AAMER FAROOQ C.J. This judgment shall decide instant writ petition as well as W.P. No.199-2024, as common questions of law are involved.
2. The petitioner, in both the petitions, has challenged notifications issued by respondent No.1 with respect to conducting trial in jail in two separate References filed by National Accountability Bureau (NAB) against him.
3. Mr. Muhammad Shoaib Shaheen, Advocate Supreme Court, appearing on behalf of petitioner, contended that this Court has already settled the issue in its decision 19.12.2023 in ICA No.367-2023. Learned counsel took the Court through various paragraphs of the referred judgment to submit that under section 352 of Code of Criminal Procedure, 1898 (Cr.P.C.), it is the prerogative of the trial court to order the proceedings to be conducted at a 'place' different from the court house, notified by the competent government/authority, through a judicial order after hearing the accused. It was submitted that in the instant matter, no such order was passed by the trial court rather the notifications were issued even prior to filing of References by NAB. It was argued that the Federal Government has no say in altering the place of trial of an accused and it is the sole prerogative of the trial court. Reference was made to Asif Ali Zardari Vs. Special Judge (Offences in Banks) and 10-others (PLD 1992 Karachi 437). Learned counsel took the Court through the judgment in order to highlight his stance that open trial is the essence of 'fair trial' and is the fundamental right of the accused/petitioner under Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution). It was submitted that denial of this fundamental right on part of the government vitiates the trial and the proceedings conducted so far inasmuch as there exists no order by trial court under section 352 Cr.P.C. It was also reiterated that any notification issued, prior to filing of the Reference, is not valid. Mr. Muhammad Shoaib Shaheen, Advocate Supreme Court further submitted that wordings of section 16 (b) of the Ordinance are para materia with section 9(2) of Cr.P.C. It was contended that while interpreting section 9(2) ibid, this Court, in its decision, has categorically held that trial other than the court house can only be conducted in a place where the court so decides, but that place is to be accessible to public, however, same can only be done through a judicial order. It was also submitted that dictum of this Court in ICA No.367-2023 is binding on this Bench hence impugned notifications need to be set aside. It was also submitted that even-otherwise, the trial court is not competent to proceed with the matter inasmuch as it has not been validly constituted. In this regard, reference was made to amendments in the Ordinance through various statutes. Learned counsel drew attention of the Court towards section 5A ibid, which was incorporated in the Ordinance through National Accountability Amendment Act, 2022 and by virtue of same, appointing authority of Presiding Officer of Accountability Court has been changed.
Learned counsel submitted that under the amended law, it is the Federal Government, which now can appoint a Judge of the Accountability Court after consultation with Chief Justice of the concerned High Court. It was submitted that all the amendments made in the Ordinance have been given retrospective effect hence it is deemed to be the part of the statute since 1999 accordingly; after the amendment through Act of 2022, all the Presiding Officers of the Accountability Courts were to be reappointed by the Federal Government, including the Presiding Officer conducting trial of the petitioner, hence proceedings before trial court, are not valid.
4. Mr. Niaz Ullah Khan Niazi, Advocate, also appearing for the petitioner, added that this Court, while deciding bail application of the petitioner in Crl. Misc. No.1354-B-2023, has held that open trial is the hallmark of any modern judicial system. It was contended that trial in jail does not qualify and/or even if it does, the proceedings are not being conducted in open in letter and spirit.
5. Learned Attorney General for Pakistan, appearing for respondent No.1, defended the impugned notifications and submitted that under section 16 (b) of the Ordinance, the Federal Government has the prerogative to decide about the place or places, where Accountability Courts shall have sitting. It was submitted that in exercise of powers under section 16 (b) ibid, the impugned notifications were issued. Learned Attorney General contended that on receipt of letter from NAB, the Ministry of Law and Justice floated a summary before the Cabinet and approval was obtained for conducting trial of the petitioner in Central Jail Adyala, Rawalpindi, where he is presently confined. It was submitted that reason provided by NAB was law and order situation in the country and security of the petitioner; it was the said dictates which led the Federal Government to accede to the request of NAB and notifications were accordingly issued. Learned Attorney General for Pakistan contended that the case of Asif Ali Zardari Vs. Special Judge (Offences in Banks) and 10-others (PLD 1992 Karachi 437) supra is distinguishable inasmuch as in the said case, the statute concerned only empowered the relevant government to issue notification for holding the sitting of a court at a 'place' and not 'places'. It was contended that even-otherwise, it has wrongly been assumed in the judgment of the Division Bench referred above that the view earlier taken in case reported as Shaukat Hayat Vs. Government of Sindh and another (1987 MLD 2783) stands set aside. It was contended that the matter in Shaukat Hayat's case went up to the Supreme Court and in the case reported as Shaukat Hayat Vs. Government of Sindh and another (1989 SCMR 774), it has categorically been held that notification is being set aside for reasons other than the reasons that prevailed with Sindh High Court. It was further submitted that Federal Government is the competent authority to provide for the place of sitting for the Accountability Court in a particular case under section 16 (b) of the Ordinance. Reference was placed on cases reported as Kehar Singh and others Vs. The State (Dehli Admn) (AIR 1988 Supreme Court 1883) & Shaukat Hayat Vs. Government of Sindh and another (1987 MLD 2783).
Reliance was also placed on case reported as In the Reference made by Sessions Judge, Larkana for transfer of cases (1990 P. Cr.LJ 1687). It was contended that in case of Husnain Raza and another Vs. Lahore High Court, Lahore and others (in both cases) (PLD 2022 Supreme Court 7), a High Court generally adhere to horizontal precedents, its own earlier decisions, but it may depart from or overrule any of its decisions by sitting in a larger bench if there was a compelling justification to do so. It was submitted that even-otherwise, there has to be purposive and harmonious construction with respect to section 16 (b) of the Ordinance and section 352 Cr.P.C. Reference was made to case reported as Waqar Zafar Bakhtawari and 6 others Vs. Haji Mazhar Hussain Shah and others (PLD 2018 Supreme Court 81).
