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RULES, 2013

INVESTIGATION FOR FAIR TRIAL RULES, 2013

[Gazette of Pakistan, Extraordinary, Part-II, 31st May, 2013]

S.R.O. 472(I)/2013.—In exercise of powers conferred by Section 36 of the Investigation for Fair Trial Act, 2013 (I of 2013), the Federal Government is pleased to make the following rules, namely:—

1.       Short title and commencement.—(1) These rules may be called as the Investigation for Fair Trial Rules, 2013.

(2)  They shall come into force at once.

2.       Definitions.—(1) In these rules unless the context otherwise requires,—

(a)     "Act" means the Investigation of the Fair Trial Act, 2013 (I of 2013);

(b)     "person" means any natural person and includes a non-state actor, business man, employee of a private company etc., or a natural person or entity that may approach any applicant to seek issuance of warrant or may provide sufficient information for the processing and issuance of the warrant but does not mean and include the official of the applicant or a Designated Agency;

(c)     "supporting material" means any material collected by the applicant in his normal functions of intelligence gathering and includes reference to material referred to in the Act;

(d)     "material" means any intercept during intelligence gathering, source report, photographs, recordings, report of activity of the suspect by any official of the applicant, the statement of belief of the officer of the applicant, information on the background or narration of past history of the suspect, comment or statement of any person in respect of the suspect, statement of circumstances in which the suspect is found etc;

(e)     "report" means a report prepared in a narrative form by the official of the applicant.

(2)  The terms used but not defined herein shall have the same meanings as are assigned to them under the Act.

3.  Report of suspicious conduct.—(1) Any official of an applicant may prepare a report regarding suspicious conduct of a suspect in consequence of his prescribed duties. Such suspicious conduct shall be detected through the normal intelligence gathering activities of the official of the applicant.

(2)  While preparing the report mentioned in sub-rule (1), the said official shall annex all the relevant the supporting material with the report. The supporting material may comprise of,—

(a)     a statement of belief by the said official based on his monitoring of the suspicious conduct of the said suspect; or

(b)     any source report; or

(c)     any intercepts of communications; or

(d)     any intercepts of electronic communication including email, sms; or

(e)     any video recording; or

(f)      any other action giving rise to the suspicious conduct.

(3)     The report shall identify the suspect with sufficient details. The report shall also provide details about the suspect's background, their affiliations, and their past record. It shall document the possible offence that the suspect is beginning to get associated with along with some material indicating the suspicion. It shall also mention the apprehensions of the official about the plans and moves likely to be made by the suspect. The report shall identify the nature of surveillance or interception necessary especially with reference to the premises where the surveillance is required and the nature of surveillance itself.

(4)     In case of any interception, the technical identity and all the connected technical or other identities, which has been gathered or found during the intelligence gathering activities and which either constitutes or contains the supporting material.

(5)     The report shall indicate need for obtaining warrant in respect of the other persons with whom the suspect is or may be interacting.

(6)     The official shall also provide any additional information or assessment in respect of the suspect or provide any further particulars of the suspicious conduct that the official may have identified during intelligence gathering which will constitute the supporting material for the report in his point of view.

4.       Report to be presented to the Minister.—(1) After preparing the report, the same shall be presented before the Head of the applicant or an officer duly authorized by the said Head. The Head of the organization shall approve the report for submission before the Minister for permission to make an application to the Judge.

(2)     The Minister or an official designated by the Minster shall examine the same report along with the supporting material.

(3)     If the Minister is not satisfied with the report or the supporting material, he may decline the same and return it to the Head of the applicant agency with appropriate recommendations or if he is satisfied with it the Minister may grant the permission fully or partially as the case may be.

5.       Application for the Court.—After permission from the Minister under Rule 4, the authorized officer shall prepare an application in the manner prescribed in Schedule II of the Act except as provided in sub-rule (2). The authorized officer may provide any information along with the application if he so feels necessary.

(2)  In case the nature of warrant requested to be issued requires different description then the application shall be made in writing on the letter-head of the applicant justifying the issuance of warrant by mentioning all necessary details with supporting material along with the proposed draft for warrant.

(3)  The application shall also be accompanied by,—

(a)     a signed statement and affidavit of the authorized officer that the contents of the report and application are true to the best of his information, knowledge and belief and that the warrant shall be used only and exclusively for preventing or lawfully investigating a scheduled offence or to collect evidence in respect thereof and the same shall neither be misused in any manner, nor shall the approval of the warrant be abused; and

(b)     details of all warrants obtained previously in respect of the person against whom the warrant is sought.

6.  Hearing in Chambers.—(1) The applicant shall present the application to a Judge of the concerned High Court who has been nominated by the Chief Justice of the said High Court to issue warrants under the Act. The name of the nominated Judge shall be intimated only to the applicant and the notification of the judge shall not be made public.

(2)     The officer shall approach the secretary of the Judge concerned and request him to arrange hearing on the same day in the chambers.

(3)     The authorized officer shall carry with him the following two files, namely:—

(a)     File No. 1 containing the application with the supporting material obtained during the routine intelligence gathering functions; and

(b)     File No. 2 shall contain sheets for the Judge to write an order either under his own hand or otherwise.

