ZAHID HAMID, J. By this Order the instant Constitutional Petition filed by the petitioner Gul Muhammad Hajano advocate seeking open trial of his son in as many as 34 crimes shall stand disposed of.
2. It is stated that inside jail trial of the UTP ordered vide Notification No. PRS-II/IID/8071/2008 issued by the Government of Sindh is violative of Articles 2A, 4(1), 4(2)(a), 9, 25(1), 25(2), 37, 14 and 18 of the Constitution of Islamic Republic of Pakistan; that the petitioner is a law abiding citizen, Chairman of a Political Party and Head of several Associations, Forums and Trusts; that he litigated against several regimes starting from General Zia and filed about 100 petitions inter alia against Sindh Government Functionaries including the Minister Mirza Shujjat Baig inter alia assailing illegal appointments, transfers, postings and promotions and a Constitutional Petition was filed against Retd. General Pervaiz Musharraf and General Moenuddin Haider.
3. The petitioner has also related a long story of having been arrested pursuant to some alleged bogus F.I.Rs. And proceedings which were quashed in his favour and some proceedings initiated by him against SHOs Soldier Bazar, Artillary Maidan and Bin Qasim seeking to register F.I.Rs. It is stated that one Syed Ziauddin Bukhari FCR Ministry of Interior asked him to pay Rs.500,000 to save his life or else his son Yasir would be shot dead. In this perspective the petitioner claimed that the respondents were bent upon victimizing the petitioner and his sons and 34 false cases/F.I.Rs. Have been registered against his son for whom the latter is proposed to be proceeded against by inside jail trials under a Notification No. PRS-II/IID/8-71/2008 issued by the Government of Sindh in purported exercise of powers vested under section 9, of Cr.P.C.
4. In the comments filed by CCPO Karachi and other respondents it was stated that on 22-1-2009 an information was received at Police Station Gizri from Clifton Base that two persons having long- hair were roaming in a suspected manner in White Toyota Corolla Car bearing Registration No. AMR-207 upon which the suspects were finally intercepted and they were signalled to stop but they started firing upon the police party and the police returned the fire in self defence and after an encounter arrested them. These suspects disclosed their names as Muhammad Ali Hajano son of the petitioner and one Umair Khan. The Police recovered two pistols and some robbed articles from their possession, brought them to Police Station Gizri and registered cases/F.I.Rs. No. 33 of 2009 under sections 324/353/34, P.P.C. Against both of them, F.I.R. No. 34 of 2009 under section 13-D of the Arms Ordinance against the petitioner's son and F.I.R. No. 35 of 2009 of the said Ordinance against Umair Khan. During interrogation the suspects disclosed their involvements in 34 cases and the complainants identified them before the Judicial Magistrate. Since the said accused persons were reportedly involved inter alia in molestation of women in Posh locality of Clifton and Defence Karachi the arrest of the accused received enormous public attention and a press conference was held whereafter rallies were taken out by the victims, their sympathizers and the elite. In due course challans against the said accused persons including the petitioner's son were submitted in as many as 34 cases/F.I.Rs. The press gave intensive coverage of the arrests and finally by Notification No. PRS-II/IID/8- 71/2008 the Government was pleased to notify the sitting of Judges for conducting inside jail trial cases against the petitioner's son in the following crimes:- Sr. Under sectionsF.I.R # PS Trail Court 1 307/34 A r/w 39732/09 Clifton JM VII South Karachi 2 392/34, 354 AR/W 39736/09 Boat Basin JM V South Karachi 3 302/34 376/08 - do - JM V South Karachi 4 392, 34, 397 13/08 Defence JM VII South Karachi 5 392, 34 R/W 397535/08 - do - JM VII South Karachi 6 392, 397, 34 487/08 Darakshah JM VIII South Karachi 7 392, 397, 34 09/09 Darakshah JM VIII SouthKarachi 8 392, 397, 34 531/08 Darakshah JM VIII South Karachi 9 392, 397, 34 65/09 Darakshah JM VIII South Karachi 10 392, 397, 34 68/09 Darakshah