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Official Citation: 2024 PLJ 291
Court / Jurisdiction: Islamabad High Court
Year of Decision: 2023
Decision Date: 2023-12-31
Parties: Allama Raja Nasir Abbas and others vs Federation of Pakistan through JUDGMENT
Ruling Summary: This decision was rendered by the Islamabad High Court on 2023-12-31, officially reported as 2024 PLJ 291. In this matter between Allama Raja Nasir Abbas and others and Federation of Pakistan through JUDGMENT, 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 PLJ 2024 Islamabad 291
Court Name: Islamabad High Court Judge(s): Saman Rafat Imtiaz Title:Allama Raja Nasir Abbas and others vs Federation of Pakistan through
JUDGMENT
Reported As: 2024 IHC 88, PLD 2024 Islamabad 332, PLJ 2024 Islamabad 291 Result: Petition Disposed of Judgment JUDGMENT SAMAN RAFAT IMTIAZ, J. 1. This Judgment shall decide the aforementioned Writ Petition and Contempt Petition. W.P. No. 706/2024: 2. The Petitioners [(i) Allama Raja Nasir Abbas, (ii) Allama Syed Ahmed Iqbal Rizvi, and (iii) Asad Abbas Shah] filed W.P. No. 706/2024 against the (i) Federation of Pakistan through Secretary, Ministry of Interior [Respondent No.1]; (ii) Superintendent, Central Jail Adyala, Rawalpindi [Respondent No.2]; (iii) Ministry of law and Justice [Respondent No.3] and (iv) Islamabad Capital Territory through the Chief Commissioner [Respondent No.4] praying for directions to the Respondents to allow and facilitate the Petitioners meeting with the ex-Prime Minister of Pakistan Mr. Imran Ahmed Khan Niazi who is presently confined in Central Jail Adyala, Rawalpindi ("Prisoner"). 3. According to the Memo of Petition the Petitioners are office holders of a political organization namely Majlis-e-Wahadat-e-Muslimeen and as such political allies as well as confidantes and close friends of the Prisoner. It was further alleged that the Petitioner No.1 was not allowed to meet the Prisoner on previous occasion despite orders passed by the Judge, Special Court (Official Secret Act), Islamabad which compelled the Petitioner No.1 to approach this court vide Writ Petition No.370/2024 in consequence to which the Petitioner No.1 was eventually allowed to meet the Prisoner. Thereafter, the Petitioners through their legal counsel submitted applications dated 18.02.2024 and 23.02.2024 requesting permission/clearance for meeting with the Prisoner in accordance with the Pakistan Prison Rules, 1978 ("Prison Rules") but have not been allowed to meet with the Prisoner, hence the writ petition. 4. Notices in the writ petition were issued to the Respondents on 04.03.2024. On the next date, 08.03.2024 the learned Assistant Attorney General ("AAG") submitted para-wise comments on behalf of the Respondent No. 2. The para-wise comments refer to Rule 265 of the Prison Rules whereby political discussion during interview with prisoners is prohibited. The comments deny that any order was passed
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on the Petitioner No.1 s application to the Judge, Special Court (Official Secret Act), Islamabad or direction given by any court of law. Yet according to the Respondent No. 2 s comments the Petitioner No.1 did in fact avail the facility of interview with the Prisoner on 06.02.2024. It is noteworthy that no mention of any security threat or concern was made in such para-wise comments signed by the Respondent No.2 whereby the Respondent No.2 prayed for disposal of the Writ Petition No. 706/2024 on merits. On the same date the following order ("Visitation Order") was passed by this Court: "1. The learned Assistant Attorney General ("AAG") has submitted comments on behalf of the Respondent No. 1 according to which the Petitioner No. 1 availed the facility of interview with the ex- Prime Minister of Pakistan [Imran Ahmad Khan Niazi] on 6.2.2024. On the other hand, the comments do not shed light on the status of the applications dated 18.2.2024 and 23.2.2024 which are of subsequent dates which shows that such applications have neither been responded to nor any interview has been arranged in response thereto. The learned AAG submits that the applications should have been given through the focal person nominated by the political party headed by the ex- Prime Minister of Pakistan [Imran Ahmad Khan NiaziJ. However the learned counsel for the Petitioners has pointed out that the Petitioners do not belong to such political party. The learned AAG has not been able to highlight any provision of law which requires the Petitioners to come through a focal person. 2. In view of the foregoing, since similar petitions are being filed in abundance on daily basis the learned AAG as well as the learned State Counsel are directed to formulate a policy and suggest a way forward/solution to this recurring issue. In the meantime the Respondents are directed to arrange an interview for the Petitioners with the ex-Prime Minister of Pakistan [Imran Ahmad Khan Niazi] on 11.3.2024 and communicate the time designated well in advance to the Petitioners. 