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Official Citation: 2024 PLD 256 |2024 ILR 85
Court / Jurisdiction: Islamabad High Court
Parties: The State vs Mr. Irfan Nawaz Memon, District Magistrate/Deputy Commissioner, (I.C.T), Islamabad, etc
Ruling Summary: This decision was rendered by the Islamabad High Court, officially reported as 2024 PLD 256 |2024 ILR 85. In this matter between The State and Mr. Irfan Nawaz Memon, District Magistrate/Deputy Commissioner, (I.C.T), Islamabad, 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.
COURT: Islamabad High Court (Honourable Mr. Justice Babar Sattar) AUTHOR JUDGE: Honourable Mr. Justice Babar Sattar DECISION DATE: 01-MAR-2024 CASE NO: Criminal Original-197-2023 CITATION: 2024 PLD 256 |2024 ILR 85 PARTIES: The State VS Mr. Irfan Nawaz Memon, District Magistrate/Deputy Commissioner, (I.C.T), Islamabad, etc LAW / SECTION: under act. 199,245 of the Constitution SUBJECT: Writ, REMARKS: Crl Org in W.P. 2491/2023 Police/FIA Matter Detention (SB), [ Shehryar Afridi - VS -Federation of Pakistan etc ] ============================================================ JUDGEMENT SHEET
IN THE ISLAMABADHIGH COURT, ISLAMABAD JUDICIAL DEPARTMENT
Criminal Original No.197-W/2023 The State Vs. Mr. Irfan Nawaz Memon, District Magistrate and three others.
The STATE BY: Mr. Qaiser Imam, Prosecutor assisted by Mr. Ali Raza, Advocate. Mr. Ahmed Junaid, State Counsel.
RESPONDENTS BY: Raja Rizwan Abbasi, Mr. Fawad Haider and Rana Samreen Akhtar, Advocates for respondent No.1. Mr. Shah Khawar and Mr. Babar Hayat Samore, Advocates for respondent No. 2. Mrs. Bushra Qamar and Mr. Muhammad Fahim Akhtar Gill, Advocate for respondent No.3. Mr. Imran Feroz Malik and Mr. M. Sajid Baloch, Advocates for respondent No.4. Respondents No. 1 to 4 in person. Mr. Qamar Abbas, Law Officer, Rural Zone, Islamabad.
DATE OF HEARING: 21.02.2024.
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BABAR SATT AR, J.- Is rule of law to be treated as a device capable of producing nothing other than feel -good rhetoric in Pakistan or is it to be regarded as a meaningful concept signifying a legal system that affords ordinary citizens the rights and liberties guaranteed by the Constitution? Does our legal system have the ability to give effect to the protections law affords citizens, while simultaneously operationalizing the obligations it imposes on the exercise of state power? Does our court system have the capacity to minimize the gap between black-letter law and its enforcement such that law serves a useful purpose in the everyday life and experience of citizens? Can -2- Crl. Original No. 197/2023
Pakistan be described as a rule of law polity or is it administered by rule of men whose diktat trumps the rule of law? 2. These seemingly abstract questions lie at the heart of the controversy before this C ourt in the present matter where (i) Irfan Nawaz Memon, District Magistrate Islamabad, (ii) Malik Jameel Zaffer, Senior Superintendent of Police, Islamabad, (iii) Farooq Amjad Buttar, Divisional Police Officer, Islamabad, and (iv) Nasir Manzoor, Station House Officer P.S. Margalla, Islamabad, are facing contempt of court proceedings for abusing and disregarding High Court orders declaring detention orders passed under Mai ntenance of Public Order Ordinance, 1960 (“MPO”) illegal, for obstructing administration of justice and denying citizens access to justice, and for setting at naught the remedies afforded by the justice system. 3. Between 09.05.2023 and 02.11.2023, DC Irfan Memon issued some 69 detention orders in exercise of power under Section 3 of the MPO. The cumulative period of detention that he ordered those on the receiving end exceeded 1000 days. Over two dozen petitions were filed before Islamabad High Court (“IHC”) challenging these orders . These cases were marked before 7 out of the 8 judges comprising IHC. Except for two cases, where detention orders were issued out of concern for sectarian violence, n ot one order detaining political workers on grounds of incitement of violence sustained judicial scrutiny. The first set of detention order s were set aside on 16.05.2023 for being illegal. Repeated judicial verdicts declaring that DC Irfan Memon was abu sing authority and undermining fundamental -3- Crl. Original No. 197/2023
