C.M. No, 4 of 2017 SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Through this petition filed under section 151, C.P.C., prayer has been made for placing on record certain documents appended with the same. For the reasons recorded in the petition, the same is allowed subject to all just and legal exceptions. Resultantly, documents appended with this petition are directed to be made part of the main file.
Main Case
2. By means of instant constitutional petition filed under Article 199 of the Constitution of Isl,,mic Republic of Pakistan, 1973, the petitioners have made prayer as follows: "In view of the aforesaid it is most respectfully prayed that the Government of Punjab/respondent may kindly be directed to:-
(i) immediately provide the Report of Mr. Justice All Baqar Najafi, J. Lahore High Court, Lahore acting as the Judicial Commission with respect to the "Model Town massacre" (incident dated 17.06.2014) to the Petitioners; and
(ii) make the Report public to ensure that the fundamental rights of the petitioners, and as well as people of Pakistan under Article 19A of the Constitution, are enforced in letter and spirit, in the interest of justice.
It is further prayed that in order to ensure that the original Report submitted by Mr. Justice Ali Baqar Najafi, J. Lahore High Court, Lahore to the Government of Punjab/respondent is not tampered with or manipulated in any manner, office of the Judicial Commission may also be requested to provide an attested copy of the Report to this Hon'ble Court and to the Petitioners.
Any other relief which this Hon'ble Court may deem fit in the circumstances of the case may also be granted to the petitioners."
3. Facts of the case arising out of the instant constitutional petition are that Pakistan Awami Tehreek (a renowned political party registered with Election Commission of Pakistan) opted to stage a protest against the Government in June 2014. The procession had to start from Idara Minhaj-ul-Quran situated at Model Town, Lahore, on 16th of June, 2014. According to contents of the instant petition on the evening of 16.06.2017, when the procession started, the local police under the garb of handling the law and order situation, on the instructions of the Government, started creating hurdles, which resulted into a horrific massacre, and the same lasted till the mid-day of 17th June, 2014. During this unfortunate incident fourteen (14) persons were done to death while about eighty five (85) sustained firearm injuries when the local police opened firing allegedly to control the violent masses, who had gathered and rescued within the premises of Idara Minhaj ul Quran. The occurrence was highlighted through electronic and print media as Idara Minhaj ul Quran was being run under the administration of top political rival of the ruling party (Pakistan Muslim League-N). It was squarely alleged that the whole occurrence had been committed on the behest of the Provincial Government and all the main political leadership of the Ruling Party (Pakistan Muslim League-N were arrayed as accused. As the instant ambitious attack which was one of the most blatant and gruesome on the human rights in a democratic country in response to a democratic demonstration wherein sheer force was used in clear violation of the established principles of equity, fairness and good governance, the regime of the Province just to normalize the situation, approached the Registrar, Lahore High Court, through a letter No, SO(Judl-III) 9-53/2014, dated 17th June, 2014; whereby request was made to appoint a Judicial Commission to conduct judicial inquiry under section 176, Cr.P.C. to ascertain the real fact(s), cause(s) of the incident, fix responsibility if any and to make recommendations to avert such like incidents in future. This letter was further supplemented through another letter of even number and date; wherein it was clarified that the appointment of the Tribunal or Commission or Committee may be made in terms of Section 3 of West Pakistan Tribunals of Inquiry Ordinance, 1969. While honouring the request made by the Government of Punjab, the Hon'ble Chief Justice appointed Hon'ble Mr. Justice Ali Baqir Najafi as 'One Man Tribunal' under sections 3 and 5 of the Punjab Tribunals of Inquiry Ordinance, 1969, for making inquiry to ascertain the facts of the instant incident having taken place at Idara Minhaj ul Quran and its Secretariat at Model Town, Lahore. The proceedings were initiated by 'One- Man Tribunal' and ultimately an 'Inquiry Report' was prepared, which was en-routed through the office to the Secretary, Home Department, Government of the Punjab. The record available on file reflects that despite of the fact that the legal heirs of deceased, as well as, injure knocked the doors of the concerned quarters in order to know the outcome of inquiry report, their efforts did not borne fruit. The instant petition has been filed by the petitioners, who are legal heirs of the deceased/injured of the incident, seeking direction to the respondent/Government of Punjab to make the inquiry report public, so that they may know the actual perpetrators of the ruthless occurrence.
