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Official Citation: 2024 LHC 5766
Court / Jurisdiction: Lahore High Court
Year of Decision: 2024
Decision Date: 2024-07-25
Parties: Imran Ahmad Khan Niazi vs Government of the Punjab and others
Ruling Summary: This decision was rendered by the Lahore High Court on 2024-07-25, officially reported as 2024 LHC 5766. In this matter between Imran Ahmad Khan Niazi and Government of the Punjab and 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 2024LHC5766
Court Name: Lahore High Court Judge(s): Tariq Saleem Sheikh, Anwaarul Haq Pannun Title: Imran Ahmad Khan Niazi vs Government of the Punjab and others Case No.: Writ Petition No.45901/2024 Date of Judgment:2024-07-25 Reported As: 2024 LHC 5766 Result: Order Accordingly
JUDGMENT
JUDGMENT Tariq Saleem Sheikh, J. - The Petitioner is the ex-Prime Minister of Pakistan and the founder of Pakistan Tehreek-e-Insaf, one of the country s major political parties. He is currently facing various criminal cases regarding corruption and abetting terrorism (attacks on military installations and other public property). 2. On 9.5.2023, the NAB authorities arrested the Petitioner in connection with the Al-Qadir Trust case[1] from the premises of the Islamabad High Court, even though he had already applied for pre-arrest bail. The Petitioner challenged his arrest, which the Supreme Court of Pakistan declared unlawful by an order dated 11.5.2023 in Crl. Misc. Application No.641/2023, and directed his release. 3. The Petitioner continued to contest the cases against him, including the Al-Qadir Trust case, and managed to avoid arrest until his conviction in the Toshakhana case,[2] upon which he was apprehended on 5.8.2023. Although the Islamabad High Court suspended his sentence on 1.4.2024, he remained incarcerated in Central Jail, Adiala, Rawalpindi, due to other pending cases. Meanwhile, the trial in a private complaint titled "Khawar Farid Maneka v. Imran Khan Niazi etc.", commonly known as the Iddat case, concluded in which the Petitioner and his wife, Bushra Bibi, were accused of offences under sections 496, 496B, and 34 of the Pakistan Penal Code. The Judicial Magistrate Section-30, Islamabad East, convicted both of them on 3.2.2024. However, they were acquitted on appeal by the Sessions Court on 13.7.2024. 4. After the Petitioner was acquitted in the Iddat case, there were no grounds for his continued detention. On 14.7.2024, when he was about to be released, the police arrested him in 12 criminal cases registered against him in Lahore around 14 months earlier.[3] The following day, i.e., 15.7.2024, the Home Department of the Government of Punjab issued Order No. SO(MP)20-7/2023, purportedly under section 21(2) of the Anti- Terrorism Act, 1997 (the "ATA"). The Government directed the Petitioner to appear via video link from the Adiala Jail before the Anti-Terrorism Court-I, Lahore, for proceedings related to his physical remand in the aforementioned 12 cases, citing concerns for law and order and the Petitioner's security. Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner has assailed the vires of Order No. SO(MP)20-7/2023 dated 15.7.2024 (the "Impugned Order").