6. Mr. Muhammad Amjad Pervaiz, Advocate Supreme Court, appearing for NAB, gave the Court a summary of events which led to issuance of impugned notifications. It was contended that notifications were issued prior to filing of References solely because ancillary and initial proceedings, pertaining to the decision of bail before arrest and upon arrest of the petitioner with respect to physical remand and judicial custody, had to be conducted in jail due to security threats to the petitioner. He gave brief timeline leading to issuance of impugned notifications.
Mr. Amjad Pervaiz, Advocate Supreme Court submitted that seminal judgment on the competency of the relevant Government to issue notification with respect to a 'place of sitting' for a particular case for a particular accused was Emperor Vs. Lakshman Chavji Narangikhar and 46 others (AIR 1931 Madras 313). It was submitted that since then, courts in India as well as in Pakistan have acknowledged the competence of the Federal or Provincial Governments to issue such notifications. Reliance was placed on cases reported as Shaukat Hayat Vs. Government of Sindh and another (1987 MLD 2783) & Shaukat Hayat Vs. Government of Sindh and another (1989 SCMR 774). Reference was also made on cases reported as Chairman, National Accountability Bureau, Islamabad through Prosecutor General, Accountability Bureau, Islamabad Vs. Mian Muhammad Abbas Sharif and 7 others (PLD 2001 Lahore 157), Dr. Ahmed Javed Khawaja and another Vs. The State and 2 others (PLD 2003 Lahore 450), Muhammad Ashfaq Chief Vs. Government of Sindh and others (PLD 1996 Karachi 326), Mustoo alias Ghulam Mustafa Kalhoro Vs. The State (1990 MLD 1994), Mrs. Ahmed Riaz Shaikh Vs. Chairman, NAB and others (PLD 2002 Lahore 1), Makhdoom Muhammad Javed Hashmi Vs. Chief Commissioner, Islamabad (2004 P.Cr.LJ 1089), Gul Muhammad Hajano Vs. Province of Sindh, through the Secretary, Government of Sindh and 2 others (2011 P.Cr.LJ 302), Zulfiqar Ali Bhutto Vs. The State (PLD 1979 Supreme Court 53), Kehar Singh and others Vs. The State (Dehli Admn) (AIR 1988 Supreme Court 1883), decision of Larger Bench of Lahore High Court in case titled Dr. Abdul Basit, Advocate Vs. Sher Zaman Khan, Deputy Attorney General (WP. No.6734 of 2000) and Mohd. Shahabuddin Vs. State of Bihar and others [(2010) 4 Supreme Court Cases 653].
7. Submissions made by the parties have been heard and the documents, placed on record, examined with their able assistance.
8. As noted above, the petitioner is facing trial in two References filed by NAB (Reference No.19 of 2023 and Reference No.20 of 2023) filed on 04.12.2023 and 20.12.2023 respectively. With respect to Reference No.19, which was filed on 04.12.2023 known as Al-Qadir Trust Reference, the petitioner was arrested on 09.05.2023 and was produced before the Accountability Court with request for physical remand on 10.05.2023, which was duly allowed and proceedings were conducted in Police Lines, Islamabad pursuant to the notification of the Federal Government; the petitioner was set at liberty on 11.05.2023 and appeared before this Court on 12.05.2023, when he was granted ad-interim bail till 31.05.2023; on 31.05.2023, application was allowed and the petitioner was ordered to appear before the court of competent jurisdiction. On 05.08.2023, the petitioner was taken in custody pursuant to execution of warrants of arrest in the conviction awarded to him in a complaint filed by Election Commission of Pakistan. On 10.08.20203, application for bail before arrest filed by the petitioner was dismissed by trial court, but this Court set aside the referred order and remanded the case back to trial court for decision afresh vide order dated 14.11.2023 (Crl. Rev. No.149 2023). It was contended that in the referred backdrop, NAB wrote a letter to Ministry of Law and Justice on 13.11.2023 for conducting proceedings against the petitioner in jail. The reason cited in the referred request was prevalent law and order situation and security threat to the petitioner. On the letter of NAB, the relevant Ministry sent summary for the Cabinet, which was approved on 14.11.2023 under section 16(b) of the Ordinance and pursuant thereto, notification was issued on 14.11.2023 (Notification No.F.3(2)/2017-A.V.). Likewise, in another matter, pertaining to Tosha Khana, a summary was moved for proceeding against the petitioner in the matter before the Cabinet for conducting the same at Central Jail Adyala Rawalpindi, where he is confined with the same reasoning as mentioned above. The Cabinet on the receipt of the summary from Ministry of Law and Justice accorded approval on 28.11.2023 and notification in this regard was issued on the same date bearing No.F.8.(127)/2023/A.V. In the referred background, the impugned notifications were issued, but have been challenged by the petitioner on the touchstone of the earlier judgment of this Court in ICA No.367-2023.
9. Before embarking upon examination of the judgment of this Court in ICA No.367-2023 and case law cited at bar by the respondents, it would be appropriate that the relevant law be reproduced for the ease of convenience. The impugned notifications have been issued by the Federal Government under section 16 (b) of the Ordinance, which is reproduced below:- "16.(b) The Court shall sit at such place or places as the Federal Government may, by order, specify in this behalf".
The comparison of section 16 (b) ibid was drawn with section 9 of Cr.P.C. by both the sides. The said provision of law is reproduced below:- "9 (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 Sessions shall hold their sittings as heretofore".
10. Mr. Amjad Pervaiz, learned counsel for NAB, during course of arguments, produced a chart indicating various provisions in various statutes, including the one in India regarding the power of the Federal or Provincial Government to issue notification with respect to place or places of sitting of any court. The said chart is reproduced below:- THE CODE Of CRIMINAL PROCEDURE, 1898THE NATIONAL ACCOUNTA BILITY ORDINANCE, 1999THE CODE Of CRIMINAL PROCEDURE, 1898 (INDIA)THE CODE Of CRIMINAL PROCEDURE.
