Remand order cancelled .
 |
| Lahore High Court set aside remand order of Sanam Javed |
پاکستان میں ملزمان کے بنیادی حقوق:
ریمانڈ آرڈر کی منسوخی کا تاریخی فیصلہ
لاہور ہائی کورٹ نے سنام جاوید کے خلاف دیا گیا جسمانی ریمانڈ کا حکم کالعدم قرار دیتے ہوئے واضح کیا کہ ملزمان کے بنیادی آئینی حقوق کو نظر انداز کر کے کسی بھی صورت میں پولیس ریمانڈ نہیں دیا جا سکتا۔ عدالت نے اس فیصلے میں انصاف، آزادی اور قانون کی بالادستی کو بنیادی اصول قرار دیا۔
مقدمے کا پس منظر
سنام جاوید کو ایک ایسے مقدمے میں ملوث کیا گیا جس میں ان کا نام ابتدائی ایف آئی آر میں شامل نہیں تھا۔ ایک طویل عرصے بعد ایک شریک ملزم کے بیان کی بنیاد پر انہیں نامزد کیا گیا اور انسداد دہشت گردی عدالت نے جسمانی ریمانڈ منظور کر لیا۔ اسی ریمانڈ کے خلاف لاہور ہائی کورٹ میں نظرثانی کی درخواست دائر کی گئی۔
عدالت کے اختیار پر قانونی وضاحت
ہائی کورٹ نے قرار دیا کہ اسے یہ اختیار ہی نہیں بلکہ قانونی ذمہ داری حاصل ہے کہ وہ ماتحت عدالتوں کے کسی بھی غیر قانونی یا خلافِ انصاف حکم کو درست کرے۔ عدالت نے واضح کیا کہ اگر کوئی حکم قانونی سقم، ناانصافی یا اختیارات کے غلط استعمال پر مبنی ہو تو ہائی کورٹ مداخلت کر سکتی ہے، چاہے ریمانڈ کی مدت مکمل ہی کیوں نہ ہو چکی ہو۔
شریک ملزم کے بیان کی قانونی حیثیت
عدالت نے تفصیلی جائزے کے بعد قرار دیا کہ شریک ملزم کا بیان نہ تو آزادانہ تھا اور نہ ہی قانون کے مطابق۔ شریک ملزم طویل عرصے تک پولیس تحویل میں رہا، اس لیے اس کے بیان کو رضاکارانہ نہیں کہا جا سکتا۔ مزید یہ کہ قتل جیسے سنگین مقدمے میں مقتول کے ورثا کی اجازت کے بغیر معافی یا بیان کی کوئی قانونی حیثیت نہیں بنتی۔
قانونی تقاضوں کی خلاف ورزی
عدالت نے نشاندہی کی کہ مقتول کے قانونی ورثا کی تصدیق نہ تو متعلقہ حکام سے کروائی گئی اور نہ ہی جو حلف نامے پیش کیے گئے وہ باقاعدہ تصدیق شدہ تھے۔ اس بنا پر شریک ملزم کے بیان کو ناقابلِ قبول قرار دیا گیا اور اس بنیاد پر دیا گیا ریمانڈ غیر قانونی ٹھہرا۔
جسمانی ریمانڈ سے متعلق عدالتی اصول
ہائی کورٹ نے سخت الفاظ میں کہا کہ جسمانی ریمانڈ معمول کی کارروائی نہیں بلکہ ایک غیر معمولی اقدام ہے، جو صرف اسی وقت دیا جا سکتا ہے جب تفتیش کے لیے ملزم کی موجودگی ناگزیر ہو۔ عدالت نے واضح کیا کہ محض اندازوں، قیاس آرائیوں یا عمومی بیانات کی بنیاد پر کسی شخص کو پولیس تحویل میں نہیں دیا جا سکتا۔
بنیادی آئینی حقوق کا تحفظ
عدالت نے یاد دہانی کرائی کہ آئین ہر شہری کو زندگی اور آزادی کا حق دیتا ہے اور گرفتاری و حراست کے معاملات میں قانون کی مکمل پابندی لازم ہے۔ کسی بھی ملزم کو محض دباؤ ڈالنے یا حراست طول دینے کے لیے جسمانی ریمانڈ پر نہیں بھیجا جا سکتا۔
تفتیشی عمل میں بدنیتی کا اظہار
عدالت نے اس امر پر بھی شدید تشویش کا اظہار کیا کہ تفتیشی افسر نے شریک ملزم کے بیان میں نامزد کئی افراد کے خلاف کوئی کارروائی نہیں کی اور صرف درخواست گزار کو نشانہ بنایا گیا۔ یہ طرزِ عمل بدنیتی اور امتیازی سلوک کا واضح ثبوت قرار دیا گیا۔
ایک ہی الزام پر متعدد مقدمات کی مذمت
عدالت نے کہا کہ ایک ہی نوعیت کے الزامات کی بنیاد پر مختلف شہروں میں بار بار مقدمات درج کرنا قانون کے بنیادی اصولوں کے خلاف ہے۔ اگر کوئی عمل کسی ایک مقام پر ہوا ہو تو اس کا مقدمہ بھی وہیں چلایا جانا چاہیے، نہ کہ مختلف دائرہ ہائے اختیار میں۔
حتمی عدالتی فیصلہ
ان تمام وجوہات کی بنا پر لاہور ہائی کورٹ نے انسداد دہشت گردی عدالت کا دیا گیا جسمانی ریمانڈ کالعدم قرار دیا اور قرار دیا کہ یہ حکم قانونی، آئینی اور عدالتی اصولوں کے منافی تھا۔ عدالت نے واضح پیغام دیا کہ ریاستی طاقت کا استعمال صرف قانون کے دائرے میں رہ کر ہی کیا جا سکتا ہے۔
