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Petitioner: PROVINCE OF PUNJAB VS Respondent: QAISAR IQBAL and others
Court Name: Lahore High Court Judge(s): Abid Aziz Sheikh, Syed Shahbaz Ali Rizvi, Qazi Muhammad Amin Ahmed Title: PROVINCE OF PUNJAB vs QAISAR IQBAL and others Case No.: I.C.A. No.77347 of 2017 Date of Judgment:2017-12-05 Reported As: PLD 2018 Lahore 198 Result: Appeals dismissed
JUDGMENT
JUDGMENT ABID AZIZ SHEIKH, J.---This judgment will also decide I.C.A. No,81068/2017 and 86398/2017 as common questions of law and facts are involved in these appeals, which are also against same impugned judgment. These Intra Court Appeals are directed against judgment dated 21.9.2017 passed by learned Single Bench of this Court in Writ Petition No,62821/2017. 2. Brief facts are that a political party namely Pakistan Awami Tehreek (PAT) staged a protest against Government in the month of June, 2014. The procession started from Idara Minhaj-ul- Quran situated at Model Town, Lahore on 16.6.2014. On the evening of 16.6.2014, when the procession started, local administration carried out strategic operation which lasted till 17.6.2014. During this operation, 14 persons lost their lives and about 85 sustained fire arm injuries (Incident hereafter referred to as Model Town incident). The occurrence was flashed through electronic and print media throughout the country. There were allegations and counter allegations between the parties. Resultantly, FIR No,510 of 2014 was registered at Police Station Faisal Town, Lahore. Subsequently, in pursuance to order passed by this Court, FIR No,696/2014 was also registered by same Police Station. In both these FIRs, two separate Joint Investigation Teams (JITs) were constituted in terms of provisions of Anti-Terrorism Act and interim Challans were submitted. In view of sensitivity of incident, Provincial Government (Government) approached Registrar, Lahore High Court through letter No,SO (Judi -III) 9-53/2014 dated 17.6.2014 whereby request was made to appoint Judicial Commission to conduct judicial inquiry under section 176 of Cr.P.C, to ascertain the real facts, causes of incidents and fix responsibility if any and to make recommendations to avoid such incident in future. Through supplemental letter of even number and date, it was clarified that appointment of Tribunal or Commission or Committee may be made in terms of section 3 of
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Punjab Tribunal of Inquiry Ordinance, 1969 (Ordinance 1969). Finally in consultation of Hon'ble Chief Justice, Lahore High Court, Lahore, One Man Tribunal of Hon'ble Mr. Justice Ali Baqar Najafi (Tribunal) under sections 3 and 5 of the Ordinance 1969 was notified on 17.6.2014 which commenced its working on 19.6.2014. Proceedings of the inquiry were completed by One Man Tribunal on 09.8.2014 and final report shared with Government of Punjab through office of Secretary, Home Department, Government of the Punjab on 09.8.2014. Thereafter, number of writ petitions were filed which are detailed in Paras 2 and 3 of this appeal. In some of the writ petitions, establishment of One Man Tribunal was challenged whereas in other writ petitions, prayer was made to public the Tribunal report in terms of Article 19-A of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution). These writ petitions were heard by learned Full Bench comprising of three Judges of this Court. Meanwhile, during summer vacations in this year 2017, another Writ Petition No,62821/2017 was filed by respondents who claimed to be legal heirs of deceased and injured in Model Town incident. This writ petition came up before learned Single Bench and was allowed vide impugned judgment dated 21.9.2017 and Secretary, Home Department, Government of Punjab was directed to immediately provide a copy of report to the aggrieved persons for their consumption without fail. The appellants being aggrieved of impugned judgment have filed these appeals. 3. Khawaja Harids Ahmed, Advocate/Learned counsel for the appellant (Province of Punjab) in I.C.A. No,77347/2017 bifurcated his arguments in two parts. In first part, he argued the procedural impropriety and the mannerism in which. the impugned judgment was passed and in second part, he addressed the merits and the questions of law involved in his appeal. He submits that first part of argument has four components i,e, (i) justice should not be done but seems to have been done (ii) Respondents approached Court with unclean hands (iii) Notice under Order XXVII-A, C.P.C. was not issued and (iv) writ was not maintainable being alternative remedy available. 