‘We have to safeguard rule of law’: Supreme Court stops appointments, transfers in high-profile cases

ISLAMABAD: The Supreme Court on Thursday restrained the authorities from removing, transferring and posting persons involved in investigation as well as prosecution of high-profile cases pending before the Accountability Courts and Special Courts.

The chief justice the other day had taken suo moto notice on the recommendations of a judge of the Supreme Court of Pakistan and had fixed the matter for (Thursday). It had added that such actions, along with media reports to modify accountability laws, are likely to undermine the functioning of criminal justice system in the country and that tantamounts to violation of fundamental rights affecting the society as a whole and eroding the confidence of the people in the rule of law and constitutionalism in the country.

On Thursday, the court, while conducting the preliminary hearing on the matter, ordered that transfers, postings and removal of persons involved in the investigation of or prosecution of high profile cases falling within charge and jurisdiction of the Courts of Special Judge Director General Federal Investigation Agency (FIA), prosecutor generals of all the provinces, advocate generals of all the provinces and heads of prosecution branches in FIA and NAB. 

The court directed all these officials to file their statements in writing answering to the extent related to the allegations, the facts and materials contained in the order passed on May 18, and the opinion of the learned recommending judge for commencement of proceedings.

"The points that are involved for response and explanation by the said officers regarding posting, transfers and removal of prosecutors in the Prosecution and Investigation Wings of National Accountability Bureau (NAB) and Federal Investigation Agency (FIA), taken place in the last six weeks in matters of high profile cases," the court noted down in its order

The court further directed the said officers to provide details regarding the names of persons who have been removed or transferred from the said branches of FIA and NAB as well as details about the officers who succeeded them.

Similarly, the court directed for providing details pertaining to the names of persons removed from the Exit Control List (ECL) during the said period and the process employed in distinguishing their cases for the relief granted and the description of process now adopted for dealing with ECL-affected and whether the previous process had been amended or abandoned as a result adding that the status quo shall be maintained till the next hearing.

The court also sought the details about the steps taken for the preservation of case files and the case record with the Investigation Branch, the Prosecution Branch and the record of the concerned trial court whether a Special Court (Central) or an Accountability Court.

The court noted down in its order that the Investigation and Prosecution record in respect of high profile cases pending with both the FIA and NAB shall, unless required for submission in court, be checked, verified and kept in safe custody of the head of the concerned department and a report stating compliance to the said effect shall be presented to the court on the next date of hearing.

The court, however, after being pointed out by the Attorney General, clarified that the record of ongoing trials of cases will not be sealed as well. The court directed that no prosecution case shall be withdrawn until the next date of hearing. The court further noted that notice shall also be issued to the registrars of high courts of the provinces and the ICT for conveying this order to the Courts of Special Judge (Central) and Accountability Courts functioning within the jurisdiction of the respective high courts.

The chief justice noted that the court was concerned with the guarantees provided by the Constitution to the peoples of Pakistan in Article 4 for the rule of law, Article 10 for compliance with due process and Article 25 of the Constitution for equal protection of and equal treatment of all persons in accordance with law. These guarantees serve to assure the integrity, sanctity and fairness of the criminal justice system and to secure that alone is the object of these proceedings.

Attorney General Ashter Ausaf sought leave to file documents that to his mind shall be of assistance in the matter of securing, promoting and ensuring the integrity, sanctity and the fairness of the criminal justice system in the investigation, prosecution and trial of high profile cases before the mentioned courts.

Earlier, during the course of hearing, Chief Justice Umer Ata Bandial observed that there were allegations of interference in the criminal justice system adding that Prosecutor NAB Jehenzeb Bharwana had informed that record of four high profile cases had gone missing from a trial court.

The chief justice said that FIA prosecutor has been changed besides removing Prosecutor Dr Rizwan who was a competent person adding that he faced a heart attack.

"These actions are indication of interference in the criminal justice system in the country," the CJP remarked adding that according to the statement given by Prosecutor Sikandar Zulqarnain, the DG FIA had restrained an investigation officer from appearing in a case.

The chief justice observed that there should be no interference in the prosecution process adding that as per newspapers clippings, names of about 4,663 persons were on the ECL but after making changes in the rules, some 3,000 people had been benefited and they have been noting these as a silent spectator.

"There must be some criteria otherwise it will affect the criminal justice system," the CJP observed adding that they have been watching and reading such kind of news and they have attached clippings of newspapers of April-May 2022 that record of NAB in certain criminal cases had disappeared. "We have to safeguard the rule of law provided in the Constitution, hence we want your assistance in this regard," the CJP asked Attorney General Ashter Ausaf.

"These proceedings are not meant for accusing someone but we want to protect the sanctity of the criminal justice system and rule of law and we shall pass an order asking the DG FIA as to why he was interfering in the prosecution."

The chief justice further observed that the accused in cases have not yet been convicted and given punishment adding that they know that political parties have strong social media wings. "We are not here for point-scoring And we are not afraid of criticism whether fair or unfair but to protect the sanctity of prosecution and investigation process," the CJP remarked but added that this court should not be condemned for its decisions.

"In ECL law you have to give justification for removing a person from the list," Justice Muhammad Ali Mazhar, another member of the bench, told the AGP while Justice Ijazul Ahsen asked for submitting a list of persons whose names had been removed from the ECL as the court was concerned with the administration of justice.

Justice Munib Akhtar, another member of the bench, observed that after the change of government, postings and transfers were made on high level but the allegations came to limelight regarding the cases. "Accused persons have been appointed on key posts that prima facie gave the perception that targeted postings and transfers were made on which we have concerns and that’s why the chief justice took the suo moto notice."

Justice Mazahir Ali Akbar Naqvi, another member of the bench, observed that the FIA prosecutor gave a written application in the court, saying that DG FIA contacted the investigation officer not to appear in the case of persons going to become prime minister and chief minister.

The court asked Attorney General Ashter Ausaf to read out the suo moto order and the chief justice told him that they had concerns on the application of Prosecutor Sikandar Zulqarnain and asked as to why the investigation officers and prosecutors in high profile cases were being changed.

The AGP, however, replied that the FIA may have adequate reasons for changing these officers but the chief justice said that DG FIA Sanaullah Abbassi and Director FIA Muhammad Rizwan were transferred adding that both officials had appeared before the court several times.

"We know their performance and both were good officers but they were changed," the CJP observed adding that Dr Muhammad Rizwan was also transferred and later on he faced a heart attack.

"We just want to know the reasons as to why changes are being made regarding the officials, including investigation officers as well as from the prosecution side involved in the cases of government personalities. They are being changed and why these officials were being restrained from appearing in the cases," the CJP asked the AGP. Later, the court adjourned the hearing for next Friday.