2. Relist on 15.3.2024." [Emphasis added] Contempt Petition No. 61/2024: 5. The Petitioners filed the instant Contempt Petition on 12.03.2024 seeking initiation of contempt of Court proceedings against the Respondent [Asad Warriach, Superintendent Adyala Jail] (herein after referred to as the ("Respondent No. 2/Alleged Contemnor") for noncompliance of the Visitation Order. 6. The learned counsel for the Petitioners submitted that despite the Visitation Order dated 08.03.2024 passed by this Court directing inter alia the Respondent No.2/Alleged Contemnor to arrange an interview for the Petitioners with the Prisoner on 11.03.2024 and to communicate the designated time well in advance to the Petitioners, the Respondent No.2/Alleged Contemnor not only failed to intimate the Petitioners the time for the interview but also did not allow the interview to take place upon their arrival at Adyala Jail on the fixed date. The Petitioners allege that they arrived outside Adyala Jail on 11.03.2024 with a certified copy of this Court's Visitation Order dated 08.03.2024 at 09:00 a.m. and were made to wait till 4:00 p.m. at which time the Respondent No.2/Alleged Contemnor finally refused the Petitioners the right to interview with the Prisoner in contempt of this Court's orders. 7. The learned Advocate General submitted that there were several lapses in respect of the assistance provided on 08.03.2024 when the Visitation Order was passed by this Court in W.P. No. 706 of 2024 allowing the Petitioners to conduct interview with the concerned prisoner on 11.03.2024. His stance was that had this Court been properly assisted the Visitation Order would not have been passed to begin with. In this regard he submitted that the Respondents failed to apprise this Court that a security threat had been raised since 07.03.2024. Further that Order dated 26.10.2023 was passed in ICA No. 336 of 2023 titled Imran Ahmed Khan Niazi vs. Federation of Pakistan, etc., which records that the Respondent No. 2/Alleged Contemnor had apprised the learned Division Bench that in exercise of his discretion he had passed Order dated 25-10-2023 allowing 10 lawyers to have consultation with the Prisoner on two days i.e. Tuesday and Thursday every week in accordance with Rules 554, 559, and 567 of the Prison Rules. The Advocate General sought time on behalf of the Respondent No. 2/Alleged Contemnor to file his reply to the Contempt Petition. Vide Order dated 15-03-2024 passed by this Court in the writ petition, the Respondent No. 2/Alleged Contemnor was directed to file reply within seven days in particular to explain why:
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(a) the Court was not informed on 08-03-2024 that a security threat has been raised as of 07-03-2024; (b) no review application was filed to inform this Court of such security threat even after passage of the Order dated 08-03-2024; (c) the Respondent No. 2/Alleged Contemnor failed to intimate the Petitioners about the time for the interview in advance as directed vide Order dated 08-03-2024 or that it could not be arranged; (d) why the Petitioners were made to wait for seven hours at the jail premises if there was a security threat; (e) how the Petitioners' presence at Adyala Jail for seven hours did not pose security threat but allowing them to conduct the interview in compliance of this Court's order after screening the Petitioners and conducting all possible security checks compromised security; and (f) how any admitted lapses on the part of the Respondent No. 2/Alleged Contemnor in providing assistance to this Court at the time of passing of Order dated 08.03.2024 justified not giving effect thereto. 8. On 22.03.2024, the Respondent No. 2/Alleged Contemnor filed his Reply to the Contempt Petition. In this Reply the Respondent No. 2/Alleged Contemnor states at the outset that he has immense respect for this Court and cannot even think of disobeying any order/ direction passed by a court of law. Thereafter, the Reply refers to various provisions of the Prison Rules and to the Order dated 26.10.2023 passed in ICA No. 336/2023 wherein it has been recorded that the Respondent No. 2/Alleged Contemnor in exercise of his discretion has passed Order dated 25-10-2023 allowing 10 lawyers to have consultation with the Convict on two days i.e. Tuesday and Thursday every week and at the request of the counsel for the Prisoner who was the appellant in such ICA submitted that application for meeting with family members more than once a week shall be decided by him in accordance with law. Various other orders have also been referred to highlight that the Jail Authorities have ultimate discretion with regard to the number of visits with prisoners. Based on the foregoing it has been contended that the view taken by this Court in the Visitation Order is different from what has been settled vide earlier orders in other proceedings and a conflicting view would not have been rendered had it not been for the inability to place on record the Order dated 26-10-2023 passed in the aforementioned ICA. Neither the Respondent No.2/Alleged Contemnor has specified whose inability caused the failure to place on record the earlier orders based on which he is of the view the Visitation Order would not have been passed nor what such inability was. Instead it has been contended that the Petitioners' side cannot be absolved of its duty to inform this Court about the passing of the aforementioned orders and that the Petitioners have failed to demonstrate that the Respondent No.2/Alleged Contemnor willfully, intentionally and deliberately and flouted or acted with the contumacious disregard with the Visitation Order. 