1973 (INDIA)THE CODE Of CRIMINAL PROCEDURE.
1973 (UTTAR PRADESH AMENDMEN TS 1975 (INDIA)THE ANTI TERRORSIM ACT,1997 THE CODE Of NARCOTIC SUBSTANCE ACT, 1997THE OFFENCES IN RESPECT OF BANKS (SPECIAL COURTS)
ORDINANCE, 1984. (AS REPRODUCED IN PLD 1992 KARACHI 437)SUPPRERS SION OF TERRORIS T ACTIVITIE S (SPECIAL COURTS)
ACT, 1975, (AS REPRODUC ED IN PLD 1992 KARACHI 437)
5.9 Court of Sessions
(1) []
(2) The Provincial government may, try general by special order in the official Gazette, direct at what place by pleas the Court of Session shall hold its sitting; but until such order is made, the courts of Session shall hold their sittings as heretofore.
S. 177 Ordinary peace of Inquiry and trial. Every Offence shall ordinarily be inquired into and tried by a Court within the local limits of whose Jurisdiction it was committed.
S.178. Power to order cases to be tried in different session divisions.
Notwithstanding anything contained in section 177, the Provincial Government may direct that any cases or class of cases in any district sent for trial to a Court of Session may be tried in any sessions Divisions.
Provided that such direction is not repugnant to any direction Previously issued by the High Court under section 526 of this Code or any other law for the time being In force.S. 16 Case management and trial of offences.
(a) [***]
(b) The Court shall sit at such place or laces as the Federal Government may, by order, specify in this behalf.S. 9 Court of Session.-
(1) [***]
(2) The Local 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 be made, the courts of Sessions shall hold their sittings as heretofore.S. 9 Court of Session.- (1,2,3,4,5)
[[***]
(6) The Court of Session shall ordinarily hold its sitting at such place or places as the High Court may, by notification, specify: but, if, in any particular case, the Court of Session is of opinion that it will tend to the general convenience of the parties and witnesses to hold its sittings at any other place in the sessions division, it may, with the consent of the prosecution and the accused, sit at that place for the disposal of the case or the examination of any witness or witnesses therein.The following amendments were made by U.P. Act, 16 of 1976, s.2 (w.e.f 28.11.1975)
In section 9 in sub-section
(6) insert following proviso: "Provided that the Court of Session may hold or the High Court may direct the Court of Session to hold, its sitting in any particular case at any place in the sessions division, where it appears expedient to do so for considerations of internal security or public order, and in such cases, the consent of the prosecution and the accused shall not be necessary."5. 15 Place of sitting.- (1) Subject to sub- sections
(2) and (3), an Anti- terrorism Court shall ordinarily sit at such place or places including Cantonment area or jail premises as the Government may, by order, specify in that behalf.S.46.
Establishment of Special Courts.- The Federal Government and, if so directed by the Federal Government, the Provincial government shall, by notification in the official Gazette, establish as many Special Courts as it considers necessary and appoint a Judge for each of such Courts and where it establishes more than one Special Court, it shall specify in the notification the place of sitting of each Special court and the territorial limits within which it shall exercise jurisdiction under this Act.S.3 Constitution of Special Courts.
(1) [***]
(2) A Special Court shall sit at such place as The Federal Government may or by notification in the official Gazette, specify in this behalf.S.3 Constitution of Special Courts. (1,2)
[***]
(3) A Special court shall sit at such place as the Government constituting it may, by notification in the official Gazette, specify in this behalf
11. The reading of section 9(2) shows that it generally empowers the provincial government to notify 'place 'or 'places' of sitting of the courts of Sessions, but the referred government also has the power to do so, with respect to a particular case or cases at a particular place or places other than the general court house, which has already been notified. Perhaps for the first time, this question came up for consideration in the subcontinent before the Bombay High Court in case reported as Emperor Vs. Lakshman Chavji Narangikhar and 46 others (AIR 1931 Madras 313), where the question posed before the court was with respect to a notification for conducting a particular case at a place which was different from the normal place of sitting of the court of Sessions. The question as framed before the court was, whether the notification of February, 1931 which names a judge to try a particular case at a particular place is ultra vires and illegal under section 9 of the Code of Criminal Procedure. The contention before the Bombay High Court was that local government has already issued a notification directing the court of Sessions to be held at Ali Bagh in certain months and in presence thereof, a special notification for a particular case at a particular place was not possible. In responding the referred query, Bombay High Court held and observed that the previous orders of the local government were general orders under section 9(2), and there is nothing in section 9(2) to prevent a special order being passed directing at what place a Court of Sessions should hold its sitting. By way of example, the Court went on to observe that if by reason of an outbreak of plague or any other cause it becomes necessary or expedient that a Court of Sessions should hold its sitting in respect of all the cases at a different place or should try a particular case at a particular place, the words of section 9(2) are wide enough to cover such an order. It was also observed that order passed under section 9(2) is an administrative order passed by the local government and the special order of the local government in the present case directing the Additional Sessions Judge to try this particular case at Alibagh does not appear to contravene the provisions of section 9(2). It was also observed that the word 'special' must include an order relating to a class of cases for trial and on the principle that the greater necessarily connotes the lesser, cannot be held to stop short prior to the limit of a single case. This line of reasoning has been followed across the border and even in Pakistan; in case reported as Shaukat Hayat Vs. Government of Sindh and another (1987 MLD 2783), notification dated 16.04.1987 issued by the Provincial Government under subsection (2) of section 9 of Cr.P.C. was the subject matter of challenge. The Division Bench of Sindh High Court observed that section 9 read with section 178 Cr.P.C. contains requisite power in favour of the provincial government to appoint an Additional Sessions Judge for more than one sessions division and to authorize him to hold sitting at such place or places which it may notify.
