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Official Citation: 2024 PLD 522
Court / Jurisdiction: Lahore High Court
Year of Decision: 2024
Decision Date: 2024-12-31
Parties: Nasira Ashfaq vs Director General Safe Cities Authority, Punjab and 6 JUDGMENT
Ruling Summary: This decision was rendered by the Lahore High Court on 2024-12-31, officially reported as 2024 PLD 522. In this matter between Nasira Ashfaq and Director General Safe Cities Authority, Punjab and 6 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 PLD 2024 Lah. 522
Court Name: Lahore High Court Judge(s): Tariq Saleem Sheikh Title:Nasira Ashfaq vs Director General Safe Cities Authority, Punjab and 6
JUDGMENT
Reported As: 2025 PCRLJ 233 Result: Order accordingly Judgment
JUDGMENT TARIQ SALEEM SHEIKH, J. On 14.09.2023 at 03:05 a.m., Sub-Inspector Muhammad Nawaz Kahloon (Respondent No.6) lodged FIR No.1701/2023 at Police Station Wahdat Colony, Lahore, under section 9-(1)3c of the Control of Narcotic Substances Act, 1997 (CNSA). He reported that earlier the same night, around 02:45 a.m., he had arrested Muhammad Ashfaq, son of Hafeez Ullah, on source information and seized 1460 grams of charas from his possession. The investigation of this case was assigned to Respondent No.7. He produced Ashfaq before the Area Magistrate the following afternoon, who remanded him to judicial custody. 2. The Petitioner, who is Ashfaq's wife, has a cross-version. According to her, on 13.09.2023, she went to her parents' house at Faizpur Attari, District Sheikhupura, along with Ashfaq and their children. The same evening, around 06:30 p.m., 6/7 unknown persons dressed in plain clothes barged into the house, mercilessly beat Ashfaq and then dragged him out. A black Toyota Corolla Car No.TEU- 552, three motorcycles and three unknown persons, out of whom two were wearing police uniforms, were waiting for them. They forced Ashfaq into the car and sped away. At about 07:15 p.m., the Petitioner called the police emergency helpline '15' from her cellphone (No. 0320-8425380) and reported the incident, but no assistance arrived. Approximately 30 minutes later, she received a call from Ashfaq's cellphone (No. 0308-1120813), and an unidentified person spoke to her. He warned her against pursuing legal action and threatened that she would put Ashfaq's life and liberty in danger if she proceeded. The said person then handed over the phone to Ashfaq who told her that Respondent No.6 was taking him to Police Station Wahdat Colony, Lahore. The Petitioner
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alleges that half an hour later, she received another call from her husband's phone. Ashfaq conveyed that Respondent No.6 was demanding a ransom of Rs.500,000/- for his release. She lacked the means to meet such a demand. Upon seeing her helplessness, the amount was lowered to Rs.200,000/-. Despite her earnest efforts, the Petitioner could not raise even the reduced sum. Consequently, Respondent No.6 framed Ashfaq in a narcotics case through FIR No.1701/2023. The Petitioner asserts that between the initial call and the registration of the FIR at 03:05 a.m. on 14.09.2023, Ashfaq contacted her multiple times at the behest of Respondent No.6. She possesses recordings of all those calls, which she could present as evidence when required. 3. The Petitioner filed applications with senior police officers requesting them to obtain CCTV footage from the Punjab Safe Cities Authority (PSCA) and call data records (CDRs) of Cellphone Nos. 0320-8425380 and 0308-1120813 from the cellular companies concerned for the relevant period but they did not take any action. On 02.10.2023, the Petitioner submitted two applications addressed to the Director General and the Chief Operating Officer of the PSCA (Respondents Nos.1 and 2, respectively) for providing camera footage regarding the incident of September 13th and the record of her call to the police helpline '15' that day. However, her request was declined through a letter dated 19.10.2023. Meanwhile, on 18.10.2023, she filed an application under sections 22-A and 22-B of the Code of Criminal Procedure 1898 (hereinafter referred to as the "Code" or "Cr.P.C.") before the Ex-officio Justice of Peace, Lahore, praying that Respondents Nos.1 and 2 be directed to provide the requisite CCTV footage and call data to Respondent No.7, who was investigating case FIR No. 1701/2023. She further requested that Respondent No.7 be directed to receive and incorporate this evidence into the police file and conclude the investigation in accordance with the law. The Ex-officio Justice of Peace dismissed the said application by order dated 07.11.2023 on the ground that it would amount to interference in the investigation of FIR No.1701/2023, which is prohibited under the law. 4. Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner prays for the same relief she sought in her application under sections 22-A and 22-B Cr.P.C. 5. This Court issued notices to the Respondents and also sought a report and para-wise comments from the PSCA which it submitted. 6. Arguments heard. Record perused. 7. The "right to information" is a fundamental human right recognized and protected by international human rights jurisprudence. This right is often considered essential for the functioning of democratic societies and is closely linked to the principles of transparency, accountability, and the right to freedom of expression. The right to information empowers individuals to access information held by public authorities, fostering informed decision-making and civic engagement and preventing corruption. 