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Official Citation: 2024 IHC 1
Court / Jurisdiction: Islamabad High Court
Year of Decision: 2024
Decision Date: 2024-01-24
Parties: Imran Ahmad Khan Niazi vs Federation of Pakistan etc.
Ruling Summary: This decision was rendered by the Islamabad High Court on 2024-01-24, officially reported as 2024 IHC 1. In this matter between Imran Ahmad Khan Niazi and Federation of Pakistan etc., the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024IHC1
Court Name: Islamabad High Court Judge(s): Tariq Mehmood Jahangiri, Aamer Farooq (C.J) Title: Imran Ahmad Khan Niazi vs Federation of Pakistan etc. Case No.: W.P. NO.198-2024, W.P. NO.199-2024 Date of Judgment:2024-01-24 Reported As: 2024 IHC 1 Result: Petition Dismissed
JUDGMENT
JUDGMENT AAMER FAROOQ C.J.-This judgment shall decide instant writ petition as well as W.P. No.199-2024, as common questions of law are involved.The petitioner, in both the petitions, has challenged notifications issued by respondent No.1 with respect to conducting trial in jail in two separate References filed by National Accountability Bureau (NAB) against him. 2. Mr. Muhammad Shoaib Shaheen, Advocate Supreme Court, appearing on behalf of petitioner, contended that this Court has already settled the issue in its decision 19.12.2023 in ICA No.367-2023. Learned counsel took the Court through various paragraphs of the referred judgment to submit that under section 352 of Code of Criminal Procedure, 1898 (Cr.P.C.), it is the prerogative of the trial court to order the proceedings to be conducted at a 'place' different from the court house, notified by the competent government/authority, through a judicial order after hearing the accused. It was submitted that in the instant matter, no such order was passed by the trial court rather the notifications were issued even prior to filing of References by NAB. It was argued that the Federal Government has no say in altering the place of trial of an accused and it is the sole prerogative of the trial court. Reference was made to Asif Ali Zardari Vs. Special Judge (Offences in Banks) and 10-others (PLD 1992 Karachi 437). Learned counsel took the Court through the judgment in order to highlight his stance that open trial is the essence of 'fair trial' and is the fundamental right of the accused/petitioner under Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution). It was submitted that denial of this fundamental right on part of the government vitiates the trial and the proceedings conducted so far inasmuch as there exists no order by trial court under section 352 Cr.P.C. It was also reiterated that any notification issued, prior to filing of the Reference, is not valid. Mr. Muhammad Shoaib Shaheen, Advocate Supreme Court further submitted that wordings of section 16 (b) of the Ordinance are para materia with section 9(2) of Cr.P.C. It was contended that while interpreting section 9(2) ibid, this Court, in its decision, has categorically held that trial other than the court house can only be conducted in a place where the court so decides, but that place is to be accessible to public, however, same can only be done through a judicial order. It was also submitted that dictum of this Court in ICA No.367-2023 is binding on this Bench hence impugned notifications need to be set aside. It was also submitted that even-otherwise, the trial court is not competent to proceed with the matter inasmuch as it has not been validly constituted. In this regard, reference was made to amendments in the Ordinance through various statutes. Learned counsel drew attention of the Court towards section 5A ibid, which was incorporated in the Ordinance through National Accountability Amendment Act, 2022 and by virtue of same, appointing authority of Presiding Officer of Accountability Court has been changed. Learned counsel submitted that under the amended law, it is the Federal Government, which now can appoint a Judge of the Accountability Court after consultation with Chief Justice of the concerned High Court. It was submitted that all the amendments made in the Ordinance have been given retrospective effect hence it is deemed to be the part of the statute since 1999 accordingly; after the amendment through Act of 2022, all the Presiding Officers of the Accountability Courts were to be reappointed by the Federal Government, including the Presiding Officer conducting trial of the petitioner, hence proceedings before trial court, are not valid. 