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Official Citation: 2025 LHC 5084
Court / Jurisdiction: Lahore High Court
Year of Decision: 2025
Decision Date: 2025-04-28
Parties: Aftab Mehmood vs The State & others
Ruling Summary: This decision was rendered by the Lahore High Court on 2025-04-28, officially reported as 2025 LHC 5084. In this matter between Aftab Mehmood and The State & others, 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 2025LHC5084
Court Name: Lahore High Court Judge(s): Tariq Saleem Sheikh Title: Aftab Mehmood vs The State & others Case No.: Crl. Misc. No. 81211/B/2024 Date of Judgment:2025-04-28 Reported As: 2025 LHC 5084 Result: Application Accepted
Judgment
ORDER Tariq Saleem Sheikh, J. - On 13.03.2024, Respondent No.2, Abdul Hayee/SI, reached ABS Hospital, Gujrat, upon receiving a call on the Emergency Helpline 15 . There, he learnt that about 2/3 days earlier, Muhammad Ali/SI, Incharge Police Post Garhi Ahmadabad, Zahid Nadeem 2851/HC, Muhammad Bilal 1267/C, and Muhammad Aftab 932/C (the Petitioner), had arrested Shehroze Haider for investigation in case FIR No. 84/2024 dated 06.03.2024 registered at Police Station Lorry Adda, Gujrat, under section 392 of the Pakistan Penal Code ("PPC"). They allegedly tortured him while he was in custody and caused him serious injuries that endangered his life. Faced with his deteriorating condition, they took Shehroze to Doctors Hospital, Gujrat, where he succumbed to his injuries. Subsequently, they brought his body to ABS Hospital and fled. Abdul Hayee/SI reported the incident to his SHO upon which FIR No. 98/2024 dated 13.03.2024 was registered at Police Station Lorry Adda, Gujrat, under sections 302, 342, 34 PPC and section 155-C of the Police Order 2002. 2. On 15.03.2024, the Petitioner was arrested in the abovementioned case. Through this application under section 497 of the Code of Criminal Procedure 1898 (hereinafter referred to as the "Cr.P.C." or the "Code"), he seeks post-arrest bail. 3. The Petitioner's counsel, Qazi Zafar Ullah Khan, Advocate, contended that considering the contents of FIR No. 98/2024, this case falls within the ambit of the Torture and Custodial Death (Prevention and Punishment) Act, 2022 (the "2022 Act"), which prescribes a special procedure for investigation and trial of such offences. He submitted that under section 5(1) of the Act, read with section 2(1)(c), prosecution can be initiated only through a complaint to the Federal Investigation Agency ("FIA") established under the Federal Investigation Agency Act, 1974 (the "FIA Act"), and
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that it has exclusive jurisdiction to investigate it. Therefore, according to him, FIR No. 98/2024 was registered without lawful authority, and no proceedings could validly be undertaken on its basis. On the merits, Mr. Khan argued that the Petitioner was innocent and had been falsely implicated in this case. There was no eyewitness of the alleged offence, particularly none implicating the Petitioner. The counsel asserted that the investigation of the case was complete, and the Petitioner was not required for further probe. In these circumstances, he was entitled to the concession of post-arrest bail. 4. Rana Tasawar Ali Khan, Deputy Prosecutor General, contended that the registration of FIR No. 98/2024 by the local police was a procedural irregularity. The report under section 173 Cr.P.C. had already been submitted to the court, and the trial was underway. The Petitioner never objected to the registration of the FIR or its investigation by the local police at any earlier stage. He could not be permitted to do so now, particularly when there was nothing on the record to suggest that he had suffered any prejudice. On the merits, the Deputy Prosecutor General submitted that there was sufficient evidence to establish that the Petitioner had committed the offence and was thus not entitled to bail. He refuted the allegation of false implication and prayed for the dismissal of the application. 5. This case involves the following legal questions which must be addressed before considering the merits of the bail application: i) What is the procedure for prosecuting the offences under the 2022 Act? ii) If an FIR alleging custodial death, torture, or rape is registered under the general law (PPC) by the local police in contravention of the 2022 Act, can it be transferred to the FIA? If so, what is the legal mechanism for such a transfer? iii) If such transfer is permitted, what is the legal status of the investigation conducted by the local police and the evidence collected before the transfer? 6. The questions mentioned above are of immense public importance involving the interpretation of various statutory laws and the preservation of the right to a fair trial of the Petitioner - and those accused of similar offences in other cases - which is guaranteed under Article 10A of the Constitution. Therefore, this Court issued a notice under Order XXVII-A of the Code of Civil Procedure, 1908 ("CPC") to the Attorney General for Pakistan and the Advocate General Punjab. Besides, the Prosecutor General Punjab was asked to assist the Court personally. Mr. Haider Rasul Mirza and Ms. Qurat-ul-Ain Afzal, Advocates, were appointed amici curiae. 