine, or with both, and are bailable under clause (b) of
Section 12(1) of the Act. It is only when an offence is committed in
contravention of clause (a) of Section 5(1) and is intended or calculated to
be, directly or indirectly, in the interest or for the benefit of a foreign
power, or is in relation to any of the defense installations or affairs, or in
relation to any secret official code, that it is punishable under clause (b) of
Section 5(3) of the Act, with death or with imprisonment for a term which may
extend to fourteen years. Such an offence is non-bailable and also falls within
the prohibitory clause of Section 497(1) of the Code of Criminal Procedure 1898
(“CrPC”). In respect of such offences, other than the provisos to Section
497(1), bail is granted under Section 497 (2), CrPC, if it appears to Court at
any stage of the investigation, inquiry or trial, as the case may be, that
there are not reasonable grounds for believing that the accused has committed
such an offence but rather that there are sufficient grounds for further
inquiry into his guilt.
The only question, therefore, before us in the present case
is that whether there are not reasonable grounds for believing, at this stage,
that the petitioners have committed the offence punishable under clause (b) of
Section 5(3) of the Act but rather that there are sufficient grounds for
further inquiry into their guilt of the said offence. In this regard, we are
cognizant of the one of the elementary principles of the law of bail that to
answer the said question, the Court cannot indulge in the exercise of a deeper
appraisal of the material available on record of the case but is to determine
it only tentatively by looking at such material.
Having so examined the material available on record, we
find that there is no sufficient incriminating material available, at this
stage, which could show that the petitioner, Imran Ahmed Khan Niazi
communicated the information contained in the Cypher Telegram received from
Parep Washington, USA to the public at large with the intention or calculation,
directly or indirectly, in the interest or for the benefit of a foreign power
nor the disclosed information relates to any of the defence installations or affairs,
nor did he disclose any secret official code to the public at large. We,
therefore, are of the tentative opinion that there are not reasonable grounds
for believing, at this stage, that the petitioners have committed the offence
punishable under clause (b) of Section 5(3) of the Act but rather that there
are sufficient grounds for further inquiry into their guilt of the said
offence, which is to be finally decided by the learned trial court after
recording of the evidence of the parties. The discretion exercised by the High
Court in declining bail to the petitioners is found to have been exercised
perversely, that is, against the weight of the material available on record of
the case, which warrants interference by this Court.
Needless to mention that the observations made in this
order are of tentative nature which shall not in any manner influence the trial
court, and that this concession of bail may be cancelled, if the petitioners
misuse it in any manner, including causing delay in the expeditious conclusion
of the trial.
جسٹس اطہر من
اللہ کے اضافی نوٹ سے اہم نکات
۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔
The Constitution of the Islamic Republic of Pakistan, 1973
(‘Constitution’) unequivocally contemplates that the authority of the
government is solely premised on the will of the people. The will of the people
is essentially expressed through exercising the right to participate in the
political process and to vote on the day fixed for polls. Elections are the
primary and exclusive mode which facilitates and enables the citizen,
particularly the registered voter, to choose the person who would represent them
and through whom the latter would participate in the governance of the State
and exercise the authority of the government. This is one of the most
fundamental right of every citizen recognized by the framers of the
Constitution. There are other equally important rights associated with or
implicit in the right of a citizen to vote and they, inter alia, include the
right to meaningfully participate in the political process, freedom of
expression, assembly, association and movement. The importance of the right of
access to information regarding the competing political parties, their
manifestos and candidates cannot be overstated. Each party and candidate must
enjoy an equal and non discriminatory opportunity to effectively function
without any fear or threat of intimidation. The United Nations has explicitly
recognized the concept of an ‘informed choice’ as an integral part of 'free
choice'. It has been emphasized that 'if elections are to be genuine then they
must demonstrably reflect the will of the people. 'Voters can neither formulate
nor express that will without access to information about the candidates, the
parties and the process'. In order to achieve these fundamental tenets it is
not enough to hold elections but to ensure that the citizens have a fair
opportunity to express their will by exercising their electoral rights through
'genuine elections'. Our Constitution, the Universal Declaration of Human
Rights and the International Covenant on Civil and Political Rights
unambiguously recognize 'genuine elections' as the only true manifestation of
the expression of the will of the people.
