Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Official Citation: 2024 PCRLJ 1903
Court / Jurisdiction: Lahore High Court
Year of Decision: 2023
Decision Date: 2023-05-05
Parties: Ch. Fawad Ahmad and others vs Government of the Punjab and others
Ruling Summary: This decision was rendered by the Lahore High Court on 2023-05-05, officially reported as 2024 PCRLJ 1903. In this matter between Ch. Fawad Ahmad and others 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 2024 PCRLJ 1903
Court Name: Lahore High Court Judge(s): Tariq Saleem Sheikh, Farooq Haider, Muhammad Amjad Rafiq Title: Ch. Fawad Ahmad and others vs Government of the Punjab and others Case No.: Writ Petition No. 24153/2023 Date of Judgment:2023-05-05 Reported As: 2023 LHC 3967, 2024 PCRLJ 1903 Result: Petition Dismissed
JUDGMENT
JUDGMENT Tariq Saleem Sheikh, J. - By this consolidated judgment, we shall decide Writ Petition No.24153/2023 and 22880/2023 as a common thread weaves through them. The factual background 2. Pakistan has been in the grip of the most serious political crisis in its history for over a year. In a turn of events, Pakistan Tehreek-e-Insaf (PTI), which was in power in the Punjab and Khyber Pakhtun Khawa, dissolved the provincial assemblies. PTI says that the Caretaker Cabinets installed under Article 224(1A) of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), and the Federal Government run by Pakistan Democratic Movement (PDM), a coalition of 11 political parties, have joined hands to crush it. According to the Petitioners, the Caretakers and the Federal Government have filed a string of false cases against the PTI's leadership across the country, most notably its Chairman, Imran Ahmad Khan Niazi. The party's top leadership, workers and activists are harassed, arrested and humiliated. 3. The general elections for the Punjab Assembly are scheduled for 14.5.2023. PTI planned to take out a rally on 8.3.2023 after following legal formalities but, according to it, the administration was bent upon interrupting it and imposed restrictions under section 144 Cr.P.C. PTI challenged that action of the administration in this Court through Writ Petition No. 16122/2023. During the proceedings, the Caretakers realized their mistake and withdrew their notification imposing section 144 Cr.P.C. in the city upon which the Court disposed of the said constitutional petition vide Order dated 9.3.2023. 4. The PTI workers were fully charged because of the above mentioned and other events in the country over the last year, including an assassination attempt on Imran Khan on 3.11.2022. Meanwhile, the Additional Sessions Judge, Islamabad (West), issued non-bailable warrants of arrest against Imran Khan in a case he was hearing. On 18.3.2023, the police arrived at Imran Khan's residence in Zaman Park, Lahore, to execute the warrant. The PTI workers obstructed and battled with them. The city - and the world - saw ugly scenes for the next three days until this Court intervened in Writ Petition No. 17692/2023.
---
## Page 2
Many people were injured, and many private and public properties were destroyed. At least one person, Zille Shah, was killed. There were allegations and counter-allegations. The police registered several FIRs regarding the occurrences during the aforementioned period. PTI also filed applications under section 22-A(6) Cr.P.C. before the Ex-officio Justice of Peace for registration of FIRs/cross-versions against the members of the administration and the police top brass. There were loud demands for justice. In this background, on the request of the Inspector General of Police, Punjab, vide Order dated 22.3.2023, the Home Department constituted a Joint Investigation Team (JIT) to investigate ten FIRs. The said order is Appendix-I of this petition. 5. The Petitioners in the petitions before us are senior politicians holding high positions in PTI. They are either named in the FIRs mentioned in the Order dated 22.3.2023 or are apprehensive that they would be roped in during the investigation. The JIT has issued them notices under section 160 Cr.P.C. By this petition under Article 199 of the Constitution, they have challenged the legality of the Order dated 22.3.2023 (the "Impugned Order"), and seek quashing of the JIT's proceedings. The submissions 6. Advocate Sikandar Zulqarnain Saleem contends that, firstly, the concept of JIT violates both the rules of justice and the fundamental rights guaranteed by the Constitution. Secondly, the Provincial Government can form a JIT under section 19 of the Anti-Terrorism Act, 1997 (the "ATA") only to investigate the offences under that Act. Although the Government accuses the Petitioners and other members/workers of PTI of terrorism, the contents of the FIRs listed in the Impugned Order do not disclose such an offence under the criteria laid down by the Supreme Court of Pakistan in Ghulam Hussain and others v. The State and others (PLD 