8. The Universal Declaration of Human Rights (UDHR), adopted in 1948, enshrines the right to information in Article 19, which states: "Everyone has the right to freedom of opinion and expression; this right includes freedom to seek, receive and impart information and ideas through any media and regardless of frontiers." This provision lays the foundation for the right to information as an integral component of freedom of expression. 9. The International Covenant on Civil and Political Rights (ICCPR), another cornerstone of international human rights law, reinforces the right to information in Article 19. It echoes the sentiments expressed in the UDHR, emphasizing the significance of freedom of expression and recognizing the pivotal role of access to information. 10. Additionally, regional human rights instruments, such as the European Convention on Human Rights (ECHR) and the American Convention on Human Rights, incorporate provisions related to the right to information. For example, Article 10.1 of the ECHR states: "Everyone has the right to
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freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers." 11. On a global scale, the United Nations (U.N.) has been actively promoting the right to information. The U.N. General Assembly, in its Resolution 59/1, recognized that "freedom of information is a fundamental human right and ... the touchstone of all the freedoms to which the United Nations is consecrated." The U.N. also designated September 28 as the International Day for Universal Access to Information to emphasize the importance of this right. 12. The right to information is, however, not absolute. Legal provisions often allow for restrictions, particularly in national security, public order and safety, personal privacy, commercial interests, law enforcement, State secrets, intellectual property rights, and the prevention of hate speech and defamation. The challenge lies in balancing the right to access information and other societal interests. International human rights instruments stress that any restrictions should be prescribed by law, necessary, proportionate, and serve legitimate objectives. 13. Numerous countries have adopted specific legislation to give effect to the right to information. In Pakistan, Article 19 of the Constitution of 1973 guarantees every citizen the "freedom of speech and expression". In a landmark ruling in the case of Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473), the Supreme Court of Pakistan affirmed that this freedom encompasses the right to receive information. Subsequently, in 2010, Article 19A was introduced into Part-II Chapter-I of the Constitution through the Constitution (Eighteenth Amendment) Act 2010. This Amendment established the right to access information as an independent fundamental right in matters of public importance. Article 19A is reproduced below for facility of reference: 19A. Every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law. 14. In Watan Party and others v. Federation of Pakistan and others (PLD 2012 SC 292), the Supreme Court of Pakistan underscored the transformative impact of Article 19A in empowering citizens. It stated that this constitutional provision elevates access to information from a discretionary grant by the State to an enforceable right for the people. Article 19 has enabled every citizen to break free from the dominance of power centres that previously controlled information on matters of public importance. Additionally, the Supreme Court highlighted that this constitutional provision shields citizens from dependence on external sources or leaks for vital information, thus reinforcing the pillars of responsible and accountable governance as envisaged in the constitutional framework. 15. In Justice Qazi Faez Isa and others v. President of Pakistan and others (PLD 2023 SC 661), the Supreme Court highlighted that Article 19A of the Constitution is framed in "positive" terms, which signifies that it grants citizens the proactive right to access information. It restricts the State from withholding information on matters of public importance and mandates it to take active measures to ensure citizens' access to such information. The Supreme Court recognized that the State functions through its various organs - the Legislature, the Executive, and the Judiciary - and stressed that the responsibility to uphold the fundamental right outlined in Article 19A rests on all these branches. 16. The right to information granted under Article 19A of the Constitution is not absolute. It is subject to two things: (a) it is restricted to matters of public importance, and (b) it is subject to regulation and reasonable restrictions imposed by law. In the Province of Punjab v. Qaisar Iqbal and others (PLD 2018 Lahore 198), a Full Bench of this Court noted that Article 19A of the Constitution does not define the expression "public importance". Therefore, it adopted its dictionary meaning according to which it means "question which affects and has its repercussions on the public-at-large, and it also includes the purpose and aim in which the general interest of the community, particularly the interest of individual, is directly or widely concerned."[1] In Justice Qazi Faez Isa and others v.