JM VIII South Karachi 11 392, 397, 34 67/09 Darakshah JM VIII South Karachi 12 392, 397, 34 46/09 Darakshah JM VIII South Karachi 13 392, 397, 34 504/08 Darakshah JM VIII South Karachi 14 392, 397, 34 434/08 Darakshah JM VIII South Karachi 15 392, 397, 34 526/08 Darakshah JM VIII South Karachi 16 392, 397, 34 64/09 Darakshah JM VIII South Karachi 17 392, 397, 34 591/08 Darakshah JM VIII South Karachi 18 392, 397, 34 196/08 Darakshah JM VIII South Karachi 19 392, 397, 34 40/08 Gizri JM VIII South Karachi 20 392, 397, 34 506/08 Gizri JM VIII South Karachi 21 392, 397, 34 40/09 Gizri JM VIII South Karachi 22 392, 397, 34 02/08 Gizri JM VIII South Karachi 23 392, 397, 34 425/08 Gizri JM VIII South Karachi 24 392, 397, 34 50/09 Gizri JM VIII South Karachi 25 392, 397, 34 43/09 Gizri JM VIII South Karachi 26 392, 397, 34 32/09 Gizri JM VIII South Karachi 27 392, 397, 34 03/08 Gizri JM VIII South Karachi 28 392, 397, 34 41/09 Gizri JM VIII South Karachi 29 392, 397, 34 53/09 Gizri JM VIII South Karachi 30 392, 397, 34 31/09 Gizri JM VIII South Karachi 31 392, 397, 34 461/08 Gizri JM VIII South Karachi 32 13 - E 22/09 Al Falsh JM IX East Karachi 33 13 - D 34/09 Gizri JM VIII South Karachi 34 353, 324, 34 33/09 Gizri JM VIII South Karachi
5. The petitioner filed a self incriminating rejoinder broaching that the Police Inspector Raja Riaz obtained Rs. 50,000 as bribe from him yet he submitted a challan under sections 353/324/34, P.P.C.
But he was acquitted. He averred that about 20 Constitutional Petition filed by him against Government of Sindh, its Ministers and other public functionaries were still pending and it was due to malice that the petitioner's son was involved in 34 cases/F.I.Rs. And was also notified to be subjected to inside jail trial.
6. We have heard the learned counsel/petitioner and the learned Additional Advocate-General Sindh.
7. The former has insisted that his son is entitled to open trial in Court and not in jail under the Constitution and the law. He referred to c the case of Mairaj Muhammad Khan v. The State (PLD 1978 Kar. 308) to emphasize that one of surest guarantees of a citizen's liberty was to provide him with open public trial, there being no provision in Criminal Procedure Code compelling the Magistrate to hold his court in the usual court room he could hold his court an where and could exclude public enerall or an .Articular erson from havin access to the court room yet such power could only be exercised judicially after satisfying himself from the available material with regard to necessity of holding trial in camera and where a Tribunal immediately on receipt of case, suo motu, without a single hearing before it sought permission from the Government for holding trial in jail on the ground of likelihood of creation of law and order situation overlooking the fact that the case had earlier proceeded at City Court Building on seven occasions and at other places in normal court premises on six occasions and where the Tribunal was not informed of any apprehension as entertained by him change of venue of trial in undue haste without judicial application as to the effect of jail trial on the right of the accused to obtain open trial was not called for. Mairaj Muhammad Khan a political figure, in this case, was the accused and it was held that irregularities in the procedure resulted in substantial injustice and when his counsel was only seeking instructions as to what evidence was to be led in defence, the Tribunal without waiting for a reply announced the judgment. In this case reference was made to section 352, Cr.P.C. Which provides as follows:-- "Section 352, Cr.P.C.
"352: Courts to be open: the place in which any criminal court is held for the purpose of inquiring into or trying any offence shall be deemed an open court, to which the public generally may have access, so far as the same can conveniently contain them"; "Provided that the Presiding Judge or Magistrate may, if he thinks fit, so far at any stage of any inquiry into, or trial, of any particular case, that public generally or any particular person shall not have access to, or be or remain in room or building used by the court."