2020 SC 61). Hence, including section 7 of the ATA in the FIRs is illegal and mala fide. Thirdly, the Government did not follow the prescribed procedure while issuing the Impugned Order. The Additional Chief Secretary (Home) issued it without the approval of the Punjab Provincial Cabinet which was mandatory. Fourthly, the JIT cannot undertake an impartial and independent investigation because two of its members (Imran Kishwar/SSP and Aftab Phularwan/SP) are subordinates of the Inspector General of Police and the Capital City Police Officer, Lahore, whom the PTI blames for Zille Shah's murder. The party has initiated proceedings under section 22-A Cr.P.C. against them. 7. The Respondents have strongly opposed these petitions. They argue that JIT is a globally recognized concept which Pakistan adopted in section 19 of the ATA. It does not offend any constitutional provision or infringe any individual's fundamental rights. The Respondents claim that the violence starting 22.2.2023 caused a huge loss. It damaged public and private property worth crores of rupees, injured tens of police personnel, and killed at least one person. During the police's attempt to execute non- bailable warrants issued by the Islamabad Sessions Court against Imran Khan, the PTI workers threw petrol bombs at them, which under no circumstances can be justified. The Respondents contend that the Petitioners and those accused in the FIRs have an adequate and efficacious remedy before the Anti- Terrorism Court (ATC) under section 23 of the ATA. Hence, these petitions are not maintainable. Even otherwise, they are premature because the probe is in its early stages. The evidence gathered during the investigation would determine whether the accused are liable to be prosecuted under section 7 of the ATA. The Respondents submit that there is no procedural irregularity in the constitution of the JIT, and the allegation that its members are not independent and impartial is false. Notice under Order XXVII-A CPC 8. This Court admitted these petitions to regular hearing vide Order dated 12.4.2023 and framed four questions of law for determination. Since they required interpretation of the Constitution and the statutory laws, it issued a notice under Order XXVII-A CPC to the Attorney General for Pakistan and the Advocate General Punjab. It also sought assistance from the Prosecutor-General Punjab. For this purpose, it issued him a separate notice with a direction to present his viewpoint personally. 9. As adumbrated, four questions of law were framed originally, but during the hearings, a couple of additional/supplementary questions were deliberated. Therefore, we would also address them in this judgment.
---
## Page 3
10. Mr Shan Gul, Advocate General Punjab, questioned the maintainability of these petitions. He submitted that they were barred due to the principle of ripeness and because the Petitioners had an adequate alternative remedy before the ATC under section 23 of the ATA. The Advocate General contended that the Petitioners' objection to the formation of JIT was misconceived. It was legal under the Constitution and the statutory law (the ATA) and did not infringe on anybody's fundamental rights. It would rather help foster justice. Mr Gul further contended that under section 19 of the ATA, the Provincial Government has the authority to form a JIT for investigating an offence which is evident from the words "if the Government deems necessary". Since it is purely an administrative act, the Petitioners cannot challenge it, and it is not subject to judicial review. Furthermore, any intervention by this Court would amount to interference in the investigation, which the law strictly prohibits. Mr Gul stated that the Government meticulously followed the prescribed procedure while setting up the JIT for the ten cases registered between 22.2.2023 and 19.3.2023 against the PTI leadership and workers and emphasized that the Impugned Order was unexceptionable. He also submitted documents to substantiate this plea. Mr Gul finally argued that the JIT consisted of honest, upright, competent senior officers. The criticism about including Imran Kishwar/SSP and Aftab Phularwan/SP in the JIT was unfounded. Their nomination could not be challenged just because they were subordinate to the Inspector General of Police, one of the accused in the PTI's estimation. There must be something more to block them. 11. Mr A.D. Naseem, Deputy Attorney General, adopted the Advocate General's arguments. The submissions of the Prosecutor General Punjab 12. Ch. Khaliq-uz-Zaman, Prosecutor General Punjab, made oral and written submissions. He argued that the Provincial Government had the authority to form a JIT under section 19 of the ATA, but it could only be for the offences under that Act. The police had included section 7 of the ATA in the subject FIRs in derogation of the law enunciated by the Supreme Court in Ghulam