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President of Pakistan and others (PLD 2023 SC 661), the Supreme Court elucidated the phrase "matters of public importance" occurring in Article 19A in light of the jurisprudence developed in respect of Articles 184(3), 186(1) and 212(3) of the Constitution, which employ similar terminology. The Supreme Court stated: "Therefore, as per the judicial definition, the expression 'matters of public importance' used in Article 19A means the matters that pertain to and affect the public at large, a whole community, and not an individual or a small group of individuals. In other words, it includes the matters in which the general interest of a whole community, as opposed to the particular interest of individuals, is directly and vitally concerned. The adjective 'public' necessarily implies a matter relating to the people at large, the nation, the State or a community as a whole. If a matter in which only a particular individual or group of individuals is interested, and the people at large or an entire community have no interest, that cannot be treated as a matter of public importance." 17. The second vital condition specified in Article 19A of the Constitution is that the right to information is subject to regulation and reasonable restrictions imposed by law. In Pakistan Broadcasters Association and others v. Pakistan Electronic Media Regulatory Authority and others (PLD 2016 SC 692), the Supreme Court defined the expression "reasonable restriction" as follows: "It is certainly not easy to define 'reasonableness' with precision. It is neither possible nor advisable to prescribe any abstract standard of universal application of reasonableness. However, factors such as the nature of the right infringed, the duration and extent of the restriction, the causes and circumstances prompting the restriction, and the manner as well as the purpose for which the restrictions are imposed are to be considered. The extent of the malice sought to be prevented and/or remedied, and the disproportion of the restriction may also be examined in the context of reasonableness or otherwise of the imposition. It needs to be kept in mind that 'reasonable' implies intelligent care and deliberation, that is, the choice of course that reason dictates. For an action to be qualified as reasonable, it must also be just right and fair, and should neither be arbitrary nor fanciful or oppressive." 18.. The Punjab Transparency and Right to Information Act 2013 (the "Information Act") seeks to actualize the right to information guaranteed by Article 19A of the Constitution to the extent of the provincial bodies mentioned in clause (h) of section 2 of the Act. This legislation extends to the whole of the Punjab. On the other hand, Parliament has enacted the Right to Access to Information Act, 2017, which applies to all public bodies of the Federal Government. 19. The Punjab Assembly has also enacted Act I of 2016. The Punjab Safe Cities Authority was established under Act I of 2016 (the "PSCA Act") for the construction, development and maintenance of an integrated command, control and communication (IC3) system for police in major cities of the province for public safety through the use of modern technology, infrastructure and processes.[2] In exercise of the powers conferred on it under section 19 of the PSCA Act of 2016, the Authority has framed PSCA Electronic Data Regulations 2016 ("EDR-16"), which cover the whole process of collection, analysis, storage, presentation and use of the electronic data. These are supplemented by the Standard Operating Procedures (SOPs) for PPIC 3 Centre, Lahore. 20. Recently, PSCA has developed the concept of Police Unified Communication and Response (PUCAR-15), which integrates 15 call centres and 13 response systems. It is operational across the province. 21. Regulation 3(2) of EDR-16 states that, through the IC3 Project, a quantum of electronic data within the range of ancillary facility is generated (a) to help the prosecution in criminal cases, crime detection, investigating, inquiry or trial; and (b) to be used as an authentic piece of evidence in any investigation, inquiry, or trial; and (c) to Maintain law and order. Regulation 2(1)(d) explains that " 'electronic data' means any probative data or information in the form of
