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Petitioner: Jahanzeb Khan VS Respondent: Special Judge, CNS Court, Lahore, etc
Court Name: Lahore High Court Judge(s): Tariq Saleem Sheikh Title: Jahanzeb Khan vs Special Judge, CNS Court, Lahore, etc Case No.: Criminal Appeal No.70907 of 2017 Date of Judgment:2017-09-18 Reported As: 2017 LHC 3309 Result: Petition allowed
Judgment TARIQ SALEEM SHEIKH, J:-This appeal under Section 48 of the Control of Narcotic Substances Act, 1997 (the "CNSA"), is directed against Order dated 6-9-2017 passed by the learned Special Court, CNS, Lahore, whereby the application under Section 539-B Cr .P.C. moved by the Appellant was dismissed (the "Impugned Order"). 2. Brief facts of the case are that on 8-4-2015 the Anti- Narcotics Force received a spy information that Appellant Jahanzeb and co-accused Ismail, who was his real brother , were engaged in drug trafficking and they would transport huge quantity of narcotics from Peshawar to Sheikhupura via motorway during the day in Honda Civic Car No. LXM-6252. On this information a raiding party was constituted under the supervision of Kashif Mushtaq, Assistant Director , ANF, which inter alia included Inspector Amjad Ali and Constable Naveed. The raiding party reached near the Sheikhupura Motorway Interchange Toll Plaza along with the informer at about 03:00 p.m. and started surveillance of the vehicles exiting that Interchange. At about 03:30 p.m. the wanted car came that way. It was intercepted and the Appellant and his co-accused Ismail were arrested with 14.400 Kgs charas and 9.600 Kgs opium. They had concealed some of these narcotics in the secret cavities of the rear bumper of the car. Inspector Amjad Ali drew samples from every packet of the recovered charas and opium and prepared sealed parcels for chemical analysis. He also took into his possession the remaining contraband and Car No.LXM-6252 through separate Recovery Memos which were attested by Constables Naveed and Sohail. Inspector Amjad Ali then sent a complaint to Police Station RD ANF, Lahore, pursuant to which FIR No.13/2015 dated 8-4-2015 was registered against the Appellant and his co-accused under Sections 9(c) & 15 of the CNSA. 3. Complainant Amjad Ali, Inspector , also conducted the investigation of this case. On the receipt of the report of the NIH Laboratory, Islamabad, confirming that the recovered substances were narcotics (charas and opium), an incomplete challan was submitted in the Special Court, CNS, Lahore. The learned Special Court summoned the Appellant and Co-accused Ismail for trial and indicted them on 16-2-2016. Both of them denied the charge and claimed trial. Thereupon, the prosecution was called upon to produce evidence.
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4. The prosecution has so far brought four witnesses to the witness-box, including Constable Naveed and Inspector Amjad Ali who recorded their testimony as PW-3 and PW-4 respectively . Car No. LXM-6252 which was allegedly used for drug trafficking was produced as P-15. The Appellant took the plea that the prosecution case was false and no narcotics were recovered from the car P-15. His particular emphasis was on the fact that there were no secret cavities in the car in which the narcotics could be hidden, more particularly its rear bumper . Accordingly , the learned counsel for the Appellant extensiv ely cross-examined Naveed/C (PW-3) and Amjad Ali/Inspector (PW-4) on this point. While the cross-examination of Amjad Ali/Inspector (PW-4) was still in progress, the Appellant filed an application under Section 539-B Cr.P.C. before the Special Court requesting the learned Judge to inspect the rear bumper of the car P-15 to verify whether it had any secret cavities. The learned Special Court dismissed the said application vide Impugned Order dated 6-9-2017 holding that there was no need for any such inspection and the learned defence counsel was at liberty to examine the same if he so desired as it was available in the car park outside the court-room. Hence, this appeal. 5. Learned counsel for the Appellant contended that the Impugned Order was contrary to law. It was arbitrary and had occasioned serious miscarriage of justice. He argued that the charge against the Appellant and his co-accused was that they were transporting narcotics and had concealed some of them in the secret cavities of the car's bumper . The entire prosecution case would fall to ground if it was proved that there were no such secret cavities therein. It was, therefore, incumbent on the learned Judge to inspect the vehicle and his refusal to do so had caused prejudice to the Appellant who was facing trial on capital charge. Lastly , he contended that the Impugned Order was bad in law inasmuch as it denied the right of a fair trial to the Appellant which was his fundamental right guaranteed under Article 10A of the Constitution of Pakistan, 1973. He placed reliance on "Tameshwar and another v. The Queen " (PLD 1957 Privy Council 227), "Bazal Ahmed Sowdagar v. Nur Muhammad " (PLD 1963 Dacca 852) and the recent judgment of the Hon'ble Supreme Court of Pakistan reported as "Asfandyar and another v. Kamran and another " (2016 SCMR 2084 ) to buttress his submissions. 