This order shall dispose of the instant writ petition as well W.P. No. 36750 of 2023 titled "Jahanzeb Amin etc versus Province of Punjab etc" W.P. No. 36897 of 2023 titled "Ahsan Malik versus Govt. of Punjab etc", and W.P. No. 36923 of 2023 titled "Rizwan Zia Khan versus The State etc" as common questions of law and facts have been raised therein.
2. Through these Constitutional petitions under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioners have challenged the continued illegal custody/detention of the detenue/wife of the petitioner (in W.P. No. 37087 of 2023) namely, Huma Saeed, as well as wife of the petitioner (in W.P. No. 36750 of 2023) namely, Khadia Shah, with respondent No.4/Superintendent Central Jail, Kot Lakhpat, Lahore seeking further direction to produce them before this Court and then set them at liberty. In W.P. No. 36897 of 2023 the detenue namely, Zubair Malik and brother of the petitioner in W.P. No. 36897 of 2023 namely, Rizwan Zia Khan, are also sought to be released and set at liberty. It was further prayed that order dated 31.05.2023 passed by Judge Anti-Terrorism Court-III, Lahore whereby it gave the judicial remands be declared as illegal, without lawful authority, Coram non judice in the eyes of law and of no legal effect having been passed in blatant disregard of the judgements reported as THE STATE versus NASIR JAVED RANA, CIVIL JUDGE, IST CLASS/MAGISTRATE SECTION 30, RAWALPINDI (PLD 2005 Supreme Court 86) ASMA KHATOON versus Syed SHABBIR HUSSAIN SHAH, A.C.M. & F.C.M. COURT-IV KARACHI WEST and 2 others (PLD 1996 Karachi 51) and Senator ASIF ALI ZARDARI versus THE STATE (2000 MLC 921). It is still further prayed that the test identification parade conducted on 01.06.2023 is sham, bogus, fraudulent in nature and, therefore, be declared void ab-initio, inoperative, inalienable to the fundamental rights of the detenues. He also prayed for setting aside of the order dated 03.06.2023 passed by respondent No.7/Administrative Judge, Anti-Terrorism Court, Lahore whereby the physical remand of the detenue for 5 days was granted as well as the order dated 08.06.2023 whereby further physical remand was given for photogrammetric tests and recovery of mobile phones.
2. Brief facts giving rise to the filing of the present Writ Petitions are that the detenues (mentioned therein) were arrested from their houses on 23.05.2023 in connection with FIR No. 96 dated 10.05.2023 registered at Police Station Sarwar Road, Lahore at the instance of respondent No.6/Muhammad Ishfaq Rana, Deputy Superintendent of Police, North on the allegation, inter alia, of rioting, chanting anti-State slogans, staging violent protests by the political activist/supporters of Pakistan Tehreek-e-Insaf (PTI) on 09.05.2023 and marching towards and converged at Jinnah House located in Cantt, Lahore from different directions whereafter it was ransacked and burnt.
The case of the petitioners are that the detenues are innocent as they all hold the State institutions of Islamic Republic of Pakistan in highest esteem and could not possibly think of indulging in any anti-State activities or participation in any violent protest etc.
3. The case of the petitioner (in W.P. No. 37087 of 2023) is that since detenue namely, Mrs. Huma Saeed, resides almost at a stone's throw distance from the alleged place of occurrence she, on watching the live coverage on electronic media televised on different channels, went near the place of occurrence out of sheer curiosity and noticed that different roads leading towards the said venue were swa rmed by the host of people marching by foot as well as on vehicles. She just stood empty-handed at the pavement of the road opposite to Jinnah House for a while as a bystander/spectator but when she preempted the law and order situation started getting worst, she immediately left for her home much before the sun set whereafter riots erupted in and around the vicinity of the said venue in Cantt.
4. According to all the petitioners, their detenues were neither political activists nor had affiliation with any political party, therefore, their mere presence alongside the pavement on the stated places does not bring home guilt against them in the absence of any pre-consulted or joint criminality of intention with the alleged participators which proves the absence of Corpus Delicti for want of positive evidence to connect them with the occurrence. The trumped-up identification parade would not be of any evidentiary value as the detenues could not be saddled with any vicarious liability in the absence of any positive evidence.