The court observed that the words 'place or places' includes central prison. The said judgment of Sindh High Court was set aside by the Supreme Court in case reported as Shaukat Hayat Vs. Government of Sindh and another (1989 SCMR 774), but not on the reasoning mentioned above, but on different grounds, however, while parting, the Supreme Court observed that government may issue another notification in accordance with law, if it considers expedient.
12. In case reported as In the Reference made by Sessions Judge, Larkana for transfer of cases (1990 P. Cr.LJ 1687), reference was sent by the Sessions Judge to the High Court. The Sindh High Court opined that it is within competence of the provincial government to set up venue for the trial of cases of a particular accused and also nominate any Sessions Judge or Additional Sessions Judge to try those cases, which are to be specified by the said Government in notification/notifications.
13. In case reported as Chairman, National Accountability Bureau, Islamabad through Prosecutor General, Accountability Bureau, Islamabad Vs. Mian Muhammad Abbas Sharif and 7 others (PLD 2001 Lahore 157), the Division Bench of Lahore High Court allowed the transfer of accountability reference in Attock Fort for the reason that it is in the interest of justice to hold fair, impartial trial in a calm, peaceful environment, however, it was observed that it is for the Presiding Officer to ensure attendance by the witnesses, lawyers and other persons interested in watching the proceedings including the visitors through regulated entry by the court after security check-up.
14. In case reported as Dr. Ahmed Javed Khawaja and another Vs. The State and 2 others (PLD 2003 Lahore 450), where a notification was issued under Anti-Terrorism Act, 1997 for conducting trial in jail was challenged, the Division Bench of Lahore High Court observed and concluded that it is within the domain of the appropriate government to issue notification for conducting trial at any place other than the normal place of sitting of the special courts. It was observed as follows:- "The omission to spell out reasons in the afore-referred circumstances by itself would not make the order of the Home Secretary unlawful in absence of any apparent mala fides. There is, therefore, no jurisdictional defect to warrant interference under Article 199 of the Constitution. The precedent case-law to which reference has been made by the petitioners' learned counsel would not be of much avail to him, firstly, because in Asif Ali Zardari's case (supra), issue before the learned Court was the trial of a case in jail premises under the Suppression of Terrorist Activities (Special Courts) Act, 1975 and the ratio laid down by the Court, in the said judgment, was that under section 3 of the afore-referred Act, the Government did not have such a power. The provisions of the Anti-Terrorism Act, 1997, as discussed in the preceding paragraphs, are all together different and they specifically empower the Government as also the trial Court to specify the place of trial. The judgment of the august Supreme Court in Mehram Ali's case (supra) dilated in detail on the vires of the Anti-Terrorism Act, 16397 and admittedly section 15 of the said Act has not been declared ultra vires of the Constitution. The ratio in Sharaf Faridis's case (supra) indeed lays down important principles of independence of judiciary and uphold the mandate of Article 175. of the Constitution of Islamic Republic of Pakistan, 1973 but we are of the considered view that the provision of a power with the executive to decide the place of trial does not, by itself, impinge on independence of judiciary or conscience of a Court. The trial continues to be an open trial and is to be regulated by the learned trial Court with due regard to security of the parties, witnesses and the Court itself. The rights of an accused and principles of appreciation of evidence continue to remain the same. The apprehensions expressed by the petitioners learned counsel therefore are misconceived".
15. In case reported as Muhammad Ashfaq Chief Vs. Government of Sindh and others (PLD 1996 Karachi 326), the question was with respect to notification issued under section 3(3) of Suppression of Terrorist Activities (Special Courts) Act, 1975. The court, after analyzing section 352 Cr.P.C. observed that an accused is to be tried under the provisions of Suppression of Terrorist Activities (Special Courts) Act, 1975; it was stated as follows:- "We would like to point out that, no doubt, according to section 352 of the Code of Criminal Procedure, trial of an accused is to be held in an open Court. An exception to the rule can be found only in the form of the proviso to the said section, according to which the Presiding Officer of the Court may order trial of a case in camera. But the petitioners are to be tried by a Special Court constitution under Suppression of Terrorist Activities (Special Courts) Act, and they are, therefore, to, be governed by the provisions of the said Act. Such provisions by virtue of section 10 thereof, must prevail, over the general provisions of the Criminal Procedure Code;. By virtue of section 3(3) of the said Act, such has been vested in the Government to specify a place where a Special Court shall hold its sittings. No restrictions have been placed on the power of the Government while specifying a place of trial for the accused. Consequently under exceptional circumstances, a place for trial specified by the Government under section 3(3) of the Act can even be within a prison' depending upon the circumstances of each case. The word "place" in section 3(3) can also include its plural. Although, we are in respectful agreement with the view earlier taken by the Division Bench of this Court in the case of Asif Ali zardari, v. Special Court (Offences in Banks), but the rule enunciated by the Division Bench is not an - absolute rule and departure, can be made therefrom under exceptional circumstances. Although, no reasons have been assigned in the notifications impugned in these petitions, but we cannot be oblivious of the fact that the notifications were issued at time when law and order situation in the city of Karachi was at its worst and almost every day several incidents of lawlessness were reported in the city. We are, therefore, of a considered view that, the trial of the accused in jail can be ordered by the Government under the provisions of section 3(3) of the Suppression of Terrorist Activities (Special Courts) Act under exceptional circumstances.
In the result, the petitions are dismissed. However, as has been conceded by the learned Additional Advocate-General some of the relatives and friends of the petitioners can be permitted to attend their trial inside jail we have no doubt, will be considered by the Government".
16. In case reported as Mustoo alias Ghulam Mustafa Kalhoro Vs. The State (1990 MLD 1994), Sindh High Court observed as follows:- "So far the correct legal position is concerned, there is no dispute about the fact that High Court is empowered under section 526, Cr.P.C., to transfer cases from one subordinate Court to other or to withdraw the case from such Court for trial before the High Court on the grounds or any one of them mentioned under that section and further procedure is also prescribed for making such transfer application. At the same time there are other provisions in Cr.P.C. which empower the Provincial Government to allow remedies of the nature sought by applicant in this case.