Must read judgement
Stereo. H C J D A 38
Judgment Sheet
IN THE LAHORE HIGH COURT LAHORE
(JUDICIAL DEPARTMENT)
Criminal Revision No.39439 of 2024
Sanam Javed versus Special Judge, Anti Terrorism
Court, Gujranwala, etc.
Date of hearing 10.07.2024
The Petitioner by M/S Barrister Mian Ali Ashfaq,
Rana Abdul Maroof Khan, Tahir
Abbas Bhatti, Ali Raza Kanjan
and Muhammad Khizar Saeed,
Advocates,
The State by M/S Moeen Ali and Hafiz Asghar,
Deputy Prosecutors General with
Shahid S.P. and Tahir Inspector.
Rana Umair Abrar Khan, A.A.G.
======
Asjad Javaid Ghural-J. Through this criminal revision petition
under Sections 435 & 439 Cr.P.C. the petitioner being accused in case FIR
No.823/23 dated 10.05.2023, in respect of offence under Sections 302, 324,
353, 427, 431, 186,148,149,505,188 & 109 PPC read with Section 16 of the
Punjab Maintenance of Public Order Ordinance, 1960 and Section 7 of Anti
Terrorism Act, 1997, registered at police station Cantt. Gujranwala, has
prayed as under:-
“It is therefore, most respectfully prayed that in the supreme
interest of justice, by accepting the instant criminal revision petition; this
Honorable court may be pleased to set-aside the order dated 14.06.2024
passed by the learned Special Judge, Anti Terrorism Court, Gujranwala
(Respondent No.1) being void, illegal, unconstitutional, without merits
and the petitioner may kindly be discharged forthwith from this case in the
supreme interest of justice.
Any other relief which this Honourable Court deems fit and proper
may also be granted.”
2. Admitted facts necessary for disposal of instant petition are that the
petitioner is not named in the aforesaid criminal case and was subsequently
implicated in the said case on the basis of disclosure of co-accused/approver
Crl. Revision No.39439/24 2
Karim Hasan, which was recorded on 30.05.2024 i.e. after more than one
year of the registration of the case. The petitioner was produced before the
Judge, Anti Terrorism Court, Gujranwala (ATC), who initially granted her
four days physical remand vide order dated 10.06.2024. After exhausting the
said period, the Investigating Officer made a request for further physical
remand which was acceded to by the ATC and eleven days physical remand
was granted vide impugned order dated 14.06.2024, which is subject matter
of this criminal revision.
3. Heard. First of all, we would like to dilate upon the objection of the
learned Law Officer that since the period of physical remand granted by way
of impugned order has already been elapsed, the petitioner was ordered to
be sent on judicial remand and report U/S 173 Cr.P.C. has been submitted in
the Trial Court, as such instant petition has become infructuous. We are not
in agreement with this submission for more than one reasons. Firstly, in the
prayer clause the petitioner sought her discharge from the said case while
her learned counsel also addressed arguments on the plea of discharge.
