Summary: Constitution of Pakistan, 1973—Arts. 10A, 40, 184(3) & 175E(4)—Criminal Procedure Code, 1898—S. 4(1)(l)—Mutual Legal Assistance (Criminal Matters) Act, 2020—Ss. 2(1)(c), 4 & 7—Suo motu proceedings—Murder of journalist abroad—Independent and transparent investigation—Judicial supervision of investigation—Limits of constitutional jurisdiction—The Federal Constitutional Court, while dealing with the suo motu case regarding the murder of journalist Arshad Sharif in Kenya, held that although the State is under an obligation to ensure a fair, independent and transparent investigation, the constitutional courts cannot continuously supervise, monitor, or control the conduct and manner of investigation merely by keeping proceedings pending. The Court observed that Article 10A guarantees not only a fair trial but also an investigation free from undue pressure and interference, and such protection begins from the inception of the investigative process. However, the statutory sphere of investigation belongs to the police and investigating agencies, and judicial assumption of ongoing supervisory control would be prejudicial to fairness, inconsistent with settled jurisprudence, and beyond the proper constitutional role of the Court. Since no objection had been raised to the findings of the fact-finding process or the Special Joint Investigation Team, and the real concern related only to the pace of progress in a matter involving a foreign sovereign state, no justification existed for continued judicial monitoring. Criminal law—Investigation—Functions of judiciary and police—Non-overlapping spheres—Relying on Ajmeel Khan v. Abdur Rahim (PLD 2009 SC 102), the Court reiterated that the functions of the judiciary and the police are complementary but not overlapping, and that the conduct and manner of investigation normally cannot be scrutinized in constitutional jurisdiction. It further relied on Malik Shoukat Ali Dogar v. Ghulam Qasim Khakwani (PLD 1994 SC 281) for the principle that continued court control over investigation is prejudicial to the accused and detrimental to fairness of procedure. Referring also to S. 4(1)(l), Cr.P.C., the Court held that investigation means proceedings for collection of evidence conducted by a police officer or other authorized person, and does not contemplate continuous supervision by courts. The Court noted that judicial intervention in investigation is confined to exceptional situations, such as habeas corpus matters, mala fide investigation, or cases of jurisdictional excess, as recognized in Fahad Ahmed Gulzar v. ASI/IO Saeed Mahroof (2025 PCrLJ 1140). Accordingly, the request of the deceased’s family to keep the suo motu proceedings pending for ongoing oversight of the investigation was declined. Constitutional law—Foreign affairs—Article 40—International forums—Judicial restraint—The Court further held that it could not issue directions requiring the Federal Government to raise the matter at international forums, because such a course would intrude into the domains of foreign policy and diplomatic engagement, which constitutionally belong to the Federal Government and the Ministry of Foreign Affairs. Article 40, though reflective of constitutional aspirations to foster goodwill and friendly relations among nations, did not justify judicial management of foreign relations. The Court noted that the Supreme Court had earlier accepted the position that mutual legal assistance and diplomatic channels should first be allowed to run their course, with recourse to international forums to be considered only if the need subsequently arose. The matter was therefore left to the good sense and discretion of the Federal Government. Mutual Legal Assistance—Cross-border criminal investigation—Pakistan and Kenya—Statutory framework in both states—The Court observed that both Pakistan and Kenya have enacted legal regimes governing mutual legal assistance in criminal matters. In Pakistan, the Mutual Legal Assistance (Criminal Matters) Act, 2020 establishes the Secretary, Ministry of Interior, as the central authority empowered to make requests for assistance in criminal investigations and proceedings; while in Kenya, the Mutual Legal Assistance Act, 2011 vests corresponding authority in the Office of the Attorney General. A request for mutual legal assistance had been made by Pakistan to Kenya on 22.02.2023, accepted by Kenya, and the agreement was signed on 10.12.2024. In addition, the record showed constitution of the SJIT, diplomatic contacts by the Ministry of Foreign Affairs, communication between the Prime Minister of Pakistan and the President of Kenya, examination of the Kenyan case file, engagement with the Office of the Director of Public Prosecutions of Kenya, contact with the pathologist who conducted the post-mortem, and issuance of black warrants against the alleged perpetrators. In these circumstances, the Court held that the matter was actively proceeding through lawful investigative and diplomatic channels in both sovereign states and did not warrant judicial interference. Case references—Ajmeel Khan v. Abdur Rahim (PLD 2009 SC 102); Malik Shoukat Ali Dogar v. Ghulam Qasim Khakwani (PLD 1994 SC 281); Fahad Ahmed Gulzar v. ASI/IO Saeed Mahroof (2025 PCrLJ 1140). The Court also referred to the earlier orders passed by the Supreme Court of Pakistan in the same proceedings dated 13.02.2023 and 17.03.2023, particularly regarding the impermissibility of judicial supervision over investigation and the propriety of allowing mutual legal assistance and diplomatic processes to continue. Suo motu action disposed of—Pending applications disposed of—The Federal Constitutional Court held that, in light of the steps already taken by the Federal Government and the legal frameworks operating in Pakistan and Kenya, no further judicial intervention was required. The suo motu proceedings were accordingly disposed of, with observation that if the legal heirs of Arshad Sharif had any specific grievance, they could approach the court of competent jurisdiction.