8. The learned counsel/petitioner has next relied on the case of Asif Ali Zardari v. Special Judge (Offence in Banks) and 10 others (PLD 1992 Kar. 437) to stress upon his viewpoint that it is the court and not the Government which can order inside jail trial. It was held in this case that justice should not only be done but it must manifestly be seen to have been done, and further that for the reasons of security of the accused or of the witnesses or for any other valid ground the trial in jail may be legal and it is for the courts to realize that the place where trial is held must be something like an open court to which the public generally may have access as the same may contain and that it is the duty of the Presiding Officer to see That proper facilities are given to the members of the Bar and the members of the public and that they are not restricted by the Jail Rules or by the officer in charge of the Jail and the Government of Pakistan has no legal authority to issue the notifications directing Presiding Officers of the Special Courts to hold trial against the accused within the premises of jail and the law does not tolerate the achievement of lawful purpose by unlawful means. In this case also the petitioner was a political figure of that time.
9. The learned counsel has referred to Liaquat Ali and 6 others v. The Government of Punjab and another (1993 PCr.LJ 1678 Lahore); Muhammad Hanif v. The State (PLD 1986 Kar. 437); Messrs Noorani Traders Karachi through Managing Partner v. Pakistan Civil Aviation Authority through Airport Manager, Karachi (PLD 2002 Kar. 83); Airport Support Services v. Airport Manager, Quaid-e- Azam International Airport Karachi (1998 SCMR 2268); Malik Asad Ali v. Federation of Pakistan through Secretary Law, Justice and Parliament Affairs, Islamabad and others (1998 SC 161); University of Dacca v. Zakir Ahmed PLD 1965 Dacca 90; Messrs Usmania Glass Sheet Factory Ltd. v.
Sales Tax Officer (PLD 1966 Dac. 523); Muhammad Pervez and others v. The State and others 2007 SCMR 670; Mehar Zulfiqar Ali Babu and 3 others v. Government of Punjab and others 1997 SCMR 117; Muhammad Din v. Deputy Inspector-General of Police, Sheikhupura Range, Lahore and others 2004 YLR 1529; Muhammad Yousuf v. The State and others 2000 SCMR 453; Aziz Ahmed v. Provincial Police Officer (I.G.P.), Punjab Lahore and 6 others PLD 2005 Lah. 185 and Haji Muhammad Ismail Memon, Advocate (complainant) in the matter of Criminal Miscellaneous Application No. 226 of 2006 (PLD 2007 SC 35), which are not precisely relevant to the point in issue.
10. The learned counsel for the petitioner has also referred to the case of Abdul Rashid Chaudhury and others v. The State (PLD 1966 WP (Lahore) 562). Following excerpt from this decision being relevant is reproduced below:-- "7. There is no doubt that generally the proceedings of Courts should, under the law of the land and under section 352, Cr.P.C., be held in an open and public place to which the public, generally, may have access, so far as the place can conveniently contain them, provided of course that the Magistrate or Presiding Judge may, if he thinks fit, order, at any stage of an enquiry or trial in a particular case, that the public generally, or any particular person shall not have access to, or be, or remain, in, the room used by the Court. Learned counsel for the petitioners cited at the bar Cora Lillin Mehperson v. Oran Leo Mehperson (161 IC 260) wherein their Lordships of the Privy Council observed : "Except in the case of certain strictly defined exceptions, such as applications properly made in chambers and infant cases, every Court of Justice must be open to every subject of the King.
Publicity is the authentic hall-mark of judicial as distinct from administrative procedure. The actual presence of the public is not necessary but the Court must be open to any who may present themselves for admission."
