Overview of Investigation for Fair Trial Act, 2013

(Liaqat Ali , Karachi )

Keeping in view the critical circumstances regarding anti-state and terrorist activities in country, the parliament has passed Investigation for Fair Trial Act, 2013 (Act No:1 of 2013) on 22nd February, 2013. It provides a mechanism for investigation and collection of evidence by means of modern techniques and devices to prevent and effectively deal with scheduled offences and to regulate the powers of the law enforcement and intelligence agencies and for matters connected therewith or ancillary thereto. The main purpose of the Act was to prevent the law enforcement agencies and intelligence agencies from using the powers arbitrarily and excessively. Thus in the act 2013 a system of check and balance is tried to be introduced by regulating such powers through executive and judicial oversight. This Act was a creating of feeling that the existing laws do not provide for or regulate advanced investigative techniques such as surveillance of accused and human intellige3nce, property interference, wire tapping and communication interception of e-mail, video-recording or calling, electronic sms, which create reasonable suspicion.

Under section 36 of the Act 2013, the Federal Government is authorized to make rules thus the Investigation for Fair Trial Rules, 2013 were also framed and promulgated on 31st May 2013.

The Act, 2013 apply to all citizens of Pakistanis within or without Pakistan, all persons within Pakistan or on board on any ship or aircraft registered in Pakistan wherever it may be and all transactions or communications originated or concluded within Pakistan or originated or concluded outside Pakistan by any person. Thus no one is exempted from operation this Act by the intelligence agencies of Pakistan as authorized in this Act. Such action by Pakistani Agencies is subject to the international treaties of mutual cooperation or MoUs with certain countries. It is worth mentioning here that Pakistan has not yet signed.

The Director General of ISI, three Services Intelligence Agencies, IB and Police, may be applicants for seeking such necessary permission under rule 4 of the Rules 2013 to present a report before Minister for permission to make an application to the Judge. A sessions judge would be authorised to issue a warrant for surveillance of a citizen in the country to a government entity, to abovementioned Agencies.

The agency, through an authorized officer has to prepare a report under section 5 for submission before the Minister through Head of the department. The report shall also include the whole material which is based upon to formulate the report. When the Minister pass any order regarding application and if permission is granted then only an application under section 8 and on prescribed form given in schedule-II shall be moved to the Court seeking Warrant. If the nature of warrant is different than that of given in schedule-II, then an application in written form on the letter head of the department showing reasons for such warrant be moved. The application for issuance of warrant shall be supported with an affidavit alongwith whole material relied upon by the applicant department. The application shall be presented by the authorized officer in person in chamber of the judge and the judge shall consider that collection of evidence can be helpful, there are reasons of commission of scheduled offence then warrant may be ordered to be issued. It shall be ensured by the judge while issuing warrant that the authorized officer is duly authorized and he shall not interfere the privacy of any person unduly. The warrant shall be issued for only sixty days. On expiry of such period, the court may re-issue the warrant for another sixty days if reasons are shown by the authorized officer. The Warrant of court shall be executed upon service provider within seven days. The data so collected by the authorized officer shall be handed over to the investigation officer for making the same as part of record/investigation and the same shall be confidential and only be used with permission of the court. The operation of Qanun-e-shahadat order, 1984 is excluded and such data and material collected by authorized officer and made part of investigation shall be admissible in evidence.

A review committee comprising of Minister of defense, interior and Law shall call reports from all applicants and assess the report for issuance of further directions and guidelines. If the application for issuance of warrant is declined, the applicant may approach the Chief Justice of High court and request for constitution of a Division Bench for hearing such representation in chambers, who can uphold the decision of judge, alter it or issue warrant as requested by the applicant.

The Warrant can be executed outside Pakistan in foreign jurisdictions directly on concerned service providers or through mutual legal assistance as per law. So also the warrants received from outside Pakistan can be executed though designated agency. The data will be given by ‘service providers’, such as telecom operators or internet service providers. They will have indemnity, which means citizens can’t sue them for handing over their data. A service provider who declines to provide information can be fined up to Rs10 million or jailed for two years.

LIAQAT ALI KHOSO
About the Author: LIAQAT ALI KHOSO Read More Articles by LIAQAT ALI KHOSO: 18 Articles with 26604 views Remained Law officer in Culture Department Govt: of Sindh, remained Deputy Director Law and Assets investigation Narcotics Control Division Government.. View More