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Petitioner: MUHAMMAD KAMRAN MULLAHKHAIL and others VS Respondent: GOVERNMENT OF JUDGMENT
Court Name: Balochistan High Court Judge(s): Qazi Faez Isa, Muhammad Hashim Khan Kakar Title:MUHAMMAD KAMRAN MULLAHKHAIL and others vs GOVERNMENT OF
JUDGMENT
Reported As: PLD 2012 Balochistan 57 Result: Petition allowed. Judgment JUDGMENT QAZI FAEZ ISA, C.J.---These two petitions have been filed assailing the Code of Criminal Procedure (Balochistan Amendment) Act, 2010 (Act XV of 2010), published in the Balochistan Gazette on December 10, 2010, and the Code of Criminal Procedure (Balochistan Amendment) Ordinance, 2010 (Ordinance III of 2010), published in the Balochistan Gazette on November, 23, 2010 (Respectively "the impugned Act" and "the impugned Ordinance"). 2.Mr. Muhammad Kamran Khan Mulakhail, a practising lawyer, who is also a Member of the Balochistan Bar Council and Member of the Judicial Commission of Pakistan for Balochistan, is the petitioner in Constitutional Petition No.649 of 2011. The petitioner in Constitutional Petition No.202 of 2011 has described himself as the "President of Local Council Association of Balochistan" and former Nazim City District Government, Quetta. 3.That the impugned Ordinance was repealed vide section 75 of the impugned Act; however, subsection (1) of section 75 of the Act sought to save the actions done, penalties imposed, inquiries conducted etcetera under the Ordinance. The impugned Ordinance and the impugned Act (hereinafter collectively referred to as "the impugned laws") sought to introduce executive magistracy in the Province of Balochistan and to entrust it with judicial powers to conduct trials and impose punishments. Section 4 of the Act bifurcated magistrates into judicial magistrates and executive magistrates respectively as under: "(a) Judicial Magistrates: (i)Magistrates of the First Class; (ii)Magistrates of the Second class:
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(iii)Magistrates of the Third class; and (iv)Special Judicial Magistrates. (b) Executive Magistrates: (i)District Magistrates; (ii)Additional District Magistrates; (iii)Sub-Divisional Magistrates; (iv)Special Executive Magistrates; (v)Magistrates of the First Class; (vi)Magistrates of the Second Class; and (vii) Magistrates of the Third Class." Section 12 of the impugned Act added a proviso to section 28 of the Criminal Procedure Code, 1898 ("Code"). Section 28 of the Code and the newly added proviso are reproduced hereunder: "28. Offences under Penal. Code. Subject to the other provisions of this Code any offence under the Pakistan Penal Code may be tried: (a)by the High Court; or (b)by the Courts of Sessions; or (c) by any other Court by which such offence is shown in the eighth column of the second schedule to be triable." "Provided that the offences falling under Chapters VIII, X, XIII and XIV of Pakistan Penal Code 1860 (Act XLV of 1860), except offences specified in section 153-A and section 281 of the aforesaid Code, shall be tried by the Executive Magistrate and the expression "Magistrate" used in the said eighth column shall mean Executive Magistrate of the respective class." Section 13 of the impugned Act also added a proviso to section 29 of the Code. Section 29 of the Code and the proviso added thereto are reproduced hereunder: "29. Offences under other laws. (1)Subject to the other provisions of this Code, any offence under any other law shall when any Court is mentioned in this behalf in such law, be tried by such Court. (2)When no Court is so. mentioned, it may be tried by the High Court or subject as aforesaid by any Court constituted under this Code by which such offences shown in the eight column of the second schedule to be triable." "Provided that the offences punishable with imprisonment for a term not exceeding three years, with or without any other punishment, shall be tried by the Executive Magistrates." 3. The offences falling under Chapters VIII, X, XIII and XIV of the Pakistan Penal Code respectively pertain to offences against the public tranquility (Chapter VIII), offences of the contempt of the lawful authorities of public servants (Chapter X), offences relating to weights and measures (Chapter XIII) and offences affecting public health, safety, convenience, decency and morals (Chapter XIV). The two offences that have been excluded for trial by the Executive Magistrates are the offences promoting enmity between different groups, etcetera (section 153-A Pakistan Penal Code) and the offence of exhibition of false light, mark or buoy (section 128 Pakistan Penal Code), for which offences imprisonment may respectively extend to five years and seven years. Save these two offences all offences falling under Chapters VIII, X, XIII and XIV of the Pakistan Penal Code would after the enactment of the impugned laws be tried by the Executive Magistrates. In addition offences mentioned in other laws that are punishable with imprisonment for a term not exceeding three years would also be tried by the Executive Magistrates. 4.The impugned laws also gave some of the powers vesting in police officers (under sections 128, 129, 130 and 131 of the Code) to Executive Magistrates. Section 190 of the Code, whereby the cognizance of offences is taken, was also substituted. The section 190 of the' Code both before and after its amendment are reproduced hereunder:
