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Petitioner: Brig. (Retd.) IMTIAZ AHMAD VS Respondent: GOVERNMENT OF PAKISTAN through Secretary, JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Fazal Karim, Sajjad Ali Shah, Muhammad Munir Khan Title:Brig. (Retd.) IMTIAZ AHMAD vs GOVERNMENT OF PAKISTAN through Secretary,
JUDGMENT
Reported As: 1994 SCMR 2142 Result: Petition dismissed Judgment JUDGMENT ' FAZAL KARIM, J.--This petition for leave to appeal under Article 185(3) of the Constitution comes from the judgment of the Lahore High Court, Lahore (Khalil-ur-Rehman Khan and Tanvir Ahmed Khan, JJ.) dated 13-4-1994 passed in an Intra-Court Appeal under section 3 of Law Reforms Order, 1974 whereby the appeal of the petitioner Brig. (Retd.) Imtiaz Ahmad against the judgment of a learned Judge in Chambers (Zia Mahmood Mirza, J. As he then was) dated 20-3-1994 was dismissed. The learned Judge in Chambers had by that judgment dismissed the petitioner's application under Article 199 of the Constitution. 2. The petitioner retired from the Army as a Brigadier. He was then employed on contract as Director, Intelligence Bureau, in which capacity he served from December, 1990 to March, 1993. His case as laid in his application under Article 199 of the Constitution (Writ Petition) was that the leadership of the Pakistan People's Party were annoyed with him as they thought that he had master-minded the formation of the Islami Jamhuri Ittihad and had played an important role in destabilizing their Government. When the Pakistan People's Party came into power in November, 1993, the Prime Minister of Pakistan issued a directive that disciplinary and criminal proceedings be initiated against the petitioner, inter alia, for misuse of secret funds and abuse of powers to consolidate the previous Government. Accordingly a Special Enquiry Team headed by the respondent, Additional Director-General, F.I.A., Mr. Masood Sharif, was set up which Team after holding a full-fledged. Enquiry at the back of the petitioner submitted a report to the Prime Minister. It was said that on the basis of that report, orders for the registration of criminal cases against the petitioner had been issued; from a report appearing in the daily "The News" dated 25-9-1994 he
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learnt that a criminal case had been directed to be registered against him, among others, on the following grounds:-- "(i) Embezzlement of huge sums of money through bogus entries of Purchase Orders for Furniture and other items of office equipment; (ii) misuse of secret service Zakat and Baitul-Maal Funds to serve the political interest of the former Prime Minister Mr. Nawaz Sharif; (iii) accepting Rs,6 lacs every month from Mr. Shahbaz Sharif in return for providing him information about secret meetings of the Opposition Political Parties from time to time. Allegations are also included regarding the petitioner having tapped the Telephones of political personalities and leaders." ' The petitioner feared that he would be involved in all kinds of criminal cases; as a first step his name had been brought on the Exit Control List and he had also been placed under round-the- clock surveillance. These stamps, it was the petitioner's case, were violative of his Fundamental Right of liberty. His case also was that under the instructions dated 9-3-1975 issued under the F.I.A. Act, 1975, the power to order the registration of a case vests in the competent authority namely the Anti-Corruption Council but the competent authority had in his case been ignored and the order had been obtained from the Prime Minister directly "who has no lawful authority to issue any such order". The petitioner had thus been denied the opportunity to show cause against the registration of criminal cases and this was in violation of para. 6(a) of the said Instructions. The criminal proceedings against the petitioner, so went the allegations, were mala fides. He, therefore, sought the following declarations and directions:-- (i) On all charges relating to financial irregularities/corruption, the respondents are under a legal duty to initiate criminal proceedings in accordance with Instructions dated 5-3-1975 which have the force of law. (ii) Respondent Government is under a legal duty to exclude from consideration any Orders issued by the Prime Minister of Pakistan relating to registration of criminal case/cases against the petitioner. It is the Anti-Corruption Council which alone is the competent authority for the purpose of the Special Statute in question. (iii) In a situation where a decision was taken not to register a criminal case straightaway but to hold an enquiry, the Respondent Agency was under a legal duty to obtain an explanation from the petitioner before taking any concrete step in investigation such as arrest and to place all the relevant material before the competent authority to enable it to arrive at a conclusion after independent application of mind as to whether or not to initiate criminal