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5. Our criminal justice system requires the presence and attendance of an accused person at various stages, including pre-trial and during trial. Reference in this regard may be inter alia made to sections 167, 241-A, 265-C, 265-D, 265-E, 342, 344, 353, 361, 363, 498-A, 503, 512, 540-A of the Code of Criminal Procedure 1898 (hereinafter referred to as the "Code" or the "Cr.P.C."). The ATA is a special law, and section 32 stipulates that it will have effect notwithstanding anything contained in the Code or any other law. The present case centers on remand proceedings under the ATA, which the police request when an investigation is not completed within twenty-four hours. It involves important questions involving the interpretation of the Constitution and the ATA. Therefore, by order dated 23.7.2024, this Court issued notice under Order XXVII-A CPC to the Attorney General for Pakistan and the Advocate General Punjab. The submissions 6. The Petitioner's counsel, Barrister Salman Safdar, contends that, firstly, the failure of the police to physically produce the accused before the Anti-Terrorism Court (ATC)[4] when seeking a remand renders the remand order illegal. Ensuring that the accused is brought before the court within twenty-four hours of arrest is a critical safeguard against unjustified detention, as guaranteed by Articles 9 and 10 of the Constitution. Any law that bypasses it is unconstitutional. Secondly, the Impugned Order dated 15.7.2024, issued by the Secretary Home Department under section 21(2) of the ATA, is based on a misinterpretation of the law. Section 21(2) does not authorize the Government to waive the requirement of physically producing the accused at the remand hearing; any authority granted under this section pertains only to trial proceedings. Thirdly, section 21E(1) of the ATA deals with the issue of the remand of individuals arrested under the Act, requiring the physical production of the accused before the court within twenty-four hours of arrest. Only then can the police seek custody of the accused. The ATA does not allow remand proceedings to be conducted via video link or for the physical presence of the accused to be waived by any authority. Lastly, the term "Government" in section 21(2) of the ATA refers to the Cabinet, not an individual acting on behalf of the Provincial Government. For any notification under section 21(2) to be valid, it must be authorized by the Cabinet. 7. The Assistant Attorney General, Mr. Zain Qazi, submits that section 21(2) of the ATA empowers the Government to adopt measures necessary to protect judges, the accused, witnesses, prosecutors, defence counsel, and anyone involved in court proceedings. He states that the Petitioner has been requesting protection since an assassination attempt was made against him and has even filed petitions in various High Courts to secure this protection. The Government issued the Impugned Order to ensure his safety and address other security concerns. Therefore, no exception can be taken thereto. 8. The Assistant Advocate General, Punjab, Mr. Sittar Sahil, contends that the Home Department issued the Impugned Order in accordance with the law, considering both the Petitioner's safety and the public interest. He argues that section 21E of the ATA, which deals with remand, should be interpreted purposively to meet modern-day requirements. The phrase "produce the accused before the court" in section 21E should be broadly construed to include virtual presence. He further submits that the ATA, in general, and section 21E, in particular, do not prohibit the production of the accused through video link for remand. 9. The Prosecutor General, Syed Farhad Ali Shah, argues that video conferencing represents a significant advancement in science and technology, allowing people to see, hear, and communicate with others remotely as if they were physically present. Therefore, video links and video conferences in court proceedings and for recording witness testimony are becoming increasingly common worldwide. The Prosecutor General highlights that Pakistan's Parliament has also incorporated provisions in various laws to facilitate the use of modern technology. For instance, Article 164 of the Qanun-e-Shahadat Order, 1984, allows courts, depending on the nature of the case and circumstances, to admit evidence or witness testimony recorded through modern devices or techniques such as video calls, Viber, Skype, IMO, WhatsApp, Facebook Messenger, Line, and video conferencing.[5] Clause (iii) of section 30B(1) of the Prevention of Electronic Crimes Act, 2016 (PECA), mandates that the Federal and Provincial Governments establish a victim and witness protection system through rules with features that should, inter alia, include recording testimonies through video-conferencing, audio-video links, and the use of modern devices. Section 30C(2) of PECA allows the court to hold trials through video links. Likewise, section 12(3) of the Juvenile Justice System Act, 2018, empowers the Juvenile Court to waive the physical presence of the juvenile and permit participation in court proceedings via an audio-visual technology link. Provincial
