2024 SCLR 1

Other citations:

2023 SCP 343 (https://www.supremecourt.gov.pk/downloads_judgements/c.r.p._266_2019_01112023.pdf)

2024 SCMR 1 (https://www.pakistanlawsite.com/Login/MainPage)

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, CJ, Amin-ud-Din Khan and Athar Minallah, JJ

Civil Review Petition No.266 of 2019 in Suo Motu Case No.7 of 2017, Civil Miscellaneous Applications No.8270 and 8288 of 2023 in/and Civil Review Petition No.267 of 2019 and Civil Review Petition No.268 of 2019 in Suo Motu Case No.7 of 2017, Civil Miscellaneous Applications No.3575, 3577, 3579, 3582 and 3610 of 2019 in Civil Review Petitions Nil of 2019 in Suo Motu Case No.7 of 2017, Civil Miscellaneous Application No.8526 of 2023 in Civil Miscellaneous Application No. 3579 of 2019 in Suo Motu Case No.7 of 2017.

Date of decision: 1^st November, 2023.

HEADNOTES

Constitution of Pakistan —

Mansoor Usman Awan, AGP. Ch. Aamir Rehman, Addl. AGP. with Brig.(R) Falak Naz, Legal Advisor Ministry of Defence & Lt.Col. Kafeel Khan, Director Legal Ministry of Defence for the petitioners in CRP.No.266/2019 & CRP.No.267/2019.

Hafiz S.A. Rehman, Senior Advocate Supreme Court, Muhammad Saleem, Chairman PEMRA, Tahir Farooq Tarar, (Legal Head PEMRA) and Muhammad Tahir, D.G (Operations) PEMRA  for the petitioners in CRP No.268/2019.

Syed Ali Zafar, Advocate Supreme Court for the applicant in CMA No. 3579/2019.

Mehr Khan Malik, Advocate-on-Record for the applicant in CMA No. 3577/2019.

M.A. Ghaffar-ul-Haq, Advocate Supreme Court for the applicant in CMA No. 3582/2019.

Malik Qamar Afzal, Advocate Supreme Court with Omar Hamid Khan, Secretary ECP, M. Arshad, D.G. (Law) and Masood Akhtar Sherwani, D.G.(P/F) for the applicant in CMA No.3610/2019.

Date of hearing: 1^st November, 2023.

ORDER

1.           CMA No.9231 of 2023 (‘CMA 9231’): This application has been filed by Mr. Absar Alam Haider, who was the predecessor of the present Chairman of the Pakistan Electronic Media Regulatory Authority (‘PEMRA’). He has levelled serious allegations against an individual and his unnamed subordinates. We enquired from Mr. Haider whether he is aggrieved by anything stated in the judgment of this Court dated 6 February 2019 (‘the Judgment’) and he stated that its paragraphs 35 and 36 create an impression that during the period he was Chairman, PEMRA, he had not performed his statutory duty. When we had heard this matter PEMRA was represented before the Court and the letters/material attached with CMA 9231 were not presented. The operative part of the Judgment with regard to PEMRA is paragraph 53 wherein two directions in its sub-para (9) and (10) were issued. When asked, Mr. Haider stated that he did not disagree with them. Mr. Haider was not named in the Judgment nor was any blame personally attributed to him. He was asked whether he would be prepared to repeat the serious allegations leveled by him in CMA 9231 before the said individuals, and be subjected to cross-examination, if the Federal Government decides to constitute a commission of inquiry, he answered that he is prepared to do so. CMA 9231 is disposed of with the said observations.

2.           The learned AG states that the Federal Government had filed Civil Review Petition No.266/2019 on behalf of the Ministry of Defence and Civil Review Petition No.267/2019 on behalf of the Intelligence Bureau, both of which the Federal Government wants to withdraw. The review petitions were filed and have been kept pending for over 4 years and 8 months. One does not expect the Federal Government to file frivolous applications and abuse the process of the Court. While we dismiss these civil review petitions, as they are not pressed, we expect the commission which is proposed to be constituted will consider why the same and other review petitions/applications were filed and if it was coincidental or was done pursuant to being instructed from the same source.