(4)     The hearing shall be conducted in chambers exclusively in the presence of the authorized officer only. The Judge may ask questions from the authorized officers in respect of the application and its contents and may view the supporting material and the order passed by the Minister.

(5)     The Judge may consider the material contained in the report as sufficient to indicate reasonable threat or possibility of an attempt to commit the scheduled offence or the Judge may rely on the statement of the authorized officer as an indication of the reasonable threat or possibility of an attempt to commit the scheduled offence.

(6)     The Judge may ask the authorized official to provide,—

(a)     the authorization letter issued to him under Section 4; and

(b)     his official identification.

(7)     The Judge shall hereafter pass an order on File No 2 preferably in his own hand simply allowing the issuance of the warrant in the manner requested from him in the prescribed manner or in a proposed draft form. The Judge shall sign the warrant and the seal of the Court shall be affixed there. After signing the warrant both the files shall be returned to the authorized official for safe custody.

(8)     The Judge shall cause to be maintained a register of the requests received from an applicant. The said register shall contain the name of the applicant and the serial number of the files received by the Judge in his chambers and will not contain the name of the suspect or any other particular. The Judge shall keep the register in safe custody.

7.       Role of Designated Agency.—(1) After the issuance of the warrant it will be lawful for Designated Agency to do all or any of the actions under Section 16 of the Act.

(2)     The authorized officer shall then approach the designated agency and the designated agency shall designate an officer in this regard. The officer of the Designated Agency shall serve the warrant on the service provider to give effect to it within seven days of receiving it from the applicant.

(3)     In case where the applicant is also the Designated Agency under the Act, then the authorized officer who has obtained the warrant from the Judge shall himself be competent to serve the said warrant on the service provider and the Designated Agency shall nominate him accordingly.

(4)     In case where the applicant, Designated Agency and the service provider are same, then the authorized officer shall document the same facts and sign the same as evidence of service upon itself as a service provide.

(5)     In order to stream-line its functional relationship with the service provider the Designated Agency may issue appropriate instructions from time to time.

8.       Execution of warrants.—(1) The warrant shall permit the applicant to carry out any form of surveillance or interception authorized under the Act. The surveillance or interception permitted under the warrant shall be carried on for period up to sixty days.

(2)     That the applicant shall direct a responsible and relevant officer to maintain the record and a daily account of surveillance activity. The intercepts that are collected shall form part of the file of the given case or its Annexures, as the case may be.

(3)     The authorized officer shall at least once every fifteen days examine the materials collected through interception.

9.       Registration of Case.—Anytime before the sixtieth day, the authorized officer shall inform the head of the Designated Agency about the status of the evidence collected. If the head of the Designated Agency is of the opinion that the evidence collected is sufficient and constitutes attempt, commission, harbouring, abetting or conspiracy of a scheduled offence or any offence, he shall order the authorized officer to hand over the said material to the concerned authority for registration of the case.

(2)  While handing over the evidence, the authorized officer shall certify that the same has been collected as per the warrant and has not been tempered or altered in any manner whatsoever.

10.     Re-issuance of warrant.—(1) In case the authorized officer is of the view that some evidence has been collected in sixty days but it is not sufficient for the purpose of registration of the case and there is every possibility of gathering further material, he may approach the Judge in a manner prescribed above to seek reissuance of the warrant. For this purpose he shall show to the Judge the evidence and material collected so far as justification for the reissuance of the warrant.

(2)  The extension and reissuance of the warrants shall be deemed to have been done under Section 14 read with Section 30 of the Act.

11.     Insufficient evidence.—(1) In case the evidence gathered in consequence of the warrant is insufficient to justify registration of a report, the said material, information or data shall be kept in safe custody by the applicant.

(2)  Collection of insufficient evidence or information or refusal of issuance of warrant shall not be construed as restricting the applicant from its ongoing intelligence gathering activities and to collect supporting or new material on fresh grounds against the suspect during its normal course of function.

 

12.     Review Committee.—(1) The review committee shall meet in camera and shall interact with the representative of each applicant one by one. The applicants shall bring to the review committee the all the relevant record of warrants and show the same to the Committee. The proceedings of the committee shall not be documented or committed and shall not be public.

(2)  The orders and the instructions of the committee under sub-section (2) of Section 27 of the Act shall be in general terms and have extremely restricted circulation.

13.     Unauthorized surveillance.—Any person, company or entity other than the applicant who carries out interception or surveillance on his own or through unauthorized equipment or through any other means whatsoever, is strictly prohibited from doing so. The applicant shall also report any such incidence, through the Designated Agency, to the Minister or the Judge for appropriate action under the Act.

14.     Scope of the rules.—The Act and the rules shall be interpreted for the sake of collection of evidence and are not in any manner to restrict the duties and functions of the applicant or the Designated Agency which they are required to perform for counter-terrorism, internal security, sabotage, sedition, counter intelligence, anti-corruption and security of strategic assets as well as the functions ascribed to them under applicable laws.