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Section 190 of the Code before its amendment: "190. Cognizance of offences by Magistrate. (1) All Magistrates of the first Class, or any Other Magistrate specially empowered by the Provincial Government on the recommendation of the High Court may take cognizance of any offence: (a)upon receiving a complaint of facts which constitute such offence; (b)upon a report in writing of such facts made by any police-officer; (c)upon information received from any person other than a police-officer, or upon his own knowledge or suspicion. that such offence has been committed which he may try by or send to the Court of Session for trial. (2) A Magistrate taking cognizance under subsection (1) of an offence triable exclusively by a Court of Session shall, without recording any evidence, send the case to Court of Session for trial." Section 190 of the Code after its amendment: "190. Cognizance of offences by Magistrate. (1) Except as hereinafter provided any District Magistrate, or a Sub-Divisional Magistrate, or any other Magistrate specially empowered in this behalf may take cognizance of any offence: (a)upon receiving a complaint of facts which constitute such offence; (b)upon a report in writing of such facts made\ by any police officer; (c)upon information received from any person other than police officer, or upon his own knowledge or suspicion, that such offence has been committed. (2) The Provincial Government may empower any Magistrate to take cognizance under subsection (1) clause (a) or clause (b) of offences for which he may try or send to the Court of Session for trial. (3) A Magistrate taking cognizance under subsection (1) of the offence triable exclusively by a Court of Session shall, without recording any evidence, send the case to the Court of Session for trial. " Section 53 of the impugned Act also sought to give power to transfer cases to the Executive Magistrates by amending section 192 of the Code. Previously only a Sessions Judge was empowered to transfer a case from one Judicial Magistrate to another. The impugned Act also sought to add Parts-IV and V, after Part-III to Schedule-III of the Code. Part IV set out the "Ordinary Power of District Magistrate" and Part-V the "Ordinary Powers of District Magistrate". Part-IV and Part V are respectively reproduced hereunder: PART-IV Ordinary Powers of a Sub Divisional Magistrate Appointed Under Section 13 (1)The ordinary powers of a Magistrate of the First Class. (2)Power to direct warrants to, landholders, section 78. Power to issue search warrant otherwise than in course of an inquiry, section 98. Power to issue search warrant for discovery of persons wrongfully confined, section 100. (5)Power to require security to keep peace, section 107. (6)Power to require security for good behavior, section 109. (7)Powerw require security for good behavior, section 110. (8)Power to discharge sureties, section 126-A. (9)Power to make orders as to Local nuisances, section 133. (10)Power to make orders prohibiting repetitions of nuisances, section 143. (11)Power to make orders under, section 144. (12)Power to make orders etc. in possession cases, sections 145, 146 and 147. Power to depute subordinate Magistrate to make local inquiries, section 148. Power to order police investigation into cognizable case, section 156. Power to receive report of police officer and pass order, section 173. Power to hold inquests, section 174. (17)Power to issue process for person within local jurisdiction who has committed an offence
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outside the local jurisdiction, section 186. (18)Power to entertain complaints, section 190. (19)Power to receive police reports, section 190. (20)Power to entertain case without complaints, section 190. (21)Power to transfer case to a subordinate Magistrate, section 192. (22)Power to pass sentence on proceedings recorded by a Subordinate Magistrate, section 349. (23)Power to forward record of inferior court to District Magistrate, section 435(2). (24)Power to sell property alleged or suspected to have been stolen etc., section 524. PART-V Ordinary Powers of District Magistrate (1)The ordinary powers of a Sub-Divisional Magistrate. (2)Power to require delivery of letters, telegrams, etc., section 95. (3)Power to issue search warrants for documents in custody of postal or telegraph authority, section 96. (4)Power to require security for good behavior in case of sedition, section 108. (5)Power to release person imprisoned for failing to give security, section 124. (6)Power to cancel bond for keeping the peace, section 