Petitioner Khusnood Bano, has filed instant Writ Petition under Article 199 of the Constitution of Pakistan, 1973 praying for the issuance of writ in nature of mandamus seeking direction to respon dent police authorities to furnish complete list of criminal cases registered against her son.
2. Succinct fact germane to decide the instant lis are that as per the version of the petitioner , she is mother of one Umair Shahzad s/o Muhammad Shahzad, for whose recovery from illegal custody , earlier , she had filed a Habeas Petition against the respondent No.1/RPO Faisalabad. She alleged that her son could not be recovered in that habeas petition by the bailiff appointed by the Court but pursuant to the orders of this Court, report was submitted that her son is involved in different criminal cases and even during the pendency of that habeas petition, respondents, with mala fide intentions and just to revenge the filing of Habeas petition against respondent No.1, involved her son Umair Shahzad in some other criminal cases as well. That respondents are bent upon to involve the son of the petitioner in more cases and she does not know the exact number of criminal cases in which her son has falsely been roped or shall be roped. She prays that the fundamental rights of her son Umair Shahzad guaranteed by the constitution under Articles 3, 4, 9, 10, 10-A, 14, 19-A and 25 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter "the Constitution") are blatantly violated by the respondents and due to lack of knowledge of exact number of criminal cases against her son, his liberty is being compromised and he is unable to seek the legally available remedies under criminal justice system hence she should be provided the list of cases in which her son is involved.
3. Learned counsel for the petitioner has avidly reiterated the version of the petitioner as taken in body of this Petition and argued that this is a classic case of sheer violation of fundamental right guaranteed and protected by the Constitution. That local police is all out to grind the son of petitioner in different criminal cases, just because petitioner had filed above-stated habeas petition against the respondent No.1/RPO Faisalabad, who is regional head of local police and for whose pleasu re, son of petitioner has falsely been roped in various criminal cases. That in such like cases Superior Courts always come to rescue such oppressed and aggrieved persons and prayed for acceptance of this writ petition by pleading that no other efficacious and adequate remedy is available to the petitioner .
4. Hearkened.
5. After minutely scrutinizing the availabl e record and hearing the learned counsel for the petitioner , in my view, following moot point needs determination by this Court i.e.: Whether any other efficacious remedy is available to the petitioner and if yes, then whether petitioner is entitled to any relief by invoking extraordinary constitutional jurisdiction of this Court?
6. In my considered opinion for detailed reasons furnished infra, petitioner has an adequate and efficacious remedy under the Punjab Transparency and Right to Information Act 2013 (hereunder "the information Act") to obtain requisite information from the respondents by exercising her right to information (R TI).
7. The information Act 2013 is one of the most dynamic pieces of legislation tends to promote limpidity and answerability in the functioning of the Government departments. This Act has its roots in Article 19-A of the Constitution which was inserted into the Constitution in year 2010 through 18th amendment. This law has become one of the most effective means to make an informed citizenry . This fruitful legislation was enacted to curb the unfortunate practice of public bodies, where it was very hard for the general public to get any information from these bodies even of a general nature. To eliminate such untoward situations, Government of Punjab enacted the Information Act, 2013 to warrant access to the general public to information pertaining to any public functionary .
The goal of this initiative was to overcome communication barricades and speed y provision of information which any requester seeks.
8. Significance of right to information (RTI) can be evaluated by the fact that this right has been recognized all over the world and protected through legislatio n approximately by all the important foreign and international jurisdictions.
For instance, Article 19 of Universal Declaration of Human Rights, 1948 (UDHR) recognizes the right to seek, receive and impart information while UN Principles On Freedom Of Information provide that public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information; "information" includes all records held by a public body , regardless of the form in which it is stored. In United Kingdom this right is recognized and protected under the Freedom of Information Act 2000. And Last but not the least, R TI is protected in India under Right to Information Act, 2005.