6. On the other hand, the learned Special Prosecutor for ANF vehemently opposed the aforementioned contentions. He contended that the Impugned Order was based on cogent reasons. The learned Judge had rightly exercised the discretion vested in him while declining the request of the Appellant to personally inspect the vehicle. According to him, reference of the learned counsel for the Appellant to Article 10A of the Constitution was misplaced as no fundamental right of the Appellant had been infringed. 7. We have heard the learned counsel for the parties and have also perused the documents appended with this appeal. 8. The right to a fair trial is considered to be the bedrock of rule of law and is closely linked with human rights protection, more particularly the right to life, liberty and property . According to some scholars, the aforesaid right is rooted in the twin cannons of natural justice, namely , "nemo debet esse judex in propria causa " (no one should be a judge in his own cause) and "audi alteram partem " (no one should be condemned unheard). However , some researches have traced the origin of the basic principles of the said right to Lex Duodecin Tabularum --the Law of Twelve Tables which was the first written code of laws in the Roman Republic around 455 B.C. These laws ordained that all the parties should be present at a hearing, stressed the principle of equality amongst citizens and prohibited bribery to judicial officers. Nevertheless, it was the Magna Carta in 1215 that laid a solid foundation for articulating this right. Magna Carta proclaimed: No freeman shall be taken, or imprisoned or disseized or outlawed or exiled or in any way destroyed; nor shall we go upon or send up him save by the lawful judgment of his peers or by the law of the land. 9. Patrick Robinson J. {{FN}} has observed that "the Magna Carta-- like the Twelve Tables-- recorded in writing a set of clearly formulated rights ... Subsequently , Courts have looked to the Magna Carta in articulating rights such as trial by jury, habeas corpus, abolition of arbitrary imprisonment, and equality before law". The phrase "due process of law" originated in a 1354 restatement{{FN}} of the 1215 Magna Carta. It is important to note that neither the phrase "law of the land" nor "due process of law" were explained in any of the documents but on the authority of Sir Edward Coke it is generally accepted that both the expressions were intended to be synonymous and have the same meaning.[1] [2]
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10. After the Magna Carta other important historicalreferences to the right of fair trial are contained in the Treaty of Arbroath of 1320{{FN}} , Virginia Declaration of Rights (1776) and the French Declaration of the Rights of Man (1789). The United States adopted the Fifth Amendment in 1791 which contained the first use of the phrase "due process of law" in its Constitution. It reads: 'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty , or property , without due process of 1. {{FS1}}Patrick Robinson,The Right to a Fair Trial in International Law . {{FE1}} 2. {{FS2}}Magna Carta was not a statute but was merely a personal treaty betw een King John and the barons. Consequently , when Henry-III ascended the throne in 1216, the regents of the Kingdom re-issued the Charter in his name. Thereafter it became customary for each successive King to reaffirm the Charter during his reign. This practice continued for about two centuries. [See: Hamid Khan, Comparative Constitutional Law]. {{FE2}} 3. {{FS3}}This was a declaration of Scottish Independence sent by 51 Scottish nobles and magistrates as evidence of a contract between Robert the Bruce and his subjects. This declaration paved way for development of the notion of equality for all. {{FE3}} law; nor shall private property be taken for public use, without just compensation '. The Fifth Amendment did not apply to the states. Therefore, the Fourteenth Amendment was proposed by the Congress which was ratified by three-fourths of the states by July 1868. It is couched in almost the same language as the Fifth Amendment. 11. The expression 'due process of law' has neither been defined in the Constitution of the United States nor by any Act of the Congress. In "Twining V . New Jersey " (211 US 79) , the Court observed: "Few phrases in the law are so elusive of exact apprehension as this one. This Court has always declined to give a comprehensive definition of it and preferred that its full meaning should be gradually ascertained by the process of inclusion and exclusion in the course of the decision of cases as they arise." 