Hussain and others v. The State and others (PLD 2020 SC 61). It was, therefore, liable to be deleted. Once that is done, the legal basis for forming the JIT fades away, and the Impugned Order falls to the ground. The Prosecutor General submitted that, in his opinion, the writ petitions at hand were maintainable and this Court could grant the Petitioners the relief they had prayed for. 13. Ch. Khaliq-uz-Zaman's response evoked a strong reaction from the Advocate General. He argued that he was appointed during the PTI regime and had a tilt towards it. His views conflicted with the Punjab Government's position and urged this Court to disregard them. 14. On 20.4.2023, in pursuance of the decision of the Provincial Caretaker Cabinet taken in its 14th Meeting held on 20.4.2023, the Punjab Government restrained Ch. Khaliq-uz-Zaman from appearing in any court on its behalf. Confronted with this situation, he filed C.M. No.4/2023 in W.P. No.24153/2023 claiming that he had a statutory right of audience under section 6(6) of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 (the "PCPS Act"). Although he did not expressly request it, he wanted this Court to disregard the Cabinet's decision of 20.4.2023 and consider his submissions. This Court issued notice to the Punjab Government on this application and directed it to submit a reply, which it did. 15. The Advocate General vehemently opposed the above mentioned application contending that the Prosecution Service is an attached department of the Punjab Government and is under its control and administration under Serial No. 32 of the First Schedule of the Government of the Punjab Rules of Business, 2011. All members of the said Service, including the Prosecutor General, are obliged to conduct their public duties according to the Government's instructions. The Advocate General further contended that the Prosecutor General had no authority to add or delete any section from the FIR. 16. In view of the above, the issue regarding the nature and scope of the duties and powers of the Prosecutor General Punjab has also come into focus. Therefore, this judgment shall also decide it. Opinion 17. The Respondents have objected to the maintainability of these petitions. We take up this issue first. Maintainability
---
## Page 4
18. The Petitioners have challenged the formation of the JIT on both constitutional and statutory planes. In many ways, it is a case of first impression that requires a thorough examination of the law that is possible by a Constitutional Court. Therefore, we hold these petitions maintainable. 19. We must, nevertheless, make a point. Section 6 of the ATA, which defines "terrorism" has been amended from time to time. Hence, the criteria for classifying an act as terrorism has been changing. In Ghulam Hussain and others v. The State and others (PLD 2020 SC 61), a 7-member Bench of the Supreme Court of Pakistan observed that, at one stage, the legislation focused on the gravity of the crime, the deadly nature of the weapon used, the number of perpetrators, the number of victims, the impact created by the offence, and the fear and insecurity that it caused or was likely to generate in the community. The latest definition is consistent with the international perception. The previous emphasis on the act's speculative effect has given way to a clearly defined mens rea and actus reus. The amended section 6(1)(b) now specifies the "design", and section 6(1)(c) earmarks the "purpose," which should be the motivation for the act. The actus reus has been explicitly mentioned in section 6(2)(a) to (n). As a result, an action can only be characterized as "terrorism" when the actus reus specified in section 6(2) is accompanied by the mens rea required by section 6(1)(b) or 6(1)(c). The fear or insecurity actually created, intended to be created, or likely to be created no longer determines whether an action qualifies as terrorism. The determinative factor now is the intent and motivation behind the action, regardless of whether any fear and insecurity were actually caused. Following the most recent amendment to section 6, an action is reckoned as terrorism if it "is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect" or if such action is intended to "create a sense of fear or insecurity in society" or if it is taken to advance a religious, sectarian or ethnic cause. It is also not terrorism when fear or insecurity is just a byproduct, a spillover, or an unintended consequence of a private act. In paragraph-16 of the judgment, the Supreme Court concluded: "... [F]or an action or threat of action to be accepted as terrorism within the meanings of section 6 of the Anti-Terrorism Act, 1997 the action must fall in subsection (2) of section 6 of the said Act and the use or threat of such action must be designed to achieve any of the objectives specified in clause (b) of subsection (1) of section 6 of that Act or the use or threat of such action must be to achieve any of the purposes mentioned in clause (c) of subsection (1) of section 6 of that Act. It is clarified that any action constituting an offence, howsoever grave, shocking, brutal, gruesome or horrifying, does not qualify to be termed as terrorism if it is not committed with the design or purpose specified or mentioned in clauses (b) or (c) of subsection (1) of section 6 of the said Act. It is further clarified that the actions specified in subsection (2) of section 6 of that Act do not qualify to be labeled or characterized as terrorism if such actions are taken in furtherance of personal enmity or private vendetta." 