9. To determine the efficacy and adequacy of provisions of Information Act, 2013 I would like to have a bird eye view of the relevant provisions of law. Object of the legislation has been stated as "To provide for transparency and freedom of information in the Punjab" . Section 7 Information Act, 2013 makes it mandatory for every public body to designate and notify as many officers as public information officers in all administrative units or offices under it, as may be necessary who shall provide information to an applicant, and shall perform such other functions as may be prescribed to achieve the purpose of this Act. Under section 10, an applicant may make an application to a public information officer on an inform ation request form or on plain paper while Sub-section 7 of this section provides that the public information officer shall respond to an application as soon as possible and in any case within fourteen working days but further provides that such officer shall provide the information relating to life or liberty of a person within two working days of the receipt of the application . Section 10(8) also prescribe a mechanism that where the public information officer decides not to provide the information, he shall intimate to the applicant the reasons for such decision along with a statement that the applicant may file an internal review under section 12 with the head of the public body or may a file a complaint with the Commission who will deal with the same under section 6 of the information Act 2013. Further , Section 10(7) prohibits the public body to charge any fee from such requester except the cost of reproducing and sending the information. Section 16 treats it as an offence, if any person obstructs access to information which is the subject of an application, internal review or complaint, with the intention of preventing its disclosure under this Act. Lastly under section 10(6) Information shall be provided to the applicant without any fee except the cost of reproducing or send ing the information. Under S.19 The Punjab Transparency and Right to Information rules, 2014 had also been framed to achieve the object of this Act effectively . Therefore, this alternate remedy with respect to nature, extent of relief, point of time of availability of relief and the conditions on which that relief would be available particularly the conditions relating to the expense and inconvenience involved in obtaining it, is most ef ficacious and adequate remedy .
10. It is trite law that in presence of any other efficacious remedy , discretionary relief under writ jurisdiction is not available to an aggrieved person. Law with respect to exercise of judicial review of public actions or inactions, in presence of availability of alternate adequate remedy , is very much settled. Although the decision-making powers of lower courts or other executive bodies are subject to judicial review of Constitutional Courts but it is vital to hold that power of judicial review should only be invoked as a residual jurisdiction and, save in exceptional circumstances to be proved by the petitioner , not to be exercised where an adequate alternative legal remedy is available. The reputable principle of law is that whenever an alternative statutory mechanism exists to redress the grievance of an aggrieved party , the Court will be reluctant to grant any relief under Article 199 of the Constitution.
Alternative remedies may involve a number of different types of statutory mechanism and when the public interest demands that power of judicial review should be exercised speedily , it is necessary to limit the number of cases in which such power may be exercised. In number of ways, an exhaustion of alternate remedy rule will help to reduce the burden placed on the Constitutional Courts.
11. Although the rule of exhaustion of alternate remedy is not an absolute one as there may be exceptional cases where a petitioner may be allowed to seek his remedy by way of judicial review in spite of the existence of an alternative remedy , but casual deviation from this general rule will burdensome the Constitutional Courts with such matters where grievance of petitioner can be well redressed by any alternate forum. Further , the strict compliance to this settled principle will also help to improve the working of other statutory machineries to handle such disputes instead of invoking the constitutional jurisdiction of judicial review . Object of this principle has beautifully explained by Justice (R) Fazal Karim in following words: "The object of this rule, which has in Article 199 received constitutional recognition, that in the presence of another adequate remedy , the power of the Judicial Review under Article 199 will not be exercised, is to provide against short cuts in legal proceedings." (Judicial Review of Public Action, Justice Fazal Karim, Second Edition published by Pakistan Law House, V olume-III, page-1453)
12. Following view of august Supreme Court taken in Ch. Muhammad Ismail case cited as (PLD 1996 SC 246), is also quoted in that book where august Court has re-expounded this principle as under: "9. The High Courts are already huddled up with thousands of cases. If the litigant public is permitted to take all sorts of disputes to the High Court without first availing of the othe r remedies available to them, under law, it not only necessarily increase the work-load of the High Courts but would also defeat the provisions of law by which the said remedies have been made available. Such a spree on the part of the litigant public would, if we may say so, amount to abuse of the Constitutional jurisdiction which is to be exercised by the High Courts in exceptional cases to provide justice which cannot be otherwise obtained by the aggrieved parties."