4. At the very outset, while opening his arguments, learned counsel for the petitioners submits that the constitutional petition in hand has been preferred by the petitioners being legal heirs of the deceased and injured as they have direct nexus with the Model Town incident, in which 14 (fourteen) persons, including women folk were done to death whereas about 85 persons sustained firearm injuries. Learned counsel while drawing attention of this Court towards the notification issued for constitution of 'One Man Tribunal ' has emphasized that the instant incident is of public importance and the very initiation of the action by the Government requesting Lahore High Court for constitution of 'Tribunal' was meant to ascertain the real facts in the public interest, which is spelled out from bare reading of notification itself, hence the same was asked through further continuation of notification under section 3 of West Pakistan Tribunals of Inquiry Ordinance, 1969.
While elaborating his arguments learned counsel for the petitioners contends that proceedings carried out by the Tribunal are judicial proceedings as envisaged in subsection (5) of section 5 of the West Pakistan Tribunals of Inquiry Ordinance, 1969. Adds that as the proceedings before the Tribunal are judicial proceedings, therefore, any outcome of the same is related to a public document, hence access to the same is well within the domain of law as established by the superior courts. Learned counsel while referring the Punjab Transparency and Right to Information Act, 2013 (ACT XXV of 2013) promulgated on 16th December 2013 has strenuously argued that the Punjab Government itself has legislated and introduced a new trend to the public wherein the right of information has been extended, which is apparent from its preamble. While elaborating the preamble of Punjab Transparency and Right to Information Act, 2013, which is always considered as gateway of any legislation, it has been argued by learned counsel for the petitioners that the scope of right of information has been widened by the Punjab Government itself while introducing such liberal legislation while expanding horizon of the right to information. Learned counsel further contends that said legislation at the part of the Government of the Punjab can be termed as expansion and elaboration of Article 19-A of the Constitution of Islamic Republic of Pakistan, 1973, where the right to information has been guaranteed enabling even the general public to have access towards the matters pertaining to public importance although those are subject to certain regulations and reasonable restrictions but that has been fully adhered to while drafting the legislation. While supplementing his submissions with regard to Article 19-A of the Constitution, learned counsel has referred to section 2(h)(iv) and (j)(iii) Punjab Transparency and Right to Information Act, 2013. Learned counsel however, frankly concedes that there are certain restrictions, which too are expansion of Article 19-A of the Constitution but these pertain to national defence or security, public order or international relations of Pakistan. While elaborating the preamble of the said Act in relation to Article 19-A of the Constitution, it has been argued by learned counsel for the petitioners that though it is prerogative of the Government to ask for constitution of the said Tribunal to ascertain the facts and circumstances, but the same cannot be skipped from the access of aggrieved persons especially when the other party in question is Government itself. While referring to Article 85 of Qanun-e-Shahadat Order, 1984 pertaining to definition of a public document, learned counsel stated that as inquiry report is outcome of judicial proceedings in terms of section 4(m) of Cr.P.C. and Section 5(5) of the West Pakistan Tribunals of Inquiry Ordinance, 1969, therefore, access to that can be claimed by the petitioners as a matter of right.
While summing up his arguments it has been argued by learned counsel for the petitioners that if the whole scenario is taken into consideration it is the right of the aggrieved persons at least to know what happened at the specific time as determined by the 'One Man Tribunal' comprising of the an Hon'ble Member of the Highest Forum of Adjudication of the Province. Learned counsel contends that despite of the fact that three years have already elapsed, however, the legal heirs of the deceased/injured have not been given access towards the actual wrongdoers who were directly instrumental in the gruesome occurrence, as well as, their accomplice, which deprived them from their dear ones. In the end learned counsel seeks indulgence of the Court in - the circumstances.
5. On the other hand, Mr. Shan Gull, learned Additional Advocate General has vigorously opposed the contentions advanced by learned counsel for the petitioners while raising certain objections.
The first objection raised by learned Law Officer is that earlier six constitutional petitions were filed on the same subject, which are pending adjudication before learned Full Bench as mentioned below:- (1)Writ Petition No,31752/2014 "Ishtiaq Ch (Advocate) v. Govt. of Punjab, etc."
(2)Writ Petition No,19354/2014 "Qamar Sohail. Advocate v. The Government of Punjab, etc."
