The International Criminal Police Organisation (Interpol) is the world's largest international police organisation, with 184 member countries. Created in 1923, its mission is to prevent or combat international crime through facilitating international police co-operation between countries. Action is taken within the limits of existing laws in different countries and in the spirit of the Universal Declaration of Human Rights. 

Article 3 of the Constitution of Interpol (the Constitution) strictly forbids Interpol to undertake any intervention or activities of a political, military, religious or racial character. 

Since Interpol is a bridge between member states for policing and capturing criminals who have absconded from their parent country, an elaborate system of Notices has been developed wherein member states share crime related information using the system of International Notices. 

As per its Constitution, Red Notices are issued on request of the National Central Bureau (Article 32) a body to be appointed by each member country, to the General Secretariat (Article 26) which produces the Notices in turn. In recent years the scope of Notices has been reinvigorated, to be used by International Criminal Tribunals for the former Yugoslavia and Rwanda to seek persons wanted for serious violations of International Human Rights Laws.

Interpol has jurisdiction to issue Notices and help arrest, inter alia, money launderers, however, the condition precedent is issuance of arrest warrants by competent authority in the country of origin. A working definition was adopted by the Interpol General Assembly in 1995, which defines money laundering as: 'any act or attempted act to conceal or disguise the identity of illegally obtained proceeds so that they appear to have originated from legitimate sources'. 

The power of procuring arrest of international money launderers through Interpol may be exercised where for example an organised criminal group is laundering money with the aim to promote 'criminal activities' like sponsoring terrorism, smuggling, drugs etc. 

The issuance of Red Notices to Benazir and Zardari (the Accused), appears to be anomalous, principally, considering the clear parameters and strictures elaborated in the Constitution. The question is whether Red Notices could be issued against these individuals who have not been declared proclaimed offenders (PO) or fugitives by any court in Pakistan and neither have they yet been convicted for any crime? Furthermore, no court has so far issued arrest warrants there against? 

The meaning of the words fugitive, proclaimed offender and convict, must first be understood, so that we may understand the issues involved. 

The Black's Law Dictionary defines a fugitive as 'A criminal suspect who flees, evades, or escapes arrest, prosecution, or imprisonment, especially by fleeing the jurisdiction or by hiding'. Under Pakistani law, in case of any person who is declared fugitive from law, the trial court is obliged to initiate proceedings under Sections 87 & 88 of the Code Of Criminal Procedure, 1898 (the Code). 

Section 87(1) of the Code, grants courts power to publish a written proclamation requiring a person to appear before it. The action is right, if any court has 'reason to believe' that any person against whom a warrant has been issued by it has 'absconded' or is 'concealing' himself so that such warrant cannot be executed. In addition, in case of non-appearance the court may order attachment of any property, movable or immovable or both, belonging to the PO under Section 88 of the Code. 

A convict is defined in Black's, as 'A person who has been found guilty of a crime and is serving a sentence to confinement for that crime'. 

The argument that the Accused have so far furnished in their defence is that it is an act of state-sponsored persecution by a military ruler and that the Notices could not be issued as no court in Pakistan has asked for them to be present and the Interpol has been given wrong information. 

The germane facts in so far applicability of Interpol's Constitution and Pakistani law are that it is true that no court has summoned the Accused in person or declared them PO and there seems to have been no conviction of any of the Accused in any case. It is admitted position that Benazir left Pakistan in 1999, after taking permission from the courts and is on bail, represented by her lawyers vis-à-vis, all corruption charges pending against her in different courts in Pakistan. She has publicly announced her intention to obey the process of court and is willing to appear forthwith before any court, if ordered. 

The other Accused left Pakistan recently after being granted bail by the Honorable Supreme Court whereafter he filed a Petition before the Sindh High Court which ordered his name be removed from the exit control list and passport be handed over by the government, which was duly complied. According to his counsel Mr Farook Naek, he then suffered a heart stroke and is under treatment at a hospital in New York, however, responsibly he duly informed the courts and even furnished medical certificates which appears to have been accepted. Hence, he is neither a fugitive not absentee. 

The entire legal battle is being fought on seven corruption cases, which were framed against the accused out of which five were against Zardari and two against Benazir. The PIA case was heard and decided in her absence and the courts acquitted her. She was exempted from personal attendance in this case by the honorable Supreme Court. Furthermore, it is also known that Benazir has been regularly appearing before the Swiss Court in the SGS Cortecna case, consequently, she also could not be treated as renegade and absconder. 

Additionally, there is no proof that any court in Pakistan has issued summons for service outside Pakistan under Section 93-A & 93-B of the Code whereafter the presiding officer of that court in that foreign jurisdiction, under Section 74 of the Code, assumes or ipso facto becomes vested with powers as if he were a magistrate in Pakistan. The Accused have not been charged hereunder as well. 

The presumption of law is that a person is innocent until proven guilty, therefore, if according to the record both Benazir and Zardari are presumably innocent since no court has so far convicted them or any one of them for any crime whatsoever and there whereabouts are clearly known by the courts and the Government of Pakistan and no arrest warrants, proclamation or attachment of property order has been issued, then in such circumstances it is logical, reasonable and lawful to hold that the accused are neither fugitives of law nor absconders and that the issuance of Red Notices is unwarranted and malafide. 

Since the cases of both the Accused are sub judice or pending adjudication before different courts both in and outside Pakistan and there seems to be no evidence of evasion or abuse of the process of courts, not to mention due diligence and obedience of the law, hence in terms of the aforementioned declared objective and Constitution of Interpol, there appears to be no jurisdiction vested in this cross-border police co-operation Organisation to act against the Accused on behalf of Government of Pakistan, which is not prima facie in desperate search of the accused and is also in breach of Fundamental Rights guaranteeing Security of Person against arrest and detention. 

Resultantly, the obvious conclusion that may be deduced is that manifestly the Interpol has no authority to issue Red Notices since the persons sought for are neither fugitives nor absconders by any definition and if in reality these have been issued, it is in gross violation of the law and also synonymous to unauthorised interference with business of trial courts, hence contempt of court. 

In hindsight the cause for this improbability seems to be that Interpol was mislead probably by the local authorities, for it to have embarked upon such an immature and dastardly act. This assumption is reinforced by returning to Article 3 of the Constitution of Interpol which bars it to interfere or act against any person(s) on political grounds. Since the government did not have logical basis to prompt Interpol into issuing the Red Notices, in view of the bar contained in Article 3, the Government may have concocted the narrative that both Benazir and Zardari have been declared fugitives or are convicted. 

Whatever the reasons for the concoction, an inference advancing its likelihood is made out particularly knowing that this government does not enjoy the creditworthiness after having, inter alia, amputated the Constitution of Pakistan, 1973, subverted the judiciary, rigged elections, being accomplice with corrupt, ousted leaders of mainstream political parties, defied verdict of the Honorable Supreme Court that every Pakistani citizen has the right to return to his country. 

The writer is Advocate High Court