4. Mr. Niaz Ullah Khan Niazi, Advocate, also appearing for the petitioner, added that this Court, while deciding bail application of the petitioner in Crl. Misc. No.1354-B-2023, has held that open trial is the hallmark of any modern judicial system. It was contended that trial in jail does not qualify and/or even if it does, the proceedings are not being conducted in open in letter and spirit. 5. Learned Attorney General for Pakistan, appearing for respondent No.1, defended the impugned notifications and submitted that under section 16 (b) of the Ordinance, the Federal Government has the prerogative to decide about the place or places, where Accountability Courts shall have sitting. It was submitted that in exercise of powers under section 16 (b) ibid, the impugned notifications were issued. Learned Attorney General contended that on receipt of letter from NAB, the Ministry of Law and Justice floated a summary before the Cabinet and approval was obtained for conducting trial of the petitioner in Central Jail Adyala,
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Rawalpindi, where he is presently confined. It was submitted that reason provided by NAB was law and order situation in the country and security of the petitioner; it was the said dictates which led the Federal Government to accede to the request of NAB and notifications were accordingly issued. Learned Attorney General for Pakistan contended that the case of Asif AliZardari Vs. Special Judge (Offences in Banks) and 10-others (PLD 1992 Karachi 437) supra is distinguishable inasmuch as in the said case, the statute concerned only empowered the relevant government to issue notification for holding the sitting of a court at a 'place' and not 'places'. It was contended that even-otherwise, it has wrongly been assumed in the judgment of the Division Bench referred above that the view earlier taken in case reported as Shaukat Hayat Vs. Government of Sindh and another (1987 M LD 2783) stands set aside. It was contended that the matter in Shaukat Hayat's case went up to the Supreme Court and in the case reported as Shaukat Hayat Vs. Government of Sindh and another (1989 SCMR 774), it has categorically been held that notification is being set aside for reasons other than the reasons that prevailed with Sindh High Court. It was further submitted that Federal Government is the competent authority to provide for the place of sitting for the Accountability Court in a particular case under section 16 (b) of the Ordinance. Reference was placed on cases reported as Kehar Singh and others Vs. The State (Dehli Admn) (AIR 1988 Supreme Court 1883) & Shaukat Hayat Vs. Government of Sindh and another (1987 MLD 2783). Reliance was also placed on case reported as In the Reference made by Sessions Judge, Larkana for transfer of cases (1990 P. Cr.LJ 1687). It was contended that in case of Husnain Raza and another Vs. Lahore High Court, Lahore and others (in both cases) (PLD 2022 Supreme Court 7), a High Court generally adhere to horizontal precedents, its own earlier decisions, but it may depart from or overrule any of its decisions by sitting in a larger bench if there was a compelling justification to do so. It was submitted that even- otherwise, there has to be purposive and harmonious construction with respect to section 16 (b) of the Ordinance and section 352 Cr.P.C. Reference was made to case reported as Waqar Zafar Bakhtawari and 6 others Vs. Haji Mazhar Hussain Shah and others (PLD 2018 Supreme Court 81). 6. Mr. Muhammad Amjad Pervaiz, Advocate Supreme Court, appearing for NAB, gave the Court a summary of events which led to issuance of impugned notifications. It was contended that notifications were issued prior to filing of References solely because ancillary and initial proceedings, pertaining to the decision of bail before arrest and upon arrest of the petitioner with respect to physical remand and judicial custody, had to be conducted in jail due to security threats to the petitioner. He gave brief timeline leading to issuance of impugned notifications. Mr. Amjad Pervaiz, Advocate Supreme Court submitted that seminal judgment on the competency of the relevant Government to issue notification with respect to a 'place of sitting' for a particular case for a particular accused was Emperor Vs. Lakshman Chavji Narangikhar and 46 others (AIR 1931 Madras 313). It was submitted that since then, courts in India as well as in Pakistan have acknowledged the competence of the Federal or Provincial Governments to issue such notifications. Reliance was placed on cases reported as Shaukat Hayat Vs. Government of Sindh