7. Mr. Muhammad Amjad Pervaiz, Advocate General Punjab, entered appearance and submitted that the notice issued under Order XXVII-A CPC was not competent. However, as the principal law officer of the Province, he could assist this Court with legal issues. He argued that the CPC s preamble expressly states that its object is to "consolidate and amend the laws relating to the procedure of the courts of civil judicature."[1] Furthermore, an examination of the various provisions of the CPC, particularly section 9, confirms that the CPC applies only to civil proceedings and not to criminal cases. Order XXVII-A is part of the CPC, and it also refers only to "suits." Hence, it has no application to criminal proceedings, which are governed by a separate statute - the Code of Criminal Procedure, 1898 (Cr.P.C.). 8. Before turning to the merits, it is necessary to examine whether the notice issued under Order XXVII-A CPC was procedurally competent. Applicability of Order XXVII-A CPC to criminal proceedings 9. The Constitution provides for the appointment of the Attorney General for Pakistan (Article 100) and Advocate General for each Province (Article 140). They are the principal law officers of the Federal Government and the Provincial Government, respectively, and advise them upon such legal matters and perform such other duties of a legal character as may be referred to them by the Government concerned and to appear before courts on their behalf.
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10. Previously, the Government of India Act, 1935, empowered the Governor of the Province to appoint the Advocate General at his discretion, and the Punjab Law Department Manual, 1938, defined his duties. In United Provinces v. Mt. Atiqa Begum (AIR 1941 FC 16), Gwyer C.J. stated that cases involving challenges to the constitutionality of legislation should not be adjudicated without the Advocate General's assistance because they affect the scope of the executive authority of the Province. However, he clarified that, in such cases, the Advocate General appears as a representative of the executive government, and his role is limited to assisting the court. His appearance does not convert him into a party to the proceedings. 11. It is generally believed that Gwyer C.J.'s opinion prompted the introduction of Order XXVII-A in the CPC through Act No. XXIII of 1942, Code of Civil Procedure (Amendment) Act, 1942.[2] The relevant excerpt from the Order as it now stands is reproduced below: 1. Notice to the Advocate General.- In any suit in which it appears to the court that any substantial question as to the interpretation of constitutional law is involved, the court shall not proceed to determine the question until after notice has been given to the Attorney General for Pakistan if the question of law concerns the Federal Government and to the Advocate General of the Province if the question of law concerns a Provincial Government. 2. Court may add Government as party.- The Court may at any stage of the proceedings order that the Federal Government or a Provincial Government shall be added as a defendant in any suit involving any substantial question as to the interpretation of constitutional law if the Attorney General for Pakistan or the Advocate General of the Province as the case may be, whether upon receipt of notice under Rule 1, or otherwise, applies for such addition and the court is satisfied that such addition is necessary or desirable for the satisfactory determination of the question of law involved. 3. ...[3] 4. Application for Orders to appeals.- In the application of this Order to appeals the word defendant shall be held to include a respondent and the word suit an appeal. 12. In Federation of Pakistan and others v. Aftab Ahmad Khan Sherpao and others (PLD 1992 SC 723), the Supreme Court held that Rule 1 of Order XXVII-A CPC is mandatory and prohibits a court from determining any substantial question of constitutional interpretation without first issuing notice to the Attorney General or the Advocate General, depending upon whether the matter concerns the Federal Government or the Provincial Government. The Court observed that non- compliance with this Rule renders the proceedings defective and, in the case before it, declared the impugned judgment of the High Court a nullity.[4] The Supreme Court also endorsed the view taken in Heman Santlal v. State of Bombay (AIR 1951 Bombay 121) that in every case which involves a question referred to in Rule 1 of Order XXVII-A CPC, notice must be separately given to the Attorney General or the Advocate General, as the case may be, even if the Government is already a party to the proceedings. The requirement of the Rule has to be literally satisfied by giving notice to the Attorney General or Advocate General.