But this ruling will not strictly apply to criminal Courts in Pakistan which, so far as the matter in dispute is concerned, are governed by section 352, Criminal Procedure Code, which empowers a Magistrate to exclude certain persons in certain circumstances for valid reasons appealing to the trial Magistrate. But it is an established rule of law that a criminal trial should be held in a public place and that the public in general should have access to it. This general rule is prevalent in almost all the civilized countries of the world. But, in view of the peculiar or extraordinary circumstances of a case, there may be need to relax the rigidity of the aforesaid established rule of law. That is why section 352, Cr.P.C. Makes a provision for certain contingencies. Lack of space in the Court room may justify a Magistrate in admitting only a limited members of the public. Further, when indecent and obscene matters have to be canvassed during the trial, the Magistrate may well have a discretion to exclude certain section of the community. In the same way, the Court may, for cogent reasons, exclude those unconnected to the proceedings of the case to avoid apprehensions of breach of the peace or for any other emergent reasons. A Magistrate or the Presiding Judge is the master of the situation and is the person responsible to maintain the decorum of the Court and to regulate the proceedings. He has the power even to hold the proceedings in a camera. In view of my above observations, I am of opinion that the Court has the inherent jurisdiction to exclude all those who are not connected with the proceedings of the case and can hold proceedings in camera for cogent reasons after passing an order under section 352, Criminal Procedure Code. I may also with advantage refer to the following decisions on the subject."
8. In The King v. Governor of Lewes Prison 1917 (2) KB 254, their Lordships held : "The words 'open Court' mean a Court to which the public have a right to be admitted, but they do not include a Court where the public are excluded although the accused and his representatives are allowed to be present................................ There is inherent jurisdiction in every Court, including a field general court- martial, to exclude the public from a trial if it is necessary for the administration of justice." In Scott and another v. Scott (1913 AC 417) Earl Loreburn observed: "In cases where it is shown that the administration of justice would be rendered impracticable by the presence of the public, as for example where as party would be reasonably deterred by publicity from seeking relief at the hands of the Court, an order for hearing a matrimonial suit in camera may be lawfully made. Subject to the above limitation rules may be made under the Matrimonial Cases Act, 1857, to regulate the hearing of causes in camera." In Halsbury's Laws of England, Volume IX, 1909 Edition, page 9, at the end of paragraph 1 of Part I (Introductory), it has been reported that as a general principle, all Courts must be open to the public, though the Judge may for good and sufficient reason order that the public, or a certain section of the public, shall be temporarily excluded. In W.E. Gardner v. U. Kha AIR 1936 Rang. 471, Dunkley J., observed: "Where a Magistrate conducts a trial in camera in the exercise of his own discretion and under proviso to section 352, Criminal P.C., and no objection is raised to such procedure, the proceeding of the Magistrate cannot be upset except on the ground that the complainant is prejudiced by the case being not tried in open Court." In the present case, there is, apparently, nothing on the record to indicate that any objection was raised by any of the parties to the proceedings or the procedure adopted by the learned trial Magistrate. On the other hand, Rozemary Daud Ilyas, the prosecutrix, had the intention from the very beginning, as it appears from the record, and was interested in the proceedings being held in camera. The learned Magistrate, in the circumstances of the case, was justified in acceding to her request, as the Courts of law are charged with the parental and administrative duties to protect, in proper cases, the litigants appearing before them from unnecessary embarrassment. The upshot of my above discussion is that every Court of law is open to every subject of the State but subject to certain limitations and exceptions to be determined by the Court hearing the case.
9. Before parting with this judgment I am constrained to say that the learned Magistrate did not apply his mind while disposing of the application made to him under section 352, Cr.P.C. The circumstances of the case were such that he should have ordered the proceedings to be held in camera as prayed by the prosecutrix. But I would like to point out to the Magistrate that the members of the Bar are the officers of the Court and as such are bound to uphold and maintain the dignity and decorum of the Court. Therefore, if the learned Magistrate, who, of course, has excluded the public in general by his order, but is not holding the proceedings in camera if deems fit, may follow by permit a few members of the Bar who could be reasonably accommodated in a Court-room, but this observation should not be understood to mean that this Court is issuing a directive that the members of the Bar will be permitted to witness the proceedings in the said case.
This is up to the Magistrate to consider all the circumstances in which he is holding the trial and to permit or refuse anyone to witness the proceedings of the case or may, in the peculiar circumstances of the case, order the proceedings to be held in camera."