Secondly, Section 439 Cr.P.C. conferred a very vide jurisdiction upon this
Court to examine the vires of any order/proceedings for which the record of
the lower court was requisitioned or which otherwise comes to its
knowledge. While exercising such jurisdiction, it is the duty of the Court to
correct manifest illegality or to prevent gross miscarriage of justice. In the
case reported as “Mushtaq Ahmad .Vs. The State (PLD 1966 Supreme Court
126)”, the Apex Court observed as under:-
“Under section 439 of the Criminal Procedure Code the High Court has a
power to interfere upon information in whatever way received, as the
section clearly says that it may do so in any case in which it has itself
called for the record or which has been reported for orders or “which
otherwise comes to its knowledge”. These are words of wide import. In
the present case the record of the case was placed before the learned Judge
in the course of his inspection and the facts of the case thus came to his
knowledge. Under this section the High Court has also the right to
exercise its power on its own initiative and there can be no warrant for the
proposition that the High Court is debarred from examining the record suo
moto.”
Similarly, in case reported as “Dr. Waqar Hussain Vs. The State (2000
SCMR 735)” it has been laid down as under:-
Crl. Revision No.39439/24 3
“So far as the power of the High Court under section 439, Cr.P.C. are
concerned, it may be stated that it is not a power only but a duty whenever
facts for its jurisdiction are brought to the notice of the Court, or otherwise
come to its knowledge because the revisional jurisdiction is in the nature
of corrective jurisdiction.”
Thus we can safely say that the powers conferred upon this Court under
Section 439 Cr.P.C. are not merely a “toothless paper tiger” rather a duty to
satisfy itself regarding the correctness, legality or propriety of any order
passed by the lower court. The facts discussed below would clear the dust
why this Court constrained to exercise its revisional jurisdiction .
4. Admittedly, trial in the aforesaid criminal case to the extent of some
of the accused has been concluded, whereas, one of the nominated accused
namely Karim Hassan, who was declared proclaimed offender, was
subsequently arrested on 08.05.2024 and thereafter on 30.05.2024, he got
recorded his statement U/S 337(1) of Cr.P.C. before the Area Magistrate,
whereby he involved the petitioner alongwith certain other persons to the
extent of abetment. It was categorically stated at bar by the head of the Joint
Investigation Team (JIT) as well as Investigating Officer that except the
aforesaid statement of the accomplice, there was no other incriminating
material to connect the petitioner with the aforesaid case. It is a matter of
record that accomplice remained on physical remand for twenty two days
before recording of such statement, therefore, it cannot be said that he got
recorded the statement voluntarily and without any coercion. In case
reported as “Mian Muhammad Nawaz Sharif Vs. The State (PLD 2009 SC
814)”, the Apex Court discarded the statement of accomplice while
observing that:-
“ It is understandable that an accused becomes an approver on motivation
of self-interest to save his own skin. The circumstances in the present case that led
P.W. to become an approver indicate that he was not a free agent. He was taken
into custody by the Army soon after the incident and remained there for about one
month and was then in police custody for about 10 days, during which he was
tortured to the extent that he feared that ‘he would die of shock’. Notwithstanding
such complaint made to the Trial Court, he was again sent to police remand for
further 3 days which ended a day before he became approver.”
Moreso, in the instant occurrence one person namely Rashid Maqbool
was allegedly murdered whereas multiple police officials sustained injuries.
Proviso to Section 337(1) of Cr.P.C. reads as unde
Crl. Revision No.39439/24 4
“[Provided that no person shall be tendered pardon who is involved in an
offence relating to hurt or qatl without permission of the victim or as the case may
be of the heirs of the victim]”
It is thus manifestly clear from the above proviso that an accused
could not tender pardon in hurt or qatl cases without the permission of
victim or the legal heirs of the deceased, the case may be. In the instant case,
Rashid Maqbool was the deceased and according to the list furnished by the
SHO P.S. Cantt. Gujranwala, the deceased survived by his father, mother
and sister, whereas, he has divorced his wife 1 ½ years before but no
document in the shape of divorce deed or divorce effectiveness certificate in
support of this version was made part of the record. Furthermore, no report
from the revenue authorities or the concerned Councilor or Lumberdar was
secured for the confirmation of the legal heirs of the deceased. Moreover,
bare perusal of the affidavits of the legal heirs it came on surface that the
same were not attested by the Oath Commissioner to certify that contents of
said documents were stated on oath or solemn affirmation was made before
him. In the absence of such certificate, value of so called affidavits of the
purported legal heirs of the deceased is nothing more than a piece of paper.