9. With regard to the queries raised vide Order dated 15.03.20224 the Respondent No.2/Alleged Contemnor's Reply may be summarized as follows: a) that the lapse in informing this Court about the security threat in existence prior to 08.03.2024 was neither deliberate nor intentional; b) that no review application was filed as the Visitation Order was only an interim Order and that the matter was already fixed on 15.03.2024 but that a Review Application has now been filed; c) that the counsel for the Petitioner telephonically contacted the Respondent No. 2/Alleged Contemnor on 10.03.2024 but the Respondent No. 2/Alleged Contemnor could not give consent to the interview on 11.03.2024 in view of multiple security related exercises being carried out by the jail administration and considering that order dated 26.10.2023 passed in ICA No.336/2023 whereby parties have concurred to and agreed for interview on Tuesdays and Thursdays of every week, is in the field; d) that the Petitioners were informed at the outer jail gate that their interview cannot be held as the Administration is engaged in "security related activities'; e) that the Petitioners were informed to come on Tuesday as movement of a high profile prisoner from his cell to the designated room situated in the Administrative Block is cumbersome due to the imminent security concern and ongoing activities.
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f) the Petitioners were requested to come on Tuesday which is the day fixed for interview with the Prisoner instead of Monday as the whole jail has to be locked before the Prisoner's movement due to his sensitivity; g) the Home Department of the Government of Punjab issued a letter dated 12-03-2024 whereby the Inspector General of Prisons, Punjab was directed to stop/cancel visits/meetings for two weeks. h) finally the Respondent No. 2/Alleged Contemnor has tendered an unconditional apology if this Court still thinks that there is any lapse on his behalf. 10. On the date of filing of the said Reply this Court directed the Respondent No. 2/Alleged Contemnor to arrange a meeting of the Petitioners with the Prisoner on 26.03.2024 at 2:00 p.m. strictly in accordance with the Prisons Rules. On the next date i.e. 01.4.2024 none appeared for the Petitioners however the learned Advocate General submitted that the interview of the Petitioners with the Prisoner has been arranged on the date fixed i.e. 26.03.2024. 11. No one is appearing on behalf of the Petitioners since 22.03.2024. Notwithstanding their absence it is trite law that contempt is a matter between the Court and the alleged contemnor[1] and as such the Petitioners are proceeded against ex parte. 12. A bare perusal of the contents of the Reply submitted by the Respondent No. 2/Alleged Contemnor on 22.03.2024 in W.P. No. 706/2024 summarized herein above reveals that it is devoid of any plausible explanation as to why the Visitation Order was not complied with nor have any of the queries raised in the Order dated 15.03.20224 passed by this Court in the Contempt Petition been responded to. 13. Instead the Respondent No. 2/Alleged Contemnor seeks to justify defying the Visitation Order by challenging the validity thereof. In the Reply the Respondent No.2/Alleged Contemnor refers to various provisions of the Prisoner Rules and then refers to previous orders passed by this Court while emphasizing that allowing an application for an interview with a prisoner lies with the discretion of the Respondent No.2/Alleged Contemnor in exercise of which he had already fixed Tuesdays and Thursdays of every week for visits with the Prisoners. 14. Under Rule 551 of the Prison Rules, an individual is entitled to submit an application, orally or in writing, to the Respondent No.2/Alleged Contemnor seeking permission for an interview with the Prisoner. If a prisoner is not entitled to an interview, the applicant has to be informed at once by the Assistant Superintendent or other officer in charge of interviews. Thus while the Respondent No.2/Alleged Contemnor has the power to reject an application for an interview with a prisoner he has a corresponding duty to inform the applicant at once. Whereas, in this case there was no response from the Respondent No.2/Alleged Contemnor to the Petitioners' applications dated 18.02.2024 and 23.02.2024 seeking permission for a visit with the Prisoner. It was due to the Respondent No. 2/Alleged Contemnor's failure to discharge his duty as per law that left the Petitioners no choice but to invoke the Constitutional jurisdiction of this Court under Article 199 of the Constitution vide the Writ Petition filed on 02.03.2024 that resulted in the passage of the Visitation Order after hearing both sides. 