Pakistan Case Law(Re: Independent and Transparent Investigation into the Murder of Renowned Journalist, Mr. Arshad Sharif in Kenya) Versus Not
This matter concerns the suo motu proceedings regarding the murder of journalist Arshad Sharif in Kenya. The Supreme Court reviewed reports from the Ministry of Foreign Affairs and the Special Joint Investigation Team (SJIT) concerning the progress of the investigation and challenges regarding international cooperation. The core legal questions addressed were the appropriate diplomatic channels for seeking foreign assistance in a criminal investigation and the scope of the SJIT's inquiry. The Court held that the Ministry of Foreign Affairs must prioritize liaising with Kenyan authorities to resolve their reluctance to cooperate, utilizing established diplomatic channels under the Mutual Legal Assistance Act, 2011, before considering United Nations involvement. The Court further directed the SJIT to expand its probe to include the motivations behind the deceased's departure from Pakistan, the reasons for his expulsion from Dubai, and the unauthorized release of the fact-finding committee's report. The principle established is that domestic investigative bodies must exhaust formal diplomatic mechanisms for international cooperation before seeking external international intervention, while maintaining a comprehensive scope of inquiry into the circumstances surrounding the crime.
- Must formal diplomatic channels under the Mutual Legal Assistance Act, 2011 be exhausted before seeking United Nations assistance in a criminal investigation?
- What specific areas of inquiry must a Special Joint Investigation Team cover when investigating the murder of a journalist abroad?
ORDER
Today, the learned Addl. Attorney General has referred to two reports: one, filed by the Ministry of Foreign Affairs ("MoFA") (CMA No.492/2023) and second, filed by the Special Joint Investigation Team ("SJIT") (CMA No.493/2023). The report by the MoFA details the steps that were taken by it to assist the SJIT during their visits to Kenya and UAE whereas the report by the SJIT states the headway made in the investigation of the murder of the deceased Mr. Arshad Sharif.
2.The learned Addl. Attorney General has also pointed out that the Kenyan Government has become reluctant to render assistance in the investigation and that the SJIT was not allowed to examine witnesses or inspect the crime scene during its visit. The SJIT report suggests that possibly the premature release of the fact-finding report prepared by the two-member committee has alarmed the Kenyan authorities. We are not inclined at this stage to speculate on the reason behind the change in approach of the Kenyan Government. Nevertheless the MoFA, keeping in view the subtle formalities of foreign relations and the fact that Kenya is regarded a friendly State by Pakistan, shall liaise with the concerned authorities in Kenya to ascertain the cause(s) of the Kenyan Government's reluctance to assist with the investigation and address these on a priority basis for the smooth progress of the investigation.
3.In response to the Court's suggestion that the United Nations may be involved in the investigation to ensure the cooperation of the Government of Kenya, the learned Addl. Attorney General submits that the proper diplomatic channel has been invoked under the Mutual Legal Assistance Act, 2011 for seeking the cooperation of the Government of Kenya. Therefore, time may be given for that process to run its course before approaching the United Nations. The request appears reasonable and is granted. However, in the meanwhile the MoFA shall familiarise itself about the terms and conditions for requesting the assistance of the United Nations in case the need subsequently arises.
4.On its part, the SJIT should probe the following matters: i. What motivated Mr. Arshad Sharif to leave Pakistan? In this respect the SJIT may investigate the multiple FIRs lodged against the deceased journalist and any sensitive information that may have been in his possession.
5.The needful shall be done within a period of two weeks. Relist in March, 2023.
Judges on this bench
- Ijaz-ul-Ahsan1,069 judgments
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