3.           CMA No.9219 of 2023 (‘CMA 9219’): Learned Attorney-General for Pakistan (‘AG’) has through this application stated that the Federal Government has constituted a three-Member Committee comprising of the Additional Secretary-I, Ministry of Defence, Additional Secretary, Ministry of Interior and Director, Inter Services Intelligence (‘the Committee’) to conduct an inquiry with regard to the matters mentioned in the Judgment, relevant paragraphs whereof are reproduced hereunder:

‘2.    It is respectfully submitted that a special fact-finding committee (“Committee”) has been constituted to ensure compliance of directions contained in judgment dated 06-02-2019 in SMC No.7 of 2017. The Committee comprises of following:

(i)     Additional Secretary-I, Ministry of Defence;

(ii)    Additional Secretary, Ministry of Interior; and

(iii)   Director, Inter Services Intelligence.

3.     The Committee has been tasked to conduct an inquiry and fix responsibility as per the following proposed terms of reference (“TOR’s”):

a.     collect, examine and review all relevant documents, record and evidence;

b.     record statement of relevant witnesses;

c.      assess the matter in light of applicable laws, regulations and policies;

d.     determine the role/directions of all concerned related to management and handling of the matter;

e.     submit a report along with recommendations;

f.      any other point/term related to the matter.

4.     As per the TOR’s, the Committee held its first meeting on 26-10-2023 and has commenced its proceedings. The Committee shall furnish a fact-finding report to the Ministry of Defence by 01-12-2023. In the event, further time is required for furnishing of the report, the Committee will seek extension from the Ministry of Defence.’

In response to our query the learned AG states that the Committee was not notified in the Gazette of Pakistan. The learned AG could also not refer to any law whereunder the Committee was constituted. Questions arose as to how the Committee would summon anyone, order any premises to be searched and/or exercise other powers, but no answer was forthcoming. CMA 9219 does not demonstrate that the Judgment is being implemented. However, the learned AG states that since the Federal Government accepts the Judgment, and wants to implement it, he will be recommending to the Federal Government to constitute a commission under Pakistan Commissions of Inquiry Act, 2017 (‘the Act’) and, sought an adjournment to constitute such commission and place before us the requisite notification.

4.           Civil Review Petition No.268 of 2019 (‘CRP 268’): PEMRA filed CRP 268 on 7 March 2019, which it seeks to withdraw through CMA No.8288 of 2023 filed on 27 September 2023, that is after four and a half years. PEMRA has also filed CMA No.9211 of 2023, titled ‘implementation report’, comprising of 110 pages which states that PEMRA has implemented the Judgment. The relevant paragraphs in the Judgment pertaining to PEMRA were pointed out and its counsel stated that the same have been attended to in the implementation report, but when it was noted that this may not be the case he preferred not to argue the matter and left the Courtroom.