The essential characteristics of a 'genuine election' have
been described as a political process which would 'reveal and give effect to
the freely expressed will of the people. Sham elections, designed temporarily
to quell internal dissent or to distract international scrutiny obviously do
not meet the international standards'. Genuine elections can only be ensured if
they offer an actual and free choice to an informed voter. Discrimination or
intimidation on the basis of political opinions are alien to the concept of
genuine elections and even such a perception would be sufficient to compromise
the integrity of the electoral process and relegate it to the status of sham
elections. Every candidate and political party must have an equal opportunity
to reach out to the citizens and to have access to the public resources,
including the print and electronic media. The framework of the Constitution has
created and guarantees a political right in favor of every citizen to govern
the State and exercise the authority of the government through their chosen
representatives. Implicit in this fundamental right is the expression of the
will of the people. 'The ultimate indication of whether elections are free is
the extent to which they facilitate the free expression of the political will
of the people concerned. It is, after all, this will which, according to the
Universal Declaration (art 21, para 3), is the very basis of legitimate
government authority'. The concept of facilitating the effective and meaningful
expression of the political will of the people through 'genuine elections' is
thus embedded in the scheme of the Constitution and the edifice of the
fundamental rights is built upon it. The test of 'genuine elections' is the
ability of the voter, political worker, candidate and political party to
effectively exercise and enjoy the aforementioned rights without discrimination
or any threat of intimidation, direct or indirect. The concept of genuine
election is the key to leveling the playing field for all the stakeholders.
When all the political competitors do not enjoy the same advantages and
disadvantages during the election period, then the fundamental rights of the
citizens are breached and, simultaneously, the Constitution is gravely
violated. It is, therefore, inevitable to ensure that every political
competitor is treated equally without discrimination and everyone has the same
chance to succeed. Incarceration of a political competitor during the period of
elections, except when it is necessary due to exceptional circumstances,
gravely affects the fundamental rights of the voters and prejudices the
genuineness and integrity of the elections. As far as the question is concerned
as to why political leaders and political workers should be extended
preferential treatment, the answer, as already discussed, is that there is a
higher and greater interest of the people at large involved which is always
given preference over other interests. Moreover, unnecessary incarceration,
which would not serve any useful purpose in itself, becomes a ground for
releasing an ordinary accused on bail unless the offence alleged to have been
committed is heinous or there are exceptional circumstances for refusing
extension of bail. There cannot be a greater public interest than ensuring genuine
elections and if the incarcerated person intends to contest elections or the
standing of a political party is dependent upon the latter then in my opinion
this ought to be considered a ground for the grant of bail during the election
period. The concession of bail in such an eventuality should be considered
favorably as a rule and declined in exceptional circumstances. The strict
application of this principle is also essential keeping in view the chequered
electoral history during the past seven decades.
The process of democratization and democracy itself were
gravely undermined from the very inception of Pakistan as an independent
sovereign State. The undemocratic elite had struck for the first time when the
Constituent Assembly was dissolved and later the unconstitutionality was
legitimized by the Federal Court by contriving the doctrine of necessity. It
laid the foundations for repression against political opponents. Almost all the
elected Prime Ministers remained incarcerated after being prematurely removed
from office. Prime Ministers were disqualified and political opponents were
persecuted for dissent and prevented from competing in elections by denying a
level playing field. The last general elections held in 2018 was an example of
denying equal treatment to a particular political party. One of the Prime
Ministers was even sent to the gallows and people were later restrained from
attending his funeral. Half of the nation’s life has been spent under military
dictators who did not face a days incarceration for abrogating the
Constitution, toppling elected Prime Ministers and subjecting political workers
to the worst form of oppression. In stark contrast, the elected Prime Ministers
and chosen representatives were prevented from participating in the electoral
process by keeping them incarcerated or forcing them into exile. The
incarceration of political leadership belonging to Baluchistan, the then North
West Frontier Province or Sindh for their political dissent and opinions cannot
be erased from history books. The notion of 'genuine election' has remained
illusory in the past seven decades and it definitely has profound consequences
for the democratic process and the rights of the people. It is the duty of the
Election Commission and the respective Governments to ensure that the people
are facilitated in expressing their will through 'genuine election'. It is also
their duty to ensure that there is no perception of oppression or repressive
actions against one political party while others are treated favourably. The
unflattering electoral history and oppressive treatment of political dissidents
during the period of elections necessitates considering the grant of bail
favorably as a rule.