Since the statement of the accomplice was recorded in derogation of the
proviso to Section 337(1) of Cr.P.C. as such the same was not admissible
piece of evidence.
5. It is now in the above context, we have to see as to whether the Judge,
ATC was justified in granting physical remand of the petitioner. The Apex
Court as well as this Court time and again cautioned the courts below for
granting physical remand of an accused in a routine or perfunctory manner.
Unfortunately, it seems that with the passage of time the remand granting
Courts went into deep slumber and need to be shaken again. The purpose of
granting physical remand is to dig out the truth and collect further evidence
which is not possible without the presence of an accused. A duty is bestowed
upon a Court dealing with such request of remand to maintain balance
between the personal liberty of the accused and the investigational right of
the police. Article 9 of the Constitution of Islamic Republic of Pakistan,
1973 (Constitution) guarantees that no person would be deprived of life or
liberty save in accordance with law, whereas, Article 10 of the Constitution
provides safeguards as to the arrest and detention. It is, therefore, in the
Crl. Revision No.39439/24 5
above context that in Part B, Chapter11-B, Volume-3 of Rules and Orders of
Lahore High Court, Lahore following principles are laid down for the
guidance of all the concerned for granting physical remand:-
“(i) Under no circumstances should an accused person be remanded to
Police custody unless it is made clear that his presence is actually needed
in order to serve some important and specific purpose connected with the
completion of the inquiry. A general statement by the officer applying for
the remand that the accused may be able to give further information
should not be accepted.
(ii) When an accused person is remanded to Police custody the period of
the remand should be as short as possible.
(iii) In all ordinary cases in which time is required by the Police to
complete the inquiry, the accused person should be detained in magisterial
custody.
(iv) Where the object of the remand is merely the verification of the
prisoner's statement, he should be remanded to magisterial custody.
(v) An accused person who has made a confession before a Magistrate
should be sent to the Judicial lock-up and not made over to the Police after
the confession has been recorded. If the Police subsequently require the
accused person for the investigation, a written application should be made
giving reasons in detail why he is required and an order obtained from the
Magistrate for his delivery to them for the specific purposes named in the
application. If an accused person, who has been produced for the purpose
of making a confession, has declined to make a confession or has made a
statement which is unsatisfactory from the point of view of the
prosecution he should not be remanded to Police custody.”
Here in the instant case, even if the statement of the accomplice is given
weightage even then at the most it is a case of abetment against the
petitioner and we are unable to understand, for what purpose in the charge of
abetment, physical remand of an accused was required. The conclusion is
inescapable that the only purpose of seeking remand of the petitioner was to
prolong her custody. Unfortunately, this aspect has been overlooked by the
learned Judge, ATC while dealing with the request of physical remand of the
petitioner and granted the physical remand in a mechanical manner, while
ignoring binding pronouncements of the Apex Court1
.
6. Learned Law Officer laid much emphasis that during the period of
physical remand, the Investigating Officer showed progress and the
1
PLD 2005 SC 86 & 2009 SCMR 181
Crl. Revision No.39439/24 6
petitioner got recovered a USB containing her videos and one mobile phone
of her husband and from the transcripts of the videos available in the USB, it
is manifestly vivid that the petitioner instigated the co-accused to commit the
occurrence. First of all, it is to be noted that the petitioner was behind the
bars since 10.05.2023 and admittedly her mobile phone was already taken
into possession in case FIR No.96/23, registered at P.S. Sarwar Road,
Lahore. The mobile phone which was allegedly recovered at the instance of
the petitioner undisputedly belongs to her husband. Investigating Officer, in
attendance, confirmed that the same was active when taken into possession,
when confronted how the same can be connected with the petitioner, learned
DPG submitted that during investigation she admitted that she occasionally
used the said mobile phone. Merely on that basis that the petitioner
occasionally used mobile phone of her husband, such mobile or the data
contained therein cannot be used against her. Even otherwise, from the said
mobile phone no incriminating material connecting the petitioner with the
alleged crime was recovered. Second piece of evidence procured by the
Investigating Officer was the USB. As has been discussed supra the
petitioner was continuously in custody of police on the basis of different
criminal cases/ detention orders since 10.05.2023 and the FIR of the
aforesaid case was also registered on the same date. It is beyond
comprehension that how the petitioner transferred the data of her social
media accounts in the USB, when she was already in police custody. Even
otherwise, transcript of the USB has been placed before us and bare perusal
of the same shows that it was downloaded from the Youtube and her other
purported social media accounts, which were active since the day of the
occurrence, therefore, it can safely be said that the USB was planted upon
the petitioner just to create evidence against her in this case. No date and
time of the purported videos of the petitioner was mentioned as such it
cannot be said with any degree of certainty that the same were prior or after
the protest. Besides above, JIT Head, in categorical terms admitted that
mobile phone of any of the co-accused was not taken into possession, so as
to confirm that on account of the instigation of the petitioner at social media
forum, he/they committed the said occurrence. In the above backdrop, we
are of the view that on the basis of evidence created/procured against the
Crl. Revision No.39439/24 7
petitioner, she cannot be connected with the alleged occurrence in any
eventuality.