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legislatures are also making similar strides; for example, section 10 of the Punjab Witness Protection Act, 2018, provides for the recording of witness evidence through video links. 10. The Prosecutor General submits that our courts have increasingly endorsed the use of video links in various cases and has cited the following precedents in this regard: Salman Akram Raja and another v. Government of Punjab and others (2013 SCMR 203), Khawaja Anwer Majid v. National Accountability Bureau and another (PLD 2020 SC 635), Ali Haider alias Papu v. Jameel Hussain and others (PLD 2021 SC 362), Mian Muhammad Nawaz Sharif v. The State and another (PLD 2018 Islamabad 148), Munawar Hussain and another v. The State (2020 PCr.LJ 1184), and Muhammad Israr v. The State and another (PLD 2021 Peshawar 105). The Prosecutor General also referred to Meera Shafi v. Ali Zafar (PLD 2023 SC 211), a case arising from civil proceedings. Provided that conviction on the basis of modern devices or techniques may be lawful. 11. The Prosecutor General contends that section 21 of the ATA reflects the Government's commitment to integrating technology into court processes, including the provision for recording evidence via video link. He argues that producing an accused before the ATC for remand through a video link is equivalent to physical production. Hence, the Impugned Order should not be subject to objection. Opinion 12. International law requires that an arrested person be promptly brought before a court following his arrest. The International Covenant on Civil and Political Rights (ICCPR) explicitly addresses this issue in Article 9(3).[6] The European Convention on Human Rights (ECHR) upholds this principle in Article 5(3). The American Convention on Human Rights and the African Charter on Human and Peoples' Rights include similar provisions. 13. The U.N. Human Rights Committee, which provides an authoritative interpretation of Article 9 of the ICCPR, emphasizes in its General Comment No.35 that immediate judicial oversight following an arrest is essential for protecting individuals from unlawful and arbitrary detention and ensuring their rights to a fair trial and due process. The Committee interprets the term "promptly" to generally mean within 48 hours, except in extraordinary situations. This period allows for adequate time to ensure procedural safeguards while minimizing the risk of prolonged detention without judicial oversight. The Committee also stresses that this judicial review must be meaningful. The judge must consider whether the detention is legally correct, assess whether it is necessary and proportionate, and determine whether there are alternatives to incarceration, such as granting bail. The Committee underscores that the above requirements apply to all individuals arrested or detained on criminal charges, including those held under administrative or pretrial detention regimes. 14. General Comment No. 35 makes the physical presence of the detainee/accused before a judicial authority mandatory. The relevant excerpt from paragraph 34 is reproduced below: "The individual must be brought to appear physically before the judge or other officer authorized by law to exercise judicial power. The physical presence of detainees at the hearing gives the opportunity for inquiry into the treatment that they received in custody and facilitates immediate transfer to a remand detention centre if continued detention is ordered. It thus serves as a safeguard for the right to security of person and the prohibition against torture and cruel, inhuman, or degrading treatment." 15. It is, however, pertinent to note that the General Comment has not explicitly addressed the issue of whether video links can be used for remand hearings. The omission of specific guidance on video link remand creates ambiguity, leaving national legal systems to navigate this issue independently. 16. To uphold the principles of the ICCPR, careful consideration and stringent safeguards are necessary when incorporating video link technology into judicial processes. Firstly, there must be a clear legal framework governing the use of video links, outlining the conditions under which they can be used and providing safeguards to protect the fair trial rights of the detainee. Secondly, the detainee must be able to participate fully in the proceedings, meaning they must hear and be heard clearly, see and be seen, and communicate confidentially with their legal counsel. Thirdly, the judge must be able to adequately assess the detention conditions and the detainee's wellbeing, ensuring that they are not subjected to coercion or ill-treatment. Finally, the decision to use a video link should be made on a case-by-case basis, considering the specific circumstances. In other words, video links should be an option, not an automatic replacement.