Provincial Government is competent under sections 9, 193 and 178, Cr.P.C., to order that case, against one particular accused or cases in particular class be taken up for hearing at a particular place, which can be a prison. Provincial Government under the provisions mentioned above is also competent to appoint any Sessions Judge or Additional Sessions judge to hear those cases as mentioned above as Ex Officio Additional Sessions Judge in jail. For the purpose stated above, Provincial Government has to issue Notification/Notifications to specify the details as well as number of cases which' are intended to be tried in that manner. The view stated above finds full support from the case of Shaukat Hayat v. Government of Sindh and another 1989 SCMR 774".
17. In case reported as Makhdoom Muhammad Javed Hashmi Vs. Chief Commissioner, Islamabad (2004 P.Cr.LJ 1089), where order dated 13.12.2003 by the Chief Commissioner, Islamabad for holding trial of the petitioner at Central Jail Adyala Rawalpindi was challenged, it was held as follows:- "the Administrator (Chief Commissioner) to exercise all the powers and duties conferred or imposed on the Provincial Government under any law for the time being in force in the Islamabad Capital Territory. In view of the aforesaid notification, the respondent/Chief Commissioner is a Provincial Government and under subsection (2) of section 9 of the Criminal Procedure Code is empowered to direct holding of trial of a case in the Jail premises. Therefore, the first contention of the learned counsel for the petitioner is devoid of any force".
It was concluded in the said case that provincial government in particular cases can pass order for trial of a case at a particular place, if reasons are bonafide.
18. In case reported as Gul Muhammad Hajano Vs. Province of Sindh, through the Secretary, Government of Sindh and 2 others (2011 P.Cr.LJ 302), notification of jail trial of the petitioner came up for challenge before Sindh High Court and after referring to the relevant case law, the jail trial was upheld. In coming to this conclusion, it was remarked as follows:- "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 factor".
19. In an unreported decision of Larger Bench of Lahore High Court in case titled Dr. Abdul Basit, Advocate Vs. Sher Zaman Khan, Deputy Attorney General (WP. No.6734 of 2000), it was observed that even under section 16(b) of the Ordinance, the court may sit at any place specified by the government. This observation was made in the background that trial of the petitioner was ordered at Attock Fort; the court went on to observe that environmental condition/suitability of the Attock Fort for holding of the trial is concerned, there is no doubt that this place has been selected for the safety and well being of all those who are being tried as well as others who intend to attend the proceedings. It was reiterated that section 16(b) of the Ordinance provides specifically that a court shall sit at such a place or places as the government may by order specify in this behalf and the same is in accordance with law.
20. In case reported as Zulfiqar Ali Bhutto Vs. The State (PLD 1979 Supreme Court 53), there was an issue regarding hearing of certain applications for transfer in chambers/in-camera, the Supreme Court of Pakistan observed as follows:- "350. I may pause here to mention that according to section 352, Cr. P. C. the place in which any Criminal Court is held for the purpose of "inquiring into or trying any offence" shall be deemed to be an open Court. Strictly speaking therefore, the Court is open only for the purpose of "inquiring into or trying any offence" and not for any collateral purpose, or while dealing with something which is strictly speaking outside the cause itself. In this category would fall a transfer application which is not germane to the proper trial as such. In this view of the matter also section 353 of the Code did not debar the learned trial Bench from hearing the transfer application in limine "in chambers" and not in Court open to the public. Indeed the Bench in its impugned order has itself specifically observed that it was decided by them to take up the transfer application "in chambers" in accordance with the usual practice of the Court. The objection as to the hearing of the transfer application in chambers is, therefore, without merit"
It was further observed as follows:- "360. Let me now advert to the propriety of the orders passed by the learned trial Bench in holding this part of the proceedings in camera, The matter is governed by section 352 of the Criminal Procedure Code, 1898, which lays down that;---- "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, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court."
361. The operative part of this section embodies the general rule that ordinarily criminal trials should be open to the public, as publicity is the authentic hallmark of judicial proceedings. In cases decided under the Common Law of England as well as in the United State of America, there is a traditional distrust of secret trials and the right to public trial of a person accused of a crime is generally recognised. As stated by Black, J.
In re William Oliver (1); "Whatever other benefits the guarantee to an accused that his trial be conducted in public may confer upon our society, the guarantee has always been recognized as a safeguard against any attempt to employ our Courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power."
362. However, as stated in Corpus Juris Seeundum, Volume 23, section 963 ((1947) 333 U S 257). pages 849 to 853, the public trial concept has never been viewed as imposing a rigid, inflexible straight jacket on the Courts, and it is generally conceded that the right to have the general public present at A trial is subject to some limitations. The trial Judge has discretion to close to the public, even without the consent of accused where there is good cause for such action. In exercising control over the trial proceedings, the Judge may exclude those whose conduct is of disturbing nature, or whose presence is likely to interfere with the administration of justice. It is usually held that unless accused is thereby prejudiced for want of aid, or counsel of any person whose presence might be of advantage to him, it is within the discretion of the Court to exclude persons from the Court room where it deems necessary so to do in order to preserve decorum, to secure the administration of justice, or to facilitate the proper conduct of the trial.
363. These principles underlie the judgments cited as Scott and another v. Scott (1913 A C 417), King v. Governor of Lewes Prison ((1917)2KBD254), Cora Lillian McPherson v. Cora Lillian McPherson (AIR1936PC246), NareshShridharMirajkar and others v. State of Maharashtra and others (AIR 1967 SC 1==(1966) 3 SCR 744 ), W. E. Gardner v. U. Kha (AIR 1936 Rang. 471), In re: M. R. Yenkalaraman (AIR 1950 Mad. 441), Mst. ShirinNazir v. BadruddinKaramahNazir and another (PLD 1963 Kar. 440), Mairaj Muhammad Khan v. The State (PLD 1978 Kar. 308), Abdul Rashid Chaudhry and others v. The Stale (PLD 1966 Lab. 562) and The Province of West Punjab v. Khan IftikharHussain Khan of Mamdot (PLD 1949 Lab. 572).
