ISLAMABAD: The Supreme Court has held that it has the power in its constitutional jurisdiction to monitor investigations into matters affecting the fundamental rights of the public at large.

“We are further strengthened in this view by our own jurisprudence which affirms that the court has the power in its constitutional jurisdiction to monitor, as opposed to supervising, investigations into matters affecting the fundamental rights of the public at large,” observed a four-page Supreme Court order after the March 17 hearing. Headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial, the court had taken up suo motu hearing in the killing of journalist Arshad Sharif who was shot dead in Kenya last year.

The Supreme Court made these remarks by relying on the 2010 Bank of Punjab versus Haris Steel Industries (Pvt) judgement. The observation came when senior counsel Shahzad Aziz Siddiqui, representing the mother of the slain journalist, had pleaded that since the Special Joint Investigation Team (SJIT) has been formed to investigate the murder, the court’s supervision of the investigation, though bona fide, was impermissible.

To fortify his contention, the counsel had relied on the 1971 Shahnaz Begum versus Judges of the High Court of Sindh and Balochistan in which it was held that the high court has no power under section 561-A of the CrPC to interfere with police investigations into criminal offences. But if an investigation is launched mala fide or is clearly beyond the jurisdiction of the investigating agencies concerned then it may be possible for the action of the investigating agencies to be corrected by a proper proceeding.

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The March 17 order said the Supreme Court has perused the judgement cited and was of the view that the case cited was not applicable to the present matter since it was delivered on a completely different factual matrix.

‘Question of public importance’

The apex court said it was not disputed by any party before the court that the present suo motu raises important questions of public importance and has a direct nexus with the fundamental rights of the journalist community and the people.

Indeed the Dec 5, 2022 office note, which became the basis of the process for the present suo motu notice recalled how after the murder of Arshad Sharif on Oct 23, 2022, more than 5,000 letters from journalists and the general public seeking the court’s scrutiny of the matter were received, the order said.

Nevertheless, the court exercised restraint and took notice on Dec 6, 2022, after it had become evident that scant progress had been made regarding the investigation into the murder. The sole purpose was to secure an independent and transparent investigation into the murder of Arshad Sharif, an objective to which it is committed, the order explained.

The court appreciates that the present matter is a sensitive one which spans multiple foreign jurisdictions. Consequently, expecting prompt results as might have been possible if the investigation was confined within the territorial limits of Pakistan may not be realistic, the ruling added.

However the court is also concerned that progress in the investigation has stalled in the past few months, the order said, adding three weeks were earlier given to the government and the investigation team to demonstrate their earnestness in advancing the investigation.

Failure to satisfy the court that all efforts were being expended to accelerate the investigation may compel the Supreme Court to consider constituting a judicial commission for investigating the murder of Arshad Sharif, the order said.

It added that on his part, Additional Attorney General Chaudhry Aamir Rehman was directed to identify the correct process for forwarding Mutual Legal Assistance (MLA) requests to the government of Kenya under the Kenyan Mutual Legal Assistance Act 2011 and to inform the court once a response was received from the Kenyan authorities on the amended MLA request of Feb 22, 2023.

Published in Dawn, April 6th, 2023