P L D 1999 Supreme Court 46 (PLP)

WAJIHUDDIN AHMED, J.

The petitioner is a journalist. On 18-10-1997 the petitioner lodged the title case in this Court. The same was referred for a preliminary enquiry and report to one of us namely, Mamoon Kazi, J. The petition, on 27-3-1998, was opined to be non-maintainable. Against such conclusion, apparently in terms of Order V, rule 2 of the Supreme Court Rules, the petitioner has applied for reconsideration of the matter which has been set down for hearing before us. It may be observed here that the present controversy is not covered by the topics, occurring in the said rule. The subject in hand was referred for enquiry and report, which only incidentally came up in Chambers. It is, perhaps, for this reason that the learned Judge in Chambers did not choose to dispose of the petition, one way or the other. We have proceeded to deal with the same any way because the case had, at all events, to come up in Court for disposal. As to the facts of the case, the same have been summarized by the learned Judge in Chambers, as appears below:- ....The petitioner in this H.R. petition has stated that he had filed an application before the Chief Ehtesab Commissioner informing him about a "horse-trading" deal with six M.N.As. involving a sum of Rupees 10.5 million, which had been conducted by the petitioner himself. The money, according to the petitioner, had been paid by the respondent No.l. A copy of the said application has been filed (page 14) which indicates that the petitioner had asked the Chief Ehtesab Commissioner for immediate suspension of the respondent No.4 as the Chairman of the Ehtesab Cell which, according to the petitioner, was a prerequisite for an independent enquiry into the complaint which was against the top brass of the ruling party. The application was however dismissed. 2,. The case of the petitioner is that as a result of the said complaint before the Chief Election Commissioner his brother was assassinated. Thereafter, the petitioner himself received threats that he would meet the same fate. The petitioner therefore seeks directions for providing him a security cover by the Pakistan Army." We have heard the petitioner at some length. His main grievance is that he has been arrayed against high functionaries of the State and that, because violation of fundamental rights, involving questions of public importance, is involved, relief may be accorded to the petitioner pursuant to Article 184(3) of the Constitution of Pakistan under which he approached this Court at the outset. In the first place, the petitioner says that he had approached the Chief Ehtesab Commissioner, initially, informally and without submitting anything in writing but later lodged a written complaint on 2-9-1997. That, even though during the informal hearings the Chief Ehtesab Commissioner had allegedly been receptive, was somehow dismissed on 9-10-1997. The order, which is comparatively brief, is reproduced hereunder:- ... Shahid Orakzai a Freelance Journalist hereinafter to be referred as Petitioner filed an application before me subject of which was Suspension of the Chairman and Members of the Ehtesab Cell. Before proceeding further I would like to observe that the petitioner appeared many times before me as he wanted personal hearings which were given to him. The petitioner wants me to immediately suspend the Chairman Ehtesab Cell and all the Members of the Cell. In support of this the petitioner relied on certain Articles of the Constitution of the Islamic Republic of Pakistan and certain provisions of the Ehtesab Act, 1997. He also relied on the documents attached with his petition which are letter dated 4th of August, 1995 addressed to the then Prime Minister of Islamic Republic of Pakistan, Prime Minister's Secretariat, Islamabad, letter from the Assistant Secretary to the Government of Pakistan dated 18th of October, 1995 addressed to the petitioner, the subject of which is acceptance of bribery for casting votes, a petition before the Chief Election Commissioner, Islamabad dated 1st of August, 1995, newspaper cuttings from Roznama "Sadaquat" Lahore dated 25-7-1995 and another Photo-Copy of the same newspaper dated 30-7-95, an application addressed to the Honourable Chief Justice of Pakistan and Noble Judges of the Supreme Court of Pakistan, Islamabad dated 31st July, 1995 not signed by the