11. The learned Counsel next referred to the case of Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice and Parliament Affairs, Islamabad and others (PLD 1998 SC 161) wherein it has been observed, without any relevance to the subject under discussion that right of access to impartial and Independent courts/tribunals is a fundamental right of every citizen.
12. On the other hand, the learned Additional Advocate-General Sindh has placed reliance on section 9, Cr.P.C. Which is to the following effect:-- "9. Court of Sessions.---(1) The Provincial Government shall establish a Court of Session for every sessions division, and appoint a judge of such Courts.
(2) The Provincial Government may, by general or special order in the official Gazette, direct at what place or places the Court of Session shall hold its sitting; but until such order is made, the Courts of Session shall hold their sittings as heretofore. (3) The Provincial Government may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in one or more such Courts.
(4) Sessions Judge of one sessions division may be appointed by the Provincial Government to be also an Additional Sessions Judge of another division, and in such case he may sit for the disposal of cases at such place or places in either division as the Provincial Government may direct.
(5) All Courts of Session existing when this Code comes into force shall be deemed to have been established under this Act."
13. The Learned Additional Advocate-General $indh has also relied on the case of Makhdoom Javed Hashmi, (2004 PCr.LJ 1089) already referred to and discussed above.
14. Having considered the arguments in the light of the record and the relevant provisions and the case law our conclusions are as follows:
15. Under the impugned notification ibid, the Government of Sindh Home Department in exercise of powers conferred under subsection (2) of section 9, Cr.P.C. 1898 notified sitting of judges for conducting inside jail trial of the petitioner's son. The gravity of offences and of their being heinous or otherwise and allegedly committed during the year 2008-2009 attributed to the petitioner's son average at more than one in every month including offence committed under section 354 in one case. The offences of outraging modesty of women in posh locality of Karachi and the sensational modus operandi of commission of crimes inter alia of robbery, snatching jewellary from women and other valuables and cash in DHA by wearing a wig received enormous notoriety and attention of the Press as it appears from the newspapers clippings on record. It is stated by the learned Additional Advocate-General that the affected women led processions before the Press Club Karachi and the security of the witnesses would be at stake besides being put to embarrassment, if jail trials are dispensed with. He argued that the complainant and P. Ws. Would be easily overawed not to identify the U.T.P.
16. The most important feature of all the cases/F.I.Rs. Registered against the petitioner's son is that so far charges have not been framed in any of the cases and probably the bail has also not been applied for in any case. It is not ascertainable if in any of the cases, Muhammad Ali Hajano has made an application under section 265-K or 249-A, Cr.P.C. Or not or the fate such proceedings met. Having not filed any bail application or proceedings for acquittal under the aforesaid provisions, it can be fairly assumed that the accused is not bothering about his detention which is adjustable under section 382-B of Cr.P.C. It is presumed that if evidence is produced in each case then perhaps the accused Muhammad Ali Hajano might remain in jail for a considerable period.
Learned counsel has not cited a single case in which a jail trial was prohibited in spite of the accused having been implicated in so many like cases including outraging modesty of women, murder, robbery, dacoity, with attempt to cause death or grievous hurt and assault to deter public servants from discharging their duties. In most of the cases mobile phones, watches, purses and cash including jewellary were forcibly snatched at gunpoint. Such offences were allegedly committed quite frequently during a short period.
17. In Makhdoom Muhammad Javed Hashmi v. Chief Commissioner Islamabad (2004 PCr.LJ 1089 Lahore). It was held that the accused was a political leader and was arrested under sessions 124-A, 131, 468, 469, 471, 5000 500-A and 109, P.P.C. And on the appearance of the accused in the Trial court, law and order situation had been created by unruly supporters of the accused and as such Chief Commissioner/ Administration of Islamabad directed trial of the accused in jail and the order of the authorities was supplemented by the trial Court. A plea was raised by the accused that Chief Commissioner could not direct trial of the accused in jail as the jurisdiction under S.9(2), Cr.P.C.