364. According to Halsbury s Laws of England (4th Edn.), Volume It, para. 280, in general all persons, except children have a right to be present in Court, provided there is sufficient accommodation and no disturbance of the proceedings. There is, however, an inherent jurisdiction in the Court to exclude the public if it becomes necessary so as to do so for the due administration of justice: "In general, all cases, both civil and criminal, must be heard in open Court, but in certain exceptional cases, where the administration of justice would be rendered impracticable by the presence of the public, the Court may sit in camera. Thus the Court may sit in camera, either throughout the whole or part of the hearing, where it is necessary for the public safety, or where the subject-matter of the suit would otherwise be destroyed, for example by the disclosure of a secret process or of a secret document, or where the Court is of opinion that witnesses are hindered in, or prevented from, giving evidence by the presence of the public. In addition the Court is directed or has been given power by statute or statutory rules to exclude the public in particular proceedings and is empowered to do so in any proceedings for an offence against morality or decency when evidence is given by children or young persons."
The Court concluded in paragraph-365 as follows:- "365. It will thus be seen that it is an essential and salutary principle of administration of justice that it must not only be done but should also appear to be done. This necessarily carries with it the right to an open trial in the full gaze of the public, including the Press. This in turn leads to a healthy, fair and objective administration of justice calculated to promote public confidence in the Court and is conducive to dispel all misgivings about it. There can be no two opinions about it. But this rule, on all accounts, is not a rigid and inflexible one, and must not be pressed to its breaking point in defeating the very ends of justice. It admits of exceptions and cases may arise whereby following this rule for an open trial justice may itself be defeated. A Court of law exists for the administration of justice. The primary function and the ultimate goal before a Court is to do justice between the parties. However, as seen, above, there is no dearth of cases in which the very requirement of the administration of justice in itself demands that a trial may be held in private or in camera and an open public trial is likely to result in the stultification of justice".
21. In case reported as Kehar Singh and others Vs. The State (Dehli Admn) (AIR 1988 Supreme Court 1883), where the trial of accused charged with assassination of Indra Gandhi was held in jail and in this regard notification was issued under section 9 of Indian Code of Criminal Procedure; the Supreme Court of India concluded that view taken in AIR 1931 Bombay 313 is the correct view having regard to the scheme and object of section 9(2) of the old Code.
22. Finally, in case reported as Mohd. Shahabuddin Vs. State of Bihar and others [(2010) 4 Supreme Court Cases 653], another jail trial was questioned. In paragraph-211, it was concluded as under:- "211. Expeditious disposal of cases is also a factor and a necessary concomitant to administration of justice and the hallmark of fair administrative of justice. Since the venue of the trial of a group or a class of cases was shifted by establishing and constituting a court within District Jail, Siwan, the same cannot be said to be void or invalid in any manner. The aforesaid issue, therefore, stands answered accordingly along with the issue which was argued by the learned Senior Counsel appearing for the appellant that reason for issuance of notification being only the expeditious disposal of the cases pending against the appellant which is even otherwise a necessary concomitant of the administration of justice, the notification was void as no special reason to exercise such power under section 9(6) Cr.P.C. is spelt out and also particularly when the said power is exercised in the cases of only one individual. I have dealt with the aforesaid issue as well and have given my reasons for rejecting the aforesaid submission for, according to me, the said submissions is devoid of any merit.
23. The careful reading of the above case law clearly shows that either under section 9(2) Cr.P.C. or some special statute, which empowers the provincial or federal government to issue notification regarding 'place' or 'places' of sitting of a court, the courts in Pakistan as well as in India have consistently held that executive does have the power to order trial of a particular accused at a particular place and such an order is administrative in nature. Both sides have agreed that section 9(2) ibid is almost the same as section 16(b) of the Ordinance, as both provisions allow relevant government (provincial government under Cr.P.C. and federal government under the Ordinance) to decide the place or places of sitting of a court. In the instant case, the relevant court is the Accountability Court, hence Federal Government, on the touchstone of above case law, was competent to issue notifications impugned before us regarding holding trial of the petitioner in above two References in Central Jail Adyala Rawalpindi. Much emphasis was laid by learned counsel for the petitioner that in light of judgment of this Court in ICA No.367-2023 dated 19.12.2023, the same is not possible, as this Court has already held by taking a view that where trial of a person is to be conducted at a place other than normal court house, it can only be done through a judicial order and the accused has the right of audience in such determination.