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videos/audio/picture, stored or transmitted in electronic format or on electronic media duly collected, recorded, generated or extracted through the ancillary facilities/equipment installed under the [PSCA] Act." 22. The PSCA has defined a procedure for the presentation of electronic data in Regulation No.9(1) of EDR-16. Regulation 9(1) stipulates that the PSCA shall only provide the data it collects to the Investigating Officers, law enforcement agencies (LEAs), courts, tribunals or any other authorized person for investigation, inquiry or trial as evidence. It follows that the PSCA's data can be used for certain specific purposes only, i.e. for matters under inquiry, investigation or trial. Most importantly, under EDR-16, no person, institution or office other than those mentioned above can apply for and obtain any data from the Authority EDR-16 prescribes a special form for electronic data requests (EDR Form), which means that a request to provide electronic data in any other mode is not entertainable.[3] 23. According to Regulation 3(3) the electronic data generated through the IC3 facility shall be preserved and made available: (a) in the PSCA's Data Centre for 30 days except otherwise required by the PSCA; (b) for two months after it is stored in electronic data storage device [(defined in Regulation 2(1)(h)]; (c) upto seven years on instructions of the PSCA. 24. The PSCA Act of 2016, EDR-16, and the SOPs serve as regulatory framework for the PSCA to share the information it gathers. Notably, they do not prohibit the PSCA from sharing with the accused or the complainant party in a criminal case. Instead, they only establish procedural protocols and streamline the process to ensure that access is granted in a manner that prevents misuse and does not impede ongoing investigations. In Pakistan Fisheries Ltd., Karachi and others v. United Bank Ltd. (PLD 1993 SC 109), the Supreme Court of Pakistan stated: "It is a fundamental rule that where an enactment creates a new jurisdiction and prescribes the manner in which that jurisdiction is to be exercised and further specifies the remedy, such remedy is exclusive, and the party aggrieved of an order made in exercise of that jurisdiction must seek only such remedy and not others." 25. Mr. Ali has failed to persuade this Court that PSCA Act of 2016, EDR-16, or the SOPs contain anything that violates the Petitioner's rights under Article 19A of the Constitution - so far as this case is concerned. 26. In view of the above, if an officer investigating a case requires CCTV footage from the PSCA systems or '15' call data record, he may apply to PSCA on the EDR Form. On the other hand, if he requires CDRs from any cellular company, he must follow the law elucidated by a Full Bench of this Court in Mst. Saima Noreen v. State and another PLD 2024 Lah. 522. The law regarding probative value of CDRs and the guiding principles for their use in legal proceedings can inter alia be found in the said judgment and the following cases: Ishtiaq Ahmed Mirza v. Federation of Pakistan (PLD 2019 SC 675); Azeem Khan v. Mujahid Khan (2016 SCMR 274); Mian Khalid Perviz v. The State and another (2021 SCMR 522); Shameem Bibi v. The State and others (2022 SCMR 2077); Rashed alias Chand and others v. The State (2022 PCr.LJ 664) and Noor Ahmed alias Ahmed Agha v. The State (2022 PCr.LJ 1126). 27. The Petitioner's applications to Respondents Nos.1 and 2 were not maintainable for two reasons: first, they were on plain papers and not in the prescribed form (EDR Form); secondly, under Regulation 9(1), the PSCA is not authorized to entertain requests from private persons for the provision of any data. Only investigating officers, LEAs, courts, tribunals, or other authorized persons may collect specific data for a particular purpose in matters under inquiry or investigation or cases pending adjudication. Therefore, the PSCA rightly declined the Petitioner's request vide letter dated 19.10.2023. 28. Confronted with the above situation, Mr. Ali sought to invoke the Information Act of 2013 to assert the Petitioner's right to have the data in question. The Additional Advocate General responds
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that the PSCA Act of 2016 would prevail over the Information Act as it is a special law. I am inclined to agree with her. The 2013 Act deals generally with the right to information. The following excerpt from Allahabad Bank v. Canara Bank and another [(2000) 4 SCC 406], decided by the Indian Supreme Court, is instructive: "At the same time, High Courts have rightly held that the Companies Act is a general Act and does not prevail under the RDB Act [Recovery of Debts due to Banks and Financial Institutions Act, 1993]. They have relied upon Union of India v. India Fisheries [1965 (3) SCR 679]. There can be a situation in law where the same statute is treated as a special statute vis-a-vis one legislation and again as a general statute vis-a-vis yet another legislation. Such situations do arise as held in Life Insurance Corporation of India v. D.J Bahadur [AIR 1980 SC 2181]. It was there observed: "for certain cases, an Act may be general and for certain other purposes, it may be special and the