and another (1987 MLD 2783) & Shaukat Hayat Vs. Government of Sindh and another (1989 SCMR 774). Reference was also made on cases reported as Chairman, National Accountability Bureau, Islamabad through Prosecutor General, Accountability Bureau, Islamabad Vs. Mian Muhammad Abbas Sharif and 7 others (PLD 2001 Lahore 157), Dr. Ahmed Javed Khawaja and another Vs. The State and 2 others (PLD 2003 Lahore 450), Muhammad Ashfaq Chief Vs. Government of Sindh and others (PLD 1996 Karachi 326), Mustoo alias Ghulam Mustafa Kalhoro Vs. The State (1990 MLD 1994), Mrs. Ahmed Riaz Shaikh Vs. Chairman, NAB and others (PLD 2002 Lahore 1), Makhdoom Muhammad Javed Hashmi Vs. Chief Commissioner, Islamabad (2004 P.Cr.LJ 1089), Gul Muhammad Hajano Vs. Province of Sindh, through the Secretary, Government of Sindh and 2 others (2011 P.Cr.LJ 302), Zulfiqar Ali Bhutto Vs. The State (PLD 1979 Supreme Court 53), Kehar Singh and others Vs. The State (Dehli Admn) (AIR 1988 Supreme Court 1883), decision of Larger Bench of Lahore High Court in case titled Dr. Abdul Basit, Advocate Vs. Sher Zaman Khan, Deputy Attorney General (WP. No.6734 of 2000) and Mohd. Shahabuddin Vs. State of Bihar and others [(2010) 4 Supreme Court Cases 653]. 7. Submissions made by the parties have been heard and the documents, placed on record, examined with their able assistance. 8. As noted above, the petitioner is facing trial in two References filed by NAB (Reference No.19 of 2023 and Reference No.20 of 2023) filed on 04.12.2023 and 20.12.2023 respectively. With respect to Reference No.19, which was filed on 04.12.2023 known as Al-Qadir Trust Reference, the petitioner was arrested on 09.05.2023 and was produced before the Accountability Court with request for physical remand on 10.05.2023, which was duly allowed and proceedings were conducted in Police Lines, Islamabad pursuant to the notification of the Federal Government; the petitioner was set at liberty on 11.05.2023 and appeared before this Court on 12.05.2023, when he was granted ad-interim bail till 31.05.2023; on 31.05.2023, application was allowed and the petitioner was ordered to appear before the court of competent jurisdiction. On 05.08.2023, the petitioner was taken in custody pursuant to execution of warrants of arrest in the conviction awarded to him in a complaint filed by Election Commission of Pakistan. On 10.08.20203, application for bail before arrest filed by the petitioner was dismissed by trial court, but this Court set aside the referred order and remanded the case back to trial court for decision afresh vide order dated 14.11.2023 (Crl. Rev. No.149 2023). It was contended that in the referred backdrop, NAB wrote a letter to Ministry of Law and Justice on 13.11.2023 for conducting proceedings against the petitioner in jail. The reason cited in the referred request was prevalent law and order situation and security threat to the petitioner. On the letter of NAB, the relevant Ministry sent summary for the Cabinet, which was approved on 14.11.2023 under section 16(b) of the Ordinance and pursuant thereto, notification was issued on 14.11.2023 (Notification No.F.3(2)/2017-A.V.). Likewise, in another matter, pertaining to Tosha Khana, a summary was moved for proceeding against the petitioner in the matter before the Cabinet for conducting the same at Central Jail Adyala Rawalpindi, where he is confined with the same reasoning as mentioned above. The Cabinet on the receipt of the summary from Ministry of Law and Justice accorded approval on 28.11.2023 and notification in this regard was issued on the same date bearing No.F.8.(127)/2023/A.V. In the referred background, the impugned notifications were issued, but have been challenged by the petitioner on the touchstone of the earlier judgment of this Court in ICA No.367-2023. 9. Before embarking upon examination of the judgment of this Court in ICA No.367-2023 and case law cited at bar by the respondents, it would be appropriate that the relevant law be reproduced for the ease of convenience. The impugned notifications have been issued by the Federal Government under section 16 (b) of the Ordinance, which is reproduced below:-
