LAHORE: Senior lawyer Barrister Syed Ali Zafar, the counsel for a woman who lost her mother in the Model Town incident, on Tuesday argued before the Lahore High Court that the provincial government had powers to constitute as many joint investigation teams (JITs) as it wanted and whenever it deemed necessary to investigate a criminal case.
He said section 19 of the Anti-Terrorism Act 1997 empowered the government to form a JIT at any stage of a case. He argued that the law had no prohibition, whatsoever, with regard to the extent or number of JITs.
The counsel had resumed his arguments before a seven-member larger bench headed by Chief Justice Muhammad Ameer Bhatti hearing petitions against the formation of a new JIT by the Punjab government to hold a fresh probe into the 2014 Model Town incident.
Barrister Zafar argued that a new ‘independent’ investigation could be initiated anytime to ensure that justice was served.
He, however, said it was his personal interpretation of section 19, when Justice Aalia Neelum, a member at the bench, asked him to cite any judgment in support of his arguments.
The counsel also argued that the LHC did not have the jurisdiction to review a judgment passed by the Supreme Court to constitute a JIT. He said the petitioners had an opportunity to challenge the formation of the JIT by seeking a review of the order before the apex court which they did not avail.
Justice Malik Shahzad Ahmad Khan, a senior member at the bench, noted that the main argument of the petitioners was that there was no direct order by the apex court for the constitution of the JIT and they were free to assail the notification of the JIT issued by the government.
Mr Zafar argued that both parties – the woman applicant and the government – had consented to the order before the SC.
Justice Neelum, however, pointed out that the petitioners were also a party to the apex court’s proceedings and they had not given any consent.
The counsel also argued that the Supreme Court’s 2016 judgment in Mustafa Impex case, which requires cabinet’s approval, was not applicable in the instant case as the impugned JIT was not a new one, but the government lawfully changed composition of the JIT originally formed in 2014.
However, Mr Zafar withdrew the argument when the bench noted that the government’s notification about the constitution of the new JIT did not support his claim.
The counsel cited different judgments whereby fresh investigations had been allowed in cases even after the submission of challan (police report) under section 173 of Criminal Procedure Code (CrPC).
The bench, however, observed that the petitioners had an argument that the trial court, in the case in hand, had taken cognizance of the matter, conducted the indictment and the recording of evidence was also in progress.
The bench asked Zafar to come up with more arguments and case law in support of the fresh investigation into the Model Town incident.
The bench also directed Advocate Azam Nazir Tarar, counsel for the petitioners, to render his assistance on the scope of section 19 of the ATA.
Chief Justice Bhatti summoned a letter of the SC written to the government on Dec 8, 2018, and a complete record of the cabinet’s decision right from the initiation of the summary for the JIT.
The bench will resume hearing on Nov 5.
Justice Syed Shahbaz Ali Rizvi, Justice Sardar Ahmad Naeem, Justice Sardar Muhammad Sarfraz Dogar and Justice Tariq Saleem Sheikh are other members of the larger bench.
Published in Dawn, November 3rd, 2021