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Strong justification is required if the detainee does not consent, such as exceptional public health concerns, logistical challenges, or security issues. 17. Article 10 of the Constitution of Pakistan (1973) outlines safeguards regarding arrest and detention. Clause (2) thereof provides: (2) Every person who is arrested and detained in custody shall be produced before a magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the nearest magistrate, and no such person shall be detained in custody beyond the said period without the authority of a magistrate. 18. It is a fundamental legal principle that when a law's wording is clear and perspicuous, courts must apply it as written because it is presumed that the text reflects the legislature's intent. In such instances, there is no need to go beyond the text. S.M. Zafar explains: "A statute is not open to construction as a matter of course. It is open only where the language used in the statute requires interpretation, that is, where the statute is ambiguous or will bear two or more constructions or is of such doubtful or obscure meaning that reasonable minds might be uncertain or disagree as to its meaning. Where the language of the statute is plain and ambiguous, and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation, and the court has no right to look for or impose another meaning. Such intention can be gathered only from the words actually used in the statute, and in a court of law, what is unexpressed has the same value as what was intended ... A plain and unambiguous statute is to be applied, and not interpreted, since such a statute speaks for itself, and any attempt to make it clear is a vain labour and tends only to obscurity."[7] 19. In McCowan v. Baine, [1891] AC 401, p.409, Lord Watson stated: "It is said that, for some reason, the primary and natural meaning of the words is to be extended ... I am at a great loss to see why I think an Act of Parliament, an agreement, or other authoritative document, ought never to be dealt with in this way, unless for a cause amounting to a necessity or approaching to it. It is to be remembered that the authors of the document could always have put in necessary words if they had thought fit. If they did not, it was either because they thought of the matter and did not or because they did not think of the matter. In neither case ought the court to do it. In the first case, it would be to make provisions opposed to the intention of the framers of the document; in the other case, to make a provision not in contemplation of these framers." 20. In M/s Hiralal Ratan Lal v. The Sales Tax Officer and another (AIR 1973 SC 1034), the Supreme Court of India (SCI) observed: "In construing a statutory provision, the first and the foremost rule of construction is the literal construction. All that the court has to see at the very outset is what does that provision say. If the provision is unambiguous and if from that provision the legislative intent is clear, the court need not call into aid the other rules of construction of statutes. The other rules of construction of statutes are called into aid only when the legislative intention is not clear." 21. In B. Premanand and others vs. Mohan Koikal and others (AIR 2011 SC 1925), the SCI held: "Where the words of a statute are absolutely clear and unambiguous, recourse cannot be had to the principles of interpretation other than the literal rule ... The language employed in a statute is the determinative factor of the legislative intent. The legislature is presumed to have made no mistake. The presumption is that it intended to say what it has said. Assuming there is a defect or an omission in the words used by the legislature, the court cannot correct or make up the deficiency ... Where the legislative intent is clear from the language, the court should give effect to it ... and the court should not seek to amend the law in the garb of interpretation." 22. In Abdul Nafey v. Muhammad Rafique and others (2023 SCMR 2096), the Supreme Court of Pakistan held: "It is settled law that when meaning of a statute is clear and plain language of statute requires no other interpretation, then intention of Legislature conveyed through such language has to be given full effect. Plain words must be expounded in their natural and ordinary sense. Intention of the Legislature is primarily to be gathered from language used and attention has to be paid to what has been said and not to that what has not been said."[8]
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23. In Dawood Abdul Ghafoor v. Justice of Peace and others (2021 PCr.LJ 1527), it was held that the literal rule of interpretation is nearly "biblical" when interpreting a statute. The other rules, i.e., purposive, teleological, or mischief rule, can only be resorted to when no intelligible result can be arrived at from a literal reading. 24. Article 10(2) of the Constitution safeguards the fundamental right of an arrested person to be brought before a magistrate within twenty-four hours. The terms "produced" and "excluding the time necessary for the journey from the place of arrest to the nearest magistrate" indicate a requirement for physical presence. This provision is vital in ensuring judicial oversight of the detention process, protecting the rights of the detainee/accused from the moment of arrest. 25. The law must be meticulously followed, in both letter and spirit, when a person's liberty is at risk of being restricted or curtailed.[9] However, courts may deviate from a literal or strict construction and resort to purposive interpretation when the literal meaning leads to an ambiguous, absurd, or unjust outcome. The purposive approach focuses on the law's underlying purpose to ensure it achieves its intended objective. According to Aharon Barak, purposive interpretation involves three key elements: language, purpose, and discretion.