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.