5. On factual premise, the detenues were produced before the Judge ATC-I, Lahore on 24.05.2023 by respondent No.7/ investigating officer through an application requesting for the grant of judicial remand for identification parade whereafter 6 days judicial remand was given with a view to conduct the test identification parade and to produce her before the court on 30.06.2023. When the test identification parade was not conducted until 30.05.2023, it is the case of the petitioners, their further detention in the jail was in violation of their fundamental rights under Article 4, 9 and 10-A guaranteed under the Constitution. On 30.05.2023, respondent No.7 hampered the court proceedings and requested the extension of time to comply with the said order but did not produce the detenue before the court. On 31.05.2023, sub-ordinate of respondent No.4/ Superintendent Kot Lakhpat Jail, Lahore through an application/warrant paper dated 30.05.2023 did attend the court of respondent No.8 to seek extension of judicial remand. However, associate of the learned counsel for the petitioner (W.P. No. 37087 of 2023) namely, Raees Ahmed, Advocate present inside the court room saw police official carrying with him the application/ warrant who took the photograph of the warrants form at 09:33 a.m. which revealed the pasting/affixing of the photograph of the detenue (Huma Saeed) on the left top corner. Likewise, on 02.06.2023 he again took the photograph of the warrant from mobile phone at 08:46 a.m. which also revealed her photographs. This affidavit, according to learned counsel, fulfills the requirement of Article 46-A and 164 Qanun-e-Shahadat Order, 1984. According to the petitioners on 02.06.2023 the detenues were not produced and on 03.06.2023 they were brought in the court premises at 08:30 a.m. and shifted them to the lock up situated inside the court premises and when they remained confined till 03:15 p.m. the detenues were produced before the Administrative Judge, ATC and then again after marking their presence they were bungled into the prison. An application was made for the physical remand of the detenue to conduct photogrammetric and audio-sonic test besides the recovery of mobile phone from their possession. According to the learned counsels, under Rule 25.56 of the Police Rules, 1934 the application was to be moved by the Investigating Officer and it is reliably learnt that mobile phone of the detenues had already been taken by the I.O. As there was no need for the physical remand, therefore, it was resisted but was unlawfully granted. It is the case of the petitioner that in the absence of any supplementary statement the remand could not be granted. According to the learned counsel, the said identification parade is void ab-initio.
6. Learned counsel for the petitioners argued that neither the names of the detenues were mentioned in the said FIR nor any descriptions of their person were disclosed with particular reference to the features; no overt act was attributed to them; illegal detention of the detenues is in violation of Article 9, 10-A and 14 of the Constitution; one Naveed posted at Police Station Millat Park, took the detenues from their houses on the pretext of some incriminating material which was not brought before the court, hence prays for the relief claimed for.
7. Conversely, the learned law officer contends that the occurrence is un-precedented in the history yet all the legal rights of the accused persons have been duly protected despite their hateful acts committed against the public properties having sentiment symbolic values. The physical remands were obtained when required under the law. The non-production of the detenues on 30.05.2023 was beyond the control of I.O. since he had presented the file before this Court and to produce them simultaneously was not humanly possible and that no prejudice has been caused to the detenues. Even then they were produced before the trial court as required under Section 344 Cr.P.C. and that the I.O. was not lethargic in performing his legal duties. Adds that the superior Courts have time and again observed that courts should not interfere in the investigation. It is also submitted that judicial remand can be granted for maximum period of 15 days and so the case with physical remand by the Anti-Terrorism Court. According to him, the test identification parade has been conducted for the accused persons which is corroborative piece of evidence and not a substantial/conclusive evidence. Maximum safeguards have been privded to conceal the identity of the detenues. According to him, as per the practice, in 95% cases the allegation to disclose the identity is always levelled but their veracity is determined at the relevant time. The fair trial shall be ensured to the accused person. Places reliance upon DOSSANI TRAVELS PVT. LTD and others versus Messrs TRAVEL SHOP (PVT) LTD. and others (PLD 2014 Supreme Court 1) SANA JAMALI versus MUJEEB QAMAR and another (2023 SCMR 316) and GOVERNMENT OF THE PUNJAB through Secretary, Schools Education Department, Lahore and others versus ABDUR REHMAN and others (2022 SCMR 25).