This Court, in the said judgment, has given elaborate reasons and cited ample case law on the subject. There is no cavil with the reasoning taken by this Court in the afore-noted case and case law cited therein. It is admittedly the position that it is within the judicial power of a court trying any case to either conduct the hearing at its usual place of sitting, or can pass an order for holding proceedings of the same at some other place which is conveniently accessible to public and also can pass order for excluding the pubic; the justification or reasoning embraced by this Court in ICA No.367-2023, is without doubt correct, but that does not mean that because of it, power of the executive to issue administrative order for determining place of sitting of a court other than the usual place of sitting, is taken away. The executive, in the instant case, being the Federal Government, has exercised this power to notify trials of the petitioner at Central Jail Adyala, Rawalpindi under section 16(b) of the Ordinance. The meticulous reading of the said provision of law clearly empowers the Federal Government to notify the place or places of sitting of the Accountability Court by applying the principle that the 'general' includes the 'special', this power is not only with respect to general sitting of the courts but also applies to holding trial of a 'particular case' at a 'particular place'. The referred reasoning is not contradictory to the view taken in ICA No.367-2023 supra. The jurisdiction of the court to pass an order to conduct a trial at a place other than normal court house, co-exists with the executive power to specify a place of sitting other than normal court premises including the jail. The Division Bench of this Court, hearing appeal of the petitioner in ICA No.367-2023, was confronted with the notifications issued by the Federal Government for his trial under Official Secrets Act, 1923. There is no provision in the referred Act of 1923 qua administrative authority of provincial or federal government to issue notification for jail trial and the procedure under Cr.P.C. had to be followed. The Court, in such circumstances, held that it is only under section 352 Cr.P.C. that an order for conducting proceedings in jail, can be passed by trial court and also the provisions of High Court Rules and Orders are to be adhered to. This Court, in the said decision (ICA NO.367-2023), had no occasion to discuss section 9 ibid or other similar provisions hence did not advert to the power of the executive to issue notification or pass an order regarding place or places of sitting in a particular case or set of cases. Where the relevant government either under section 9(2) of Cr.P.C. or section 16(b) of the Ordinance decides to notify a place of sitting of a court, other than its routine place of sitting, there must be compelling circumstances for that, as exception is being created. In the instant case, the NAB, in its letters to the Federal Government, quoted threat to life of the petitioner as a reason for conducting proceedings at Central Jail Adyala, Rawalpindi and the Federal Government acceded to the request. The decision, it seems, was not taken in routine for some ulterior motive but solely to minimize risk to the petitioner's life. The executive does have the power to decide about the place or places of sitting, in other words, it does have the general power to take decision about places of sitting of Accountability Court and by implication, it also has the power to decide special cases viz take decision regarding place of sitting of Accountability Court for a particular case or set of cases. This decision of the Federal Government does not impinge upon the right of the petitioner to a 'fair trial' as provided in Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973, as he has the protection of all procedural and substantive guarantees available to him under the Constitution and the law. The trials are open and the public, including the media, has access to the court room at Central Jail Adyala. It is also to be kept in mind that under section 17 of the Ordinance, Code of Criminal Procedure, 1898 is excluded to the extent that it is in contradiction to the provisions of the Ordinance; hence the Federal Government has, under section 16(b) of the Ordinance, rightly exercised this power, as section 9(2) of the Code is excluded.
24. The legal issue confronting us in the instant case is different from one in ICA No.367-2023 inasmuch as here, the administrative order has been passed by the executive for conducting trial of the petitioner in jail and the reasoning adopted by us in upholding it, is not averse to the reasoning which prevailed with this Court in the afore-noted case (ICA No.367-2023). It is reiterated that jurisdiction or power of trial court is concomitant with that of the executive, if executive in any particular case, does not issue an order for holding cases or case at a place other than normal court house; power to do so vests with trial court under section 352 Cr.P.C., however, if decision has already been taken by the executive for conducting trial at a particular case or set of cases at a place other than normal place of sitting of the court, the trial court has to follow that administrative order and in light of reasons rendered in case reported as AIR 1931 Bombay 331 supra, this Court does not have any jurisdiction under section 526 Cr.P.C. to order transfer of a case. The nuance in reasoning in the instant case and ICA No.367 2023 is due to the different sets of statutes and the legal questions involved. We are in agreement with the decision of this Court in ICA No.367-2023 that where the court/the trial court decides to hold sitting at a place other than normal court house, a judicial order is required and High Court Rules and Orders are to be followed.
25. Malafide was attributed to the Federation on part of petitioner for conducting trial in jail and issuance of impugned notifications, in this regard, learned Special Prosecutor NAB drew attention of the Court with respect to reasoning for doing so. He drew our attention to decision of this Court dated 02.10.2023 in case titled Imran Ahmad Khan Niazi Vs. The State etc. (Crl. Rev. No.127-2023). In paragraph-9 of the referred decision, this Court observed as follows:- "9. In a fairly recent judgment, Lahore High Court in case reported as Farhan Masood Khan Vs. State etc. [PLJ 2021 Cr. C. (Lahore) 550], has observed that in an appropriate case, production order can also be passed by the courts hearing bail before arrest application. This is another option that was available before the courts, however, perhaps not plausible one for the reason that petitioner being an ex-Prime Minister and Chairman of a prominent Political Party, carries security risks and his transportation and security arrangements was a cumbersome task".
26. The examination of letter by NAB as well as summary before the Cabinet shows that it is only because of the security reasons that trial of the petitioner is being conducted at a place other than court house. Even, Division Bench of this Court in ICA No.367-2023, has observed that the court cannot sit over judgment by the decision of the competent authority regarding security risks.
27. Another objection, taken to the impugned notifications, is that same have been issued prior to filing of References by NAB. The contention of learned counsel for the petitioner is absolutely correct that the notifications impugned were issued prior to filing of References, however, as was pointed out by learned counsel for NAB that same was done, as the proceedings before filing of References were being conducted in the form of bails/remand, hence need for notifications.
28. The petitioner also placed reliance on a judgment of Sindh High Court wherein it was held that jurisdiction vests solely with the court ordering the trial of a case at a place other than normal court house. Reference was made to case of Asif Ali Zardar reported as PLD 1992 Karachi 437 supra. The facts, in the case reported as PLD 1992 Karachi 437 supra, were different, as they were different in ICA No.367-2023 inasmuch as relevant statute did not empower the relevant government to order holding of courts at places, rather under the referred statute, the relevant government could only order holding of the court at a place hence, since the relevant government was not competent to issue the notification, the court was held to be the 'appropriate forum' to decide the issue under section 352 Cr.P.C.
29. Learned counsel for the petitioner also argued that under section 5A of the Ordinance, it is only the Federal Government which is competent to appoint the Presiding Officer and since same has not been done, proceedings are invalid. In order to appreciate said argument, section 5A is reproduced below:- "5A. Establishment of Courts and appointment of Judges.- (1) The Federal Government shall establish as many Courts as it may deem necessary to try offences under this Ordinance.
(2) A Judge shall be appointed by the Federal Government after consultation with the Chief Justice of the High Court concerned and shall hold office for a term of three years from the date of his initial appointment as such Judge.
(3) No person shall be appointed as Judge unless he is a serving District and Sessions Judge or Additional District and Sessions Judge.
(4) A Judge shall not ordinarily be removed or transferred by the Federal Government from his office before completion of his term, except after consultation with the Chief Justice of the High Court concerned".