5.           Therefore, we sent for the Chairman of PEMRA, Mr. Muhammad Saleem. We asked him what we had asked of PEMRA’s counsel, but received no answer. We also asked him who had taken the decision to file CRP 268 and he gave conflicting answers. First he stated that it was pursuant to the decision by PEMRA’s Authority, but when we asked him to refer to such decision he stated that it was oral. His attention was therefore drawn to section 8(5) of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 which stipulates that, ‘decision of the Authority shall be taken in writing’. When so confronted, he had no answer. The original case file was then examined to ascertain who it was who had filed CRP 268 and under whose authority. We observed that Mr. Muhammad Saleem himself had signed the power of attorney of the Advocate-on-Record on 7 March 2019 and affixed his rubber stamp incorrectly describing himself as being the Government of Pakistan – ‘Muhammad Saleem, Chairman, Pakistan Electronic Media Regulatory Authority, Government of Pakistan, Islamabad’. A copy of the general delegation of powers to the Chairman by the Authority was also attached. As per the Court record Mr. Muhammad Saleem had himself filed CRP 268 yet he was not prepared to assume responsibility for its filing. And, when we asked him whether he had been instructed to file CRP 268 we were met with silence. The judgment was sought to be reviewed, as stated by him because in its paragraph 35 it was stated that PEMRA had not taken any action. However, surprisingly this ground was not even taken in CRP 268. The directions issued to PEMRA in sub-paragraphs (9) and (10) of paragraph 53 had called upon PEMRA to abide by its own law. Why PEMRA’s Chairman would not want to do so is inexplicable. It is also extremely disconcerting when the person holding the high office of Chairman PEMRA intentionally misleads the Court and withholds information. PEMRA is a statutory organization; the legislature has assigned it certain responsibilities and obligations but its Chairman, rather than abiding by the law, apparently elected to do someone else’s bidding. Therefore, CRP 268 is dismissed for the reason that there was no justification for its filing, as it was filed to contravene the PEMRA Ordinance and because it was apparently filed for ulterior reasons.

6.           CMA No.3575 of 2019 (‘CMA 3575’): This application was filed by a political party, the Pakistan Tehreek-e-Insaf (‘PTI’) on 11 March 2019. PTI had sought to be arrayed as a party. On the last date of hearing learned Syed Ali Zafar, representing PTI had stated that, ‘PTI does not want to press its application, to become a party, as upon reflection PTI has realized that judgment dated 06 February 2019 is in accordance with the law.’ Learned counsel reaffirmed this position. The applicant decided four and half years ago to become a party and then decided otherwise, and that the judgment accorded with the law. Accordingly, CMA 3575, is dismissed as not pressed.

7.           CMA No.3577 of 2019 (‘CMA 3577’): This application was filed on 7 March 2019 by Sheikh Rasheed Ahmed who wanted to join as a party. His counsel has since been appointed as a Minister in the Balochistan Government, therefore, on the last date of hearing we had informed the learned AOR to engage another counsel or himself argue the application. Learned AOR filed CMA No.9218 of 2023 in October 2023 stating that he has no contact with his client and wants to withdraw CMA 3577. The learned AOR contradicts himself. On the one hand he states that he has no contact with his client and on the other states that his client wants to withdraw CMA 3577. Court time is being unnecessarily wasted. However, in the interest of justice let notice be issued to Sheikh Rasheed Ahmed, who should clarify what it is that he wants.

8.           CMA No.3579 of 2019 (‘CMA 3579’): Through this application ‘Muttahida Quami Movement’, (‘MQM’), a political party, had sought to become party and seek to review the Judgment. However, MQM was not represented on the last date, therefore, in the interest of justice we had adjourned this application to enable the learned AOR to seek instructions. CMA No.8526/2023 has now been filed on 4 October 2023 which states that upon instructions from MQM and members of its Rabita Committee it is decided not to press CMA 3579. Regretfully no explanation is given why it was first decided to become a party and seek review of the Judgment and then elect to withdraw the application. CMA No.8526/2023 is allowed and CMA 3579 is dismissed.

9.           CMA No.3582 of 2019 (‘CMA 3582’): This application was filed on 7 March 2019, by Mr. Muhammad Ijaz ul Haq, and stated that the Judgment in its paragraph 4 had referred to him and had stated that he had supported the TLP. On the last date of hearing the learned counsel representing him had sought time to take instructions and to file the applicant’s affidavit, which was done through CMA No.9287 of 2023. The affidavit of Mr. Muhammad Ijaz ul Haq states that the report submitted by the Inter Services Intelligence (‘ISI’), referred to in paragraph 4 of the Judgment, had wrongly stated that he had publicly supported the Dharna which is incorrect as he had never supported it. The Judgment had referred to the report of ISI and did not give any finding. Mr. Muhammad Ijaz ul Haq has now filed his affidavit and there is no reason to doubt its veracity. Learned counsel states that if it be observed that the said ISI report will not be used against his client he will be satisfied and the application may be disposed of in such terms. Therefore, anything observed in the said report of ISI, to the extent of Mr. Muhammad Ijaz ul Haq, will not be used against him in any manner, and CMA 3582 is disposed of in such terms.