PLJ 2024 SC (Cr.C.) 91
[Appellate Jurisdiction]
Present: Sardar Tariq Masood, ACJ, Syed Mansoor Ali Shah
and
Athar Minallah, JJ.
IMRAN AHMED KHAN NIAZI etc.--Petitioners
versus
STATE and another--Respondents
Crl. Ps. No. 1276 & 1320 of 2023, decided on
22.12.2023.
(Against the orders of Islamabad High Court, Islamabad,
dated 27.10.2023 passed in Crl. Misc. No. 1354-B of 2023
and
dated 08.11.2023 passed in Crl. Misc. No. 1664-B/2023)
Criminal Procedure Code, 1908 (V of 1908)--
----S. 497(2)--Official Secrets Act, (XIX of 1923), Ss.
5(3)(b) & 9--Pakistan Penal Code, (XLV of 1860), S. 34--Post-arrest
bail--Grant of--Further inquiry--Cyper telegram--Discretion exercised by High
Court--Concurrently declination--Bail is granted u/S. 497 (2), Cr.P.C., if it
appears to Court at any stage of investigation, inquiry or trial, as case may
be, that there are not reasonable grounds for believing that accused has
committed such an offence but rather that there are sufficient grounds for
further inquiry into his guilt--There are not reasonable grounds for believing,
at this stage, that petitioners have committed offence punishable under clause
(b) of Section 5(3) of Act but rather that there are sufficient grounds for
further inquiry into their guilt of said offence, which is to be finally
decided by trial Court after recording of evidence of parties--The discretion
exercised by High Court in declining bail to petitioners is found to have been
exercised perversely, that is, against weight of material available on record
of case, which warrants interference by High Court--Petitions allowed. [Pp. 93
& 94] A & B
As per Mr. Justice Athar Minallah--
Criminal Procedure Code, 1908 (V of 1908)--
----S. 497(2)--Official Secrets Act, (XIX of 1923), Ss.
5(3)(b) & 9--Pakistan Penal Code, (XLV of 1860), S. 34--Post-arrest
bail--Grant of--Concurrently declination of bail by Courts below--Duty of
election commission--No exceptional circumstances--Denying of equal
treatment--Unflattering electoral history--All elected Prime Ministers remained
incarcerated after being prematurely removed from office--Prime Ministers were
disqualified and political opponents were persecuted for dissent and prevented
from competing in elections by denying a level playing field--The last general
elections held in 2018 was an example of denying equal treatment to a
particular political party--Held: It is duty of Election Commission and
respective Governments to ensure that people are facilitated in expressing
their will through ‘genuine election’--It is also their duty to ensure that
there is no perception of oppression or repressive actions against one
political party while others are treated favourably--The unflattering electoral
history and oppressive treatment of political dissidents during period of
elections necessitates considering grant of bail favorably as a rule--The
petitioners are alleged to be involved in an offence which does not fall under
category of offences that threaten society such as rape, child abuse, homicide
etc--The investigation has been completed and trial is in progress--The trial
is entirely dependent on documentary evidence--The incarceration of petitioners
will not serve any useful purpose--Their release on bail during period of
elections would ensure ‘genuine elections’ and thus enable people to exercise
right to express their will effectively and meaningfully--There are no
exceptional circumstances to decline concession of bail--Petition allowed. [Pp.
97 & 98] C, D & E
Mr. Hamid Khan, Sr. ASC (Through V.L. Lahore Registry) Mr.
Salman Safdar, ASC, Syed Mohammad Ali Bokhari, ASC. Mr. Niazullah Khan Niazi,
ASC, Mr. Qamar Inayat Raja, ASC, Barrister Tamur, Advocate, Barrister Faiza,
Advocate and Syed Rifaqat Hussain Shah, AOR for Petitioners.
Mr. Javaid Iqbal Wains, Addl.AGP, Raja Rizwan Abbasi, ASC,
Mr. Mudassar Hussain Malik, ASC, Syed Zulifqar Abbas Naqvi, ASC and Mr. Shah
Khawar, ASC for Respondents.
Mian Sabir, I.O.
Date of hearing: 22.12.2023.
Order
Syed Mansoor Ali Shah, J.,--Through the present petitions,
the petitioners seek leave to appeal against the orders of the Islamabad High
Court, dated 27.10.2023 and 08.11.2023, whereby the post-arrest bail has been
declined to them in case FIR No. 06/2023 registered at Police Station, CTW/FIA,
Islamabad, for the offences punishable under Sections 5 and 9 of the Official
Secrets Act, 1923 read with Section 34 of the Pakistan Penal Code 1860.