125. (7)Power to order preliminary investigation by Police officer not below the rank of Inspector in certain cases, section 196-B. (8)Power to tender pardon to accomplice at any stage of a case, section 337. (9)Power to hear appeals from order requiring security for keeping the peace or good behavior, section 406. (10)Power to hear appeals from order of Magistrate refusing to accept or rejecting sureties, section 406-A. (11)Power to hear or refer appeals from convictions by Magistrate of the second and third classes, section 407. (12)Power to call for records, section 435. (13)Power to order inquiry into complaint dismissed, or case of accused discharges, section 436. (14)Power to appoint person to be public prosecutor in particular cases, section 492(2). (15)Power to issue commission for examination of witness, sections 503, 506. (16)Procedure on forfeiture of bond, section 514. (17)Power to hear appeals from or revise orders passed under. section 515. (18) Power to withdraw cases other than appeals, and to try or refer them for trial, section 528-A. (19) Power to compel restoration of abducted female, section 552." 73. In the aforesaid Code, in schedule IV, (a) In Part-I, after entry No. 1, the following new entries shall be inserted namely; (2)Power to issue process for persons within local jurisdiction who has committed an offence outside the local jurisdiction, section 186. (3)Power to take cognizance of offences upon complaint, section 190. (4)Power to take cognizance of offences upon police report, section 190. (5)Power to take cognizance of offences without complaint, section 190. (6) Power to transfer cases, section 192. ' 7. In view of the fact that interpretation of Law and Constitution was involved, notices were issued to the Attorney General for Pakistan and the Advocate General of Balochistan. We also appointed Mr. M. Zafar and Mr. Muhammad Riaz Ahmed, Advocates as amicus to assist the court. Time, however, was repeatedly sought both by the Province and Federation. Consequently on August 8, 2011 the following inter alia order was passed: "We had admitted this petition for regular hearing on 4th April 2011 and since then a number of
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dates have passed. It was specifically stated in order dated 4th April 2011 that in view of the urgency of the matter it should be fixed at an early date. In view of the fact that the petition primarily involves interpretation of the Constitution and whether the Criminal Procedure (Balochistan) Act, XV of 2010 was in accordance with the provisions thereof we fail to understand what could be filed by way of comments / counter affidavit unless of course the respondents want to disclose the reasons which necessitated in enacting the said legislation, the disclosure of the reasons and objectives of the said legislation, the discussion in parliament and summary moved to the cabinet for recommending the said legislation. In the interest of justice time is granted as the aforementioned matters may help in the determination of this petition." 8. The Province of Balochistan through the learned Advocate General filed "Statement of Objects and Reasons" that purportedly necessitated the enactment of the impugned Act, which is reproduced hereunder:-- "STATEMENT OF OBJECTS AND REASONS Consequent upon abolition of Local Government Ordinance, 2001 and revival of office of Deputy Commissioner in the Province, it has become expedient to restore/revive Magistracy system as it stood prior to introduction of Local Government System in 2001. The restoration/revival of Magistracy System in the Province requires amendments to be carried out in the Code of Criminal Procedure 1898 (V of 1898). Accordingly, a draft bill containing amendments in the Code of Criminal Procedure 1898 (V of 1898) has been prepared and submitted for approval by the Provincial Assembly. The Provincial Cabinet in its meeting held on 2nd September 2010, has already approved its placement before the Provincial Assembly." However, the minutes of the referred to Provincial Cabinet meeting were not produced. Learned Advocate General further stated that no discussion took place in the Provincial Assembly when the Bill, which resulted in the impugned Act, was presented. 9. Mr. Amanullah Kanrani learned Advocate General and Dr. Khalid Ranjha, learned counsel for the Government of Balochistan in C.P. No.202 of 2011, raised objections to the maintainability of the petitions on two grounds, firstly, that the petitioners do not come within the definition of 'aggrieved person' under Article 199 of the Constitution and, secondly, that the petitioner in C.P. No.202 of 2011 has already approached the Hon'ble Supreme. Court seeking the same relief; therefore it would not be appropriate for this court to proceed with the hearing of these petitions until the matter has been decided by the apex court. We accordingly proceed to first decide the question of maintainability of the petitions. 