[5] 13. Mr. Haider Rasul Mirza, amicus curiae, submitted that the State is a necessary party in all criminal proceedings. Article 7 of the Constitution defines the "State" to include the Federal Government, a Provincial Government, the Parliament, a Provincial Assembly, and such local or other authorities as are by law empowered to impose any tax or cess. Since the State is represented through the Attorney General or the Advocate General, the Court may seek their assistance in criminal cases involving constitutional interpretation without relying on Order XXVII-A CPC. In such instances, they appear not as a party but as a law officer representing the public interest, which aligns with the principles outlined in Atiqa Begum by Gwyer C.J. and the subsequent case law. Mr. Mirza further submitted that the Court may also invoke its inherent jurisdiction under section 561-A Cr.P.C. to issue such notice. He contended that this recourse is justified by the Court's
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broader duty to consider all relevant perspectives to ensure a proper interpretation of the law, particularly where the matter directly affects the scope of executive authority. 14. The foundational guarantees of liberty (Article 9), protection against arbitrary detention (Article 10), dignity (Article 14), and fair trial (Article 10A) are directly involved in all criminal proceedings. Even in a bail application, the accused seeks, in effect, the enforcement of the fundamental right to liberty available to every citizen and non-citizen under the Constitution. Questions involving fundamental rights of the parties, particularly the accused, frequently arise in criminal proceedings, whether at the stage of investigation, bail, trial, or post-conviction. 15. I have already concluded that the Civil Procedure Code, including Order XXVII-A, does not apply to criminal proceedings governed by the Cr.P.C. In writ petitions under Article 199 of the Constitution, its applicability depends on the nature of the subject matter. Where the petition concerns a criminal matter, the CPC remains inapplicable. The case Hussain Bakhsh v. Settlement Commissioner, Rawalpindi, and others (PLD 1970 SC 1) is instructive. In that case, the issue arose whether the High Court could review an order passed in a writ petition under Article 98 of the 1962 Constitution. The Supreme Court held that the writ jurisdiction is original in nature and extends to "civil as well as other matters." Since the matter in Hussain Bakhsh related to a civil right, it explained that a proceeding taken to enforce a civil right is a civil proceeding, regardless of the source of the Court's jurisdiction. It further stated that whether a proceeding is civil or not depends on the nature of the subject matter of the proceeding and its object, and not on the mode adopted or the forum provided for the enforcement of the right. A proceeding dealing with a civil right does not cease to be so merely because that right is sought to be enforced through writ jurisdiction. Therefore, a writ petition concerning a civil matter would fall within the purview of a civil proceeding, and the provisions of the CPC would apply, subject to any statutory exceptions. 16. Applying the above reasoning, a constitutional petition seeking relief in respect of a criminal matter, or involving the enforcement of rights arising in a criminal context, would not attract the application of the CPC. Such issues are instead governed by the Cr.P.C. It follows that Order XXVII-A CPC, a provision applicable only to civil proceedings, has no application in such cases. 17. In the present case, the Court is seized of a post-arrest bail application arising from a criminal case. The Code of Criminal Procedure contains no provision analogous to Order XXVII-A CPC. Accordingly, the objection to the issuance of notice under Order XXVII-A CPC is upheld. However, as this case raises substantial questions involving the interpretation of constitutional and statutory provisions, the Court was competent to seek assistance from the Attorney General and the Advocate General as a matter of judicial propriety. Their appearance should be deemed not to have been solicited under Order XXVII-A but rather in recognition of their status as principal law officers under Articles 100 and 140 of the Constitution and their obligation to assist the Court on legal questions affecting the public interest. I endorse Mr. Mirza's interpretation of Article 7 of the Constitution for this approach. 18. In my opinion, section 561-A Cr.P.C. cannot be invoked as a substitute for Order XXVII-A CPC. It is a residuary provision that preserves the High Court's inherent powers to prevent abuse of process and to secure the ends of justice in criminal proceedings. However, it cannot be construed to enlarge the Court's jurisdiction so as to incorporate procedural rules from the Civil Procedure Code prescribed exclusively for civil suits. 19. I now turn to the legal questions framed in paragraph 5 of this order. Arguments 20. The Petitioner's counsel reiterated the submission made in paragraph 3 that FIR No. 98/2024 was registered without lawful authority and was of no legal effect. Consequently, the said FIR and the trial proceedings instituted in pursuance thereof were liable to be quashed. He maintained that