proceedings. (iv) In the peculiar facts of the instant case and in particular the decision already made by the Prime Minister to register a criminal case against the petitioner, the only adequate relief available to him now is for the respondent Government to place all incriminating material before the High Court to enable it to exercise judicial review to ensure that criminal proceedings are not being initiated' for reasons and purposes extraneous to Statute. (V) Initiation of all criminal proceedings against the petitioner is ascribable to mala tides on the part of prominent leaders of the Political Party which is currently in control of the Federal Government. (vi) The Special Investigation Team headed by respondent Masood Sharif had no lawful authority to conduct any investigation enquiry directly on the Orders of the Prime Minister and to submit Report directly to her in contravention of the established provision. The petitioner has been treated with discrimination prohibited by the Constitution. (vii) Placement of the petitioner on the Exit Control List is an act without lawful authority. (viii) Fundamental Right of the petitioner to freedom of movement has been violated in the manner in which he has been virtually held a prisoner against his volition.
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(ix) There is no lawful authority for the manner in which all his telephones are being monitored and his private conversations tapped either by the respondent Agency or by some other functionaries acting at the behest of the respondent Government. "DIRECTIONS: (i) Respondent Government be. Directed to exclude from consideration the orders issued by the Prime Minister of Pakistan to initiate criminal proceedings against the petitioner. These are contrary to law. (ii) Respondent Government be directed to exclude from consideration all findings/conclusions/reports prepared by respondent Masood Sharif in relation to the petitioner on the charges as reported in Media. (iii) In the peculiar circumstances of this case where Prime Minister has already indicated her mind and resolve at a previous stage, respondent Government be restrained from registering any criminal case against the petitioner unless High Court has had an opportunity to exercise its Constitutional jurisdiction to conduct a judicial review of any decision taken in accordance with the prescribed procedure to ensure that it has not been taken for reasons and purposes extraneous to the Statute. (iv) In any case, respondent Government be restrained from withholding or abridging the opportunity available to other similarly situated public servants from the petitioner to approach and seek relief from ordinary Courts of Law including pre-arrest bail. Copies of all F.I.Rs, registered against the petitioner be made available to enable him to seek such relief. (v) Respondent Government be directed to delete the name of the petitioner from the Exit Control List. (vi) Respondent Government be directed to forthwith terminate the surveillance placed on the petitioner. (vii) Respondent Government be directed to stop tapping all relevant telephones of the petitioner and destroy the record of all private conversations obtained through such monitoring. (viii) Any other relief deemed appropriate to the peculiar facts of this case be also afforded to the petitioner." 3. Before the learned Judge in Chambers, an Assistant Director, F.I.A., appeared and stated that a case under sections 201, 409, 468, 471 and 109, P.P.C. Read with section 5 of the Prevention of Corruption Act II of 1947 had been registered against the petitioner on 16-3-1994, the allegations being that he had misused and misappropriated as much as Rs,22 millions from the Secret Service Fund and had destroyed the incriminating evidence Against him. The Assistant Director stated further that one Col. Ikram Ullah had already been arrested. 4. The main attack of learned counsel for the petitioner before the learned Judge in Chambers was to the validity of the registration of the criminal case and the basis of that attack were the "Instructions Regarding investigation of cases of bribery and corruption by the Federal Investigating Agency". (The Instructions). It was contended that after the F.I.A. Had held a preliminary enquiry into the allegations of bribery and corruption, it was required under paragraphs 4 and 7 of the Instructions to obtain the explanation of the petitioner and then refer the matter to the competent authority namely the Anti-Corruption Council for its concurrence to the registration of the case and that course had not been followed and the case had been registered on the order of the Prime Minister. On being asked by the learned Judge in Chambers, the Assistant Director, F.I.A., who was present in the Court, stated that there was no order on the file for the registration of the case against the petitioner, and that the case had been registered on the complaint received from the Intelligence Bureau. The learned Deputy Attorney-General who appeared for the respondents was of the view that the Instructions had no statutory force and in any case they applied to serving officers. 'The learned Judge in Chambers agreed with the learned
