Is there any novelty in finding resistance by Hamza Shehbaz against NAB over the latter’s attempt to arrest the former? It might be difficult to out rightly justify the parties as to whether in the incident there is any such element of strangeness or not. However, the fact remains that the row between the parties has become a talk of the town. It has not only triggered a natural debate amongst the jurists, lawyers, legal diasporas, politicians, officials as well as public at large, especially the laymen in the streets who might not be well conversant with law but seem to have certain valid moral and ethical observations which are required to be addressed properly by the concerned.
Three variant propositions visibly arise out of the situation. First, whether NAB has the locus standi or the legal grounds to effect the arrest of the accused like Hamza Shehbaz facing probe, inquiry or investigation under provisions of National Accountability Ordinance, 1999 and the enabling provisions of the Code of Criminal Procedure, 1898? Second, whether Hamza like any other common accused has the right to resist his arrest and avail right of appeal or challenge the same before any competent court of law on the ground that a specific order of the competent court as in this case order dated November 20, 2018 passed by Lahore High Court, Lahore holds the field whereby NAB has been restrained to give 10 days notice prior to his arrest in any case? Third, whether, the High Court is empowered and bound to hear the cases of urgent nature where security to life and liberty of the people is apprehended to be violated and if not taken up it can cause undue hardship, accrue an irreparable loss and injury to the petitioners?
NAB maintains that it has got arrest warrant of Hamza issued by the Chairman NAB under section 24 of the NAB Ordinance, 1999 and notices issued thereunder in a separate and independent investigation of the case of assets beyond means allegedly accumulated from the unknown sources of income including money laundering. It further maintains that NAB is empowered to arrest any person at any stage being accused of corruption and corrupt practices. Hence, no need of any such notice of 10 days is required prior to the indenting arrest. NAB has placed reliance on the Syed Jalil Arshad case wherein the Supreme Court of Pakistan vide its order dated 19.03.2019 has laid down the ratio decidendi that the Order (passed by Lahore High Court, Rawalpindi Bench, in 2016 in favour of Jalil Arshad) “may be misinterpreted to imply that NAB cannot arrest an accused without informing him.” The aforesaid order further clarifies, “On examination of the National Accountability Ordinance, 1999 reveals that no such limitation has been imposed upon NAB, in this behalf. Needless to say, if sufficient material has been gathered to connect a person to the commission of an offence, obviously can arrest such as person.”
The legal team of Hamza Shehbaz on the other hand has placed reliance upon the order of Lahore High Court whereby it has specifically restrained NAB from arresting except by issuing 10 days prior notice for such arrest vide its order dated November 20, 2018. It maintains that no such notice has been issued to the petitioner in this regards. It further maintains that the order dated 19.03.2019 of the Apex court has been passed in Jalil Arshad case in general and is not relevant to the merits and order dated 20the November, 2018 of the Lahore High Court, Lahore passed in Hamza Shehbaz case. Hence, the act of NAB is illegal, unlawful and unconstitutional.
As regards the third proposition allied to the power of the Lahore High Court, Lahore for entertaining and granting protective bail on holidays as Saturday in the instant case and that too by the single bench as against the mandatory requirement of Division Bench comprising at least two judges of the High Court to take cognizance of matters relating to NAB, the legal diaspora has variant opinion depending upon the length of their experience as advocate, divergent practice areas of civil, criminal and corporate etc, knowledge of NAB laws and their sentiments afflicted with one political party or the other as well as the common citizens.
There is a settled principle of law called custodia legis. It is in vogue in almost all the judicial systems the world over. However, its practice is sometimes active and sometimes redundant depending upon the country’s political culture, mind and demeanor of the jury, jurists and judges and above all the circumstances of the case. Custodia legis is a Latin phrase which means in the custody of law. The phrase is used with reference to the custody of a property or person by some authority so authorized by law in the event of some litigation pending before a competent court of law in relation to that property or person.
In the instant case of Hamza Shehbaz, his legal team filed a bail petition by way of Constitutional Petition under the writ jurisdiction of a High Court conferred upon it under Article 199 of the Constitution as no bail is provided under the NAB law and any person can invoke this extraordinary jurisdiction if no other efficacious, speedy and alternate remedy is available to him under the relevant or any other law. Once the bail application is moved before a competent court, it is presumed that the accused/petitioner has surrendered him before said court of law and he is deemed to be in the custody of law in accordance with the principle of custodia legis. If the petitioner /accused is arrested during the pendency of his bail petition, it is presumed that his right of appeal has been snatched and that his bail application would become meaningless requiring no further decision by the court as he has already been arrested. Our criminal judicial justice system discourages arrest of the accused in the intervening period from the date of cancellation of his bail by the lower court till the lapse of limitation period provided for the appeal at higher appellate court against such cancellation to protect him from the undue hardship by way of taking away the right of appeal provided under the principles of natural justice.
As to relief on holiday that too by the single bench as against the Division Bench, all the courts including High Court provide for a duty judge on such holidays, it may be Chief Justice himself or any other judge appointed by him in this regards to deal with any matter of urgency where life and property of the citizens is under immediate threat. Precedents are available wherein even on Sundays the Chief Justice or the duty judges passed orders to the Police restraining them from taking any coercive action detrimental to the life of the petitioner such as police encounter was apprehended by the relatives of the accused while his being not present before the court due to his already being in illegal custody of police. However, certain incidents of non-entertainment of such grievances on holidays are also in the air where proper legal aid could not be made available to them due to certain reasons including their being common man and consequently they had to accrue an irreparable loss which by no means can be justified. Precedents are also available where the courts passed orders on the foil of a cigarette packet to rescue the petitioner in his absence where the circumstances warranted that he was unable to appear before the court due extreme law order situation or apprehension of arrest and hence protective bails were granted.
All said, only the court is to decide the case. But what common man desires is the same prompt legal rescue which is available to the capable to resist any illegal act against them.