7. Malafide of the Investigating Officer is also apparent from the fact
that in the so-called statement of the accomplice he named a number of
persons who instigated him and other party members to commit the crime
but he only caused the arrest of the petitioner and one Alia Hamza and for
the rest of the accused he did not give any weightage to the statement of the
accomplice. In this view of the matter, we can safely say that the statement
of the accomplice was procured with the sole purpose to confine the
petitioner as she has been released on bail in all other cases registered
against her.
8. We have noted with great concern that it is a pattern of the
Executive/Police to involve the petitioner in a series of cases one after the
other on the basis of same allegation. It is an admitted fact that the petitioner
was resident of Lahore and whatever she had said on her social media
account, was being run at Lahore. Part VI, Chapter XV of the Cr.P.C deals
with the jurisdiction of the criminal Courts in inquiries and trials. Section
177 of the Cr.P.C. reads as under:
“177. Ordinary place of inquiry and trial. Every offence shall ordinary be
inquired in and tried by a Court within the local limits of whose
jurisdiction it was committed.”
Bare reading of the aforesaid section makes it abundantly clear that a trial or
inquiry of an offence shall ordinarily be conducted in a Court within the
local limits of whose jurisdiction such an offence was committed. In view of
above any cognizable offence committed in Lahore shall be tried at Lahore
and accordingly the petitioner had been involved in seven criminal cases
regarding the same allegations at Lahore. When confronted with, how the
petitioner could be involved in a case at Gujranwala regarding an act which
was committed at Lahore, learned Law Officer while referring to Section
179 Cr.P.C. laid much emphasis that the petitioner can be involved in cases
when consequence of an occurrence follow in the jurisdiction of some other
police station. Before proceeding further it is appropriate to go through the
referred provision which for ease of reference is reproduced as under:-
“179. Accused triable in, district where act is done or where
consequence ensues. When a person is accused of the commission of any
offence by reason of anything which has been done, and of any
consequence which has ensued, such offence may be inquired into or tried
Crl. Revision No.39439/24 8
by a Court within the local limits of whose jurisdiction any such thing has
been done, or any such consequence has ensued.”
Illustrations
“(a) A is wounded within the local limits of the jurisdiction of
Court X, and dies within the local limits of the jurisdiction of Court Z. The
offence o f the culpable homicide of A may be inquired into or tried by X
or Z.”
(b ) ----
(c ) ---
“(d) A is wounded in the State of Junagadh, and dies of his wounds in
Karachi. The offence of causing A's death may be inquired into and tried
in Karachi.”
The word “or” used in the aforesaid section and the illustration is of much
significance which means that either the accused can be tried at a place
where the act was committed or the place where its consequences ensued. In
nowhere it can be defined in the manner as argued by the learned Law
Officer. This section would come into play where an accused committed an
act in one jurisdiction and consequence of such offence ensued in another
jurisdiction but on that basis due to one and the same allegation, an accused
cannot be involved in multiple cases falling into different jurisdictions. In
case reported as “Muhammad Sultan versus Muhammad Raza and others
(2020 SCMR 1200)” the Apex Court has interpreted sections 177 and 179
of the Cr.P.C in the following manner:
“7. A legal question has been raised qua the jurisdiction of the court
and venue of trial as per law. Chapter XV Part VI of the Criminal
Procedure Code deals with "Jurisdiction of the Criminal Courts in Inquiry
and Trials". Section 177 of the Code of Criminal Procedure relates to
general principle of jurisdiction and venue of trial which is reproduced as
under: -
“177. Ordinary place of inquiry and trial. Every offence shall
ordinary be inquired in and tried by a Court within the local limits
of whose jurisdiction it was committed”.