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Deputy Attorney-General that the Instructions were "intended to apply only to the Officer who was in actual service and not to those who are no more in service even though the enquiry or the proceedings initiated are relatable to the acts committed by them when in service". This view, so held the learned Judge in Chambers, was "further reinforced by the proviso to para. 4 which states that the reference to the competent authority shall not be necessary in the case of those Government servants who are not governed by section 197, Cr.P.C." That view received support from "Hamed Ghulam Sadiq v. Pakistan and others " (PLD 1960 SC (Pak.) 351) and "Kashavlal Mohanlal Shah v. State of Bombay" (AIR 1961 SC 1395)". 5. As to the allegation that the petitioner's telephones were being regularly tapped the Assistant Director, F.I.A., so observed the learned Judge in Chambers, "vehemently controverted this allegation and stated categorically that F.I.A. Has not tapped the petitioner's telephones". "The allegation having been denied", so held the learned Judge in Chambers, "cannot be gone into in these proceedings". In the view of the learned Judge in Chamber, therefore, the writ petition had no merit. 6. Before the learned Judges who heard the Intra-Court Appeal, the main grievance of the petitioner's counsel was that "that learned Single Judge despite noting in the judgment the declaration sought and directions prayed for in the writ petition failed to deal with the same except the question of applicability of Instructions dated 5-3-1975 regarding investigation of cases of bribery and corruption by the Federal Investigating Agency (Annexure II to the writ petition). "Another grievance made was that the learned Judge in Chamber had said nothing "about the tapping of phones by the other agencies (that is agencies other than the Federal Investigating Agency)". Before the learned Judges, the learned Advocate-General and the learned Deputy Attorney-General stated "that the Prime Minister has neither passed any order nor issued any direction to any agency to involve the appellant in criminal cases nor any agency of the Federal Government is tapping the phones of the appellant nor there is any order passed regarding surveillance of the appellant and as such the right of freedom of movement of the appellant has not been infringed except to the extent that he is wanted in case F.I.R. No, 4 registered with F.I.A/S.I.U., Islamabad and another case registered vide F.I.R. Dated 2-3-1994 for offences under sections 382/452/506 and 109, P.P.C. With police of Police Station Aabpara, Islamabad. They further stated that except for aforenoted two criminal cases no other criminal case has been registered against the appellant". 7. Regarding "the placement of appellant's name on the exit control list", the fact was confirmed but it was stated that "the appellant can move for review under section 3 of the Exit from Pakistan Control (Ordinance), 1981 and such a review/representation, if made, will be dealt with in accordance with law". The learned Law Officer also stated that the inclusion of the name of the appellant in that list was prima facie justified "as case of embezzlement of colossal amount stands registered against him". The learned Advocate-General also informed the learned Judges "that the accusation which are the basis of the F.I.R. Registered with F.I.A. Would be furnished to the appellant so as to provide him opportunity to explain his position to the said accusation and that this opportunity is being granted without conceding any such right being claimed under the instructions dated 5-3-1975". 8. In view of these statements and assertions, the learned Judges did not deem it necessary to deal "with the declarations and the directions sought respecting the placement of the appellant on the exit control list. The plea regarding tapping of phones; alleged direction/order of the Prime Minister to initiate criminal proceedings against the appellant and to exclude from consideration the alleged report prepared by Mr. Masood Sharif regarding embezzlement/defalcation in relation to the appellant as it was stated that no such report has been prepared by Mr. Masood Sharif and