[10] The language of the text determines the range of semantic possibilities within which the interpreter acts as they choose the legal meaning from various explicit or implicit possibilities.[11] The purposive component is central to interpreting a legal text. It implies "the values, goals, interests, policies, and aims that the text is designed to actualize".[12] Finally, Barak emphasizes that interpretive discretion is indispensable in determining the ultimate purpose of the norm: "It is the choice that purposive interpretation gives the judge from among a few interpretive possibilities, all of which are legal" in order "to formulate the purpose at the core of the text".[13] 26. At times, courts also interpret explicit constitutional - and statutory - provisions purposively to address modern challenges that the drafters of the text did not foresee. In Muhammad Aslam Awan v. Federation of Pakistan and others (2014 SCMR 1289), the Supreme Court of Pakistan noted that the meanings of constitutional words and concepts evolve with time and circumstances. In Province of Sindh and others v. MQM and others (PLD 2014 SC 531), it stated that "the Constitution of a country is a living organism and a particular provision, a term or word has to be interpreted dynamically and purposively to achieve the constitutional intent" (para 60). In Khurshid Soap and Chemical Industries (Pvt.) Ltd. and others v. Federation of Pakistan and others (PLD 2020 SC 641), the Supreme Court emphasized that the Constitution is organic and a living testament to the people's aspirations. The "living tree" doctrine allows the Constitution to change and evolve while acknowledging its original intentions, balancing predictability and flexibility. A static interpretation would render the Constitution obsolete, so interpreters must focus on the originators' intended accomplishments rather than the literal text alone. Judges must ensure both stability and change, as stability without change leads to degeneration, and change without stability leads to anarchy. This progressive interpretation preserves the Constitution's vitality, preventing it from becoming obsolete. The Supreme Court reiterated this view in Aam Log Ittehad and another v. The Election Commission of Pakistan and others (PLD 2022 SC 39), stating that the Constitution evolves and develops not just by way of textual changes (i.e., constitutional amendments) but also in a (continually) maturing understanding of the constitutional provisions. This means not just the very words of the Constitution but also the concepts and aspirations behind them. A well-known (and excellent) example of these established principles is the evolving meaning of "life" in Article 9. As landmark cases such as Shehla Zia and others v. WAPDA (PLD 1994 SC 693) demonstrate, this term should be applied conceptually and periodically reconsidered as its scope continues to broaden and deepen. 27. A Constitution occupies a special status in the legal system. It plays a role that no other legal text can fill. [14] While interpreting a particular constitutional provision, the constitutional scheme and the express language employed cannot be ignored.[15] Aharon Barak writes: "Constitutional language - like the language of any legal text - plays a dual role. On the one hand, it sets the limits of interpretation. The language of the constitution is not clay in the hands of the interpreter, to be molded as he or she sees fit. A constitution is neither a metaphor nor a non-binding recommendation. On the other hand, the language of the contstitution is a source of its purpose. There are other sources, to be sure, but constitutional language is an important and highly credible source of information. The fact that we may learn the purpose of a constitution sources external to it does not mean that we can give a
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constitution a meaning that is inconsistent with its explicit or implicit language. Interpretation cannot create a new constitutional text. Talk of judges amending the constitution through their interpretation of the constitution is just a metaphor. The claim that a constitutional text limits but does not command is true only for the limited number of cases in which, after exhausting all interpretive tools, we can still extract more than one legal meaning from the constitutional language and must, therefore, leave the final decision to judicial discretion. In these exceptional cases, language provides a general direction but does not draw a precise map of how to reach the destination. Usually, however, constitutional language sets not only the limits of interpretation but also its specific content."[16] 28. As adumbrated, Article 10(2) of the Constitution aims to protect individuals' fundamental rights by ensuring judicial oversight of detention, preventing abuse of power, and upholding the principles of justice and the rule of law. The requirement for physical production of an accused before a magistrate is a crucial deterrent to abuse and enhances the accountability of law enforcement agencies. Allowing video link remand in place of physical production can undermine these protections, especially in our country where custodial torture is a pervasive issue. The impersonal nature of video communication may not offer the same level of scrutiny as an in-person meeting, potentially leading the magistrate to miss subtle signs of distress, coercion, or mistreatment that would be more noticeable face-to-face. Additionally, technical issues such as poor video quality, delays, or disruptions could impair the magistrate's ability to provide effective oversight. 29. To conclude, the existing language of Article 10(2) of the Constitution does not support video link remand hearings. Employing purposive interpretation to justify it would contradict both the text and the provision's intent. This cannot be permitted. 30. The Code provides a comprehensive legal framework for the administration of criminal justice in the country and applies unless a specific…
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