8. It is notable that when initially Writ Petition No. 37087 of 2023 was filed on 31.05.2023 the prayer was only to the extent of challenging the illegal detention and setting the detenues at liberty but later vide application bearing C.M. No. 1 of 2023 under Order 6 Rule 17 CPC was allowed and amended memo of writ petition was placed on record. Likewise, in Writ Petition No. 36887 of 2023 similar applications were allowed.
9. It is further noteworthy that Huma Saeed and Zubair Malik, have been granted bail for sure and the other detenues namely, Khadija Shah and Rizwan Zia Khan, are statedly behind the bars.
10. Arguments heard. Record perused.
11. After hearing the learned counsels for the parties, the learned law officers and perusing the record, it is straightway observed that FIR No. 96 of 2023 dated 10.05.2023 under Sections 302, 324, 395, 436, 452, 440, 427, 353, 186, 290, 291, 153, 152, 148, 149, 147, 109, 505, 120-B PPC read with Section 7 of Anti-Terrorism Act, 1997 was registered at Police Station Sarwar Road, Lahore on the allegation that on 09.05.2023 at 05:00 p.m. information was passed on through the police that 1400 to 1500 workers of PTI armed with weapons, dandas, sotas, bricks, petrol bombs included Mian Mahmood-ur-Rasheed and Mian Aslam Iqbal, both armed with fire arm weapon were leading the mob. They moved from Upper Mall Road through Rahat Bakery towards Jinnah House and started destroying the public property, creating terrorism, vandalism and resorted to firing and the mob was raising slogans They extended threats that their leadership namely, Imran Khan, Shah Mahmood Qureshi, Farrukh Habib, Hamad Azhar, Musarrat Jamshed Cheema, Jamshed Cheema, Zubair Niazi, Akhtar Zaman, Murad Saeed, Ali Amin Gandapur and others have ordered them to make a horrible example of the Military installations and the government buildings. They are directed to desist from their illegal design but they ignored and attacked upon the police officers with their respective weapons and injured many of them. According to the police, they all were identified by the police in the light. The injured police officials were sent to the hospital and meanwhile, 400/500 persons had broken the door of Jinnah House and forcibly entered there and started torturing the employees present therein. Meanwhile, the fire of Mian Mahmood-ur-Rasheed had hit Abdul Qadeer and the fire of Mian Aslam Iqbal, hit another person namely, Muhammad Abdullah Wazir, who died. The charged people had removed the equipments, furniture and other expensive items from Jinnah House and then set them on fire which valued about Rs. 1,50,00,000/-, hence this FIR.
12. On 23.05.2023, the above said detenues were arrested and on 29.05.2023 were produced before the Administrative Judge, ATC Lahore. On the request of the Investigating Officer Khadija Shah and Huma Saeed, in custody of the police/muffled faces were sent for the judicial remand for 6 days to conduct their test identification parade. The I.O. was directed to keep their faces muffled when exposed to the public. He was further directed to file an application to fix a date for identification parade. On 30.05.2023 the said detenues could not be produced before the ATC court and a rapt in this behalf was written. On 31.05.2023 the remand paper was placed before the duty/ Administrative Judge, ATC, Lahore since Ms. Abher Gul Khan, Administrative Judge ATC, Lahore was on leave. The I.O. stated that the accused persons could not be produced before the ATC court due to the fact that identification parade is in progress in jail premises and record of the case is also with I.O. present inside the jail premises. The learned counsel for 125 suspects argued about illegal custody of their clients. They also stated that a writ petition No. 35551 of 2023 titled "Arshad Virk versus Inspector General of Police etc" had been filed and that the record has been produced before this Court. The learned court, therefore, had given no comments about their non-production on 30.05.2023 before the court. It was, however, observed that since the suspects were behind the bars, therefore, Investigating Officer as well as the Area Magistrate were required to expedite the proceedings of test identification parade. The accused, therefore, were directed to present them before the Anti-Terrorism Court on 02.06.2023.
13. Meanwhile, the present Writ Petition was filed on 01.06.2023 and it was directed to be enlisted for 05.06.2023 on which Writ Petition No. 36923 2023 titled Rizwan Zia Khan versus The State etc was also filed.