4. On first point, he argued that when number of writ petitions on same subject matter were already pending before learned Full Bench of this Court, the learned Single Bench could not decide the matter in isolation and should have referred the matter to be heard along with connected matters before learned Full Bench. He submits that pendency of similar matters before learned Full Bench was brought to the notice of learned Single Bench, however, the said plea was repelled on the ground that those petitions are not filed by aggrieved parties, whereas Writ Petition No,62821/2017 was filed by legal heirs of deceased and injured in the Model Town incident. Learned counsel submits that this reasoning was not sustainable because connection of the cases for being heard together should have been determined on the basis of subject matter and not parties to lis. Further submits that by declaring that petitioners before learned Full Bench have no locus standi, learned Single Bench has determined the fate of those writ petitions which were yet to be decided by learned Full Bench. He submits that if contents of Writ Petition No,62821/2017 filed by respondents is compared with already pending Writ Petition before learned Full Bench including Writ Petition No,19354/2014, Writ Petition No,22334/2014, Writ Petition No,22833/2014, Writ Petition No,31752/2014 and Writ Petition No,33702/2014, it will be seen that more or less all these petitions are same. He in particular referred to grounds and prayer made in Writ Petition No,33702/2014 to show that they were exactly the same as in Writ Petition No,62821/2017. He further submits that out of above referred Writ Petitions, Writ Petition No,22334/2014, Writ Petition No,22833/2014 and Writ Petition No,33702/2014 were also came up before learned Single Benches but thereafter referred to learned Full Bench being connected matters already pending therein whereas Writ Petition No,31752/2014 being similar matter was directly fixed before learned Full Bench after approval of the Hon'ble Chief Justice. He adds that another Writ Petition No,33522/2016 was though not directly related matter but being relating to One Man Tribunal, was referred to learned Full Bench. He in the circumstances argued that in order to ensure that justice is not only done but was seen to be done,
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learned Single Bench should have referred the matter to learned Full Bench. Learned counsel submits that manner in which judgment was passed does not show that justice has been done, hence the impugned judgment is liable to be set aside. He placed reliance on Government of Sindh and others v. Saiful Haq Hashmi and others (1993 SCMR 956), Syed Ghulam Abbas Ashraf Ex- Auditor v. Provincial Director etc (2009 PLC (C.S) 630), Ahmed Kuil Khan Khattak v. R.A. Faruqi and 6 others (2005 YLR 2496), Federation of Pakistan v. Muhammad Akram Shaikh (PLD 1989 Supreme Court 689), Tumahole Bereng v. King (PLD 1949 Privy Council 47), S.L. Kapoor v. Jagmohan and others (AIR 1981 Supreme Court 136), General Manager, Lyallpur, Cotton Mills v. Sardar Muhammad and others (1977 PLC Lahore 139), Arignar Anna Weavers v. State of Tamil Nadu and others (AIR 1999 Madrass 254). 5. Learned counsel for the appellant next argued that writ petitioners/respondonts had not come with clean hands. He submits that in "certificate" of Writ Petition No,62821/2017, it was incorrectly mentioned that it was first writ petition on the subject matter, whereas number of similar writ petitions mentioned above were already pending before learned Full Bench. Further submits that regarding unclean hands, perusal of documents shows that in Writ Petition No,62821/2017 note was given that it is first writ petition whereas the same learned counsel on behalf of another petitioner had already filed Writ Petition No,33702/2014 which fact was deliberately concealed. Further submits that when the matter came up for hearing before learned Single Bench on 25.8.2017, it was urged by petitioner counsel that this matter has no nexus with the cases pending before learned Full Bench and to support this contention, documents were placed on Court record through C.M. No,1/2017, however, copy of Writ Petition No,33702/2014 which was replica of Writ Petition No,62821/2017 was intentionally not appended with the said application. Submits that in Para 10 of Writ Petition No,62821/2017, it was claimed that application dated 27.7.2017 was filed before Commission under The Punjab Transparency and Right to Information Act, 2013 (Act of 2013) but in fact, no such application was ever filed by writ petitioners/respondents. Further submits that if at all, any such application was filed, the petitioners/respondents were required to show the receipt of such application in terms of section 10 of the Act of 2013. He contends that as per Lahore High Court summer vacation case filing plan of 2017, only cases of urgent nature with the permission of Hon'ble Chief Justice or Senior Judge could be filed. Submits that in Writ Petition No,62821/2017, neither such urgency was shown nor even permission from the Hon'ble Chief Justice or Senior Judge was sought before fixation of said case. Learned counsel submits that mere perusal of urgent form with the writ petition also shows that no urgency was pleaded and in any case, once similar matter already pending before learned Full Bench since 2014, there could not be any grave urgency by the writ petitioners