Could only be exercised by the Provincial Government and the Chief Commissioner/ Administration of Islamabad was empowered under Art, 2 of Islamabad Capital Territory (Administration) Order, 1980, to exercise all the powers and duties conferred or imposed on Provincial Government under any law for the time being in force in Islamabad Capital Territory and the Chief Commissioner/Administration of Islamabad was a Provincial Government and under S.9(2), Cr.P.C. Was empowered to direct holding of trial of a case in jail premises and the District Magistrate, Home Department or Home Secretary for reasons, might conduct the inquiry and place the matter before Trial Court which alone was competent to determine as to whether the trial should be held in open court or in jail premises and the Provincial Government in suitable cases could pass an order for trial of a case at a particular place if the reasons were bona fide. The Order of Chief Commissioner/Administration of Islamabad directing jail trial was supplemented by the order of trial Court itself which disapproved the situation and was of the opinion that normal trial in a Court-room would not be practical and could not be held in a peaceful atmosphere and the Petition was dismissed in the circumstances".
18. In the above case reference was made to Shaukat Hayat y. Government of Sindh and another (1987 MLD 2783), wherein a constitutional petition was filed against the order of Government, authorizing the Additional Sessions Judge to hold trial in Central Prison, and it was observed that:-- "The trial of the case is to be conducted in open court where the concerned court normally holds but in exceptional cases, a trial could be held in camera or at a place other than the normal court room. An open trial could also be held in prison if the circumstance of the cases so warranted."
19. Reverting to the merits being discussed it may be stated that the Word "Prosecution" under criminal justice system means "The prosecution from the beginning to the end". The accused is at liberty to plead guilty to the charge and bring the trial an end forthwith. Strictly speaking therefore the trial particularly begins on framing of the charge and after it is read out to the accused, when he pleads guilty or claims to be tried. By framing of the charge, the accused is only made aware about the case of the prosecution borne out on the record against him. The object is to enable the accused to know about the precise accusation against him. The trial may proceed after the charge has been framed or altered. The trial may begin immediately on framing of the charge but as such course may prejudice the accused in his defence, the trial is therefore adjourned after framing of the charge. Admittedly, the charge IE has not been framed in any of the 34 cases/F.I.Rs. Against UTP Muhammad Ali Hajano. Accordingly, when the charges are framed the accused would be at liberty to make an appropriate petition to the trial court itself and seek directions of that court for holding the trial in open court which can even be arranged within the premises of the jail by invitation to the public through the media or as deemed fit by the trial court in circumstances of the case after weighing the subjective conditions on the actual commencement of the trial i.e. Stage of recording evidence. It would be found that the order as to inside jail trial may be partly related to the protection of the complainant and the P. Ws. Or save them from embarrassment and from prejudice being caused to their case.
20. The assumed mala fide is alleged to have led to issuance of the impugned notification. This plea has however been based on a motley of allegations having no proximal relation with the reported commission of crimes; such mala fide even otherwise cannot be enquired into in exercise of writ jurisdiction. All such allegations appear to be prima facie illusory. No justification has been pleaded for giving rise to the motive to punish the son of the petitioner for the acts of his father which allegedly offended the Institution of the police as a whole. The allegations are derogatory and self incriminating inasmuch as it has been stated that though the petitioner bribed a police official yet he submitted the challan against him. The trial has not commenced even in a single case, the comments of the learned trial Court as to subjective conditions obtaining at the commencement of the trial might need to be called for. The impugned notification under the circumstances cannot be struck down in undue haste merely on the ground that it has just been issued by the Government of Sindh without the same having been supported or opposed by the trial Court. There is a possibility that the trial Court may itself ask for holding of inside Jail Trial for good reasons after hearing all the parties whose interest might be found at stake. The trial Court has ample power to take steps to secure the ends of justice, whenever the trial begins after framing of the charge(s) and to apply its judicial mind and pass such orders as may be found appropriate inter alia proposing inside jail trial or otherwise of the UTP Muhammad Ali after examining all the factors.
22.(sic..) Be that as it may the learned trial Courts specially constituted for inside Jail Trials are directed to frame the charge(s) in all the cases without delay. Copy of this order shall be provided to the learned A.A.-G. For ensuring compliance.
23. The petition was dismissed by a short order dated 27-5-2010 and these are the reasons for the same.