12. Be that as it may, the Due Process Clause in the U.S. Constitution, as it is generally called, has been construed as imposing two separate limits on the government (which is taken in a broader sense to include all legislative, executive and judicial officers and institutions) which are usually described as "procedural due process" and "substantive due process". In his book "Judicial Review of Public Actions," Justice (Retd) Fazal Karim elucidates that 'procedural due process' guarantees 'only that there is a fair decision-making process before the government takes some action directly impairing a person' s life, liberty , or property . This aspect of the due process clauses does not protect against the use of arbitrary rules or law which are the basis of those proceedings. It is only necessary that a fair decision-making process be used; the ultimate rule to be enforced need not be a fair and just one' . He further explains that 'substantive due process' is concerned with the ability of the judiciary to review the substance of legislation. 'By substantive review we mean the judicial determination of the compatibility of the substance of law or government action with the Constitution. The Court is concerned with the constitutionality of the underlying rule rather than the fairness of the process of which the government applies the rule to an individual. Every form of review other than that involving procedural process is a form of substantive review'" 13. In "A.K. Gopalan v. State of Madras " (AIR 1950 SC 27), the Constitutional Bench of the Supreme Court of India succinctly described the distinction between application of the concept in the United Kingdom and the United States as follows: "It is clear, however, that the requirement of 'due process of law' in the United States' Constitution imposes a limitation upon all the powers of government, legislative as well as executive and judicial. Applied in England only as protection against executive usurpation and royal tyranny, in America it became a bulwark against arbitrary legislation : vide Hurtado v. People of California, (110 US 512 at p. 532). As it is a restraint upon the legislative power and the object is to protect citizens against arbitrary and capricious legislation, it is not within the competence of the Congress to make any process a 'due process of law' by its mere will; for that would make the[3] " " "
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limitation quite nugatory. As laid down in the case cited above, 'it is not any act legislative in form that is law; law is something more than mere will exerted as an act of power'. "It means and signifies the general law of the land the settled and abiding principles which inhere in the Constitution and lie at the root of the entire legal system. To quote the words of Daniel Webster in a famous argument before the Supreme Court : vide Darmouth College case, 4 Wheaton p.518: 'By the law of the land is most clearly intended the general law - a law which hears before it condemns, which proceeds upon enquiry and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society'. 14. The right to fair trial is now universally recognized as a norm of international human rights law. Universal Declaration of Human Rights, 1948, is of paramount importance as it is considered to be declaratory of the customary international law. However, there are other multilateral treaties like the International Covenant on Civil and Political Rights, 1966, and regional human rights instruments, including the European Convention for Protection of Human Rights and Fundamental Freedoms (European Convention), American Convention on Human Rights (American Convention) and African Charter on Human and Peoples' Rights (African Charter), which impose a binding obligation on the States who have ratified them to guarantee the aforesaid right to their people. 15. Pakistan is a constitutional democrac y which rests on rule of law which in turn is pillared on fairness and due process{{FN}} . This is manifested by various provisions of the Constitution of Pakistan, more particularly Article 4 which reads as under: 4. Right of individuals to be dealt with in accordance with law, etc.-(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan. (2) In particular--- (a) no action detrimental to the life, liberty , body , reputation or property of any person shall be taken except in accordance with law; (b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and (c) no person shall be compelled to do that which the law does not require him to do. 16. The above-mentioned Article guarantees that every citizen of Pakistan and every person for the time being in the country shall be treated in accordance with law and ensures constitutional protection of life, liberty, body, reputation and property. It bars the government from taking any action in this country for which there is no legal sanction. In "Ch. Manzoor Elahi v. Federation of Pakistan etc" (PLD 1975 SC 66), it was held that Article 4 embodies the rule of law. It is pertinent to note that this provision is inviolable and cannot be suspended even when an emergency is proclaimed in the country under Part-X. In his book "Commentary on the Constitution of Pakistan, 1973, Muhammad Munir wrote: "...