13. Likewise, in Khalid Mehmood case reported at (1999 SCMR 1881 ), august Supreme Court had upheld the decision of High Court, whereby writ petition was dismissed due to availability of alternate remedy , declared: "There are other matters, however , where the Constitutional jurisdiction under Article 199 cannot be so readily resorted to. One such, falling in this category , would be matters amenable to the jurisdiction of an exclusive Tribunal, mandated by the Constitution itself. Another , which readily comes to the mind, would be disputes under a statute, postulating the appellate or revisional jurisdiction to reside either in the High Court itself or directly in the Supreme Court...
To sum up, therefore, the High Court in the circumstances, should have declined to say anything on merits of the dispute and preferred to non-suit the petitioner on the sole ground of maintainability . As it turns out, the High Court has done that but not without touching merits with the result that we ourselves are compelled to make limited observations in the context of merits of the controversy ."
14. Under common law too, remedy of judicial review through writ jurisdiction is not available in the presence of adequate alternate remedy and this princ iple has been settled by the English Courts. It is settled there that remedy by way of judicial review should be treated only as a remedy of last resort and should only be used in exceptional circumstances when other remedies, which could provide efficacious redressal, have been properly exhausted by a litigant. In R. v IRC, Ex parte Preston case cited as [1985] BTC 208), House of Lords had categorically held that: "a remedy by way of judicial review is not to be made available where an alternate remedy exists. This is a proposition of great importance. Judicial review is a collateral challenged; it is not an appeal....Judicial review should not be granted where an alternative remedy is available.
15. Same principle was reiterated by Court of Appeal (England and Wales) in Regina v Secretary of State for the Home Department, ex parte Swati, [1986] 1 WLR 477 , where it was held by the Court that: "However , the matter does not stop there, because it is well established that, in giving or refusing leave to apply for judicial review , account must be taken of alternative remedies available to the applicant."
16. Even through a recent decision in Glencore Energy UK Ltd. Case cited as [2017] EWHC 1476 (Admin), High Court (Queen's Bench Division) , after exhaustive discussion regarding the scope of judicial review in presence of adequate alternate remedy , has again refused to grant relief to the petitioner by reiterating this principle that: "[40] The basic principle is that judicial review is a remedy of last resort such that where an alternative remedy exists that should be exhauste d before any application for permissi on to apply for judicial review is made. Case law indicates that where a statutory alternative exists, grantin g permission to claim judicial review should be exceptional. The rule is not however invariable and where an alternative remedy is nonetheless ineffective or inappropriate to address the complaints being properly advanced then judicial review may still lie."
17. Further , Justice (R) Fazal Karim in his book on judicial review , has also discussed the scope of writ jurisdiction in detail. Relevant extract is produced hereunder: "The Distinction is between the absence of an adequate remedy being a condition to the court' s jurisdiction under Article 199, and its power to be satisfied that a particular remedy is not an adequate remedy . The court must be satisfied that a remedy , if available, is not adequate remedy , before it can proceed further ." (Judicial Review of Public Action, Justice Fazal Karim, Second Edition published by Pakistan Law House, V olume-III, page-1453)
18. Answer to the query that what will amount to an adequate remedy vary from case to case as per the facts and circumstances of relevant case. In Mehboob Ali Malik case reported at PLD 1963 (W. P.) Lahore 575, Lahore High Court had elaborated this concept in the following words: "The word "adequate" signifies a conc ept of a relative nature. It can be comprehended only as a state of correspondence between one thing and another . A thing can be "adeq uate", or "not adequate", to something else...When something is described as being adequate without indicating what it is adequate to, the context must supply that which has been left unstated. The first question in construing the meaning of "adequate remedy", therefore, is "to what has the remedy to be adequate"? In the context, we think, the answer must be that the remedy has to be adequate to the requisite relief, i.e., the removal, or lessening of the cause of distress or anxiety; the deliverance from that which was burdensome. It is evident that the trouble, expense and delay in getting what is wanted are all as much ingredients of the sum total of that which can be described as "relief" as the substance of that which is wanted...."
