Fugitive not ineligible to civil remedies

ISLAMABAD:

The Supreme Court has ruled that being declared an absconder or fugitive in a criminal case does not, by itself, prevent an individual from pursuing civil or service-related remedies.

In a five-page judgment authored by Justice Syed Mansoor Ali Shah, the apex court held that the continuation of criminal liability or the status of a proclaimed offender, "howsoever serious, does not operate to forfeit these indispensable civil entitlements unless the legislature has expressly imposed such a disability".

Justice Shah warned that reading such a bar into the law "would undermine the integrity of the justice system and would, in effect, operate as a double-edged weapon".

"One edge to deprive a citizen of the right of appeal or statutory remedy in matters affecting livelihood, service tenure, pension, contractual obligations or financial liabilities amounts to a denial of access to justice, a core constitutional guarantee woven into Articles 4, 9, 10-A and 25."

The decision came while answering whether a person's status as an absconder automatically bars them from invoking civil or service jurisdiction. A division bench led by Justice Shah and comprising Justice Aqeel Ahmad Abbasi heard the matter.

The judgment cautioned that such an exclusion "would not only subvert the principle that no person shall be dealt with except in accordance with law, but would also distort the court's function from an instrument of justice into a mechanism of oppression".

It added that barring civil remedies on this basis "would erode the very safeguards that protect citizens against arbitrary action, weaken public confidence in judicial institutions, and compromise the constitutional promise that justice shall be administered fairly, transparently, and without discrimination".

The court also highlighted how the doctrine could be weaponised by others. "The second edge would invite deliberate exploitation by shrewd and unscrupulous litigants."

It warned that such persons could weaponise a separate criminal label as a tactical device to preclude judicial review, insulating their conduct from scrutiny and avoiding accountability for contested actions.

"The practical effect would be to vest opportunistic litigants with a license to oppress; by invoking disentitlement, they could extinguish an aggrieved person's access to remedies affecting livelihood, service, property or contractual rights, and thereby deny them the procedural protections of notice, hearing and appeal."

Such misuse, the judgment noted, would turn the doctrine into "a cloak for bad-faith litigation tactics that subvert the rule of law and strip citizens of constitutionally guaranteed due process."

Justice Shah further held that "Criminal liability carries its own evidentiary thresholds and procedural safeguards, which are neither applicable to nor are determinative of service matters".

He noted that to dismiss the petitioners solely based on their alleged abscondence is, therefore, a clear misapplication of law, as it conflates two distinct jurisdictions and deprives the petitioners of adjudication on issues squarely within their civil and service rights.

The bench recalled that the Supreme Court has earlier affirmed that any disadvantage arising from being a proclaimed offender "ordinarily attaches only to the very case in which the proclamation is issued and does not extend to other matters lacking nexus to that proceeding".

Thus, "a proclaimed offender is not, merely by virtue of that status, barred from instituting or defending a civil suit or prosecuting an appeal concerning his civil rights and obligations".

The judgment added that, unless a specific statute explicitly imposes such a disability, "the disqualification cannot be read into the service jurisprudence by implication".

Justice Shah traced the origins of the rule preventing fugitives from invoking appellate criminal jurisdiction to the "Fugitive Disentitlement Doctrine developed in the United States," which evolved as an equitable rule in criminal procedure.

He noted that in the UK, similar consequences follow from "procedural rule and practical necessity", where an appellant who has not surrendered may have his appeal dismissed.

Pakistan's own jurisprudence has taken the "same procedural course", requiring fugitives to surrender before their criminal appeals are heard.

However, the court underscored that this logic does not apply to civil or service matters. Within Pakistan's constitutional framework - grounded in Articles 4, 9, 10A and 25 - "the right of access to justice cannot be curtailed merely because a person stands accused, or has absconded, in another domain of law".

Therefore, "unless a statute expressly provides otherwise or the fugitivity demonstrably obstructs adjudication, abscondence in a criminal matter cannot extinguish or suspend independent civil or service rights".