(3)Writ Petition No,22334/2014 "Muhammad Zubair Khan Niazi v. Federation of Pakistan, etc."
(4)Writ Petition No,24703/2014 "Amer Saleem v. Home Secretary, etc."
(5)Writ Petition No,33702/2014 "Idara Minhaj Ul Quran etc. v. The Government of the Punjab". (6) Writ Petition No,33921/2016 "Syed Farzand Ali Mashhadi (Advocate) v. Govt. of Punjab, etc."
Learned Law Officer has further stated that earlier Writ Petition No,33522/2016 was filed by one Muhammad Jawwad Haamid seeking direction to the Government of Punjab to place the Inquiry Report before the learned trial court/Anti-Terrorism Court as a cursory evidence, which was adjudicated by a learned Full Bench and vide order dated 05.12.2016, the same was dismissed. The main crux of arguments advanced by learned Law Officer is that the petitioners cannot claim the publication of the inquiry report as a matter of' right firstly for the reason that it is not a public document and secondly that is exclusively for the consumption of the executive just to avert future incidents and that is the crux of the legislation. Furthermore, appointment of Judicial Commission in such like incidents is to seek guidance to avert future incidents. He has tried to further elaborate that as the petitioners had boycotted the proceedings conducted by the Tribunal at one stage, therefore, their claim of publication of its report seems to be something, which is non--existent.
Contends that the Government is fully conversant with the fact that if this inquiry report is made public that might prejudice the public order, which is exclusively within the domain of the government to tackle, hence the petition in hand is liable to be dismissed.
6. I have heard learned counsel for the parties and perused the record available on file with due care and caution.
7. As far as preliminary objection raised by learned Law Officer that this Court lacks jurisdiction to entertain this petition as six similar petitions on the same subject are pending before a Full Bench is concerned, that is of prime importance, therefore, the same requires to be dilated upon first. In order to evaluate the contention of the learned Law Officer, I have perused the record qua pendency of other petitions pending adjudication before a Full Bench. Careful scrutiny of all the petitions placed on record by the learned Law Officer clearly reflects that none of those was filed by any legal heirs of the deceased or injured of the incident rather all these have been filed by the persons alien to the incident and they in no way can be termed as aggrieved persons by and stretch of imagination as characteristics of an aggrieved person in such like cases primarily relate to persons, who have direct nexus with the occurrence. In this regard a specific query was made from the learned Law Office whether any of the petitioners in the above constitutional petitions has any direct relationship with any of the deceased, or injured of the incident, he straightway conceded the same and could not make any satisfactory reply in this regard. As far as the present petitioners are concerned, they one way or the other are legal representatives of the persons, who lost their lives in the barbaric incident or suffered firearm injuries, hence, in all eventualities they are the best persons, who come within the ambit of aggrieved persons. Hence, the present petition is maintainable in its present form and requires to be adjudicated independently.
8. The second objection raised by learned Law Officer during the course of arguments was that earlier one Muhammad Jawwad Haamid had filed Writ Petition No,33522/2016, which came up for hearing before a Full Bench and the same was ultimately dismissed vide order dated 05.12.2016 is concerned, perusal of record available on file reveals that during trial proceedings qua the incident a private complaint was filed and the learned trial court was moved to summon Inquiry Report, which was declined and the order of the learned trial court was assailed through Writ Petition No,33522/2016 with the following prayer: - "Under the circumstances and submissions made above, it is humbly prayed that this Writ Petition may kindly be accepted, order passed by Respondent No,2 dated 29.09.2016 may kindly be set aside and the One-Man Tribunal enquiry report delivered under sections 3 and 5 of the Punjab 'Enquiry Report Tribunal, 1969 may kindly be ordered to be placed on record as a piece of cursory evidence on behalf of the petitioner in the evidence. It is further prayed that any further relief which this Honourable Court deems fit and proper in the circumstances of the case, may also be granted. It is further prayed that the proceedings before the learned trial court may kindly be suspended till the final disposal of this petition."
Bare perusal of the prayer clause sought through Writ Petition No,33522/2016 reflects that the same was filed entirely on different premises as the prayer was to place the copy of inquiry report on record as cursory evidence during the proceedings of trial, which aspect perhaps is beyond the scope of the learned trial court, hence, the same was rightly declined by the learned Full Bench through an elaborative order. Hence, the objection raised by learned Law Officer on this score is repelled.