14. The learned counsels for the petitioners have greatly emphasized on conducting of test identification parade and also on non-production of the accused on 30.05.2023 before the Anti- Terrorism Court. It is notable that neither the proceedings of test identification parade are placed before this Court to ascertain their veracity nor it is denied by the learned counsels that on 30.05.2023 Writ Petition No. 35551 of 2023 titled Arshad Virk versus Inspector General of Police etc has been pending before this Court in which the order was passed to the following effect:- "30.05.2023 Mr. Ali Imran Rao, Advocate for the petitioner.
M/s Ghulam Sarwar Nehang, Addl. Advocate General, Muhammad Akram Khaksar, Assistant Advocate General and Sittar Sahil, Assistant Advocate General.
In view of the fact that the alleged detenue has been arrested in case/F.I.R. No. 96 dated 10.05.2023, under Sections 302/34/395/436/ 452/440/505/109/147/148/149/152/153/290/ 291/186/353/427 PPC and 7 of ATA, 1997, Police Station Sarwar road, learned counsel for the petitioner in order to avail alternate remedy does not press this petition, however reserved the right of agitating the excess/high handedness made by the respondents.
2. Disposed of accordingly."
The legal requirement regarding test identification parade has been greatly focused by the learned counsels and they have relied upon Fazal Elahi versus The Crown (PLD 1953 FC 35), Ibrahim Bhak versus The State (PLD 1955 FC 113), MUHAMMAD BASHIR ALAM versus The State (PLD 1958 Supreme Court 1), Lal Pasand versus The State (PLD 1981 Supreme Court 142), Muhammad Afzal versus The State (1982 SCMR 129), Ghulam Rasul versus The State (1998 SCMR 557), Shafqat Mehmood versus The State (2011 SCMR 537), Sabir Ali alias Fauji versus The State (PLD 2011 Supreme Court 401), Javed Khan alias Bacha versus The State (2017 SCMR 524), (PLD 2019 Supreme Court 488), Mian Sohail Ahmed versus The State (2019 SCMR 956), Muhammad Yaqoob versus The State (1989 P.Cr.L.J. 2227), Kirir versus The State (PLD 1996 Karachi 246), Shafique Ahmed versus The State (2002 P.Cr.L.J. 518), Wahid Iqbal versus The State (2003 P.Cr.L.J. 1928) Muhammad Imran versus The State (2009 P.Cr.L.J., 997), Mansoor Ahmad alias Shahzad alias Sheeri versus The State (2012 YLR 2481, Ameer Bux versus The State (2012 P.Cr.L.J.
500), Nadeem versus The State (PLD 2021 Lahore 415), Fidaullah versus The State (2016 P.Cr.L.J.
1584), and Adnan versus The State (2018 MLD 43) which relate to the conduct of test identification parade and its evidentiary value. The other set of referred judgments are in respect of involvement of the mobs and selection of the accused person which are not relevant at this stage when the investigations are underway. Reliance has been placed upon Fazal Elahi versus The Crown (PLD 1953 FC 35), Muhammad Altaf versus The State (2002 sCMR 189) and Ramachandran versus The States of Kerala (2012 SCMR 1152) which authorities are relevant for the test identification parade of the accused person. At this point of time, when the arrest and detention of the detenues has been challenged, the only relevant argument might be the non-appearance of the accused persons on 30.05.2023 before the Administrative Judge, ATC Lahore which according to the learned counsel for the petitioner would make the entire edifice of arrest illegal and will crumble to the ground. However, it is not denied that on the said date a writ petition was pending before this Court and a rapt was already prepared to this effect and, therefore, the remand paper had to be presented without the accused persons.