19. Further , in Dr. Sher Afgan Khan Niazi case reported at (2011 SCMR 1813 ), august Supreme Court has expounded the elements to be considered while deciding, whether an available remedy is adequate or not.
Relevant paragraph is produced hereunder:
9. The learned High Court will have to consider in each case the following tests to be applied to determine the adequacy of the relief:--
(i) If the relief available through the alternative remedy in its nature or exten t is not what is necessary to give the requisite relief, the alternative remedy is not an "other adequate remedy" within the meaning of Article 199.
(ii) If the relief available through the alternative remedy , in its nature and extent, is what is necessary to give the requisite relief, the 'adequacy' of the alternative remedy must further be judged, with reference to a comparison of the speed, expense or convenience of obtaining that relief through the alternative remedy , with the speed, expense or convenience of obtaining it under Article 199. But in making this comparison those factors must not be taken into account which would themselves alter if the remedy under Article 199 were used as a substitute for the other remedy .
(iii) In practice the following steps may be taken:-
(a) Formulate the grievance in the given case, as a generalized category;
(b) Formulate the relief that is necessary to redress that category of grievance;
(c) See if the law has prescribed any remedy that can redress that category of grievance in that way and to the required extent;
(d) If such a remedy is prescribed the law contemplates that resort must be had to that remedy;
(e) If it appears that the machinery established for the purposes of that remedy is not functioning properly , the correct step to take will be a step that is calculated to ensure, as far as lies in the power of the Court, that that machinery begins to function as it should. It would not be correct to take over the function of that machinery . If the function of another organ is taken over, that other organ will atrophy , and the organ that takes over , will break clown under the strain;
(f) If there is no other remedy that can redress that category of grievance in that way and to the required extent, or if there is such a remedy but conditions are attached to it which for a particular category of cases would neutralise or defeat it so as to deprive it of its substance, the Court should give the requisite relief under Article 199;
(g) If there is such other remedy , but there is something so special in the circumstances of a given case that the other remedy which generally adequate, to the relief required for that category of grievance, is not adequate to the relief that is essential in the very special category to which that case belongs, the Court should give the required relief under Article 199.
If the procedure for obtaining the relief by some other proceedings is too cumbersome or the relief cannot be obtained without delay and expens e, or the delay would make the grant of the relief meaningless this court would not hesitate to issue a writ if the party applying for it is found entitled to it, simply because the party could have chosen another course to obtain the relief which is due."
20. So, petitioner was well entitled to get her grievance redressed under section 3 of the Information Act, 2013 which provides that any person may exercise the RTI in the manner prescribed by the Act. Even otherwise, it is settled law that FIR is a public document as was held in Liaqat Hussain Malik case reported at (2012 YLR 1386 ) and Hakim Ali case reported at (PLD 2007 Sindh 415) and every person has a right obtain the copy of the same.
But petitioner neither opted to avail that adequate alternate recourse to get the requisite information regarding criminal cases of her son nor has alleged or proved inadequacy or inefficacy of such alternate remedy . Through plethora of judgments of Constitutional Courts, it is settled law by now that this Court, before granting relief to a petitioner by exercising its extraordinary jurisdiction, must satisfy itself regard ing the non-availability of any alternate remedy , or in case Court is inclined to grant relief even in presence of alternate remedy , Court should be satisfied that circumstances of the case make that other remedy inadequate.
21. So, in presence of availability of alternate adequate an aggrieved person can approach this Court only in exceptional circumstances, when availa ble alternative remedies are inadequate to redress grievance of a petitioner , which I am afraid is not the case of petitioner .
22. In view of the whole discussion made above, I am not inclined to exercise extraordinary constitutional jurisdiction of this Court. However , petition er is free to approach the concerned public information officer as per the procedure provided under the information Act, 2013. Resultantly , instant writ petition stands dismissed in limine being devoid of any force.