Article 10

Article 10 is a continuation of Article 9 i.e. liberty. One particular aspect of liberty is the
safeguard against unlawful arrest. They felt it necessary to provide express protection against
unlawful arrest instead of leaving this open to interpretation.

The power to arrest is a discretionary and awesome power, if one considers the consequences of
arrest.

Article 10 has two parts (its length is a sign of its importance):

a. Clauses (1) and (2):

b. Clause (4) – (8):

First right: the right to be informed of grounds of arrest.

Under a constitution, there cannot be an arrest without cause.

Does the right to arrest include the right to handcuff? Sir says that the right to arrest does not
necessarily include the right to handcuff.

What does ‘arrest’ mean? (How does it relate to the right to handcuff?)

Arrest is a public act. It can seriously interfere with the liberty of arrestee, drain his finances,
curtail his socialization, and can be a source of anxiety.

Agreed-upon definition: “the taking of a person into custody for the purpose of charging him for
a crime”. This ordinarily involves the police officer exercising physical control.

Section 46 of Code of Criminal Procedure provides a great definition: “…shall actually touch or
confine the body of a person” unless the arrestee provides no resistance and submits to custody
through words or action; the officer, then, cannot touch the arrestee. This definition, thus,
excludes the idea of handcuffs. This definition was present when the makers of the Constitution
enacted Article 10, and hence it stands to reason that they had this definition in mind when
drafting the provision. Thus, the right to handcuff can be safely excluded from the right to arrest.
This definition, however, is not binding upon the Court. It does, however, have great persuasive
value.

What does ‘custody’ mean?

The essence of custody is lack of freedom; to move about where and when one pleases. When a
person is told that he would not go beyond certain boundaries + if you move, the officer shall use
force against you.
When attempting to use his powers, the officer must ask the question “is it necessary to
handcuff”? The principle of proportionality prevails. Main idea: that the alleged offender must
not escape but must remain in custody. There is discretion to use handcuffs to prevent escape.

The word ‘handcuff’ is only used in Police Rules, 1934 and no other statute. According to Sir,
this is regrettable; this law should no longer be the part of Pakistan. Whom to arrest and whom
not to arrest: discriminatory, because there is a distinction made as to how a rich person is to be
arrested compared to a poor person (Rule 26.21(a), 26.22, 26.23). However, the intention of the
law – even in light of these provisions - is that the power to arrest does not include the right to
handcuff. The principle of proportionality should apply: is it necessary to use this power to
arrest?

What does ‘magistrate’ mean?

Used in CrPC in a specific sense: used to be a part of the executive.

In the Constitution, it is used as a general word. Black’s Law Dictionary/ordinary dictionary

meaning: any neutral/detached judicial office. The general sense: a public officer possessing
power, executive or judicial. It can mean a judge/justice/moderator etc.

Which rights does Article 10 confer?

Express rights:

A person shall not be detained in custody unless he is informed, as soon as may be, of the
grounds of arrest. (‘As soon as may be’ should mean – in the context of Article 10 – must mean
‘as soon as a man is arrested’).

A person arrested and detained has a right to concert and to be defended via legal representation
by a counsel of his choice.

A person arrested has a right to be produced before a magistrate within 24 hours.

The arrestee shall not be detained in custody beyond a period of 24 hours without the authority
of the magistrate.

Manzoor Ilahi v Federation of Pakistan: Violation of these rights will render the action of arrest
void within the meaning of Article 10 of Pakistan.

Implied rights:

The grounds of arrest must exist before the arrest actually takes place. This is because ‘as soon as
may be’ should mean – in the context of Article 10 – must mean ‘as soon as a man is arrested’.

The ‘24 hours requirement’ has a necessary implication i.e. the magistrate must apply his judicial
minds to the facts of the case to decide if there are grounds to continue to detain the arrestee.
Right to counsel assumes that there is a general right to defend oneself.

Right to concert and to be defended by counsel implies that the counsel be provided in the police
station (where arrestee is being detained).

Right to plead innocence i.e. “I am not the person you need to arrest; I am innocent.” It was a
common law right and is now a part of the constitution.

Leading Authority on this being a common law right: Christie v Leachinsey (1947 1 AER 567).
In this case, the Respondent was a dealer in cloth who purchased bales of cotton. He purchased a
bale of cloth, paid in cash, and took the bail to his own place of work. The police thought that the
bail of cloth he moved was stolen. The police arrested him and he told them that he had
purchased it from a vendor and paid in cash, with a receipt existing to this effect. The police did
not bother to investigate these facts. After a week in jail, the police decided to investigate and
realized that he was right. Respondent sued for damages because of the week he had to suffer in
custody. Lord Viscount Simon aptly summarized:

“1. If a policeman arrests without warrant and on suspicion of felony, he must ordinarily inform
the person arrested of the true grounds of arrest. A citizen is entitled to know on what charge or
suspicion he is seized.

