P L D 2022 Lahore 177 (PLP)

MUHAMMAD SHAN GUL, J.

Through this judgment the titled constitutional petition is sought to be decided.

2. The petitioner has laid a challenge to a Notice under section 160, Cr.P.C. issued by the Federal Investigation Agency asking him to appear before the Agency in connection with an inquiry. The learned counsel submits that he apprehends arrest and harassment by the Agency as a result of the impugned Notice.

3. Respondent No.2 who was directed by this Court to appear at the limine stage is present in person and unequivocally submits that she has merely sent a notice under section 160, Cr.P.C. to the petitioner (this being the 3rd notice) so as for the petitioner to appear and assist in an inquiry bearing No.1580/21 but the petitioner has so far failed to appear before the FIA. She adds that as and when the petitioner appears his statement shall be recorded.

4. Respondent No.2 has presented a copy of the complaint received as also copy of the notices issued to the petitioner. The same have been placed on the file. The complaint reads as follows:-

5. It may be mentioned here that the petitioner instead of going to the FIA and assist it in an inquiry has gratuitously approached this Court and quite prematurely at that. Instead of going to the FIA and doing what the law requires him to do he has jumped the gun and approached this Court in a matter which is absolutely unripe for adjudication.

6. In terms of the law laid down in "Ghulam Hussain Baloch and another v. Chairman, National Accountability Bureau, Islamabad and 2 others" (PLD 2007 Karachi 469), "Niaz A. Baloch v. Chairman, National Accountability Bureau and 2 others" (2008 PCr.LJ 1463) and "Maqbool Ahmed v. Station House Officer, Police Station Changa Manga, District Kasur and another" (1999 PCr.LJ 1198), a bare reading of section 160, Cr.P.C. clearly reveals that an Investigating Officer can call for information from any person and 'any person' would mean persons including witnesses and even an accused from whom such information is to be solicited. Therefore, a combined reading of sections 160 and 161, Cr.P.C. clearly reveals that the term 'any person' even includes an accused person or a person who is suspected of either having a role in the alleged crime in question or who has with him some information which is relevant to the alleged crime in issue. Any person supposed to be acquainted with the facts and circumstances of an alleged crime includes an accused person or even a suspect since such a person is definitely acquainted and familiar with the facts of the alleged crime in question.

7. What is in issue in the present matter is a mere notice under section 160, Cr.P.C. By means of this notice the presence of the petitioner is required by the FIA so as for the Agency to gauge whether the petitioner has any information or materials with reference to the alleged offence in respect of which the FIA is undertaking the inquiry in question or for that matter whether the petitioner is connected with the offence in issue. This is a statutory obligation and a prescribed duty and cannot be stultified or stalled. Even otherwise, the issuance of a notice for the purpose of participating and aiding in an ongoing inquiry is glaringly not an adverse action that can adversely impact the rights of the petitioner. In other words, the stage whereby this Court can interfere is yet to be reached.

8. The matter is, therefore, premature and not ripe for interference in constitutional jurisdiction. The present matter involves a notice only and no interference can be made in constitutional jurisdiction at this stage and before something more is added to the notice in question, and which makes the activity or exercise complained of, complete and ripe for adjudication.

9. The doctrine of prematurity and ripeness suggests that a matter is not amenable to adjudication in constitutional jurisdiction if it is either premature or not ripe for adjudication inasmuch as the impugned step or the executive act complained of does not give rise to any tangible grievance that can be addressed in law. It may also be that the time of challenge coincides with a yet not complete intervening process leading up to the final act or that an opportunity or chance, besides resort to Constitutional jurisdiction, is still available with the litigant.

10. There may be some forms of administrative or executive action such as preliminary measures which are mere staging posts midway to some final legally effective decision and which do not directly impact upon the rights or interests of individuals.

11. The Courts in Pakistan have noted with disapproval the action of agitating grievances that are not ripe or in respect of which the stage is yet premature to act or show indulgence. In "Virasat Ullah v. Bashir Ahmad, Settlement Commissioner (Industries) and another" (1969 SCMR 154), the Hon'ble Supreme Court of Pakistan has deprecated the filing of a Constitutional Petition against mere issuance of notice by the Settlement Commissioner asking the petitioner to justify benefits emanating out of settlement. In "Khalid Mahmood Ch. and others v. Government of the Punjab through Secretary, Livestock and Dairy Development" (2002 SCMR 805), the Hon'ble Supreme Court of Pakistan has ruled that issuance of notice was a preliminary stage and therefore, premature for the purpose of invoking Constitutional jurisdiction. "Muhammad Mahmood Ali v. Pakistan through Secretary, Ministry of Finance" (1984 CLC 142) holds to the same effect.