2. Briefly, as per the crime report (FIR), the allegation
against the petitioner Imran Ahmed Khan Niazi, a former Prime Minister of
Pakistan, is that he communicated the information contained in a secret
classified document (a Cypher Telegram received from Parep Washington, USA) to
unauthorized persons, i.e., the public at large, by twisting the facts to
achieve his ulterior motives and personal gains in a manner prejudicial to the
interests of the State security, and had also illegally retained a copy of the
said document. While the petitioner Makhdoom Shah Mahmood Qureshi, a former
Foreign Minister, is alleged to have abetted him in so doing. By these actions,
it is alleged, the petitioners have directly/indirectly benefited the interest
of foreign powers and caused loss to the State of Pakistan.
3. We have heard the arguments of the learned counsel for
the parties at some length, read the cases cited by them and examined the
record of the case.
4. The offences of wrongful communication of the official
confidential information, etc., as defined in defined in clauses (a) to (d) of
Section 5(1) of the Official Secrets Act, 1923 (“Act”) are generally
punishable, under clause (b) of Section 5(3), with imprisonment for a term
which may extend to two years, or with fine, or with both, and are bailable
under clause (b) of Section 12(1) of the Act. It is only when an offence is
committed in contravention of clause (a) of Section 5(1) and is intended or calculated
to be, directly or indirectly, in the interest or for the benefit of a foreign
power, or is in relation to any of the defense installations or affairs,[1] or
in relation to any secret official code, that it is punishable under clause (b)
of Section 5(3) of the Act, with death or with imprisonment for a term which
may extend to fourteen years. Such an offence is non-bailable and also falls
within the prohibitory clause of Section 497(1) of the Code of Criminal
Procedure 1898 (“Cr.P.C.”). In respect of such offences, other than the
provisos to Section 497(1), bail is granted under Section 497(2), Cr.P.C., if
it appears to Court at any stage of the investigation, inquiry or trial, as the
case may be, that there are not reasonable grounds for believing that the
accused has committed such an offence but rather that there are sufficient
grounds for further inquiry into his guilt.
5. The only question, therefore, before us in the present
case is that whether there are not reasonable grounds for believing, at this
stage, that the petitioners have committed the offence punishable under clause
(b) of Section 5(3) of the Act but rather that there are sufficient grounds for
further inquiry into their guilt of the said offence. In this regard, we are
cognizant of the one of the elementary principles of the law of bail that to
answer the said question, the Court cannot indulge in the exercise of a deeper
appraisal of the material
available on record of the case but is to determine it only
tentatively by looking at such material.
6. Having so examined the material available on record, we
find that there is no sufficient incriminating material available, at this
stage, which could show that the petitioner, Imran Ahmed Khan Niazi
communicated the information contained in the Cypher Telegram received from
Parep Washington, USA to the public at large with the intention or calculation,
directly or indirectly, in the interest or for the benefit of a foreign power
nor the disclosed information relates to any of the defence installations or
affairs, nor did he disclose any secret official code to the public at large.
We, therefore, are of the tentative opinion that there are not reasonable
grounds for believing, at this stage, that the petitioners have committed the
offence punishable under clause (b) of Section 5(3) of the Act but rather that
there are sufficient grounds for further inquiry into their guilt of the said
offence, which is to be finally decided by the learned trial Court after
recording of the evidence of the parties. The discretion exercised by the High
Court in declining bail to the petitioners is found to have been exercised
perversely, that is, against the weight of the material available on record of
the case, which warrants interference by this Court.
7. For the above reasons, these petitions are converted
into appeals and the same are allowed. The impugned orders are set-aside. The
bail applications of the petitioners are accepted subject to their furnishing
of bail bonds in the sum of one million with two sureties each in the like
amount to the satisfaction of the learned trial Court.
8. Needless to mention that the observations made in this
order are of tentative nature which shall not in any manner influence the trial
Court, and that this concession of bail may be cancelled, if the petitioners
misuse it in any manner, including causing delay in the expeditious conclusion
of the trial.