10.         CMA No.3610 of 2019 (‘CMA 3610’): Through this application, filed on 7 March 2019, the Election Commission of Pakistan (‘ECP’) sought to have certain observations made in paragraph 33 of the Judgment to be deleted. However, on the last date of hearing the learned counsel representing ECP stated that he is under instructions to withdraw CMA 3610. The referred to paragraph 33 had simply noted the duties to be performed by the ECP and this Court had expressed its regret that ECP had categorized certain provisions of the Election Act, 2017 as cosmetic in nature. Learned counsel states that ECP should not have expressed that the provisions of Election Act, 2017 are cosmetic. Since the judgment had reproduced the words cosmetic-in-nature used by ECP itself the question of removing the same from the Judgment does not arise. Therefore, CMA 3610 being completely unwarranted and untenable is dismissed. It did not behove ECP, a constitutional body, to file such a frivolous application, and filing it raises serious questions on who was managing the affairs of ECP, and whether, in complete derogation of its statute, the reins of ECP were handed over to an outsider.

11.         CMA No.9256 of 2023 (‘CMA 9256’): This application, filed by ECP comprises of 59 pages, purports to show that ECP had implemented the judgment, and attaches a report of a ‘Scrutiny Committee’, comprising of the Director General, Law, as its Chairman, Director General, Political Finance and Deputy, Controller General of Accounts, as its Members. The report of the Scrutiny Committee notes that the requisite information had not been provided by TLP, and that discrepancies, deficiencies and abnormalities were noted in the affairs of TLP, and TLP was called upon to provide, amongst others, details of its bank accounts. The report also noted that TLP had not disclosed who had provided it funds amounting to Rs.15,86,324, however, TLP had stated that it did not want to disclose. Despite its own said findings the Scrutiny Committee concluded that no irregularity or abnormality was found. The report was submitted to the ECP, which without considering the said findings, simply followed what the Scrutiny Committee had recommended, and did so without its own independent application of mind. ECP also went on to categorise the said unaccounted for amount, which constituted about 30 percent of the TLP’s total funding, as peanuts. At this stage learned counsel representing ECP states that ECP may be given another opportunity to attend to the matter in accordance with the Election Act, 2017 and the Constitution of Islamic Republic of Pakistan, and seeks one month’s time to do the needful. Order accordingly. Therefore, since ECP has undertaken to examine the matter of TLP afresh in accordance with the law CMA 9256 is disposed of in such terms.

12.         CMA No.9251 of 2023 (‘CMA 9251’): This application is filed by Mr. Taimoor Waheed Malik, an Advocate of the High Court. We inquired from him as to who he represents and he stated that he represents himself and prays for the review of the Judgment. If Mr. Malik was aggrieved by the Judgment its review should have been sought, ‘within thirty days after pronouncement of the judgment, or, as the case may be, the making of the order, which is sought to be reviewed’, as stipulated in Order XXVI, rule 2 of the Supreme Court Rules, 1980. Instead through this untenable application, filed on 27 October 2023, he seeks review of the Judgment dated 6 February 2019 after about 1,700 days. CMA 9251 is hopelessly time barred, and Mr. Malik has not even bothered to seek the inordinate delay to be condoned. Mr. Malik would be well advised to refresh his study of the law and not himself become a party, in matters which do not concern him. Therefore, CMA 9251, being completely misconceived, is dismissed.

To come up on Wednesday, 15 November 2023.

Order accordingly