Summary: (a) Constitution of Pakistan, 1973 ----Art. 184(3)---Art. 175E(4)---Art. 10A---Art. 90---Art. 40---Suo motu proceedings---Transfer to Federal Constitutional Court---Scope of original jurisdiction Murder of Pakistani journalist abroad---Suo motu taken by Supreme Court under Art.184(3)---Matter transferred after Constitution (Twenty-Seventh Amendment) Act, 2025---Held, proceedings concerned ensuring fair, independent and transparent investigation; right to fair trial under Art.10A extends to investigation stage and requires collection of evidence holistically, including material supporting defence as well as prosecution---However, court’s role is limited and cannot extend to continuous monitoring or supervision of investigation, particularly where no allegation of impropriety in investigation is pressed and the concern relates mainly to pace owing to coordination with another sovereign State. (b) Criminal Procedure Code, 1898 ----S. 4(1)(l)---Definition of “investigation”---Collection of evidence by police officer/authorized person (other than Magistrate)---Judicial restraint Court supervision of investigation---Limits---Held, investigation is a statutory inquisition for collection of evidence by police; continuous court control/supervision not contemplated and generally impermissible---Conduct and manner of investigation not to be scrutinized under constitutional jurisdiction as it amounts to interference and substitution of police function; courts and police perform complementary, not overlapping, roles---Exceptional circumstances for interference confined to limited categories (e.g., habeas corpus, mala fide investigation, lack of jurisdiction/excess of authority) and grievances may be pursued before competent forums. Cited Cases: • Ajmeel Khan v. Abdur Rahim, PLD 2009 SC 102 • Malik Shoukat Ali Dogar v. Ghulam Qasim Khakwani, PLD 1994 SC 281 • Fahad Ahmed Gulzar v. ASI/IO Saeed Mahroof, 2025 PCrLJ 1140 (c) Constitution of Pakistan, 1973 ----Art. 10A---Fair trial and due process---Investigation stage---Independence and transparency Fair trial---Commencement from investigation---Held, Art.10A protection begins from inception of investigation, requiring independent investigator and enabling environment free from undue pressure---Nevertheless, court’s continuous oversight may prejudice accused and undermine fairness of procedure; judicial monitoring of investigation therefore disfavoured. (d) Constitution of Pakistan, 1973 ----Art. 90---Executive authority of Federation---State’s obligation to protect citizens’ rights---Government measures abroad Federal Government’s role---Diplomatic and investigative steps---Held, Federal Government, acting through executive authority, undertook measures including constitution of Special Joint Investigation Team (SJIT), liaison with foreign authorities, engagement with prosecutorial offices in Kenya and facilitation through Ministry of Foreign Affairs---Court noted no objection by any party to SJIT or fact-finding process/method, and no allegation of impropriety; primary concern related to pace due to need for coordination with another sovereign State. (e) Mutual Legal Assistance (Criminal Matters) Act, 2020 ----Ss. 2(1)(c), 4, 7---Central authority (Secretary, Ministry of Interior)---Request to foreign state---Admissible evidence and cooperation Mutual legal assistance framework in Pakistan---Held, 2020 Act provides statutory mechanism for MLA in criminal matters through designated central authority empowered to make requests to foreign authorities for investigation/proceedings---Request made to Kenya and agreement executed; once MLA process invoked, central authority exercises powers relating to request under the Act, and investigation proceeds within the statutory framework, reducing scope for judicial interference. (f) Kenya Mutual Legal Assistance Act, 2011 ----Ss. 5, 6---Kenyan central authority (Office of Attorney General)---Handling foreign requests Bilateral cooperation---Held, Kenya maintains corresponding statutory framework empowering its central authority to act on MLA requests---Where both States possess legal frameworks and are coordinating under MLA, courts ought not to interfere when law and investigation are taking their due course and sovereign processes are engaged. (g) Constitutional law and foreign policy ----Art. 40---Principles of policy---International forums---Separation of functions Direction to pursue international fora---Held, judicial orders directing State to raise matter in international forums would encroach upon foreign policy domain and interfere with ongoing MLA-based investigative process; handling of foreign relations is for Federal Government/MoFA to determine what is appropriate in international context; issue left to executive’s judgment, with note that recourse could be considered if need arises. (h) Criminal law ----Pakistan Penal Code, 1860---Ss. 302/34---FIR registered in Pakistan for murder abroad---Inter-state coordination Registration of FIR and domestic steps---FIR registered under sections 302/34 PPC at P.S. Ramna, Islamabad as produced before Supreme Court---SJIT constituted to investigate and coordinate with Kenyan counterparts; court noted ongoing diplomatic and legal steps including warrants and MLA cooperation, without making findings on merits of evidence so as not to prejudice any future trial. Disposition: Suo moto proceedings disposed of; all pending applications disposed of; Court declined to keep proceedings pending for continuous supervision/monitoring of investigation and declined to issue directions concerning international fora, noting MLA process and diplomatic coordination underway; legal heirs left at liberty to approach courts/forums of competent jurisdiction in case of specific grievance (Suo Moto Case No. 3 of 2022, heard 14.01.2026).