9. Now coming to merits of the case in hand it is painstaking noted that whether in a civilized society, the government machinery can be utilized to curb the political opponent in such a reckless manner resulting into death of fourteen (14) persons including women folk out of whom reportedly few were pregnant and the tally of the injured goes to eighty five (85). Moreover, after such an outlandish occurrence, whether it would be justified that the legal heirs of the deceased would be deprived from knowing the outcome of Inquiry even after the lapse of more than three years, which was assigned to an Hon'ble Member of the Highest Court of the Province just under the impulses that it is exclusively for the consumption of the executive when very initiation of the action taken by the Government itself leads to one specific aspect of the case, which is of prime importance being part and parcel of the notification, legislation either in the shape of West Pakistan Tribunals of Inquiry Ordinance, 1969, the Punjab Transparency and Right to Information Act, 2013 or Article 19-A of the Constitution of Islamic Republic of Pakistan, 1973 i,e, "public importance". This aspect further lends support from the fact that the same was not only utilized but was made basis for initiation of these proceedings, which is easily spelled out from the bare reading of the request made by the Government of the Punjab to Registrar, Lahore High Court through letter No,SO (JUDL-III) D9- 53/2014 dated 17th June, 2014, relevant portion of which reads as under: "2. The foregoing incident created unrest in the general public and attracted the attention of local and international media. It is therefore expedient to determine in public interest the real fact(s), cause(s) of the incident, measures taken and pre and post handling of the incident."
Hence, it is apparent that the outcome of such an inquiry commenced on account of public interest must be brought in the notice of the public at large because in the democratic system the will of the public is of unique importance. If such like incident, which no doubt is barbaric in nature, happens and the public is deprived of access to the information qua the outcome of its proceedings before the Commission it would mean that will of the people has been sabotaged while refusing to provide them access of information which will make the whole system catastrophic in nature, hence the same cannot be termed as transparent by any stretch of imagination; particularly when the proceedings were carried out in terms of subsection (5) of section 5 of the West Pakistan Tribunals of Inquiry Ordinance, 1969, which is reproduced as under: "(S) Any proceeding before the Tribunal shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Pakistan Penal Code."
Moreover, while enacting the Punjab Transparency and Right to Information Act, 2013, which no doubt is a glaring example that the Government is cognizant to safeguard the interests of the public regarding provision of information but unfortunately the law, which was enacted by the Government itself, has been deviated by the same Government under the clog of high handedness and colourful authority, which otherwise. seems to be tainted. The arguments advanced by learned Law Officer that the proceedings carried out in pursuance of the aforesaid legislation cannot be termed as judicial proceedings, is devoid of any force because the word judicial proceedings has been contemplated in West Pakistan Tribunals of Inquiry Ordinance, 1969, as reproduced supra.
There is no cavil to this proposition that while holding inquiry the Tribunal has to record evidence on oath whereas according to definition contemplated in section 4(m) of the Code of Criminal Procedure, 1898, the judicial proceedings have been defined as under: "(m) "Judicial proceeding". "Judicial proceeding" includes any proceeding in the course of which evidence is or may, be legally taken, on oath;"
Hence, by all means the proceedings carried out by the Tribunal are judicial proceedings and as such it falls within the meaning of a public document as envisaged in Article 85 of Qanun-e- Shahadat Order, 1984, B which reads as under:- "85. Public documents. The following documents are public documents:
(1) documents forming the acts or records of the acts.
(i)of the sovereign authority; (ii)of official bodies and tribunals, and (iii)of public offices, legislative, judicial and executive, of any part of Pakistan, or of a foreign country..."
If the above provisions of Article 85 of Qanun-e-Shahadat Order, 1984, are read together with Punjab Transparency and Right to Information C Act, 2013, the report being a public document it has to be given access to the general public.
Further this Court has observed that the very inception of the institution of Judiciary is to advance the administration of justice. In the Indian jurisdiction in the case of P.N. Dadu v. V.P. Shiv Shankar and others (AIR 1988(sic) 1208), it was held as under: "Administration of justice and Judges are open to public criticism and public scrutiny. Judges have their accountability to the society and their accountability must be judged by their conscience and oath of their office, that is to defend and uphold the Constitution and the laws without fear and favour. This the Judges must do in the light given to them to determine what is right. Any criticism about the judicial system or the Judges which hampers the administration of justice or which erodes the faith in the objective approach of Judges and brings administration of justice into ridicule must be prevented."