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the Petitioner had a case for post-arrest bail both on this legal ground and on the factual contentions already noted. 21. Mr. Muhammad Amjad Pervaiz, Advocate General Punjab, submitted that Pakistan is a party to the United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (1984), and it has enacted the 2022 Act to implement it. He stated that the Act prescribes a special procedure for investigating the offences to which it applies. It designates the FIA for their investigation under the supervision of the National Commission for Human Rights (the "HR Commission"), following the Federal Investigation Agency (Inquiries and Investigations) Rules 2002 (the "Investigation Rules"). The Advocate General submitted that section 5(3) of the 2022 Act[6] incorporates the specified provisions of the FIA Act and the Investigation Rules into the 2022 Act, making them an integral part of it on the principle of referential legislation. [7] Hence, their compliance is mandatory. According to him, all complaints under the 2022 Act must initially be registered as an inquiry, and an FIR should be lodged only upon its conclusion. The Advocate General contended that this Court misconstrued the 2022 Act in Zubaida Qureshi v. Ex- officio Justice of Peace (2024 LHC 3636) by holding that the FIA is not required to conduct an inquiry before initiating a formal investigation and that it should register an FIR directly upon receiving a complaint and investigate it under the oversight of the HR Commission. He argued that Parliament intentionally provided for a two-stage process to guard against false implication. 22. The Advocate General submitted that section 197 Cr.P.C. and section 6(5) of the Pakistan Criminal Law Amendment Act, 1958, required prior sanction from a designated authority before initiating criminal proceedings against certain public servants to shield them from malicious prosecution. However, in Zafar Awan v. The Islamic Republic of Pakistan (PLD 1989 FSC 84), the Federal Shariat Court (FSC) declared the aforesaid provisions contrary to the Injunctions of Islam and struck them down. This decision was upheld in Federation of Pakistan v. Zafar Awan (PLD 1992 SC 72) and later affirmed in review.[8] The Advocate General argued that even while striking down the aforementioned provisions, the FSC stated that the law may provide procedural safeguards, subject to the condition that they do not obstruct a person's right to access the courts. [9] The Advocate General maintained that the preliminary inquiry mechanism under the Investigation Rules is one such permissible safeguard because it ensures that only genuine complaints against public officials proceed. In the absence of the substantive protection once provided by section 197 Cr.P.C.,this procedural filter assumes greater importance to balance accountability with due process. He asserted that the 2022 Act should be interpreted harmoniously with the Investigation Rules, and the inquiry requirement should be preserved as a constitutionally valid safeguard. FIRs, especially against public officials, should not be registered automatically but only after prior permission or a fact-based inquiry has been conducted. 23. The Advocate General submitted that being named in an FIR irreparably harms a person's reputation, especially public officials in sensitive posts. He maintained that procedural filters such as inquiries and prior approvals are not bureaucratic obstacles but essential protections that maintain institutional integrity and prevent abuse. Their removal, he warned, would undermine good governance by exposing public officials to retaliatory or politically motivated accusations. The Advocate General emphasized that the right to due process under Article 10A of the Constitution extends to the investigation stage, and according to The Bank of Punjab and another v. Harris Steel Industries (Pvt) Limited and others (PLD 2010 SC 1109) and Sharjeel Inam Memon v. National Accountability Bureau and others (2018 PCr.LJ Note 34), a fair investigation is integral to a fair trial. He concluded that public officials are entitled to the protections under Article 10A. 24. The Advocate General submitted that if an FIR is erroneously registered with the local police instead of a complaint for prosecuting offences falling within the ambit of the 2022 Act, it amounts to a procedural irregularity curable under section 537 Cr.P.C. Although the Police Rules, 1934, do not