In the definition clause of the Ordinance, as amended time and again, the definition of a 'Judge' means a Judge appointed or deemed to have been appointed under section 5A of the Ordinance (5(j) of the Ordinance). The word used by the legislature is that a Judge appointed or deemed to have been appointed. The word 'deem' or a 'deeming clause' in a statute has been incorporated by the legislature quite after to create fiction for the purposes of granting legitimacy to any transaction or act. The effect of deeming clause of a statute came up for consideration in case reported as Dr. Abdul Nabi, Professor, Department of Chemistry, University of Baluchistan, Sariab Road, Quetta Vs. Executive Officer, Cantonment Board, Quetta (20023 SCMR 1267). The court concluded that legal fictions give rise to explicit objectives restricted to the purpose which should be construed contextually but should not be elongated further than the legislative wisdom for which it has been created. In another case reported as Begum B.H. Syed Vs. Mst. Afzal Jahan Begum and another (PLD 1970 Suprem e Court 29). While interpreting the scope and purpose of a deeming clause, it was observed as under:- "It is true no doubt that where the statute says that you must imagine the state of affairs; it does not say that having done so you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs. But at the same time it cannot be denied that the Court has to determine the limits within which and the purposes for which the Legislature has created the fiction".
The above case law makes it abundantly clear that through fiction of law, something is to be accepted, which actually does not exist and it is to be seen from the words of statute, the purpose of fiction. In the instant case, the words used in section 5(j) are that the Judge is deemed to be appointed under section 5A meaning thereby that all the judges exercising power and jurisdiction prior to the amendment of 2022, shall be deemed to be appointed under section 5A and there is no need for fresh appointment by the Federal Government now the competent authority for appointment of a Judge of Accountability Court under section 5A ibid, however, if any fresh appointment of a Judge of an Accountability Court is to be made today, same is to be done in accordance with section 5A ibid and competent authority is the Federal Government. The holding of jail trial is not a trial in-camera, however, due to jail regulations and other security restraints, perhaps, members of public do not have that kind of access, which they have in an open court or a normal court house. The said aspect of the matter is to be regulated by the trial court to ensure compliance of section 352 Cr.P.C. that the public can conveniently attend the court along with witnesses and members of the press, however, it is needless to observe that while regulating this affair, trial court has to keep in mind issues of security and the prevalent law and order situation in the country. The trial court, while doing so, should not be oblivious of the status of the petitioner, as he is a leading political figure of the country. As to the openness of a trial and public access, this Court in case titled Imran Ahmad Khan Niazi Vs. The State and Another (Crl. Misc. No.1354-B-2023), vide order dated 02.10.2023, observed as followed:- "8. The lynchpin of any justice system is its transparency and criminal justice system in particular advocates transparency by including public in the proceedings as envisaged in section 352 Cr.P.C. Though reading of the said section shows that it pertains to trial only, but by way of analogy, it can be observed that it also applies to other kinds of proceedings and in the said provision, in-camera proceedings can be held where the Court so deems appropriate. In the present times, access to justice and transparency are the two key factors for commanding public confidence in the judicial system. In other words, the hallmark of any modern judicial system is its accessibility and transparency and the courts all over the world, including Pakistan, are contemplating live streaming of the proceedings (recently Supreme Court of Pakistan live streamed a case of public importance, whereby challenge had been made to Practice and Procedure Act, 2023 in the Supreme Court)".
30. In view of foregoing, notifications impugned before us, do not suffer from any illegality, hence writ petitions are dismissed.
31. Before parting, we would like to observe that it is not every order of the trial court or of the executive which vitiates trial or render the proceedings a nullity.
We have to keep in mind provisions of section 537 Cr.P.C. which categorically provides for instances which render or do not render any proceedings vitiated. The bare reading of the above provision shows that basic concern of the court should be and always is that whether due to any error or omission, there is failure of justice. There is ample case law on the subject, however, reference is placed on few of such instances i.e. The State Vs. Muhammad Hussain (PLD 1968 Supreme Court 265), M. Younas Habib Vs. The State (PLD 2006 Supreme Court 153) & Zafar Iqbal Vs. The State (PLD 2015 Supreme Court 307), Sastay Khan Masood Vs. The State (2004 SCMR 1766) & Mst. Salma Shahida Vs. The State (2008 SCMR 787). In case reported as Sohail Ahmed and 6 others Vs. The Sate and another (1995 P. Cr.LJ 2036), the Lahore High Court elaborated the scope and purport of section 537 Cr.P.C., it was observed as follows:- "8. The object of the Criminal Procedure Code is that the accused should be given proper chance to defend his case before the Court of law and justice should not be sacrificed at the altar of the procedure but if during the trial any procedural illegality is committed which has caused prejudice to the accused then that illegality is not curable under section 537, Cr.P.C. and sentence or conviction of the accused could be reversed or altered on this score alone. Section 537, Cr.P.C. does not give any benefit or right to the prosecution to claim retrial on the ground of procedural irregularity, even if it is accepted for the sake of arguments that non-compliance of the provisions of section 342. Cr.P.C. is an illegality, still it does not advance the case of prosecution, because this provision is primarily made for the benefit of the accused. The bare reading of section 537, Cr.P.C. would disclose that if during the course of the proceeding, any irregularity is committed which has caused prejudice to the accused that illegality is not curable but other procedural irregularities are curable under the provisions of section 537, Cr.P.C. I may observe here that the trial already held by the learned Magistrate has not been found to be unsatisfactory and has not resulted into failure of justice. The learned Magistrate acquitted the petitioners after proper appreciation of evidence with regard to the occurrence took place in the year 1982. Even the learned Additional Sessions Judge has not kept in mind the guiding principles for not ordering the retrial i.e. ordeal of protracted trial which the petitioners had already undergone, the time that has elapsed between the date of commission of the offence and the date of order of retrial; the expenditure that might have been incurred by the defence and the nature of evidence available against the petitioners".