2. If the citizen is not so informed but is nevertheless seized (or arrested, as we say here), the
policeman apart from certain exemptions is liable for damages of false imprisonment.

3. The requirement that the person arrested must be informed of the grounds does not exist when
the circumstances are such that it is not necessary to be informed of the grounds for arrest.

4. The requirement to be so informed does not mean that the officer use technical language.

5. If the person arrested himself creates a situation whereby he cannot be informed of the
grounds of arrest i.e. makes it practically impossible to be informed, the person arrested cannot
complain that his rights were violated.”

Lord Simon: “No one would approve of a situation where a person asked why he was arrested
only for the police to reply with “that has nothing to do with you”. (Sir’s cute “tu mama lag da ae
iss da?”)

What does the word ‘grounds’ mean?

The meaning is “that which can form a valid reason for arrest.” - Roshan Vidya (PLD 1966 SC
266), page 323.

Grounds of necessary substratum of facts upon which the satisfaction of the arrestor is found –
Shazia Parveen (PLD 1988 Lahore 611)
PRINCIPLE: There can be no arrest without probable cause [US v Watson (1976 423 US 411)]

Mohd Bashir v SHO (PLD 2007 SC 539 at pg 550)

“Irrespective of the fact whether an FIR did or did not name a person and irrespective of the fact
that a person did stand nominated as accused, a police officer would arrest a person only if one
of the grounds under Sec 54 of CrPC is satisfied…Registration of an FIR would bring no harm to
a person against whom it has been recorded…being nominated in an FIR is by itself no
justification for arrest”.

Sughraan Bibi case (PLD 2018 SC 595)

“No person is to be arrested only because he has been nominated in an FIR…unless the IO feels
that sufficient justification exists…such justification is to be guided by the relevant provisions of
the Code.”

Sir believes that the two cases SHOULD have made reference to Article 10, and he wrote to the
presiding judge in the 2018 case to raise this concern. Sir believes one must ALWAYS begin
with the Constitution, in any case; there cannot be a “more sound basis” for a view.

What is the extent of the power of the police to arrest without warrant?

There can be no arrest without the person being informed of the grounds of arrest.

Express effect in Police Order, 2002, which makes it “a duty of every police officer to apprehend
all persons whom he is legally authorized to apprehend and for whose apprehension sufficient
grounds exist.” This is another way to express the same idea as in Article 10.

The right to be informed is a common law right which has been constitutionalized in
Pakistan/endowed with the authority of the constitution. A condition of a lawful arrest that the
man arrested must be informed of why he is arrested.

Read these two opinions from Christie: Lord Simon’s and Lord Symonds’s.

Lord Symonds: “If a man is to be deprived of his freedom, he is entitled to know the reason why.
The liberty of the subject and the convenience of the police or any executive officer are not to be
weighed in the scales against each other.”

There are observations in Christie to the effect that if a person is not informed of the rights of his
arrest, he has a right to resist arrest.

Rice v Connolly (1966 2 AER 649): a criminal case

Constable was on patrol duty. A number of break-in offences had occurred that night. He saw
Rice (appellant) behaving suspiciously, looking into windows and going down side streets.
Constable asked him where he was going and probed for details, but Rice ignored him. On
repeated asking, Rice responded with “give me a good reason why I should tell you”. Rice, on
further probing said, “Look son, I am not going from this block. You will have to arrest me”.
Constable charged him with obstruction of justice. CJ Parker wrote the judgment (READ
PROPER EXCERPT):

“Did the appellant have a lawful excuse …It seems to me quite clear that though every citizen
has a moral duty to assist the police, there is no legal duty to that effect. The whole basis of the
common law is that a person refuses to answer questions put to him by a lawful authority…there
is all the difference in the world between telling a false story and …accordingly, it was not
shown that the refusal of the appellant to answer the question was an obstruction without lawful
excuse”. The Appellant was thereby acquitted.

This case, however, is perhaps not in accordance with Pakistani law, where anti-terrorism laws
prevail.

Terry v Ohio (392 1 US 1) (1968 case) is a better reading of the law as it stands. A police officer
noticed the Petitioner talking with another individual on a street corner while repeatedly walking
up and down the same street. The men would periodically peer into a store window and then talk
some more. The men also spoke to a third man whom they eventually followed up the street. The
officer believed that the Petitioner and the other men were “casing” a store for a potential
robbery. The officer decided to approach the men for questioning and given the nature of the
behavior the officer decided to perform a quick search of the men before questioning. A quick
frisking of the Petitioner produced a concealed weapon and the Petitioner was charged with
carrying a concealed weapon.