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provide an express mechanism to address such situations, the principles underlying Rules 25.3 to 25.7 may be applied to transfer the case from the local police to the FIA. He further submitted that the evidence collected by the local police before such transfer may lawfully be relied upon during the trial. Accordingly, neither the investigation nor the trial conducted pursuant to a wrongly registered FIR is vitiated. 25. Syed Farhad Ali Shah, Prosecutor General Punjab, endorsed the Advocate General s submissions and reiterated that Zubaida Qureshi was not rightly decided. He acknowledged that the term "investigation" is used repeatedly in the 2022 Act, while the word "inquiry" does not appear. He argued, however, that this omission may have been inadvertent and does not alter the legal position, as section 5(3) incorporates the Investigation Rules, which contemplate an inquiry stage and thereby make it an integral part of the 2022 Act. 26. Mr. Asad Ali Bajwa, Deputy Attorney General, contended that the FIA Act and the Investigation Rules form part of the 2022 Act by virtue of section 5(3) and must be reckoned as such. These Rules, he emphasized, are not subordinate legislative instruments. They prescribe essential safeguards against misuse of the process, which must be followed. He submitted that the 2022 Act introduces a special mechanism for prosecuting custodial offences based on a "complaint" as defined in section 2(1)(c), and that this term cannot be equated with an FIR under section 154 Cr.P.C. According to him, the Act neither contemplates nor requires the registration of an FIR as a condition precedent to investigation. Drawing an analogy with section 202 Cr.P.C., he argued that just as a Magistrate may conduct an inquiry before summoning the accused on a private complaint, the FIA should likewise be permitted to conduct a verification exercise before commencing a formal investigation. This interpretation, he contended, is consistent with judicial precedents and ensures a balanced application of the law without compromising its objectives. 27. Mr. Bajwa submitted that the FIA is authorized to investigate a wide range of offences under 38 statutes listed in the Schedule to the FIA Act. The standard procedure followed by the FIA in all those cases is to register each complaint initially as an inquiry and to launch a formal investigation only if warranted by the evidence collected during that inquiry. He contended that the 2022 Act contemplates the same procedural framework, and there is no justification to depart from it. 28. Mr. Haider Rasul Mirza, amicus curiae, elaborated on the scope of the 2022 Act. He acknowledged that the FIA follows the procedures outlined in the FIA Act and the Investigation Rules in all cases listed in the Schedule to the FIA Act. However, that practice must yield where a special statute provides a different framework. Custodial abuse involves grave violations of fundamental rights, often committed by law enforcement officials themselves. In such cases, delay or procedural filtering may result in cover-ups, intimidation, or loss of crucial evidence. Therefore, a different procedure is both rational and justified. To insist on mechanically applying the Investigation Rules to this special legislation would nullify Parliament's clear policy choice and dilute the protection intended for victims of custodial abuse. Mr. Mirza maintained that there is tension between those Rules and the 2022 Act, which is correctly resolved in Zubaida Qureshi. That decision, he submitted, faithfully reflects the legislative intent and structure of the 2022 Act. Section 5(3) refers only to "investigation" and omits any mention of "inquiry," and thus dispenses with that stage entirely. 29. According to Mr. Mirza, a case erroneously registered by the local police can be transferred to the FIA in three ways: first, under the Police Rules, the IG Police/Provincial Police Officer may devise a mechanism authorizing the transfer of such cases. This authorization may be initiated either on the basis of a special report received from the concerned Superintendent (under Rules 24.13 and 24.14 of the Police Rules) or upon a direct application from any of the concerned parties. Second, the FIA may assume jurisdiction on its own initiative or the application of a party and call for the record of a case already registered with the local police by relying on section 5(1) of the 2022 Act read with
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Rule 3 of the Investigation Rules. Third, under section 5(2) of the 2022 Act, a Magistrate may direct the FIA to investigate an alleged offence of custodial torture, death, or rape if there are reasonable grounds to believe that such an offence has been committed, or if the person in custody makes a complaint of torture. Mr. Mirza further contended that even if the local police illegally assume jurisdiction and register an FIR under the general law, such error is curable and does not vitiate the proceedings. In his view, an improper assumption of jurisdiction does not furnish a basis to quash the FIR or the ensuing trial. 30. Ms. Qurat-ul-Ain Afzal, the second amicus curiae, submitted that the 2022 Act prescribes a special procedure for handling complaints of custodial torture and their investigation. She contended that under section 5(1) of the Act, the FIA may initiate an investigation directly on the basis of a complaint without prior registration of an FIR, subject to the supervision of the HR…
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