10.In support of the first objection it was contended that admittedly the petitioners had not personally 'suffered as a consequence of the impugned laws nor do the petitioners have any case pending against them as a consequence whereof they may be personally affected by its determination by an Executive Magistrate, instead of a Judicial Magistrate. Through these petitions the impugned laws have been assailed in the public interest. In Pakistan we have a written constitution and it is incumbent on everyone to comply therewith (Article 5). Sub-Article (1) of Article 8 of the Constitution stipulates that, "any law... in so, far as it is inconsistent with the rights conferred by this Chapter ['Chapter 1 - Fundamental Rights], shall, to the extent of such inconsistency, be void." And sub-article (2) of Article 8 provides, that, "The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void." Sub-Article (5) of Article 8 further lays down that, "The rights conferred by this Chapter shall not be suspended except as expressly provided by the Constitution." Article 199(2) of the Constitution also removes any barrier or
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obstruction that may be placed in the way of a person approaching the High Court for enforcement of Fundamental Rights as the said provision stipulates, that, "Subject to the Constitution, the right to move a High Court for enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II shall not be abridged." Accordingly, if a person files a petition alleging that a law contravenes any Fundamental Right conferred by the Constitution this court is obliged to examine the same in A its constitutional jurisdiction. To contend otherwise would render Article 8 bereft of meaning and leave citizens denuded of their Fundamental Rights guaranteed by the Constitution. 11.The next question to be considered is, whether a person who is not personally aggrieved may also assail a law enacted in contravention of the Fundamental Rights. In repelling the objection as to maintainability Mr. Farhat Nawaz Lodhi, Advocate placed reliance upon the case of Ardeshir Cowasjee v. Karachi Building Control Authority, 1999 SCMR 2883, and paragraph 23 of the said judgment (at page 2905), reproduced hereunder: "13. We may also refer to the following judgments of this Court in which the concept of locus standi has been dilated upon in relation to a Constitution petition and, inter alia, it has been held that for maintaining a proceeding in writ jurisdiction, it is not necessary that a writ petitioner should have a right in the strict juristic sense, but it is enough if he discloses that he had a personal interest in the performance of the legal duty, which if not performed or performed in a manner not permitted by law, would result in the loss of some personal benefit or advantage or curtailment of a privilege in liberty or franchise: (i)Mian Fazal Din v. Lahore Improvement Trust, Lahore and another (PLD 1969 SC 223). (ii)Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416). (iii)Miss Benazir Bhutto and another v. Federation of Pakistan and another (PLD 1989 SC 66). (iv)Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473). (v)Al-Jehan Trust through Raeesul Mujahideen Habib-ul-Wahab-ulKhairi and others v. Federation of Pakistan and others (PLD 1996 SC 324). (vi)Malik Asad Ali and others v. Federation aof Pakistan through Secretary, Law, Justice and. Parliament Affairs, Islamabad and others (PLD 1998 SC 161). (vii) Mohtarma Benazir Bhutto and another v. President of Pakistan and others (PLD 1998 SC 388). ... The appellants are entitled to a declaration in terms of sub-paragraph (ii) of paragraph (a) of clause (1) of Article 199 of the Constitution that the approval of the building plan of respondent No.5 in respect of the Plot is without lawful authority and of no legal effect in view of the violation of Articles 40 and 52-A of the Order read with para.3 of Schedule 'D' to the Regulations. As a consequential relief the appellants are also entitled to seek removal of the unauthorized structure from the Plot. Even otherwise, the appellants have sufficient interest to ensure that the Plot should not be used for any other purpose than for which it was carved out pursuant of K.D.A. Scheme No.5." 12. Criminal law and criminal procedural law may have an effect on the life of citizens or may do so in the future. A person may wait to be charged with a crime and then file a constitutional petition challenging the constitutionality of such law or he/she may do so immediately upon its promulgation. It is preferable that if any law, which may impact upon any inalienable human right, is assailed sooner rather than later if it be deemed to have been enacted in contravention of the Constitution. In the case of Pakistan human rights are categorized as 'Fundamental Rights' in the Constitution. The certainty, of the applicability of laws also requires that laws, the constitutionality of which is suspect, are assailed at the earliest. Ensuring compliance of laws with human rights/Fundamental Rights and certitude of laws forms the bedrock of civilized society; in such societies everyone knows their obligations and how they will be dealt with if charged of having committed an offence. A person may also not have sufficient time to assail such laws when he or