to file this petition during summer vacation. He submits that there is a gross misrepresentation and concealment of fact on part of respondents and jurisdiction of this Court based on equity cannot be exercised in favour of persons who come to this Court with unclean hands. He placed reliance on judgment passed by august Supreme Court of Pakistan in Raja Ali Shan v. Essam Hotel Limited (2007 SCMR 741), Muhammad Afzal v. Ghulam Muhammad (1982 SCMR 371), Abdul Hafeez v. Board of Intermediate and Secondary Education etc (1983 SCMR 566), Principal KE Medical College v. Ghulam Mustafa (1983 SCMR 196) and M/s Airport Support Services v. Air Port Manager (1998 SCMR 2268) 6. Next argued that despite important questions of law and interpretation of constitution involved, no notice to Advocate General, Punjab under Order XXVII-A C.P.C. was issued by learned Single Bench. Submits that requirement of notice under Order XXVII-A of Code of Civil Procedure, 1908 (C.P.C.), to the Advocate General of Punjab is mandatory and failure to issue such notice, vitiate the judgment passed by learned Single Bench. He argued that notice issued by learned Single Bench to the Advocate General on 25.8.2017 did not fulfil the, requirement of Order XXVII-A, C.P.C. as no such notice was actually received by Advocate General. He submits that word "giving notice" as
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per Lexicon Dictionary, means the actual service of notice. He placed reliance on Federation of Pakistan etc v. Aftab Ahmad Khan Sherpao etc. (PLD 1992 Supreme Court 723), Federal Public Service Commission and others v. Syed Muhammad Afaq and others (PLD 2002 Supreme Court 167), Superintendent Central Jail, Adyala Rawalpindi v. Hammad Abbasi (PLD 2013 Supreme Court 223). 7. Learned counsel for appellant next argued that being alternative remedy available under the Punjab Transparency and Right to Information Act, 2013, Constitutional petition under Article 199 of the Constitution was not maintainable. He submits that Article. 19-A of the Constitution is also subject to regulations and restrictions and once alternative remedy under the Act of 2013 was available, the provisions of Article 19-A through article 199 of the Constitution could not be invoked without availing alternative remedy. He submits though in the writ petition, it was recorded that application under the Act of 2013 was filed, however, no such application was received by the Commission. He in the circumstances argued that writ petition without availing alternative remedy is not maintainable. He placed reliance on M/s Faridsons Limited v. Govt. of Pakistan etc. (PLD 1958 Supreme Court 437), Mehboob Ali Malik v. The Province of West Pakistan etc. (PLD 1963 (West Pakistan) Lahore 575) and Dr. Sher Afgan Khan Niazi v. Ali S. Habib (2011 SCMR 1813). 8. Before arguing merits of the case, learned counsel for the appellant points out that this appeal was referred to this Full Bench, keeping in view the fact that number of similar Writ Petitions were already pending before this Full Bench. Submits that during pendency of this appeal, as those Writ Petitions have already been withdrawn by these petitioners, therefore, this appeal may be placed before Division Bench of this Court under Law Reforms Ordinance, 1972 (Ordinance of 1972). He further submits that in case this matter is to be decided on merits by this Court, then the appellant may be allowed to file written statement in the main Writ Petition. 9. On merits, learned counsel for the appellant submits that observations and opinion made in Para No,9 of the impugned judgment are un-called for. He submits that in the impugned judgment, provisions of section 5(5) of The (Punjab) Tribunals of Inquiry Ordinance, 1969, Section 4 (m) of Criminal Procedure Code, 1898 (Cr.P.C), Article 85 of The Qanun-e-Shahadat Order, 1984 (Order 1984) were misconstrued to determine that proceedings before the Tribunal were judicial proceedings and report of Tribunal was public document, hence, should be available .to public in terms of Article 87 of the Order 1984. He submits that there was no discussion at all in the impugned judgment on various provisions of Punjab Transparency and Right to Information Act, 2013 and Article 19-A of the Constitution. Submits that learned Single Bench was required to refer the case law relied on by the appellant and thereafter decide the matter dispassionately. He submits that in the impugned judgment the case law discussed has no relevance to the moot issue i,e, whether report of the Tribunal should be made public or not. 10. The learned counsel submits that proceedings before the Tribunal under the Ordinance, 1969 are not judicial proceedings. He submits that definition of judicial proceedings under section 4 (m) of Cr.P.C. relied upon in impugned judgment is only confined to the Cr.P.C. and not to any other law unless specifically applied. In this context he referred to preamble, sections 1(2), 4 and 5 of Cr.P.C. He further submits that word "Includes" mentioned in section 4(m) of