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his placement under surveillance need not be dilated upon as all these have categorically been denied/controverted by the learned Law Officers". 9. Dealing with the question whether the Instructions dated 5-3-1975 applies to the petitioner and whether the petitioner can claim that the accusation contained in F.I.R. No, 4 can only be scrutinized by a Parliamentary Committee and cannot be subject-matter of the inquiry under the ordinary criminal law, the learned Judges found that the view taken by the learned Judge in Chambers was supportable on the authority of the precedent cases "Ataur Rahman v. The State" (PLD 1967 Supreme Court 23) and "Keshavlal Mohanlal Shah v. State of Bombay" (AIR 1961 Supreme Court 1395). They went on to observe that the petitioner's counsel "has not followed the line of arguments advanced before the learned Single Judge" and what he argued was that "Instructions provide salutary rule of principle of natural justice of allowing opportunity of hearing and explanation to the accusation. Such an opportunity cannot be denied to the appellant merely for the reason that he stands retired from Government service or is no more holder of the public office". This argument, so held the learned Judges, was "totally devoid of any force". If "this plea on its face value is accepted then no criminal case can be registered against any one without calling the explanation in advance". Learned counsel for the petitioner then relied upon the observations contained in para. 30 of this Court's judgment in "Khawaja Ahmad Tariq Rahim v. The Federation of Pakistan" (PLD 1992 Supreme Court 646). These observations, so held the learned Judges, were made with respect to utilisation of secret funds by the Prime Minister/Ministers and it was observed that action for misuse or defalcation of such funds should be before a Committee specially constituted by Parliament for this purpose, or before a Tribunal constituted for this specific purpose by law, whose proceedings are held in the strictest secrecy. The Prime Minister or any Minister utilising such funds is bound by his or her oath of secrecy not to divulge the nature or its use or appropriation. If the uses were disclosed, it could lead to disaster and whether they were true or false, how they could be veriled". In the view of the learned Judges the above referred to observations of this Court did not apply to an Officer of Intelligence Bureau, "as according to their own Code, they are supposed to maintain proper record and accounts of the funds utilised. These accounts are to be audited periodically while the utilisation of funds by the Prime Minister or Minister are to be dealt with under separate instructions". It was for the maintenance of secrecy regarding the utilisation of these funds that "details of the defalcation of funds was not given in the and "after enquiry if the prosecution comes to the conclusion that a case worth trial is made out then request to hold the proceedings in camera can be made". The learned Judges were not prepared to accept the plea that "utilisation of funds by the officers of Intelligence Bureau amounts to an act of State and that act of State cannot be subjected to municipal law". In the present dispensation, accountability of public servants, so observed the learned Judges, "cannot be made beyond the reach of law specially in view of the judgment in the case of "Federation of Pakistan v. Zafar Awan, Advocate High Court" (PLD 1992 Supreme Court 72)". 10. The learned Judges were, therefore, of the view that the petitioner should avail himself of the opportunity of furnishing explanation before the Federal Investigating Agency. They had no doubt in their mind that "the officers of the F.I.A. Will abide by the undertaking given by the learned Advocate-General on their behalf in letter and spirit". 11. We have thought it necessary to notice the points raised before the learned Judge in Chamber and the learned appellate Judges and the treatment that was accorded to them at some length, for one of the arguments before us was that the points raised in the writ petition were important questions of law but they were not properly disposed of. We have seen that although the writ petition was a lengthy document, yet the only point learned counsel for the petitioner thought it worth his while to raise before the learned Judge in Chamber was the applicability of the Instructions and the effect of their non-compliance. The judgment of the learned Judge shows that
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point received a detailed consideration. Similarly, the learned appellate Judges noted all the points canvassed before them and gave them such consideration as they deserved. The judgments of the learned Judges in the High Court cannot, therefore be faulted on that score. 12. The power under Article 199 of the Constitution is the power of judicial review. That power "is a great weapon in the hands of Judges, but the Judges must observe the Constitutional limits set by our parliamentary system on their exercise of this beneficial power, namely, the separation of powers between the Parliament, the Executive and the Courts". (Lord Scarman in Nottinghamshire C.C. v. Secretary of State (1986) (All ER 199, 204). Judicial review must, therefore, remain strictly judicial and in its exercise, Judges must take care not to intrude upon the domain of the other branches of Government. As was succinctly put by Hamoodur Rahman, J. (as he then was) in Mir Abdul Baqi Baluch v. The Government of Pakistan (PLD 1968 SC 313, 324), under a Constitutional system which provides for judicial review of executive actions:- "It is, in my opinion, a fallacy to think that such a judicial review must be in the nature of an appeal against the decision of the executive authority. It is not the purpose of judicial authority reviewing executive actions to sit on appeal over the executive or to substitute the discretion of the Court for that of the administrative agency." 