Moreover, the Courts having jurisdiction to adjudicate upon the matter are vested with the power to extend relief according to facts and circumstances. This aspect was deliberated in a salutary judgment reported as Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan throu;h Prime Minister of Pakistan and, another (PLD 1989 Karachi 404) in the following terms: "---Court having jurisdiction to adjudicate upon a matter, has the power to mould a relief according to the circumstances of the case, if dictates of justice so demand even if such a relief has not been expressly claimed provided the relief to be given is within the compass of the jurisdiction of the Court."
This aspect was further elaborated in the cases of Mohiuddin Molla case (PLD 1962 Supreme Court 119), Commissioner, Khairpur Division, Khairpur and another v. Ali Sher Sarki (PLD 1971 Supreme Court 242), and Sindh Employees' Social Security Institution and another v. Adamjee Cotton Mills Ltd. (PLD 1975 Supreme Court 32).
The said dictum relates to the confidence reposed by public where even ordinary citizen could assume that if any tragic incident takes place by any person including a government functionary, whosoever he is, he might agitate his grievance before the Court of Law and if this aspect is under cloud due to one reason or the other and is being hit by the dictum "Justice delayed justice denied" then in the prevailing circumstances in the country, it might lower the image of judiciary in the eyes of the public, which should have touched the skies to ensure the public at large that the Courts are safeguarding their rights being watch dogs. This aspect was deliberated in Sharaf Faridi case supra in the following terms: "---Preamble---Judiciary enjoys a unique and supreme position within the framework of the Constitution. In a set-up where the Constitution is based on trichotomy of power, Judiciary enjoys a unique and supreme position within the framework of the Constitution as it creates balance amongst various organs of the State and also checks the excessive and arbitrary exercise of power by the Executive and the Legislature. Judiciary has been termed as a watch-dog and sentinel of the rights of the people and the custodian of the Constitution. It has been described as "the safety valve" or "the balance wheel" of the Constitution."
10. Moreover, the rule of law has to be interpreted in an imaginary manner casting privilege to all sections of the society. The rule of law relates to supremacy of law and that has been guaranteed and while elaborating the same has been extracted from Holy Quran: Surah 4, Vs. 135, Surah 55, Vs. 7 to 9 and Surah 5, Vs. 9. Furthermore, rule of law has been universal obligation of every civilized country. It means supremacy of law as opposed to the arbitrary authority of the Government. This supremacy guarantees three concepts (i) absence of arbitrary power; (ii) equality before law, and
(iii) rights of citizen. The rule of law is the very bedrock on which the foundation of the entire Islamic justice is based. As Article 2-A of the Constitution has been inserted in the Constitution; therefore, any deviation from the basic concepts of Islamic Justice will be considered outside the purview of the judicial system and further would be in violation of the oath administered by the Judge of the Superior Courts.
Moreover, there is no cavil to this proposition that while exercising constitutional jurisdiction, High Court is under bounden duty to not only safeguard rather enforce the fundamental rights of the citizens.
11. For the foregoing reasons while considering the facts available on record in view of assistance rendered by learned counsel for the parties and determining it on the touchstone of relevant provisions of Article 19-A of the Constitution of Islamic Republic of Pakistan, 1973, West Pakistan Tribunals of Inquiry Ordinance, 1969, Punjab Transparency and Right to Information Act, 2013, Criminal Procedure Code, as well as, Qanun-e-Shahadat Order, 1984, and seeking guidance from the pronouncements of the Superior Courts of the country, this Court is persuaded to hold that the Inquiry Report prepared by 'One-Man Tribunal' consisting of an Hon'ble Judge of Lahore High Court regarding the incident of Model Town, taken place on 10.06.2014 is a public document being outcome of judicial proceedings, therefore, in the public interest, it is directed that the same be publicized forthwith so that legal heirs of the deceased, as well as, injured may be able to know about the actual wrong doers who directly or indirectly were instrumental in the gruesome occurrence, to agitate their grievances in befitted manner in the interest of safe administration of justice.
12.The instant constitutional petition succeeds in the above terms.
13.The respondent/Home Secretary, Government of the Punjab, is directed to immediately provide a copy of the report to the aggrieved persons for their consumption without fail.