rights of detainees had no sobering effect on the DC, who continued churning out detention orders one after another. 4. DC Irfan Memon ordered Shehryar Afridi’s detention on 16.05.2023. It was challenged in Farrukh Jamal Afridi Vs. Federation of Pakistan (W.P. 1639/2023) and was set aside for being unconstitutional and illegal by order dated 02.06.2023 . This Court put DC Irfan Memon and SHO Nasir Manzoor on notice that their conduct was tantamount to malice in law and could attract penal consequences. Unabashed, DC Irfan Memon continued issuing detention orders at will, primarily to imprison individuals who were associate d with Pakistan Tehreek -e-Insaaf (“PTI”). Meanwhile, Shehryar Afridi was kept behind bars, for a brief period in relation to FIRs registered against him on the allegation of inciting public to create anarchy, and after his release on bail by court, by virtue of detention orders under MPO issued by DC Rawalpindi. 5. On 03.08.2023, the detention order issued by DC Rawalpindi was set aside by Lahore High Court. DC Rawalpindi then issued a fresh detention order on 04.08.2023. When this order was challenged before Lahore High Court, that had already ordered the release of Shehryar Afridi by setting aside the detention order under MPO and by admitting Afridi on bail before arrest in relation to an FIR registered against him in Bahawalpur (also on charges of incitement of violence) , DC Rawalpindi withdrew the fresh detention order on 0 8.08.2023. On the same day, DC Irfan Memon manufactured a second detention order against Shehryar Afridi on the same grounds on which his previous order was set aside by Islamabad High Court in -4- Crl. Original No. 197/2023
Farrukh Jamal Afridi (i.e. he was inciting public to embrace anarchy and damage public buildings etc.). 6. The freshly-minted detention order came with a twist: now Shehryar Afridi was allegedly inciting public -at-large to cause destruction in Islamabad from Adiala J ail (where he had remained incarcerated since 16.05.2023 after being picked-up at 2.30 am by SHO Nasir Manzoor without a warrant on the expectation that DC Irfan Memon will issue a detention order later in the day, which he did) . SHO Manzoor issued a request for detention under MPO on 08.08.2023, forwarded by DPO Farooq Amjad to SSP Jameel Zafar, who endorsed it and later reaffirmed it as part of the District Intelligence Committee (“DIC”) for Islamabad. Interestingly, the very day DIC Rawalpindi advised DC Rawalpindi that Afridi was no longer a threat to public order in Rawalpindi, where he was housed in Adiala Jail (recalling prior advice of him being a threat rendered on 04.08.2023), DIC Islamabad and DC Irfan Memon found Afridi to be a threat to public order in Islamabad and was pulling strings of public discord all the way from Adiala Jail. 7. This repeat detention order against Shehryar Afridi was issued on 08.08.2023, which meant that withdrawal of the detention order issued by DC Rawalpindi on 0 8.08.2023 (after having been summoned by Lahore High Court for issuing a new detention order on 04.08.2023 after the previous one was set aside on 03.08.2023) was of no consequence. Shehryar Afridi stayed put at Adiala Jail. As DCs for Rawalpindi and Islamabad continued playing musical chairs with the law and the courts, DC Irfan Memon’s detention order dated 08.08.2023 was challenged -5- Crl. Original No. 197/2023
before this C ourt in Shehryar Afridi vs. Federation of Pakistan (Writ Petition No. 2491 of 2023). On 15.08.2023 this C ourt issued DC Irfan Memon and the police officers who had solicited the latest detention order, show cause notices for obstruction of justice and contempt of court. 8. Even the issuance of the show caus e notice and the order of this C ourt dated 15.08.2023 (putting DC Irfan Memon on notice that he may be liable for breach of fundamental rights of citizens and for obstructing justice), DC Memon’s proclivity to curb the liberty of citizens in exercise of powers under the MPO could not be curbed. While facing co ntempt proceedings before this Court, he issued detention orders to incarcerate Chaudhary Pervaiz Elahi on 01.09.2023, after he had been set free by Lahore High Cou rt. This cou rt by order dated 06.09.2023, suspended the power of DC Irfan Memon to issue detention orders under Section 3 of MPO , after which the detention order minting business came to a halt in Islamabad . By judgment dated 29.12.2023, the detention order dated 08.08.2023 was set aside for being illegal and unconstitutional and for being a fraud on the statute, it was declared that powers under the MPO were not validly delegated to DC Irfan Memon, and the present contempt proceedings continued. Summary of the proceedings 9. By order dated 15.08.2023 passed in Shehryar Afridi, the respondents were issued show -cause notices in terms of Article 204(2)(a) and 204(2)(d) of the Constitution read together with section 6(1)(c) of the Contempt of Court Ordinance, 2003 -6- Crl. Original No. 197/2023