Court cannot blur a distinction when dealing with finer points of law". For example, a Rent Control Act may be a special statute as compared to the Code of Civil Procedure. But vis-a-vis an Act permitting eviction from public premises or some special class of buildings, the Rent Control Act may be a general statute. In fact in Damji Valji Shah and another v. Life Insurance Corporation of India and others (1965(3) SCR 665 = AIR 1965 SC 135 already referred to), this Court has observed that vis-a-vis the LIC Act 1956, the Companies Act, 1956 can be treated as a general statute. This is clear from para 19 of that judgment. It was observed: "Further, the provisions of the Special Act, i.e. LIC Act, will override the provisions of the general Act, viz; the Companies Act which is an Act relating to companies in general". Thus, some High Courts rightly treated the Companies Act as a general statute, and the RDB Act as a special statute overriding the general statute. Special law versus special law: Alternatively, the Companies Act, 1956 and the RDB Act can both be treated as special laws, and the principle that when there are two special laws, the latter will normally prevail over the former if there is a provision in the latter special Act giving it overriding effect, can also be applied. Such a provision is there in the RDB Act, namely, section 34." 29. Even if it is assumed that the Information Act of 2013 is not a general law and both it and the PSCA Act of 2016 are special laws, the latter would take precedence as it was enacted subsequently. There is no clause in either statute giving it an overriding effect. Reliance is placed on Solidaire India Ltd. v. Fairgrowth Financial Services Ltd. and others (2001) 3 SCC 71. 30. It is noteworthy that section 13(1) of the Information Act of 2013 places certain restrictions on the disclosure of information by the provincial bodies.[4] According to clause (0 of section 13(1), information required by an individual may be refused if deemed necessary for the administration of justice. This clause is quite expansive and can be invoked to reject the Petitioner's direct request for the data, requiring her to approach through the Investigating Officer. 31. According to Paul B. Weston et al., "criminal investigation is a lawful search for people and things useful in reconstructing the circumstances of an illegal act or omission and the mental state accompanying it. It is probing from the known to the unknown, backward in time, and its goal is to determine the truth as far as it can be discovered in any post-factum inquiry.[5] Article 4 of the Constitution states that enjoying the protection of the law and being treated in accordance with the law is the inalienable right of every citizen, wherever he may be, and of every other person currently within Pakistan. Article 10A essential to the right to life and personal liberty.[6] It is a minimum requirement of the rule of law[7] and necessary to ensure the integrity of the criminal justice system. 32. Section 4(1) Cr.P.C. gives a statutory definition of the term "investigation", stating that it encompasses all the proceedings under the Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) whom a Magistrate authorizes for this purpose. In Kailash Vijayrorgiya v. Rajlakshmi Chaudhuri (2023), the Supreme Court of India noted the investigative process under the Code generally consists of the following steps: (a)
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proceeding to the scene of the incident; (b) establishing the facts and circumstances surrounding the case; (c) identifying and apprehending the suspected offender; (d) collecting evidence relevant to the alleged offence, which may involve examination of various persons, including the accused, and documenting their statements if deemed necessary by the investigating officer; (e) conducting searches at relevant locations and seizing items deemed necessary for the investigation and potential trial; and (f) forming an opinion based on the collected evidence as to whether there are sufficient grounds to bring the accused before the Magistrate for trial, and if so, taking the necessary steps such as filing a report under section 173, Cr.P.C. 33. In Vinay Tyagi v. Irshad Ali alias Deepak and others [(2013) 5 SCC 7621, the Supreme Court of India explained that in criminal jurisprudence, the expression "fair and proper investigation" connotes two things: firstly, the investigation should be honest, unbiased and in accordance with law, and secondly, the entire emphasis should be to dig out the truth and bring it before the court of justice. Rule 25.2(3) of the Police Rules, 1934, embodies this principle. It states that it is the duty of an investigating…
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