20. The FIR is essentially an "incident report" which informs the police for the first time that an occurrence involving the commission of a cognizable offence has taken place.[1] Rule 25.3(3) of the Police Rules, 1934, states that the Investigating Officer must find out the truth of the matter under investigation, discover the actual facts, and arrest the real culprits. He cannot commit himself prematurely to any account of the incident, including the one set out in the FIR. Thus, the question whether the offence of terrorism has been committed in a particular case in terms of the law declared by the Supreme Court in Ghulam Hussain is determined on the basis of the evidence gathered during the investigation. The Investigating Agency must have a free hand for this purpose. We agree with the Advocate General that a notice under section 160 Cr.P.C. cannot be challenged under Article 199 of the Constitution before the High Court unless it is patently illegal, mala fide, without jurisdiction or coram non judice. The doctrine of ripeness applies. In Sabira Khatoon v. Government of the Punjab and others [2021 PLC (C.S.) 1600], this Court explained: "Ripeness is a doctrine which courts use to enforce prudential limitations upon their jurisdiction'.[2] It is founded on the principle that judicial machinery should be conserved.[3] It 'reflects concerns that courts involve themselves only in problems that are real and present or imminent'[4] and should not exhaust themselves in deciding theoretical or abstract questions that have no impact on the parties at least for
---
## Page 5
the time being.[5] This doctrine postulates that the 'lawsuit must be well developed and specific and appropriate for judicial resolution. Courts may not decide cases that involve uncertain and contingent future events that may not occur as anticipated, or indeed may not occur at all."[6] 21. Section 23 of the ATA empowers the ATC to transfer cases to regular courts where it is of the opinion that the offence is not a scheduled offence. For ease of reference, section 23 is reproduced below: 23. Powers to transfer cases to regular courts.- Where, after taking cognizance of an offence, [an Anti- Terrorism Court] is of opinion that the offence is not a scheduled offence, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for trial of such offence to any court having jurisdiction under the Code, and the court to which the case is transferred may proceed with the trial of the offence as if it had taken cognizance of the offence. 22. The term "cognizance" in section 23 of the ATA is significant. In Wazir v. The State [PLD 1962 (W.P.) Lahore 405], a Full Bench of this Court ruled that the police report, when received by a Magistrate, does not constitute taking cognizance by itself. There should be something more to establish that the Magistrate intends to begin the proceedings. He may keep the case waiting until the sanction arrives, then pass some order indicating his intention to hold the trial. In Abdul Aziz v. Muhammad Ashraf and others (PLD 1973 Lahore 304), it was held that a court takes cognizance through a judicial action, which does not have to be formal. It occurs whenever the court applies its mind to the suspected commission of the offence, as disclosed in the police report or the private complaint, to proceed in a specific manner following the provisions of the Code of Criminal Procedure, 1898 (hereinafter referred to as the "Code or Cr.P.C.") for holding an enquiry or a trial, as the case may be. In Haq Nawaz and others v. The State and others (2000 SCMR 785), the Supreme Court of Pakistan held: "Taking cognizance of a case by the court is the first step, which may or may not culminate into the trial of the accused. The trial in a criminal case, therefore, does not commence with the taking of the cognizance of the case by the court. A careful examination of the above provisions in the Code makes it clear that until charge is framed and copies of the material (statement of witnesses recorded under sections 161 and 164 Cr.P.C., inspection note of the first visit to the place of occurrence and recoveries recorded by investigating officer, if the case is initiated on, police report, and copies of complaint, other documents filed with complaint and statements recorded under section 200 or 202 if it is a case upon complaint in writing) are supplied to accused free of charge and he is called upon to answer the charge." 