Cr.P.C. also shows that definition of judicial proceedings under section 4(m) is not exhaustive. Reliance is placed on Muhammad Saeed and 4 others v. Electron Petition Tribunal etc (PLD 1957 SC 91), Sheikh Liaquat Hussain v. The State (1997 PCr.LJ. 61) and Chimansingh v. State (AIR (38) 1951 Madhya Bharat 44). He next submits that provisions of section 5(5) of the Ordinance of 1969 were also misconstrued. Submits that the proceedings before the Tribunal under section 5(5) of the Ordinance of 1969 shall be judicial proceedings only for the purpose of sections 193 and 228 of P.P.C.. Submits that proceedings before Tribunal when declared as judicial proceedings by way of fiction, it will only apply for that particular purpose. He placed reliance on M.V. Rajwade v. Dr. S.M. Hassan (AIR 1954
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Nagpur 71). Further submits that report of Tribunal has no legal force and same is also not enforceable under law, therefore, no purpose would be served by making said report public. Learned counsel submits that constitutional jurisdiction of this Court cannot be exercised for academic purpose, especially when report has not been accepted by concerned Provincial Government. 11. In support of his argument regarding the nature of Tribunal report, he placed reliance on T.T. Antony v. State of Kerala etc. (AIR 2001 Supreme Court 2637), Shi Jai Dayal Dalmia v. Shri Justice etc. (AIR 1958 Supreme Court 538), Kehar Singh and others v. The State (Delhi Admn.) (AIR 1988 Supreme Court 1883), Md. Ibrahim Khan v. Susheel Kumar etc (AIR 1983 Andra Pardash 69), Dr. Baliram Waman Hiray v. Mr. Justice B. Lentin and others (AIR 1988 Supreme Court 2267), Dr. Shubramanian Swamy v. Arun Shourie (AIR 2014 Supreme Court 3020). Learned counsel for the appellant also placed reliance on judgments passed by Pakistani Courts in State v. Zulfiqar Ali Bhutto (PLD 1978 Lahore 523) and Saleem Malik v. Pakistan Cricket Board and 2 others (PLD 2008 Supreme Court 650) . Learned counsel for the appellant while explaining status of the Tribunals report based on judgments referred supra, submits that Tribunal /Commission is fact finding body, it meant to instruct mind of government, Tribunal /Commission does not produce any document of judicial nature, no accuser or accuse is before the Tribunal/Commission, no dispute inter se parties which is to be decided by the Tribunal/Commission, no authority attached to the finding given by the Tribunal/Commission, findings of Tribunal/Commission are not same as of judgment, findings of Tribunal/Commission are not executable or enforceable, the findings of Tribunal/Commission are not binding on the appointing Authority. 12. Submits that Commission under Ordinance of 1969 may be termed as Tribunal or vice versa but it is neither Court nor performing any judicial functions. Submits that nature of functions to be performed by Commission shows that these are neither purely administrative nor purely judicial but quasi judicial functions of the Commission. He placed reliance on lftikhar Ahmad v. Muslim Commercial Bank Limited (PLD 1984 Lahore 69), Bahadur v. State (PLD 1985 Supreme Court 62) and Dr. Zahid Javed v. Dr. Tahir Riaz (PLD 2016 Supreme Court 637). Learned counsel for the appellant also referred to Law Commission of India Report No.24 dated December, 1962 where in Para 16 of the report, it was opined that it should be the discretion of Government to public report or not. 13. Learned counsel next argued that even if report is to be treated as public document under Article 85 of the Order 1984, it does not mean that copy of report be supplied to public. He submits that section 85 only define public document whereas Article 87 of the Order 1984 provides that public document can only be given to said person who has right to inspect the document. He submits that as respondents had no right to inspect the document, therefore, even if report was to be treated as public document, it could not be supplied to the writ petitioners. 14. Learned counsel submits that Articles 19 and 19-A of the Constitutional are not absolute rights but they are subject to exceptions and conditions prescribed by law. Submits that those exceptions are provided under section 13 of the Act of 2013. He in particular refer to section 13(1)(a, e & f) of the Act of 2013. He submits that the publication of Tribunal's report shall, or likely to harm "public order", "right to life" and "administration of justice". He submits that at present, trial in two FIRs and one criminal complaint referred in Para 2 above (Trial) is pending before the Trial Court in which evidence is being recorded, therefore, release of the Tribunal's report at this stage will not only materially affect the trial but may also prejudice the mind of the public as well as the Trial Court. He submits that Article 10-A of the Constitution ensures fair trial, therefore, this Court must draw a balance between right of fair trial under Article 10-A and right of information and freedom of speech provided under Articles 19 and 19-A of the Constitution. Learned counsel submits that without prejudice to his earlier argument and without conceding for a moment whatsoever stated above, if at all this Court comes to conclusion that report is to be published, then same be