petitioner and finally writing in Urdu addressed to none dated 24th July, 1995. I have gone through all these documents. I have also perused the reply submitted by the petitioner in response to a question framed by the Director (Law) "has C.E.C. the powers to suspend or arrest the Chairman Ehtesab Cell?" It was to this question the petitioner filed a reply the subject of which is Powers of the Chief Ehtesab Commissioner. This is dated 27th September, 1997. I have also gone through the note put up by the Director (Law) whom I marked the case for opinion. All this evidence has been examined by me and I am of the considered opinion that the petitioner has failed to cite any Article of the Constitution of the Islamic Republic of Pakistan or any provision of the Ehtesab Act which authorizes me or empowers me to suspend the Chairman Ehtesab Cell and Members. Moreover, the status of the petitioner is that of self-confessed accomplice. The legal position of such a person is that his testimony is not to be relied upon unless is duly corroborated by reliable, independent and dependable evidence. Such type of evidence has not been brought on record. For the foregoing reasons I have no option put but to dismiss this petition. (Sd.) (GHULAM MUJADDID MIRZA)." Regarding the testimony of a self-confessed accomplice, the petitioner has drawn our attention to the following verse from the Holy Qur'an, quoting the same from the Al-Jehad case, PLD 1996 SC 324 (424): "Oh ye who believe: Stand out firmly for justice, as witness to Allah even as against yourselves, or your parents, or your kin, and whether it be against rich or poor, for Allah can best protect both. Follow not the lusts of your hearts; lest ye swerve, and if ye distort justice or decline to do justice, verily Allah is well acquainted with all that ye do. " Examining the above-referred order, it seems to us that if the object of the petitioner was to proceed against the Chairman, Ehtesab Bureau, or the members of the Bureau, the learned Chief Ehtesab Commissioner hardly furnished the forum for seeking that relief. Such order, therefore, without reference to the facts involved, can be of very little significance. The Chief Ehtesab Commissioner did not have the jurisdiction to do what he had been called upon to do. The petitioner, if he was aggrieved by any act or omission of A the Chairman Ehtesab Bureau or the members of the Bureau, for want of legality thereof, could have recourse to other remedies but the Chief Ehtesab Commissioner does not seem to have been invested with powers to extend relief to the petitioner. This brings us to the second aspect of the matter namely, that the high officials involved, some of them cited as respondents here, were instrumental in bringing about the death of the petitioner's elder brother viz. Major (R) Muhammad Khalid Saeed Orakzai allegedly as a warning to the petitioner. who was possessed of evidentiary material capable of incriminating the persons above-referred. As corroborative facts, before Mamoon Kazi, J., the petitioner had maintained that whereas the petitioner's formal complaint to the Chief Ehtesab Commissioner was submitted on 2-9-1997, the petitioner's brother was murdered on 4-9-1997. Thereafter the following note, addressed to the petitioner's father, was delivered: ?The petitioner says that the reproduced, unsigned, note was a mere diversionary tactic, that there is no institution of the name of Firqa-e-Jafria and that his brother had no religious inclinations so as to invite any sectarian wrath. The circumstance that the petitioner has produced such note, instead of withholding it, may be indicative of the fact that the petitioner in good faith believes in the version he has come up, with. The rest of the alleged links in the chain, constituting the petitioner's case, are furnished by the under-noted passage in the report of Mamoon Kazi, J.:-- "The main role, according to the F.I.R. lodged in respect of the incident is said to have been played by one Bahadur Khan, who, according to the petitioner, was a paid assassin. According to the petitioner, it was a pre-planned murder and the plan was got executed by the said respondents through one Javed Paracha, an M.N.A. of Kohat, through whom money was paid to the said Bahadur Khan. However, the petitioner has no concrete evidence in his possession to prove the said allegation.