Sd/- Sd/-
Judge Judge
Athar Minallah, J.--The two petitioners, Imran Ahmad Khan
Niazi and Shah Mahmood Qureshi, had sought bail but it was concurrently
declined by the trial Court and the High Court respectively. They have now
sought leave of this Court for restoring their liberty by ordering their
release pursuant to grant of the concession of bail. Both the petitioners
intend to contest the forthcoming elections which are scheduled to be held on
February 08, 2024. The Election Commission of Pakistan, in exercise of powers conferred
under the Election Act, 2017 (‘Act of 2017’), has announced and duly notified
the election schedule. Mr. Imran Ahmad Khan Niazi had formed the political
party, Pakistan Tehreek-e-Insaf, and was elected as the Leader of the House in
the National Assembly after the last general elections held in 2018 and,
pursuant thereto, he had served as the Prime Minister of the country. Mr. Shah
Mahmood Qureshi is one of the most senior office bearers of the party. The
questions of public importance that have arisen for the consideration of this
Court are; whether, during the election period, candidates who intend to
contest the elections or who are affiliated with a political party and their
participation in the political process is important for the registered voters,
should remain incarcerated, or, whether, in such an eventuality granting bail
ought to be considered favorably as a rule and declined only in exceptional
circumstances e.g when there is likelihood of abscondence or there is threat to
the society because there are grounds to believe that the accused may repeat
the offence. In order to answer the questions it is essential to determine the
rights of stakeholders involved in such peculiar circumstances and also examine
the significance of the chequered history of the electoral process during the
past seven decades.
2. The Constitution of the Islamic Republic of Pakistan,
1973 (‘Constitution’) unequivocally contemplates that the authority of the
government is solely premised on the will of the people. The will of the people
is essentially expressed through exercising the right to participate in the
political process and to vote on the day fixed for polls. Elections are the
primary and exclusive mode which facilitates and enables the citizen,
particularly the registered voter, to choose the person who would represent them
and through whom the latter would participate in the governance of the State
and exercise the authority of the government. This is one of the most
fundamental right of every citizen recognized by the framers of the
Constitution. There are other equally important rights associated with or
implicit in the right of a citizen to vote and they, inter alai, include the
right to meaningfully participate in the political process, freedom of
expression, assembly, association and movement. The importance of the right of
access to information regarding the competing political parties, their
manifestos and candidates cannot be overstated. Each party and candidate must
enjoy an equal and non discriminatory opportunity to effectively function
without any fear or threat of intimidation. The United Nations has explicitly
recognized the concept of an ‘informed choice’ as an integral part of ‘free
choice’.[2] It has been emphasized that ‘if elections are to be genuine then
they must demonstrably reflect the will of the people. ‘Voters can neither
formulate nor express that will without access to information about the
candidates, the parties and the process’.[3] In order to achieve these
fundamental tenets it is not enough to hold elections but to ensure that the
citizens have a fair opportunity to express their will by exercising their
electoral rights through ‘genuine elections’. Our Constitution, the Universal
Declaration of Human Rights and the International Covenant on Civil and
Political Rights unambiguously recognize ‘genuine elections’ as the only true
manifestation of the expression of the will of the people.
3. The essential characteristics of a ‘genuine election’
have been described as a political process which would ‘reveal and give effect
to the freely expressed will of the people. Sham elections, designed
temporarily to quell internal dissent or to distract international scrutiny
obviously do not meet the international standards’.[4] Genuine elections can
only be ensured if they offer an actual and free choice to an informed voter.