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published only after the conclusion of the trial like in U.K. so as to ensure that no prejudice be caused to the persons facing trial. In this regard, he placed reliance on Sahara India Real Estate Corporation Limited and others v. Securities and Exchange Board of India and another (2012) 10 SC 603), Reliance Petrochemicals Ltd v. Proprietors of Indian Express Newspapers Bombay Pvt. Ltd and others (AIR 1989 SC 190), Naresh v. State (AIR 1967 SC 1), Rao Harnarain v. Gumani Ram (AIR 1958 Punjab 273), Ram Dulari Saran v. Yogeshwar (AIR 1969 Allahabad 68), In re Subrahmanya, Editor, Tribune and others (AIR 1943 Lahore 329) and The Crown v. Faiz Ahmad Faiz (AIR 1950 Lahore 84). In conclusion, the learned counsel produced the record of proceedings before the Trial Courts and while relying upon cases reported as Dwijendra Mohan Banerjee v. State of West Bengal and others (1967) 71 Cal WN 912 and Philips v. Nova Scotia (Commission of Inquiry Into the Westray Mine Tragedy) [1995] 2 SCR 97, argued that where inquiry report overlap trial proceedings, it cannot be published. He also distinguished Gokulananda Roy v. Tarapada Mukharjee and others (AIR 1973 Cal 233). 15. Mr. Azam Nazir Tarar, Advocate/learned counsel for the appellant in (I.C.A. No,86398/2017) argued that though appellant in this appeal was not party in writ petition, however, appellant is aggrieved of the judgment passed by learned Single Bench, hence this appeal is maintainable in view of law laid down by august Supreme Court in H.M. Saya and Co. Karachi v. Wazir All Industry Limited Karachi and others (PLD 1969 SC 65). He submits that appellant is a Police Inspector and besides being injured in the Model Town incident, he is also accused in the private complaint. Submits that judgment passed by learned Single Bench where it is held that report of Tribunal is a public document and proceedings before Commission are judicial proceedings, will render this report admissible in evidence against appellant, therefore, appellant has right to be heard against impugned judgment. He submits that Full Bench of this Court vide judgment dated 05.9.2016 in Writ Petition No,33522/2016 decline to release copy of the Tribunal report on the ground that it may prejudice case before trial Court. Learned counsel in the circumstances submits that report may not be released till trial of the appellant and another accused be concluded. Learned counsel also referred to similar laws in U.K. and Ireland and submits those reports cannot be published which may prejudice on going trial. Learned counsel submits that right of information under Article 19-A of the Constitution being a qualified fundamental right cannot over ride unqualified fundamental right of fair trial and due process of law guaranteed under Articles 4, 9, 10-A and 14 of the Constitution. 16. Learned counsel for the appellant Mr. Ali Zia Bajwa, Advocate in (I.C.A. 81068/2017) adopted the above arguments of the appellants counsel. He further submits that in inquiry report, it is not specifically mentioned that same be made public, therefore, it will be presumed that this inquiry report should not be published. In this context, he referred to similar judicial inquiry reports regarding flood inquiry and Punjab Institute of Cardiology, where it was specifically recorded that inquiry be published. He submits that under section 9 of the Ordinance 1969, the decision of inquiry Tribunal not to publish the report cannot be called in question. He further submits that in other countries including Canada, U.K. and USA, similar inquiry reports which may prejudice the trial Court cannot be published. 17. Khawaja Ahmad Tariq Rahim, Advocate assisted by M. Muhammad Azhar Saddique, Advocate on behalf of respondents raised preliminary objection on the maintainability of appeal filed by government by submitting that the language of this appeal specially grounds (f)(g)(h)(j)(k)(m) and (q) are written in a manner to scandalize the learned Single Judge. Submits that not only the appeal is liable to be dismissed on this ground but appellants are also liable for contempt of Court proceedings. He placed reliance on The Crown v. Amin-ud-Din Sahrai and others (PLD 1949 Lahore 410), The Editor, Printer and Publisher v. Arabinda Bose etc (AIR 1953 Supreme Court 75), In the matter of Lewis Duncan, Esquire, One of Her Majesty's Counsel, of the city of Toronto, in the
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Province of Ontario (1958 SCR 41 (case from Canadian jurisdiction), The State v. Sir Edward Snelson K.B.E, Secretary to Government of Pakistan, Ministry of Law (PLD 1961 (West Pakistan) Lahore 78). Learned counsel further submits that it is actually…
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