5. I gave one more opportunity to the petitioner to produce all the evidence that was in his. possession to substantiate the said allegations and a week's adjournment was granted to him.

6. In the meanwhile, a letter, dated 18-3-1997 was addressed by the .petitioner to the Hon'able Chief Justice indicating that, an accomplice of the main assassin, namely Rashid son of Kamil, was shot dead in Kohat. Another accomplice, Enayatullah, according to the petitioner, had already fled to Dubai and his uncle, Gamoo, who is also involved has been declared a proclaimed offender. The petitioner has thus expressed his inability to collect evidence in his case on account of the missing links. The petitioner however sought intervention of the Hon'able Chief Justice to ensure safety of M.N.A. Javed Paracha.

7. On 21-3-1997, the petitioner produced before me a copy of F.I.R. in . respect of the murder case registered at Police Station Kohat on 12-3-1998 in connection with the murder of the said Rashid son of Kamil. The petitioner also produced before me an envelope bearing an emblem of the Governor's House, Peshawar, in which the petitioner according to him, had received a sum of Rupees 30000 (thirty thousand) in 1996 which was to be utilized by him to bail out the then Chief Minister of N.-W.F.P. who had been accused of involvement in Mehran Bank Scandal." Contextually, the petitioner desires that he should be examined on oath by this Court, that full-fledged proceedings be undertaken at his behest in terms of Article 184(3) of the Constitution and meanwhile the Court, pursuant to Article 199 of the Constitution, require the aid and assistance of the Armed Forces to protect the life of the petitioner, which, allegedly, is in serious jeopardy. There is an element of confusion here, which needs to be addressed immediately. It has already been observed that if there are allegations of malpractices against the present incumbent of the Office of the Prime Minister of Pakistan (respondent No. l) or for that matter any other holder of public office and if the Chairman of the Ehtesab Bureau or other members of such Bureau have failed to perform their duties in accordance with law, or have incurred any disqualification to retain such offices, the petitioner can follow such remedies as be permissible by law in an appropriate forum. In the event, the petitioner has chosen this forum for so doing, we are afraid that what can be appropriately addressed under Article 199 of the Constitution or other law cannot straight away be addressed under Article 184(3) thereof unless there is a clear violation of fundamental rights and the question raised carries an element of public importance. No question, if we may say so, of enforcement of any fundamental right arises for the sole reason that a high functionary of the State is allegedly involved in wrongdoing or even misconduct, all the moreso when the alleged wrongdoing or misconduct has not yet surfaced, the petitioner, apparently, still carrying everything in his breast. Another aspect of the matter, needing elucidation, comprises of the fact that if on account of any mala fides one or more murders have taken place, the appropriate fora for relief and indeed punishment can only be Courts of criminal jurisdiction and evidently such prosecutions are already afoot. The petitioner, however, says that little in the way of justice is forthcoming there. If that be so, an aggrieved person can E always get succour if the immediate judicial superiors are duly apprised of the inaptness. Ultimate verdicts themselves should pass through the hierarchy of Courts and "even transfer (s) can be sought and made. Here indeed lies the difference between a State governed by the rule of law and a totalitarian polity. Lastly, the petitioner has been insisting for providing protection to him through the Armed Forces of Pakistan in terms of Article 190 of the Constitution, which is another separate matter and needs to be dealt with as such. Now, we would take up the question of the petitioner making a statement regarding the matters he claims to have knowledge of such, allegedly, having led to the death of his brother. Since the prosecution in that behalf, at some stage (to which we have not been made privy), is already afoot and, according to the petitioner, the trial has not yet commenced, the purpose would F be served if the prosecuting agency considers the plausibility to have the petitioner's statement recorded, in accordance with law, under section 164, Cr.P.C. We are inclined to think this can, probably, be done. Such statement, if and when recorded, can be used at the trial or for any other purpose permitted by law. The only question which remains for consideration is whether the petitioner, meanwhile or otherwise, is to be allowed the kind of protection he seeks namely, that of the Armed Forces alone. The petitioner, as observed, relies on Article 190 of the Constitution of Pakistan but that may occasion a cross reference to Article 245(1) as well. These Articles run thus:- "

190. All executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court. 245(1).--The Armed Forces shall, under the directions of the Federal Government, defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power when called upon to do so." Recourse to Article 260, the definition clause in the Constitution, would show' that within the fold of "Service of Pakistan" are also included the Armed Forces I whereas Article 243 confers control and command thereof on the Federal Government. Article 245 of the Constitution treats only, and that too incidentally, of some of the functions of the Armed Forces. That Article is neither presumptive nor otherwise exhaustive. One such function, the Armed Forces filling the role of an executive authority, is to act in aid of the Supreme Court. Even so, the Armed Forces of Pakistan, if at all, may be expected or required to act in aid of this Court and this Court alone, only if that is or is found to be relevant, fit or necessary. In the instant case, at least at this stage, no occasion for the same seems to arise. However, the concerned Court, if the petitioner so chooses, may freely, in the interest of justice, order to provide adequate security for the petitioner's protection. Such Court, needless to add, would always ensure that justice is not only done but is also seen to be done. The foregoing are the terms in which we are inclined to dispose of this petition, but, while doing so, would like to observe that nothing herein contained or in the report of Mamoon Kazi, J., or in the order of the Chief Ehtesab Commissioner, would be construed to reflect upon the merits either of the petitioner's case or of anything in the way of defence, which any other person may have to say or plead in response to the allegations levelled by the petitioner. Disposed of in terms. M. B. A./S-112/S ?????? Order accordingly.