[it] confers a right which is more basic than fundamental rights because while the fundamental rights can be suspended, the right given by Article 4 cannot." In "Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri" (PLD 1969 SC 14), while dilating on Article 2 of the Constitution of 1962, which was pari materia with Article 4 of the Constitution of 1973, the Hon'ble Supreme Court of Pakistan observed that it was comparable to the American "due process clause". Hamoodur Rehman J. wrote: "The words 'in an unlawful manner' in sub-clause (b) of Article 98(2) 4. {{FS4}}Liaqat Ali Chugtai v. Federation of Pakistan, through Secretary Railways, and 6 others (PLD 2013 Lah. 413). {{FE4}} have been used deliberately to give meaning and content to the solemn declaration under Article 2 of the Constitution itself that it is the inalienable right of every citizen to be treated in accordance with law and only in accordance with law. Therefore, in determining as to how and in what circumstances a detention would be detention in an unlawful manner one would inevitably have first to see whether the action is in accordance with law, if not, then it is action in an unlawful manner. Law is here not confined to statute law alone but is used in its generic sense as connoting all that is treated as law in this country, including even the judicial principles laid down from time to time by the superior Courts. It means according to the accepted forms of legal process and" [4]
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postulates a strict performance of all the functions and duties laid down by law. It may well be, as has been suggested in some quarters, that in this sense it is as comprehensive as the American 'due process' clause in a new garb". 17. However , in the subsequent case of "Fauji Foundation and another v. Shamimur Rehman " (PLD 1983 SC 457) the Hon'ble Supreme Court clarified that by the word "comprehensive" used in Begum Agha Abdul Karim Shorish Kashmiri case (supra) Hamoodur Rehman J. "only meant to emphasize the principles of natural justice as obtaining in the judicial principles of 'due process clause' for judging actions against persons in regard to their life, liberty or property ....[he] could not have meant the natural law cum-due process clause limitation on the legislative powers... for that concept is not obtainable under our constitutional system". {{FN}} 18. The right to a fair trial has always been reckoned as the cornerstone of our judicial system. In "New Jubilee Insurance Company Ltd., Karachi v. National Bank of Pakistan, Karachi " (PLD 1999 SC 1126), the Hon'ble Supreme Court of Pakistan went to the extent of holding that the said right was associated with the fundamental right of access of justice. However , in the year 2010, the Parliament enacted the Constitution (Eighteenth Amendment) 5. {{FS5}}After the insertion of Article 10-A in the Constitution of Pakistan a controversy has arisen as to whether the American concept of 'substantive due process' has been made applicable to our constitutional system. Reference in this regard is made to Shabbir Ahmad v . Kiran Khursheed and 8 others ( 2012 CLC 1236 ). {{FE5}} Act, 2010, inter alia to insert Article 10A in the Constitution of Pakistan to elevate the "Right to fair trial" to the status of an independent fundamental right guaranteed thereunder . Article 10A reads as under: 10A. Right to fair trial. - For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process. 19. Courts have dilated on the significance of Article 10A in a number of cases . In "Babar Hussain Shah and another v . Mujeeb Ahmed Khan and another " (2012 SCMR 1235 ), the Hon'ble Supreme Court said: "Although from the very inception the concept of fair trial and due process has always been the golden principle of administration of justice but after incorporation of Article 10A in the Constitution of the Islamic Republic of Pakistan, 1973 vide 18th Amendment, it has become important that due process should be adopted for conducting a fair trial and an order passed in violation of due process may be considered to be void". 