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she is facing trial, and the trial may be over before a challenge can be launched against it. Moreover, persons who do not have the requisite knowledge and or wherewithal to assail such laws may still come within its ambit. Therefore, public spirited persons, including lawyers, acting bona fide in the public interest, may assail such Taws. The Constitution, including the Fundamental Rights enshrined therein, must not be permitted to be trampled upon, and if a public-spirited person acting in the public interest brings the same to the High Court's attention he should not be discouraged. This court, in the case of Balochistan Bar Association v. Government of Balochistan, PLD 1991 Quetta 7, held that the High Court was empowered to examine the vires of the Civil Law (Special Procedure) Ordinance I of 1968 and the Criminal Law (Special Procedure) Ordinance II of 1968 on the touchstone of the Constitution. The petition was filed by the late Mr. Muhammad Nawaz Marri Advocate (as he then was), in his capacity as President of the Balochistan Bar Association. The appeal against the said judgment of the Balochistan High Court was dismissed by the Supreme Court (PLD 1993 Supreme Court 341). A more recent example of the courts exercising jurisdiction and striking down a law when approached by public-spirited citizens is the case of Mobashir Hassan v. Federation of Pakistan, PLD 2010 Supreme Court 265, wherein the Hon'ble Supreme Court struck down the National Reconciliation Ordinance, 2007 ("NRO"). The petitioner, Mr. Mobashir Hassan was neither a beneficiary of the NRO nor had been denied its benefit and therefore not an 'aggrieved person' in the narrow sense; but such purported lack of locus standi did not impede his right to approach the court. Dr.Khalid Ranjha contended that the power of the Supreme Court emanates from Article 184(3) and it can strike down a law, which power does not vest in the High Court. We are afraid we can not agree with him as there is nothing in the Constitution which makes this distinction; on the contrary the Hon'ble Supreme Court in the case of Human Rights Commission of Pakistan v. Government of Pakistan, PLD 2009 Supreme Court 507, held that, "It needs to be kept in view that apart from the jurisdiction vested in the High Courts by virtue of clauses (a) and (b) of Article 199(1) a special jurisdiction is conferred by clause (c) which a High Court shares with the original jurisdiction of this Court under Article 184(3) ... ." "The power to enforce fundamental rights has been conferred upon the superior courts through Articles 199(1)(c) and 184(3). It may be seen that under Article 4 everybody has to be treated in accordance with the law and under Article 8, a law inconsistent with fundamental rights is to be treated as void." 13.Neither the learned Advocate General nor Dr. Ranjha have attributed any ulterior personal agenda or motive to the petitioners, nor have we discerned any, thus we can only conclude that they have approached this court to assist their fellow citizens in leading their lives in the glow of the Constitution and to enjoy the rights provided therein. The courts have opened its doors to such persons and categorized petitions seeking enforcement of Fundamental Rights as public interest litigation and not insisted on the applicability of the strict rules of locus standi. In the case of S. P. Gupta v. Union of India, 1981 (Supp) SCC 87, advocates, who successfully assailed the manner in which judges were appointed to the higher judiciary under Article 226 of the Indian Constitution (similar to Article 199 of the Constitution of Pakistan), were referred to as public-minded or public- spirited individuals. In the unreported case of Muhammad Alam v. Planning Development Department, Constitutional Petition No.351 of 2009, this court had held, that, "Therefore, if a person, who has no personal interest and in the larger public interest comes forward and questions such spending the doors of the court should not be shut, but rather kept open for him. Such a public spirited person, who has taken on himself the burden of expressing public outrage or grievance can be categorized as an 'aggrieved person', in terms of Article 199 of the Constitution. He takes time out from his private life and puts in considerable effort guided by public zeal to take the matter to court. He is part of the public whose interest he represents, thus
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he too can be categorized as 'aggrieved' even in the narrow sense of the word." 14.The objections taken to the maintainability of the petitions on the ground that petitioners are not aggrieved…
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