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"16.(b) The Court shall sit at such place or places as the Federal Government may, by order, specify in this behalf". The comparison of section 16 (b) ibid was drawn with section 9 of Cr.P.C. by both the sides. The said provision of law is reproduced below:- "9 (2) The Provincial Government may, by general or special order in the official Gazette, direct at what place or places the Court of Session shall hold its sitting, but until such order is made, the Courts of Sessions shall hold their sittings as heretofore". 10. Mr. Amjad Pervaiz, learned counsel for NAB, during course of arguments, produced a chart indicating various provisions in various statutes, including the one in India regarding the power of the Federal or Provincial Government to issue notification with respect to place or places of sitting of any court. The said chart is reproduced below:-
THE CODE OF THE THE CODE THE CODE OF THE CODE THE THETHE OFFENCESSUPPRERS CRIMINAL NATIONAL OF CRIMINAL OF ANTI- CONTROL OFIN RESPECT SION OF PROCEDURE, 1898ACCOUNTA BILITY ORDINANCRIMINAL PROCEDU RE, 1898PROCEDURE, 1973 (INDIA)CRIMINAL PROCEDURE, 1973.TERROR SIM ACT, 1997NARCOTIC SUBSTANCES ACT, 1997OF BANKS (SPECIAL COURTS)TERRORIS T ACTIVITIE CE, 1999 (INDIA) (UTTAR PRADESH ORDINANCE, 1984. (ASS (SPECIAL COURTS) AMENDMEN TS 1975, (INDIA) REPRODUCED IN PLD 1992 KARACHI 437)ACT, 1975, (AS REPRODUC ED IN PLD 1992 KARACHI 437) S.9 Court of S. 16 Case S. 9 Court S. 9 Court of The followingS. 15 S.46. S.3 S.3 Sessions.(1) [***]managemeof Session.- amendmentsPlace of EstablishmenConstitution ofConstitutio (2) The Provincialnt and trialSession.- (1,2,3,4,5) were made bysitting.- t of SpecialSpecial Courts.n of government may, byof (1) [***] [***] U.P. Act, 16 of(1) Courts.- (1) [***] Special general or special order in the official Gazette, direct at what place oroffences.- [***] The(2) The Local Government(6) The Court of Session shall ordinarily hold1976, s.2 (w.e.f 28.11.1975)Subject to sub- sectionsThe Federal Government and, if so(2) A Special Court shall sit at such place asCourts. (1, 2) [***] places the Court ofCourt shallmay, byits sitting at (2) anddirected by thethe Federal(3) A Special Session shall hold itssit at suchgeneral orsuch place or In section 9 in(3), an FederalGovernment maycourt shall sitting; but, until such order is made, theplace or laces as thespecial order in theplaces as the High Court sub-section (6) insertAnti- terrorismGovernment, the Provincialor by notification in the officialsit at such place as the courts of Session shallFederal official may, by following Court governmentGazette, specifyGovernment hold their sittings as heretofore. S. 177 Ordinary place of inquiry and trial. Every offenceGovernment may, by order, specify in this behalf.Gazette, direct at what place or places the Court of Session shallnotification, specify; but, if, in any particular case, the Court of Session is ofproviso:- "Provided that the Court of Session may hold or theshall ordinarily sit at such place or places includingshall, by notification in the official Gazette, establish as many Specialin this behalf.constituting it may, by notification in the official Gazette, specify in
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shall ordinarily be hold itsopinion that itHigh Court CantonmeCourts as it this behalf. inquired into and tried by a Court within the sitting; but, until suchwill tend to the generalmay direct the Court ofnt area or jailconsiders necessary and local limits of whose order be convenience ofSession to premisesappoint a Judge jurisdiction it was made, thethe parties andhold, its sittingas the for each of committed. courts ofwitnesses to in any Governmesuch Courts S.178. Power to order cases to be Sessions shall hold their sittingshold its sittings at any other place in theparticular case at any place in the sessionsnt may, by order, specify inand where it establishes more than one tried in different sessions divisions. Notwithstanding anything contained in section 177, the Provincial Government may direct that any cases or class of cases in any district sent for trial to a Court of Session may be tried in any sessions Division. Provided that such direction is not repugnant to any direction previously issued by the High as heretofore.sessions division, it may, with the consent of the prosecution and the accused, sit at that place for the disposal of the case or the examination of any witness or witnesses therein.division, where it appears expedient to do so for considerations of internal security or public order, and in such cases, the consent of the prosecution and the accused shall not be necessary."that behalf.Special Court, it shall specify in the notification the place of sitting of each Special court and the territorial limits within which it shall exercise jurisdiction under this Act. Court under section 526 of this Code or any other law for the time being in force.