12. In a celebrated judgment "Muhammad Akhtar Sherani and 35 others v. The Punjab Textbook Board, Lahore and 4 others" (2001 PLC (C.S.) 939) the High Court has held that a mere notice to appear so as to answer allegations did not amount to an adverse order and a Constitutional Petition was therefore, not maintainable. "Mughal-e-Azam Banquet Complex through Managing Partner v. Federation of Pakistan through Secretary and 4 others" (2011 PTD 2260) at 2263 explains the rationale behind the doctrine of ripeness. It declares and compares prematurity or lack of ripeness to apprehensions or mere speculation. It declares that there had to be a concrete or tangible context for the Court to act. At Paragraph-6 of this judgment very illuminating observations with reference to the investigative process or the process of inquiry have been made. The judgment explains that in the case of a premature matter there is the danger of stultifying and stalling the discharge of statutory duties.

13. That, likewise, "Messrs Chakwal Textiles Mills Limited, Rawalpindi Road Chakwal and another v. Director Social Security, Rawalpindi and 2 others" (2012 PLC 270) holds to the same effect. In "Abdul Raheem Khan, Executive Manager (Operation) MEPCO 1st Division, D.G. Khan v. Managing Director PEPCO, WAPDA House, Lahore and 2 others" (2011 PLC (C.S.) 1551) a Division Bench has also deprecated the filing of a Constitutional Petition against mere issuance of notice. In "Mst. Zahida Shama v. Secretary Education and other" (PLJ 2002 Lahore 1479), the stage of a notice to appear and answer allegations has been held to be not one where it could be said that some adverse action had been taken against the person approaching the Court.

14. In a case reported as "Niaz A. Baloch v. Chairman, National Accountability Bureau and 2 others" (2008 PCr.LJ 1463) a Division Bench of the Sindh High Court has held that inquiry or investigation under a Notice issued by the National Accountability Bureau could not be thwarted or stultified because it was the duty of the Investigation Agency to find out the truth and discover actual facts. The Bench approved attendance of the petitioner before the NAB Authorities in due course of law. That, likewise, in "Tariq Mehmood v. Air Cdre. (R) Nayyar Q. Khawaja and 4 others" (2003 PCr.LJ 1512), a Division Bench of the Lahore High Court approved investigation and inquiry as a result of notice issued by NAB and held there was no bar on the Accountability Bureau to issue notice and as a result thereof to hold an inquiry.

15. Even the law declared by the Courts in England with reference to the concept of prematurity and ripeness for adjudication is on the same lines as in Pakistan and if any authority is required then in the words of Jack Beatson, a renowned author in administrative law, 'a court is being asked to resolve matters at a stage when the defendant has not reached a concluded view and the court is likely to work on incomplete materials.' In R v. Secretary of State for Foreign Affairs, ex. P. Rees Mogg (1994) QBD 552 and R v. Secretary of State ex. P. London Borough Council (1994) 1 WLR 74, similar observations have been recorded. That, likewise, in R v. Chief Constable, ex. P. Merrill (1989) 1 WLR 1077, it has been held that 'it was extremely rare to consider judicial review before a final decision has been reached. Similarly in R v. Commissioners of Inland Revenue, ex. P. Ulster Bank Limited (1997) STC 832, it has unequivocally been held that 'it was premature to challenge an issue until a proper decision has been reached.'

16. In this view of the matter, nascent matters are ill-suited for adjudication in judicial review proceedings. Of course, to entertain judicial review at such an incipient stage would tantamount to somewhat retarding statutory duties and obligations. In the present matter, statutory responsibilities of the Federal Investigation Agency to inquire into a crime which falls within its jurisdictional competence shall be offended if any interference is made at this stage.

17. Be that as it may and besides the observations made above, this petition requires no further action in view of the categorical statement made by respondent No.2 and is, therefore, dismissed. MH/M-165/L Petition dismissed.