The language of the said provision is explicit in its context hardly
leaving any ambiguity qua the interpretation with reference to jurisdiction
and venue of the trial in ordinary circumstances however this principle has
certain exceptions which are established from the bare reading of
provision of sections 179 and 180, Cr.P.C. To evaluate the exceptions of
the general principle qua jurisdiction and venue of trial, provision of
section 179, Cr.P.C. is reproduced as under:-
Crl. Revision No.39439/24 9
"179. Accused triable in district where act is done or where
consequences ensues. When a person is accused of the
commission of any offence by reason of anything which
had been done, and of any consequence which has ensued,
such offence may be inquired into or tried by a Court
within the limits of whose jurisdiction any such thing has
been done, or any such consequence has ensued."
8. Bare perusal of the language of the aforesaid provision depicts that if
there is any departure from the general principle qua jurisdiction and
venue of trial, two aspects are to be evaluated for the proper determination
such as:-
i.
Commission of an offence.
ii.
Commission of an act and other consequences ensued.
From the careful perusal of the language of the aforesaid provision, it is
crystal clear that this provision has extended the limits of venue while
classifying the principles to assume jurisdiction to take cognizance of an
offence for the purpose of trial.”
9. We are of the considered view that if the petitioner had committed any
act at Lahore for which she had already been involved in a criminal case at
the said place, she cannot be involved regarding the same act/offence in
some other case on the basis of term “any consequence which has ensued”
used in Section 179 Cr.P.C. as it would offend Article 13 of the Constitution
which provides that “no person shall be prosecuted or punished for the same
offence more than once.” Similarly, the word ‘liberty’ in Article 9 is of
widest amplitude covering variety of rights including personal liberty of a
citizen. Likewise, Article 4 of the Constitution enshrines inalienable right of
every citizen to enjoy the protection of law and be treated in accordance with
law. Therefore, involving the petitioner in series of criminal cases regarding
a single act amounts to usurp her fundamental rights guaranteed in the
Constitution. Moreso, if this practice of involving an accused in multiple
cases regarding one act is allowed then there can be no end of litigation,
which is a basis of every judicial system.
10. Act of the Executive/Police to confine the petitioner in the jail for an
indefinite period is a matter of record. Initially, the petitioner was detained
on 10.05.2023 under sub-section (1) of Section 3 of the Punjab Maintenance
of Public Order Ordinance, 1960 (MPO) for a period of thirty days. When
the petitioner questioned the validity of said order issued under MPO by way
of filing Writ Petition No.31429/23 in this Court, she was booked in case
Crl. Revision No.39439/24 10
FIR No.96/23, registered at P.S. Sarwar Road, Lahore, on 17.05.2023 on the
basis of suspicion. She was granted post arrest bail in the said case by the
Trial Court, Lahaore on 23.09.2023 but on 25.09.2023 she was again
arrested in case FIR No.109/23 of the same police station U/S 54 Cr.P.C., on
the disclosure of the statement of co-accused. She was granted post arrest
bail in the said case on 11.10.2023 by the Trial Court, Lahore. Keeping in
view the tendency of the police for involving the petitioner one after the
other in blind cases, she finally approached this Court by way of filing Writ
Petition No.68444/23, inter-alia, seeking details of the cases in which she
was required to the police. In the said petition, AIG Legal, on behalf of the
I.G. Punjab, submitted a report that she was required only in two cases, in
which she was already enlarged on bail/discharged and in the light of said
report aforesaid writ petition was disposed of vide order dated 19.10.2023.
However, in sheer disregard to the report submitted before this Court, after
one day of the disposal of the writ petition, the petitioner was booked in case
FIR No.1271/23, registered at P.S. Gulberg, Lahore on 20.10.2023 on the
basis of suspicion but on the following day she was discharged by the ATC
Judge. Thereafter, on the next day i.e. 21.10.2023, she was involved in case
FIR No.366/23, registered at P.S. Model Town, Lahore on the basis of
supplementary statement. She was granted post arrest bail in the said case on
07.11.2023 by the Trial Court and astonishingly on the following day i.e.