15. Undoubtedly, the object and scope of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is the enforcement of a right and not establishment of a right, therefore, such right must not only be cleared and complete simplicitor but there must be an actual infringement of such right. A writ jurisdiction cannot be expanded on the solitary resolution or treatment for un- doing the wrong doing, anguishes, or suffering of a party, regardless of having an equally efficacious, alternate and adequate remedy provided under the law which cannot be bypassed to attract the writ jurisdiction. Reliance is placed upon SANA JAMALI versus MUJEEB QAMAR and another (2023 SCMR 316). Powers of this Court under Article 199 are different than the apex Court of the Country under Article 187, therefore, while exercising them the parameters of jurisdiction must be kept in mind according to which only the powers conferred by the Constitution have to be exercised subject to the constitution only where there is no adequate remedy is available. However, on the application of an aggrieved person this Court can direct that a person in custody be brought before to satisfy the Court that the person was not held in custody without lawful authority or in an unlawful manner and can pass the order to enforce the fundamental right under Chapter I Part II, as interpreted by the Supreme Court of Pakistan in case titled DOSSANI TRAVELS PVT. LTD and others versus Messrs TRAVEL SHOP (PVT) LTD. and others reported as (PLD 2014 Supreme Court 1).The famous maxim ubi jus ibi remedium; when there is a right there is a remedy, is recognized in the command of jurisdictive procedure and the courts show restraint directing the parties to first take recourse to an alternative and equally efficacious mechanism and framework of remedy provided rather than to take departure in order to surpass or circumvent such remedy.
Reliance is placed upon GOVERNMENT OF THE PUNJAB through Secretary, Schools Education Department, Lahore and others versus ABDUR REHMAN and others (2022 SCMR 25). The petitioner has alleged malafide against the Investigating Officer and the police in general terms which will not be sufficient as it has to be specifically pleaded against the government officials. However, it is most difficult to prove and the onus is always upon the person alleging as there is a presumption of regularity in all official acts and until that is rebutted, the action cannot be challenged. Specific pleadings must be made with reference to particular malafide, which is not interchangeable with any other kind of malafide. A person alleging malafide against the government should not be allowed a roving enquiry into the files of the government for fishing out some kind of a case.
Reliance is placed upon THE FEDERATION OF PAKISTAN THROUGH THE SECRETARY, ESTABLISHMENT DIVISION, GOVERNMENT OF PAKISTAN RAWALPINDI versus SAEED AHMAD KHAN AND OTHERS (PLD 1974 SUPREME COURT 151). Under the concept of separation of powers, the investigation of a criminal case falls in the domain of the police. If independence of judiciary was a hallmark of a democratic dispensation then on the other hand independence of the investigation agency was equally important to the concept of rule of law. Undue interference in each other's role destroyed the concept of separation of powers and will go towards the defeating of jurisdiction. Reliance is placed upon MUHAMMAD HANIF versus The STATE (2019 SCMR 2033). An illegal detention, if it was, is regularized where the cognizance has already been taken by the Magistrate whereafter he has passed the remand order in the absence of the detenues, but subsequently passed the order in their presence. The detention cannot be regarded as illegal. Reliance is placed upon SAFIA BIBI versus THE SUPERINTENDENT OF CAMP/CENTRAL JAIL, LAHORE and another (1996 P.Cr.L.J. 1455).
16. Last but not least is the fact that the unfortunate occurrence of 9th of May, 2023 has not only challenged the civil judicial system of Pakistan but has also exposed the level of intolerance and dangerous fanatic condition of a charged mob psychology. Until this incident, our country-men have never witnessed this type of ransacking of undisputed like the Jinnah House; a symbol of Unity, Faith and Discipline. The wrath of people was aimed at the leadership both civilian and Military but what happened on the said fateful day is unexplainable. Not only the writ of State was challenged but also the State was directly targeted. After all, the State has to protect itself and also its subject individual and to protect them the system of administration of justice, Alhamd-o-Lillah, is very much in place. It is with this background, that the police promptly reacted and registered the above said FIR, whereafter the investigation was started and whosoever was found involved was supposedly identified in accordance with law and their arrest should have been regularized keeping in view the mandates of law. Of course, the accused persons have valuable legal rights which are to be protected by the courts and this Court has no doubt that our legal system is capable not only of protecting them but also uphold the rule of law in the society through our efficient judicial system. Normal recourse to the law will be the best advised strategy for the petitioners. Bypassing the whole procedure and methodology will not help the petitioners. There are certain alternate remedies available to the petitioners which they may resort to. At this stage, this Court does not find any reason to declare the arrest and detention of the detenues as illegal and to allow these petitions.
19. For the above stated reasons, these writ petitions have been found meritless and are, therefore, dismissed.