(“Ordinance”). The show -cause notice issued to DC Irfan Memon is annexed as Annexure-A1. 10. The respondents filed justificatory responses to the show - cause notices, which were found to be unsatisfactory. In order dated 07.09. 2023, this Court recorded reasons as to why the responses were deemed unsatisfactory and further enumerated the basis for continuing proceedings against the respondents after framing of the charge in the following terms: “4. Separation of powers and independence of the Judiciary are salient features of the constitutional order in place in Pakistan. Independence of the Judiciary is now understood to be a pre -requisite for upholding fundamental rights of citizens in Pakistan, a s the Judiciary constitutes the constitutional machinery for enforcement of fundamental rights of citizens as guaranteed by the Constitution. It is the Judiciary that upholds and enforces the contract between the State and the citizens as manifest in the provisions of the Constitution and more particularly in the fundamental rights guaranteed by the Constitution, including the right to liberty, dignity, due process and to be treated in accordance with law. Simultaneously, the Executive is placed under an obligation to abide by law and uphold the fundamental rights of citizens guaranteed by the Constitution. Under Article 199 of the Constitution , the High Courts have been endowed with the responsibility to ensure that fundamental rights of citizens are not fettered and any excesses on part of the State that undermine the fundamental rights of citizens are brought under check. This constitutional scheme falls apart if the Executive refuses to abide by the provisions of the Constitution and remains doggedly determined to refuse the enforcement of fundamental rights as determined by the Judiciary, or if the Executive is able to disregard orders and judgments passed by the Judiciary to give effect
1 The SCNs issued to the remaining respondents are part of the record. -7- Crl. Original No. 197/2023
to the entitlements and rights that the Constitution promises the citizens of Pakistan and the officials disregarding judicial orders go Scott-free. 5. Article 204 provides the mechanism through which judicial orders upholding the rights of the citizens are to be enforced and anyone refusing to do so is to be punished. Article 204(2)(a) vests in the High Court the power to punish anyone who “abuses, interferes with or obstructs the process of the court in any way or disobeys any order of the court”. Article 204(2)(c) provides for punishment of anyone who “does anything which tends to prejudice the determination of a matter pending before the court”. Art icle 204(2)(d) provides for punishment of any other act which by law constitutes contempt of court. The relevant law with regard to contempt of court is the Contempt of Court Ordinance, 2003 (“Ordinance”). Section 2(b) of the Ordinance defines “criminal contempt” as “the doing of any act with intent to, or having the effect of obstructing the administration of justice”. Section 3 of the Ordinance provides that anyone who interferes with or obstructs or interrupts or prejudices the process of law or the due course of any judicial pr oceedings and anyone who does anything that “tends to bring the authority of a court or the administration of law into disrespect or disrepute” is liable for contempt of court. Section 6 of the Ordinance deals with criminal contempt and provides that anyone who commits any act with the intent to divert the course of justice is liable for criminal contempt. 6. When Article 204 of the Constitution read together with provisions of the Ordinance is juxtaposed with the facts of the instant case, it appears, prima facie, that actions and conduct of the respondents was a deliberate attempt to divert the course of justice, obstruct the administration of justice and bring the authority of the court and administration of law into disrespect and disrepute. It appears, prima facie, that the respondents (or someone on whose diktat the respondents were acting) had decided that -8- Crl. Original No. 197/2023
notwithstanding any judgment or order passed by the High Courts, Shehryar Afridi shall not be released. When Shehryar Afridi was released by this Court after having declared that the detention order dated 16.05.2023 was illegal, detention orders of similar nature on the same grounds were passed by District Magistrates in Punjab. When the Lahore High Court set aside such detention orders for being illegal and violative of the fundamental rights of the detainee, the detention order in field was withdrawn by the District Magistrate Rawalpindi and on the very same day, ICT police officers manufactured reports and the District Magistrate Islamabad passed a fresh detention order under section 3 of MPO. The sequence of events, prima facie, project a picture where a message was being communicated to public-at-large that the detainee would not be released under any circumstances no matter what orders were passed by the constitutional courts of this country. There can be nothing more disconcerting than actions of public office holders serving within the Executive that deliberately seek to reduce constitutional guarantees and the machinery put in place to give effect to such