15. Without prejudice to the foregoing, once the Visitation Order was passed by this Court after giving the Respondent No. 2/Alleged Contemnor an opportunity to be heard, the Respondent No. 2/Alleged Contemnor was duty bound to obey it. He cannot justify his disobedience by citing rules which empower him to decide applications seeking permission to visit inmates[2]. The Visitation Order was categorical and directed the Respondents to arrange an interview of the Petitioner with the Prisoner in no uncertain terms thereby leaving no discretion with the Respondent No.2/Alleged Contemnor in the matter at such point. The suggestion that the Respondent No.2/Alleged Contemnor has the authority to disallow the Petitioners from visiting the Prisoner notwithstanding the orders passed by this Court that too after affording him the opportunity to be heard indicates an intent to lower the authority of the Court and interfere in the administration of justice. 16. The Respondent No.2/Alleged Contemnor also refers to Order dated 26.10.2023 passed in ICA No.336/2023 and submits that it is still in the field. The apology, if any, being tendered to this Court by way of the Reply is for the lapse in placing before this Court the ICA Order. Moreover, although the Advocate General admitted in his oral arguments that the lapse in assistance was on the part of the
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Respondents but in the Reply the Respondent No.2/Alleged Contemnor tries to pass the buck to the Petitioners by holding them responsible for not informing this Court of prior orders despite the fact that the Petitioners are not party in such proceedings. 17. Be that as it may, the order passed in the ICA does not aid the Respondent No.2/Alleged Contemnor. The Order simply records that the Respondent No.2/Alleged Contemnor in exercise of his discretion and having regard to the peculiar circumstances of the Prisoner had passed Order dated 25.10.2023 allowing 10 lawyers to have consultation with him on two days i.e. Tuesdays and Thursdays of every week to which the Prisoner expressed his satisfaction. Any schedule agreed upon by and between the Respondent No. 2/Alleged Contemnor with the Prisoner for meetings with his lawyers does not apply to the Petitioners who are not the Prisoner's lawyers. Similarly, the orders referred to by the Respondent No.2/Alleged Contemnor which were passed by this Court directing members of Pakistan Tehreek-e- Insaaf to make applications through focal persons is irrelevant to the case at hand as the Petitioners are not members of such party. 18. But most importantly the Respondent No.2/Alleged Contemnor seems to miss the point that he is not entitled to disregard a court's order by deciding that such order was passed per incuriam[3]. As held in T. R. Dhananjaya Vs. J. Vasudevan, AIR 1996 SC 302 when an order is passed, what remains for the respondent to do is to only implement the order passed by the court. The age-old maxim that "no person shall be adjudged in his own cause" will be of no substance if a party could decide whether directions given to it by a court of law are liable to be followed or not. The scheme of our Constitution is based on trichotomy of powers. In the system of trichotomy the Judiciary has right to interpret, the Legislator has right to legislate, and the Executive has to implement and such trichotomy of powers delicately balanced in the Constitution cannot be disturbed[4]. 19. As long as the Visitation Order was in the field the Respondent No.2/Alleged Contemnor was bound to obey it. The Respondent No.2/Alleged Contemnor could have sought a review of the order. But no effort was made by the Respondent No. 2/Alleged Contemnor to file a review of the Visitation Order or an application seeking early fixation of the instant Writ Petition so as to inform this Court of the circumstances due to which the Visitation Order could not be complied with. Such timely action on the part of the Respondent No. 2/Alleged Contemnor would surely have demonstrated that non- compliance was not willful or contemptuous and the failure to assist this Court was indeed unintentional. In this regard it is pertinent to note that a review petition was filed on 21.03.2024 only after this Court raised a query vide Order dated 15-03-2024 why no review was sought. In any event such Review Petition has been withdrawn on 21.05.2024. 20. In short, this part of the para-wise comments is an effort to demonstrate why the Visitation Order should not have been passed. Now let us see the reasons given as to why directions given in the Visitation Order were not followed. 21. The Letter No. 15-1/2024 dated issued by the Government of Punjab on 12.03.2024 provides no justification for the Respondent No. 2/Alleged Contemnor to have not allowed the Petitioners to meet with the Convict on 11.03.2024 in compliance of the Visitation Order dated 08.03.2024. 