08.11.2023 she was booked in case FIR No.410/23, P.S. Race Course,
Lahore on the basis of supplementary statement. She was enlarged on bail in
the said case on 02.12.2023 by the Trial Court but the Deputy
Commissioner, Lahore, issued her detention order under the MPO for a
period of thirty days vide order dated 02.12.2023. Petitioner challenged the
MPO order by way of filing Writ Petition No.81620/23, upon which MPO
order was withdrawn vide order dated 29.12.2023 but she could not bear the
fruits of said withdrawal order, as she was booked in FIR No.367/23, P.S.
Model Town, Lahore, on 30.12.2023 on the basis of supplementary
statement. She secured post arrest bail in the said case from the Trial Court
vide order dated 29.01.2024 and on the same day, she was booked in case
FIR No.768/23, P.S. Shadman, on the confessional statement of the coaccused. She was enlarged on bail in the said case on 27.03.2024 by the
Trial Court. Till that time she had been involved in all cases relating to the
Crl. Revision No.39439/24 11
incidents of 9th May, 2023 registered at Lahore. Thereafter, a very strange
strategy was adopted by the Executive in order to frustrate the judicial orders
and she was booked in case FIR No.179/23, registered at P.S. Kamar
Mashani, District Mianwali on 01.04.2024 on the basis of supplementary
statement. She was finally discharged in the said case on 17.04.2024 by the
ATC Judge, Sargodha and on the same day, she was booked in case FIR
No.180/23, registered at the same police station, wherein, she was granted
post arrest bail on 29.05.2024 by the Trial Court. She was then booked in
case FIR No.72/23, P.S. Musa Khel, Mianwali but the learned Judge, ATC,
Sargodha granted her pre-arrest bail in the said case vide order dated
05.06.2024. It is noteworthy that when the learned Judge, ATC, Sargodha,
foiled the efforts of the police to further detain the petitioner in cases
registered at Mianwali by granting her pre-arrest bail, on the same day, she
was booked in case FIR No.823/23 registered at P.S Cantt. Gujranwala on
the basis of confessional statement of co-accused (subject matter of this
petition). Eager of the Executive to detain her in custody indefinitely is
evident from the fact that besides involving her in the said case, as a
precaution, Deputy Commissioner, Gujranwala issued her detention order
under the MPO, vide order dated 06.06.2024. Apparently, this had been
done that in case the learned Judge, ATC at Gujranwala discharges the
petitioner as had been done by the Judge, ATC, Sargodha, then there
remained a justification to retain her in jail. But thanks to the learned Judge,
ATC Gujranwala that he neither perused the material connecting the
petitioner in the said case nor took into the consideration the tendency of the
prosecution to involve the petitioner one after the other case seriously and
granted her physical remand blindly. Apparently, on achieving the desired
result, subsequently the Deputy Commissioner, Gujranwala withdrew his
detention order.
11. The purpose of giving the detail of the treatment meted out by the
petitioner for the last one year is to show highhandedness and disregard to
the judicial orders by the Executive Authorities just to curtail her liberty. It
is a matter of great concern that on behalf of Inspector General of Police,
Punjab a report was submitted before this Court in W.P.No.68444/23 that
the petitioner was required only in two cases, but after submission of said
report, she was booked in nine other cases on the same charge/allegation.
Crl. Revision No.39439/24 12
Neither the police authorities enjoy unfettered powers to curtail the liberty of
a person for an indefinite period nor their actions are immune to judicial
scrutiny. In case reported as “Muhammad Bashir ..Vs.. SHO, Okara Cantt.
and others (PLD 2007 SC 539)”, the Apex Court has observed as under:-
“ It may be added that the Police force was not a creation of the Code of
Criminal Procedure but was a force initially established by the Police Act
of 1861. The Code of Criminal Procedure only borrowed some, from
amongst this force, and asked them to perform some of its functions. They
had, therefore, no powers to go around doing things according to their
whims and desires in the matter of administration of justice in the field of
crimes. The powers enjoyed by the members of the police force were
limited to the authority conferred on them by law. And it may be added
that every step which the Cr.P.C. permitted a police officer to take, was
subject to scrutiny and control of some court or Magistrate.”