guarantees to a farce. If public -at-large comes to believe that there is no functional and effective constitutional mechanism to uphold the rights of citizens to liberty, dignity, due process and protection of law, a polity run on the basis of rule of law immediately t ransforms into a polity run on the basis of brute force. This cannot be countenance d in any constitutional order. If there is ever a basis and an emergent need to exercise the power of contempt, it arises where public office holders act contumaciously to undermine public faith in the ability of the judicial organ to uphold fundamental rights of citizens by interfering with, undermining and diverting the course of justice. The actions of the respondents, prima facie, appear to have been intended to defeat the orders passed by two High Courts wherein it was explicitly declared that detentio n orders passed by the District Magistrates in Islamabad and Rawalpindi, respectively, are violative of fundamental rights -9- Crl. Original No. 197/2023
of the detainee, who was ordered to be released from detention. 7. This Court has found that responses filed by the respondents are justificatory and are seeking to perpetuate their illegal acts in breach of clear declarations made by this Court in order dated 02.06.2023 in W.P No. 1639 of 2023. It appears that submissions of the respondents in Writ Petition No. 2491 of 2023 (Shehryar Af ridi Vs. Federation of Pakistan) with regard to the detainee allegedly inci ting people from behind prison walls is not backed by facts, which, if borne out in trial, would render them liable for contempt of court under section 6(1)(a) of the Ordinance. The Court has also taken note of the fact that the respondent police officers have continued to initiate reports requesting detention of citizens and the District Magistrate has continued to issue detention orders notwithstanding the fact that such orders have been challenged and have been set aside by this Court. Even after the issuance of show cause notices by this Court, the respondent police officers have continued to generate reports and the District Magistrate has audaciously issued fresh detention orders, which have also been suspended by this Court. Such conduct appears, prima facie, to be deliberate and part of an intentional design to frustrate and divert the course of justice and establish that rule of law can be trumped by rule of force at the command of the Executive. The charge is therefore being framed against the respondents under sections 2, 3 and 6 of the Ordinance read together with Article 204 of the Constitution.” 11. The charge framed against DC Irfan Memon is annexed as Annex-B2. All the respondents pleaded not guilty to the charge framed against them and sought time to furnish affidavits and adduce evidence in their defence. On 11.12.2023 after several hearings and filing of miscellaneous applications , this Court
2 Charge sheets reflecting the charge framed against the remaining respondents is part of the record. -10- Crl. Original No. 197/2023
ordered that the matter be fixed for 16.01.2024 when it would proceed on day-to-day basis. The case was fixed on 19.01.2024 as the Bench was not available on 16.01.2024 and an adjournment was sought by learned counsel s for the respondents. The Court had summoned the record keepers to produce the official record related to the proceedings for 22.01.2024. The order was not complied with and the matter was then fixed for 23.01.2024. On the said date , statements of Syed Waqar Ali Shah, Record Keeper of Deputy C ommissioner’s office Rawalpindi and Touseef Akhtar, Record Keeper of the office of Superintendent Central Jail , Rawalpindi were recorded . Later, the statements of Tariq Azi z, Record Keeper/Moharre r of Police Station Margalla, Qai ser Javed, Record Keeper/Moharre r of Industrial Area, Islamabad and Akhtar Zaib, Record Keeper/Moharrer of Police Station Aabpara, Islamabad were recorded. Subsequently, on the request of learned counsel s for the respondents that the matter be adjourned till after the convening of General Election 2024, the matter was adjourned to 14.02.2024. On such date , learned counsels for the respondents sought further time to file affidavits on behalf of the respondents. Applications were also filed by the Prosecutor to produce certain record that had inadvertently been left out by the Record Keeper of the office of DC Rawalpindi. Likewise, respondent No.1 filed an application to summon individual s, who had authored security reports that respondent No.1 wished to be brought on record in his defence. On 19.02.2024 , additional record was exhibited by Record Keeper of the office of DC Rawalpindi. Likewise, statements of Mr. Yasir Afridi, AIG, Special Branch, Islamabad (DW-1) and Mr. Riaz-ul-Haq, Incharge -11- Crl. Original No. 197/2023