13. Tliis, we should think, is trite law. Viewed in this light, the judgments of the learned Judges in the High Court appear to us to be instances of that judicial restraint which is so essential "to the continuance of rule of law", "for the continued public confidence in the political impartiality of the judiciary" and the voluntary respect for the law as laid down and applied by the Courts. (See Duport Steels Ltd. v. Sirs (1980) 1 All ER 529). 14. The starting point of the examination of the legal questions canvassed by the petitioner's counsel must be the important fact that the stage at which the petitioner thought it proper to invoke the High Court's jurisdiction under Article 199 of the Constitution was the stage of registration of criminal cases against him. The effect of the registration of a case is to set in train an investigation by the police in accordance with law . As was said in "Norwest Holst Ltd. v. Department of Trade and others (1978) 3 All ER 280 at 290): "In every investigation .... There are by and large three different phases. First of all, the administrative phase; next, the, judicial phase; and, finally, the executive phase when the orders of the Court or the Tribunal are, if necessary, executed or promulgated. Quite plainly fairness to the suspect .... Demands that he should be given a chance of stating his case before the final period: the execution Equally fairness demands that the suspect shall be given a chance of putting his side of the case before the judicial inquiry is over. .., But on the other side, and the other side are entitled to fairness just as the suspect is, fairness to the inquirer demands that during the administrative period he should be able to investigate without having at every stage to inquire from the suspect what his side of the matter may be. Of course it may be difficult to find out the particular point at which the administrative phase ends and the judicial phase begins...." ' To quote a passage from Lord Reid's speech in "Wiseman v. Borneman" ((1971) AC 297, at 308):-- "Every public officer who has to decide whether to prosecute or raise proceedings ought first to decide whether there is a prima facie case, but no one supposes that justice requires that he should first seek the comments of the accused or the defendant on the material before him. So there is nothing inherently unjust in reaching such a decision in the absence of the other party." 15. There is then the question of the High Court's jurisdiction to interfere in these matters under Article 199 of the Constitution. It is to be noted that the reliefs that the petitioner seeks fall under clause (1), sub-clause (a) (i) and (ii) of Article 199 of the Constitution. The jurisdiction which the High Court exercises under sub-clause (a) (ii) of clause (1) of Article 199 of the Constitution is the jurisdiction to declare that "any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province
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or a local authority has been done or taken without lawful authority and is of no legal effect". This was the writ jurisdiction which was conferred upon the High Courts in Pakistan for the first time in 1954 by section 223-A of the Government of India Act, 1935, which Act then served as the Constitution of Pakistan. As was said by Kaikaus, J. In Jamal Shah's case (PLD 1966 SC 1, p.50) a suit asking for a declaration that the order in question is without jurisdiction and as such a nullity is like proceedings under Article 98 of the then Constitution, in so far as that Article empowers the High Courts to declare an act or proceedings to have been done or taken without lawful authority and to be of no legal effect. In "Imperial Tobacco Ltd. And another v. Attorney-General" (1981 AC 718), the plaintiffs, tobacco manufacturers, started a "Spot Cash" advertising scheme and inserted some 260,000,000 "Spot Cash" cards into cigarette packets which were then sold at the same price as before the scheme started. After the scheme had been started, the Director of Public Prosecutions who considered that the scheme was illegal, had summonses issued by the Nottingham justices against the plaintiffs and four of their directors or managers alleging that in furtherance of the scheme they had distributed tickets in an unlawful lottery contrary to section 2(1) (b) of the Lotteries and Amusements Act, 1976. The plaintiff brought an action claiming a declaration that the scheme was lawful and did not contravene the provisions of the Act of 1976 as being either a lottery or an unlawful…
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