Discrimination or intimidation on the basis of political opinions are alien to
the concept of genuine elections and even such a perception would be sufficient
to compromise the integrity of the electoral process and relegate it to the
status of sham elections. Every candidate and political party must have an
equal opportunity to reach out to the citizens and to have access to the public
resources, including the print and electronic media. The framework of the
Constitution has created and guarantees a political right in favor of every
citizen to govern the State and exercise the authority of the government
through their chosen representatives. Implicit in this fundamental right is the
expression of the will of the people. ‘The ultimate indication of whether
elections are free is the extent to which they facilitate the free expression
of the political will of the people concerned. It is, after all, this will
which, according to the Universal Declaration (Art. 21, Para 3), is the very
basis of legitimate government authority’.[5] The concept of facilitating the
effective and meaningful expression of the political will of the people through
‘genuine elections’ is thus embedded in the scheme of the Constitution and the
edifice of the fundamental rights is built upon it. The test of ‘genuine
elections’ is the ability of the voter, political worker, candidate and
political party to effectively exercise and enjoy the aforementioned rights
without discrimination or any threat of intimidation, direct or indirect. The
concept of genuine election is the key to leveling the playing field for all the
stakeholders. When all the political competitors do not enjoy the same
advantages and disadvantages during the election period, then the fundamental
rights of the citizens are breached and, simultaneously, the Constitution is
gravely violated. It is, therefore, inevitable to ensure that every political
competitor is treated equally without discrimination and everyone has the same
chance to succeed. Incarceration of a political competitor during the period of
elections, except when it is necessary due to exceptional circumstances,
gravely affects the fundamental rights of the voters and prejudices the
genuineness and integrity of the elections. As far as the question is concerned
as to why political leaders and political workers should be extended preferential
treatment, the answer, as already discussed, is that there is a higher and
greater interest of the people at large involved which is always given
preference over other interests. Moreover, unnecessary incarceration, which
would not serve any useful purpose in itself, becomes a ground for releasing an
ordinary accused on bail unless the offence alleged to have been committed is
heinous or there are exceptional circumstances for refusing extension of bail.
There cannot be a greater public interest than ensuring genuine elections and
if the incarcerated person intends to contest elections or the standing of a
political party is dependent upon the latter then in my opinion this ought to
be considered a ground for the grant of bail during the election period. The
concession of bail in such an eventuality should be considered favorably as a
rule and declined in exceptional circumstances. The strict application of this
principle is also essential keeping in view the chequered electoral history
during the past seven decades.
4. The process of democratization and democracy itself were
gravely undermined from the very inception of Pakistan as an independent
sovereign State. The undemocratic elite had struck for the first time when the
Constituent Assembly was dissolved and later the unconstitutionality was
legitimized by the Federal Court by contriving the doctrine of necessity. It
laid the foundations for repression against political opponents. Almost all the
elected Prime Ministers remained incarcerated after being prematurely removed
from office. Prime Ministers were disqualified and political opponents were
persecuted for dissent and prevented from competing in elections by denying a
level playing field. The last general elections held in 2018 was an example of
denying equal treatment to a particular political party. One of the Prime
Ministers was even sent to the gallows and people were later restrained from
attending his funeral. Half of the nation’s life has been spent under military
dictators who did not face a days incarceration for abrogating the
Constitution, toppling elected Prime Ministers and subjecting political workers
to the worst form of oppression. In stark contrast, the elected Prime Ministers
and chosen representatives were prevented from participating in the electoral
process by keeping them incarcerated or forcing them into exile. The
incarceration of political leadership belonging to Baluchistan, the then North
West Frontier Province or Sindh for their political dissent and opinions cannot
be erased from history books. The notion of ‘genuine election’ has remained
illusory in the past seven decades and it definitely has profound consequences
for the democratic process and the rights of the people. It is the duty of the
Election Commission and the respective Governments to ensure that the people
are facilitated in expressing their will through ‘genuine election’. It is also
their duty to ensure that there is no perception of oppression or repressive
actions against one political party while others are treated favourably. The
unflattering electoral history and oppressive treatment of political dissidents
during the period of elections necessitates considering the grant of bail
favorably as a rule.
5. The petitioners are alleged to be involved in an offence
which does not fall under the category of offences that threaten the society
such as rape, child abuse, homicide etc. The investigation has been completed
and trial is in progress. The trial is entirely dependent on documentary
evidence. The incarceration of the petitioners will not serve any useful
purpose. Moreover, their release on bail during the period of elections would
ensure ‘genuine elections’ and thus enable the people to exercise the right to
express their will effectively and meaningfully. There are no exceptional
circumstances to decline the concession of bail.
(Y.A.) Petition allowed
[1]. i.e., in relation to any work of defence, arsenal,
naval, military or air force establishment or station, mine, mine-field,
factory, dockyard, camp, ship or aircraft or otherwise in relation to the
naval, military or air force affairs of Pakistan.
[2]. Article 87; Human Rights and Elections, a Handbook on
the Legal, Technical and Human Rights Aspects of Elections; Centre for Human
Rights, UN. (Handbook).
[3]. Human Rights and Elections, A Handbook on the Legal.
Technical, and Human Rights Aspects of Elections, Centre For Human Rights,
United Nations.
[4]. Article 77 of the Handbook.
[5]. Article 62 of the Handbook.
.jfif)