Control, Intelligence Bureau, Islamabad (DW-2) were recorded. The matter was adjourned to 20.02.2024 for final arguments. On such date, respondent No.1 failed to appear before the Court and instead travelled to Khairpur Sindh for onward journey to Saudi Arabia despite the fact that this Court had turned down his verbal request for exemption from personal appearance. This Court had to adjourn the matter and issue warrants for the production of respondent No.1, who then appeared before the Court on 21 .02.2024 when final arguments were heard and the matter reserved for announcement of judgment. The relevant record 12. The Court had directed DC Irfan Memon and Commissioner Islamabad to produce record of the detention orders issued by DC Irfan Memon under the MPO during the hearing in Shehryar Afridi . Th is Court took judicial notice of such record , which was filed by the Deputy Commissioner and the Commissioner Islamabad. The Record Keeper of the office of District Magistrate Islamabad also produced an incomplete list of detention orders issued by Respondent No. 1. A list of detention orders issued between May 2023 and November 2023 is appended as Annex-C. The Court also took judicial notice of the judgments rendered by this Court deciding petitions filed by citizens against whom detention orders had been passed by DC Irfan Memon under the MPO. A list of such decisions is appended as Annex -D to this judgment. The record produced by the relevant record keepers and the defence witnesses summoned by respondent No.1 can be described as follows. 1. Syed Waqa r Ali Shah, Record Keeper of Deputy Commissioner's Office Rawalpindi produced copies of -12- Crl. Original No. 197/2023
detention orders, withdrawal of detention orders, and minutes of meeting of the District Intelligence Committee, Rawalpindi, in relation to the detention of Shehryar Afridi, which were exhibited as Ex-P9/1 to Ex-P9/7. 2. Muhammad To useef Akhtar, Record Keeper of the office of Superintendent Central Jail, Rawalpindi produced a report bearing No. 2962 dated 22.01.2024 with regard to the details of detention of Shehryar Afridi together with a list of all visitors who visited him during his confinement at Adiala Jail Rawalpindi (Ex-P10). 3. Tariq Aziz Khan, Record K eeper of Police Station Margalla produced attested copy of report No. 2/38, dated 16-05-2023 recorded at 2.30 am a nd copy of initiation of request etc. for detention of She hryar Afridi and his wife, Rabia Afridi, as Ex-P11 to Ex-P14. 4. Qaiser Javed, Record K eeper of Police Station Industrial Area, Islamabad produced attested copy of FIR No. 623, dated 10-05-2023 under sections 353, 186, 148, 149, 188, 427, 435 , 440, 341, 290 and 153 of PPC registered in Police Station Industrial Area as Ex-P15. 5. Akhtar Zaib, Record Keeper of Police Station Aab para, Islamabad produced copy of FIR No.728, dated 22.08.2022 under sections 188 , 186, 506, 341 and 109 of PPC and sections 2 and 3 of the Amplifier Act, as Ex-P15/1. 6. Akhtar Ali, Record K eeper of the office of District Magistrate, Isl amabad, produced an incomplete list of detention orders issued by Respond ent No.1 under section 3 of MPO, from May 2023 to September 2023, which were exhibited as Ex-P16 to Ex-P47. 7. Mr. Qais er Imam, learned Prosecutor recorded his statement and tendered copies of Writ Petition No. 2507 of 2023 along with complete order sheet of Lahore High Court, Rawalpindi Bench as Ex -P48 and copies of Writ Petitions No.1639 of 2023 and 1681 of 2023 along with -13- Crl. Original No. 197/2023
order dated 02 -06-2023 of Islamabad High Court, as Ex - P49. 8. Mr. Yasir Afridi, AIG, Special Branch , Islamabad appeared as DW -1 and recorded his statement on oath while producing a report he authored on the basis of source information exhibited as Ex-DW-1/A.
9. Mr. Riaz -ul-Haq, Incharge Control , Intelligence Bureau appeared as DW -2 and while recording his statement on oath produced his report which was exhibited as Ex-DW2/A. 10. The record keepers who produced official record were not cross -examined by the learned counsel for the respondents in view of Article 134 of Qanun -e-Shahadat Order, 1984. In any event they produced certified copies of public documents that were either issued by the respondents or were being relied upon by the respondents in their defence. Likewise, the learned Prosecutor produced certified copies of court orders. DW -1 and DW-2, produced by respondent No.1 in his defence , were cross -examined by the learned P rosecutor. Respondents No. 1 to 4 also filed their affidavits in defence. 13. After the issuance of show cause notices to the respondents and after they had filed response s to such show cause not ices justifying their conduct, d uring an initial hearing learned counsels for respondents No. 1 and 2 submitted that the said respondents would wish…
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