22. According to the Reply of the Respondent No. 2/Alleged Contemnor explosive substances were recovered from the vicinity of Adyala Jail on the night of 06.03.2024 and as such there was a security threat in existence even prior to the Letter issued by the Government of Punjab on 12.03.2024. Yet no explanation has been offered as to why such security threat was not mentioned by the Respondent No.2/Alleged Contemnor in his para-wise comments filed on 08.03.2024 nor why the learned AAG as well as the State Counsel failed to highlight such security alert before this Court on 08.03.2024. The only submission made in this regard is that the lapse to provide proper assistance was neither deliberate nor intentional. 23. The Respondent No.2/Alleged Contemnor is occupying a highly sensitive post that requires utmost responsibility. It is inconceivable that he would be faced with a security threat to the jail since 6.03.2024 and yet fail to mention the same in the para-wise comments filed on 8.03.2023 in a matter regarding
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the right to visit an inmate of the jail wherein instead of seeking dismissal of the writ petition he prays for its disposal on merits. 24. Furthermore, in another matter fixed on 11-03-2024 before this Court i.e. W.P. No. 775/2024 the learned AAG and the learned State Counsel in the presence of the Assistant Superintendent Jail, Adyala submitted that an interview can be arranged for the petitioner in such petition with the Prisoner on 12.03.2024 at 1:00 p.m. The foregoing is sufficient to show that not just the learned AAG and the State Counsel but even the Assistant Superintendent Jail was unaware of any security threat till as late as 12.03.2024! 25. Even if the position taken by the Respondent No.2/Alleged Contemnor that a security threat existed since 06-03-2024 is to be believed the failure of the Respondent No. 2/Alleged Contemnor as well as that of the AAG, the State Counsel, and the Assistant Superintendent Jail to inform this Court of the same cannot be downplayed by describing it merely as a lapse nor can such purported lapse be considered unintentional. 26. There is also no explanation why the Petitioners were not intimated in advance that the visit could not be allowed in spite of the fact that the Visitation Order required the Respondents to intimate the time of the visit on 11.03.2024 to the Petitioners well in advance. According to the Reply of the Respondent No. 2/Alleged Contemnor it was the Petitioners legal counsel who contacted the Respondent No. 2/Alleged Contemnor on 10.03.2024. This by itself shows a careless and casual attitude toward the Visitation Order passed by this Court unbecoming of an officer of the rank of the Respondent No. 2/Alleged Contemnor. 27. Be that as it may, interestingly enough according to the Reply the reason given to the Petitioners for not allowing the interview on 11.03.2024 was not the security threat. As per the Reply the reason given to the Petitioners counsel on 10 03-2024 why the visit could not be allowed on 11.03.2024 was due to engagement with security related exercises being carried out by the jail administration and as such the Petitioners were informed/requested to reschedule the visit from Monday (11.03.2024) to Tuesday (12.93.2024). It is therefore clear that the security risk, if any, was not to an extent which made the interview impossible on 11.03.2024. 28. The Respondent No.2/Alleged Contemnor chose not to follow the Visitation Order and instead rescheduled the interview purportedly due to engagement of jail authorities with security related exercises not the security threat itself, if any. It is pertinent to note that no details of such exercises or schedule nor the number of personnel on duty at the Adyala Jail during visitation hours has been provided to the Court to convince this Court that such engagement with such exercises justified the Respondent No.2/Alleged Contemnor's act of defiance and to disregard the Visitation Order. Obeying Court orders and directives is not a matter of choice or convenience and violation thereof cannot be condoned on the basis of vague assertions and excuses. Orders passed by a High Court cannot be allowed to be trifled with and put on the back burner on one pretext or another.[5] It does not appeal to the prudent mind that all the staff and personnel on duty at the Adyala Jail would be busy in security related exercises' at the same time. Surely such activities would be carried out in batches leaving sufficient personnel to carry out day-to-day duties including arranging visits with the prisoners. There is nothing on the record before this Court to conclude that the Visitation Order could not be complied with due to security related exercises'. 29. During the course of arguments the learned Advocate General was repeatedly asked whether the Government would close down this Court if (God forbid) there was a security threat to it but he could not muster up a response. As a matter of fact courts and judges have been under attack but such attacks have never resulted in closure of courts for any period of time. The State is required to provide security without shutting down the business of the State. The fact that the Respondent…
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