23. In a nub, the court is said to have taken "cognizance of the case" when it applies a conscious mind and takes positive steps indicating that it will try the case after receiving the challan and the materials attached to it by the prosecution. Such steps may not be documented as judicial orders. What is important is that the orders so passed or actions taken signal that the court intends to proceed with the trial.[7] 24. In Ali Gohar and others v. Pervaiz Ahmed and others (PLD 2020 SC 427), the Supreme Court defined the scope of section 23 of the ATA as follows: i) Both, the Administrative Judge and any other ATC to whom the case is assigned by the Administrative Judge, after taking 'cognizance of the case', have the authority to transfer the case under section 23 to an ordinary criminal court for trial under Cr.P.C. ii) The authority of ATC to transfer the case under section 23 to an ordinary criminal court for trial under Cr.P.C. can take place after taking cognizance of the case, and this authority to transfer remains with the ATC during the proceedings of the trial till the judgment is announced. iii) The condition precedent for ATC to exercise the authority to transfer the case under section 23 of the Act are: firstly when the ATC takes cognizance of the case; and secondly, if ATC is of the opinion that the offences referred to it for trial does not come within the scope of offences triable under the Act. iv) The words 'cognizance of the case' employed in section 23 of the Act simply means, when the ATC, on receipt of the challan, takes any step indicative of proceeding with the trial.
---
## Page 6
25. Generally speaking, the High Court should not, while exercising jurisdiction under Article 199 of the Constitution, intervene or otherwise comment on the applicability of section 7 of the ATA before the investigation is completed because it may amount to interference in the investigation process, which is not permissible. In Emperor v Khwaja Nazir Ahmed (AIR 1945 PC 18), their Lordships of the Privy Council held: "In their Lordships' opinion, however, the more serious aspect of the case is to be found in the resultant interference by the Court with the duties of the police. Just as it is essential that everyone accused of a crime should have free access to a Court of Justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court." The above view was approved by the Supreme Court of Pakistan in Shahnaz Begum v. The Hon'ble Judges of the High Court of Sind and Baluchistan and another (PLD 1971 SC 677) and in several subsequent cases, including Younas Abbas and others v. Additional Sessions Judge, Chakwal and others (PLD 2016 SC 581). 26. We agree with Mr Gul that, as a general principle of law, a litigant cannot seek judicial review if he has an alternative remedy. However, in order to be considered an "alternative", the remedy must be convenient and efficacious. In Mehboob Ali Malik v. The Province of West Pakistan, and another [PLD 1963 (W.P.) Lahore 575], this Court explained: "The word 'adequate' signifies a concept of a relative nature. It can be comprehended only as a state of correspondence between one thing and another. A thing can be 'adequate', or 'not adequate', to something else, as for example 'not adequate to the expectations, is language adequate to describe it'; or adequate to the disease'. When something is described as being adequate without indicating what it is adequate to, the context must supply that which has been left unstated. Therefore, the first question in construing the meaning of 'adequate remedy' is ... 'to what has the remedy to be adequate'? In the context, we think, the answer must be that the remedy has to be adequate to the requisite relief, i.e., the removal, or lessening of the cause of distress or anxiety, the deliverance from that which was burdensome. It is evident that the trouble, expense and delay in getting what is wanted are all as much ingredients of the sum total of that which can be described as 'relief' as the substance of that which is wanted." 27. In Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others (2011 SCMR 1813), the Supreme Court of Pakistan stated that the High Court should apply the following tests to determine the adequacy of an alternative remedy: (i) If the relief available through the alternative remedy in its nature or extent is not what is necessary to give the requisite relief, the alternative remedy is not an 'other adequate remedy' within the meaning of Article 199. (ii) If the relief available through the alternative remedy, in its nature and extent, is what is necessary to give the requisite relief, the 'adequacy' of the alternative…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.