20. In Suo Moto Case No.4 of 2010 (Contempt proceedings against Syed Yousaf Raza Gillani, Prime Minister of Pakistan, regarding non-compliance of Supreme Court' s Order dated 16-12-2009) reported as PLD 2012 SC 553, the Hon'ble Supreme Court made the following observations: "We agree with the learned counsel for the Respondent that the inclusion of the principle of right to a 'fair trial' is now a constitutionally guaranteed fundamental right and has been raised to a higher pedestal; consequently a law, or custom or usage having the force of law, which is inconsistent with the right to a fair trial' would be void by virtue of Article 8 of the Constitution. " 21. In "Warid Telecom (Pvt.) Limited and 4 others v. Pakistan Telecommunication Authority through Chairman " (2015 SCMR 338 ), the Apex Court ruled: "...It is a principle of longstanding that whenever adverse action is being contemplated against a person a notice and/or opportunity of having is to be given to such person. This principle has now been elevated to the status of a fundamental right with the incorporation of Article 10A in the Constitution of the Islamic Republic of Pakistan pursuant to the Constitution (Eighteenth Amendment) Act, 2010". 22. Reference may also be made to the case of "Shabbir Ahmed v. Kiran Khursheed and 8 others " (2012 CLC 1236 ) in which a learned Single Judge of this Court held: "Article 10A morphs Article 4 into a more robust fundamental right....Due process is now available to every person as a fundamental right and underscores procedural fairness and propriety in determining his civil or criminal rights. The procedure adopted in determining the rights of the parties must at every step pass the test of fairness and procedural propriety and at all times must honour the law and the settled legal principles". 23. The above discussion leaves little room to doubt that the right to a fair trial is an inalienable right of a citizen. This is because it protects individuals from the unlawful and arbitrary curtailment or deprivation of other human[5]
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rights, more particularly the rights to life, liberty and property . But what are the requisites of a fair trial and what does it actually connote? We have already mentioned some important international instruments in the earlier part of this judgment which describe the content of the right to a fair trial. In addition, there are various other instruments that develop and explain the minimum standards for a fair trial. All of them are not binding under the international law but as they have adopted by the political bodies of the United Nations, usuall y by consensus, they do have a normative value. However , it is a settled principle that an international instrument, even if it constitutes a binding treaty , does not apply to a country unless it is enforced by domestic/municipal legislation. Resultantly , the content of the right to a fair trial varies from nation to nation. For example, in some countries jury trial is considered to be a fundamental requirement for a fair trial while in others it is not. 24. Historically , the right to a fair trial is regarded more important in criminal proceedings. The standards or the criteria by which a trial is assessed in terms of fairness are numerous, complex and are constantly evolving. According to the guide published in March 2000 by the Lawyers Committee for Human Rights, USA, the rights associated with the right to a fair trial may be classified as (a) Pre-trial Rights, (b) Rights During the Hearing, and (c) Post-trial Rights. Every category consists of a basketful of rights which may be enumerated as under: Pre-trial Rights: They include: (i) The prohibition on arbitrary arrest and detention; (ii) The right to know the reasons for arrest; (iii) The right to legal counsel; (iv) The right to a prompt appearance before a judge to challenge the lawfulness of arrest and detention; (v) The prohibition of torture and the right to humane conditions during pre trial detention; and (vi) The prohibition on incommunicado detention. Rights During the Hearing: These rights entail: (i) Equal access to, and equality before the courts; (ii) The right to a fair hearing; (iii) The right to a public hearing; (iv) The right to a competent, independent and impartial court/tribunal established by law; (v) The right to a presumption of innocence; (vi) The right to prompt notice of the nature and cause of criminal charge; (vii) The right to adequate time and facilities for the preparation of a defence; (viii) The right to a trial without under delay; (ix) The right to defend oneself in person or through legal counsel; (x) The right to examine witnesses; (xi) The right to an interpreter; (xii) The prohibition on self-incrimination; (xiii) The prohibition on retroactive application of criminal laws; and (xiv) The prohibition on double jeopardy . Post-trial Rights: They constitute: (i) The right to a judgment which is supported by reasons and is duly published; (ii) The right to appeal; and (iii) The…
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