12. One may disagree with the political views of the petitioner and if she
committed any crime she has to face the music but the way and manner she
is being involved in criminal cases one after the other, in least words can be
said a malicious persecution and this Court being jealous guardian of the
fundamental rights of the citizens cannot tolerate the same. In “Ammad
Yousaf Vs. The State and another (PLD 2024 SC 273)”, the Apex Court
observed as under:-
“The exercise of inherent powers assigned to the Courts to preserve and
protect the rights of the citizens is a mandate of the Constitutions,
whereas, non-exercise of such powers is a violation of the Constitution
and law, hence is an illegality. The Courts instead of becoming an
apparatus for malicious and purposeless judicial prosecution by
entertaining baseless and frivolous complaints must exercise their powers
in accordance with law, without fear and favour. If the Courts overlook
such constitutional mandate and fail to exercise their inherent powers, it
will harm the integrity, impartiality and independence of our criminal
justice system. It will undermine and erode the public trust and confidence
in our Courts.”
13. The principle of trichotomy of power is widely recognized in our
Constitution. It means the Legislature, the Judiciary and the Executive form
the fundamental pillars of the State and that each of these are responsible for
exercising legitimate authority in their respective sphere. Legislature is
tasked with making new laws and amending existing one to meet the needs
of the people. The Judiciary is, inter-alia, responsible for interpreting the
Crl. Revision No.39439/24 13
law and to protect fundamental rights which include the life and liberty,
whereas, Executive is responsible for enforcing laws and court orders to
establish the writ of the State and uphold rule of law. It is the duty of the
Executive to implement/ comply with the orders whether it likes it or not.
Neither any country can flourish without giving due regard to the orders of
the Courts nor the writ of the State can be established. If the orders of the
Courts are flouted in the way and manner as has been done in the instant
case then anarchy would prevail. Executive is reminded the well-entrenched
principle of law that their actions are not immune from the judicial scrutiny,
therefore, while exercising such authority, they should not intrude into the
constitutionally guaranteed fundamental rights of the citizens. Similarly, the
Judicial Officers are expected to perform their duty with dignity, pride,
dedication and by keeping in mind the fact that a sacred obligation to deliver
justice has been bestowed upon them beyond any temptation, fear or favour.
They must perform their functions with their eyes and ears open as required
under the law and their action should not caste even a bleak doubt in the
minds of the litigants, who are the ultimate stakeholders, that the same was
result of any enticement or panic.
14. For what has been discussed above, we are of the considered view that
no incriminating material is available on the record to connect the petitioner
in FIR No.823/23 dated 10.05.2023, in respect of offence under Sections
302, 324, 353, 427, 431, 186,148,149,505,188 & 109 PPC read with Section
16 of the Punjab Maintenance of Public Order Ordinance, 1960 and Section
7 of Anti Terrorism Act, 1997, registered at police station Cantt. Gujranwala
and the investigation launched in the said case against the petitioner is a
result of malafide and ulterior motive. As such, while accepting this criminal
revision, she is discharged from the aforesaid case. Learned Deputy
Prosecutor General, on instructions, states that the petitioner is not required
in any other case, as such she shall be released from the jail forthwith.
15. Before parting with this order it is observed that act of the
Investigating Officer for involving the petitioner in series of cases on the
same charge after making her arrest in case FIR No.96/23, registered at P.S.
Sarwar Road, Lahore is colored with malafide intention and ulterior motive
and the sole purpose of the same was to defeat the judicial system.
Unfortunately, the Deputy Commissioners, Lahore and Gujranwala also
Crl. Revision No.39439/24 14
played active role while issuing detention orders under the MPO, when the
petitioner was already in jail. Their acts call for strict action but while
showing grace this Court is not issuing any adverse order against them with
the expectation that in future they shall not frustrate the judicial orders. At
the same time, remand granting Courts are cautioned that while dealing with
request of remand, they should keep in mind the binding pronouncements of
the Apex Court and fundamental rights of an accused enshrined in the
Constitution, in particular Articles 4,9,10, 10-A and 13. We will conclude
with a quote from ‘On Liberty’ a epoch-making book by the famous
utilitarian English philosopher John Staurt Mill (d.1873):-
“…a State which dwarfs its men, in order they may be more docile
instruments in its hands even for beneficial purposes – will find that with
small men no great thing can really be accomplished;...”
16. Copy of this judgment be circulated amongst all the Judicial Officers,
Deputy Commissioners and Inspector General of Police, Punjab through the
Registrar of this Court for guidance and strict compliance.
(Ali Zia Bajwa) (Asjad Javaid Ghural)
Judge Judge
Approved for Reporting
Judge