11. The reading of section 9(2) shows that it generally empowers the provincial government to notify 'place ' or 'places' of sitting of the courts of Sessions, but the referred government also has the power to do so, with respect to a particular case or cases at a particular place or places other than the general court house, which has already been notified. Perhaps for the first time, this question came up for consideration in the subcontinent before the Bombay High Court in case reported as Emperor Vs. Lakshman
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Chavji Narangikhar and 46 others (AIR 1931 Madras 313), where the question posed before the court was with respect to a notification for conducting a particular case at a place which was different from the normal place of sitting of the court of Sessions. The question as framed before the court was, whether the notification of February, 1931 which names a judge to try a particular case at a particular place is ultra vires and illegal under section 9 of the Code of Criminal Procedure. The contention before the Bombay High Court was that local government has already issued a notification directing the court of Sessions to be held at Ali Bagh in certain months and in presence thereof, a special notification for a particular case at a particular place was not possible. In responding the referred query, Bombay High Court held and observed that the previous orders of the local government were general orders under section 9(2), and there is nothing in section 9(2) to prevent a special order being passed directing at what place a Court of Sessions should hold its sitting. By way of example, the Court went on to observe that if by reason of an outbreak of plague or any other cause it becomes necessary or expedient that a Court of Sessions should hold its sitting in respect of all the cases at a different place or should try a particular case at a particular place, the words of section 9(2) are wide enough to cover such an order. It was also observed that order passed under section 9(2) is an administrative order passed by the local government and the special order of the local government in the present case directing the Additional Sessions Judge to try this particular case at Alibagh does not appear to contravene the provisions of section 9(2). It was also observed that the word 'special' must include an order relating to a class of cases for trial and on the principle that the greater necessarily connotes the lesser, cannot be held to stop short prior to the limit of a single case. This line of reasoning has been followed across the border and even in Pakistan; in case reported as Shaukat Hayat Vs. Government of Sindh and another (1987 MLD 2783), notification dated 16.04.1987 issued by the Provincial Government under subsection (2) of section 9 of Cr.P.C. was the subject matter of challenge. The Division Bench of Sindh High Court observed that section 9 read with section 178 Cr.P.C. contains requisite power in favour of the provincial government to appoint an Additional Sessions Judge for more than one sessions division and to authorize him to hold sitting at such place or places which it may notify. The court observed that the words 'place or places' includes central prison. The said judgment of Sindh High Court was set aside by the Supreme Court in case reported as Shaukat Hayat Vs. Government of Sindh and another (1989 SCMR 774), but not on the reasoning mentioned above, but on different grounds, however, while parting, the Supreme Court observed that government may issue another notification in accordance with law, if it considers expedient. 12. In case reported as In the Reference made by Sessions Judge, Larkana for transfer of cases (1990 P. Cr.LJ 1687), reference was sent by the Sessions Judge to the High Court. The Sindh High Court opined that it is within competence of the provincial government to set up venue for the trial of cases of a particular accused and also nominate any Sessions Judge or Additional Sessions Judge to try those cases, which are to be specified by the said Government in notification/notifications. 13. In case reported as Chairman, National Accountability Bureau, Islamabad through Prosecutor General, Accountability Bureau, Islamabad Vs. Mian Muhammad Abbas Sharif and 7 others (PLD 2001 Lahore 157), the Division Bench of Lahore High Court allowed the transfer of accountability reference in Attock Fort for the reason that it is in the interest of justice to hold fair, impartial trial in a calm, peaceful environment, however, it was observed that it is for the Presiding Officer to ensure attendance by the witnesses, lawyers and other persons interested in watching the proceedings including the visitors through regulated entry by the court after security check-up. 14. In case reported as Dr. Ahmed Javed Khawaja and another Vs. The State and 2 others (PLD 2003 Lahore 450), where a notification was issued under Anti-Terrorism Act, 1997 for conducting trial in jail was challenged, the Division Bench of Lahore High Court observed and concluded that it is within the domain of the appropriate government to issue notification for conducting trial at any place other than the normal place of sitting of the special courts. It was observed as follows:- "The omission to spell out reasons in the afore-referred circumstances by itself would not make the order of the Home Secretary unlawful in absence of any apparent mala fides. There is, therefore, no jurisdictional defect to warrant interference under Article 199 of the Constitution. The precedent case-law to which reference has been made by the petitioners' learned counsel would not be of much avail to him, firstly, because in Asif Ali Zardari's case (supra), issue before the learned Court was the trial of a case in jail premises under the Suppression of Terrorist Activities (Special Courts) Act, 1975 and the ratio laid down by the Court, in the said judgment, was that under section 3 of the afore-referred Act, the Government did not have such a power. The provisions of the Anti-Terrorism Act, 1997, as discussed in the preceding paragraphs, are all together different and they specifically empower the Government as also the trial Court to specify the place of trial. The judgment of the august Supreme Court in Mehram Ali's case (supra) dilated in detail on the vires of the Anti-Terrorism Act, 1997 and admittedly section 15 of the said Act has not been declared ultra vires of the Constitution. The ratio in Sharaf Faridis's case (supra) indeed lays down important principles of independence of judiciary and uphold the mandate of Article 175. of the Constitution of Islamic Republic of Pakistan, 1973 but we are of the considered view that the provision of a power with the executive to decide the place of trial does not, by itself, impinge on independence of judiciary or conscience of a Court. The trial continues to be an open trial and is to be regulated by the learned trial Court with due regard to security of the parties, witnesses and the Court itself. The rights of an accused and principles of appreciation of evidence continue to remain the same. The…
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