Barrister Muhammad Yousaf Khan Vs Government of KPK and others

IN THE PESHAWAR HIGH COURT, PESHAWAR

(Writ Jurisdiction)

Present: Mr. Justice S. M. Attique Shah, CJ.

Mr. Justice Muhammad Ijaz Khan.

Writ Petition No. 7810-P of 2025:

Barrister Muhammad Yousaf Khan (Petitioner) Versus

Government of KPK and others (Respondents)

For the Petitioner(s) Barrister Amir Khan Chamkani For the state Mr. Shah Faisal Utmankhel, Advocate General, Khyber Pakhtunkhwa and Noman- ul-Haq Kakakhel, Addl. AG.

Research Assistance by: Riaz Aslam Daavi, SRO, PHCP Date of Hearing: 29.01.2026

JUDGMENT

S. M. Attique Shah, CJ. In this constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (“Constitution”), the petitioner, in public interest, invokes the constitutional jurisdiction of this Court, challenges the amendments introduced by the Khyber Pakhtunkhwa Police (Amendment) Act, 2024 (“Impugned Act”) to the Khyber Pakhtunkhwa Police Act, 2017 (“Police Act”) as illegal and unconstitutional, and seeks the following reliefs:

i. Declare that the Khyber Pakhtunkhwa Police (Amendment) Act, 2024, particularly sections 3, 5, 6 and 7 thereof as unconstitutional, void ab initio, and of no legal effect;

ii. Direct that the provisions of the Khyber Pakhtunkhwa Police Act, 2017, as originally enacted, shall remain operative to the extent of inconsistency with the impugned amendments;

iii. Declare that any other amendment/section usurping the administrative autonomy, and/or impartiality of the police is illegal, void and of no legal effect;

iv. Grant any other relief deemed appropriate in the facts and circumstances of the case.

2.Petitioner argued that the amendments brought through the impugned Act 2024 have gravely undermined and compromised the independence, autonomy and professional character of the provincial police as conceived under the Police Act 2017 which was promulgated to ensure an efficient, depoliticised, accountable and operationally autonomous police service. The petitioner pleads that by inserting sub section 4 in section 9 of the Principal Act, the amended law mandates that any directions issued by the Chief Minister in matters relating to law and order shall be complied forthwith, thereby allegedly enabling arbitrary executive control in derogation of fundamental rights and constitutional safeguards, including Articles 4 and 9. It is further contended that by substituting section 11 the Provincial Police Officer is made subject to policy, oversight and guidance of the Chief Minister, which according to the petitioner offends Article 10A by permitting executive influence in investigation and prosecution and thereby impairing a fair trial and due process. The petitioner also challenges the proviso inserted in section 17(4) requiring approval of the Chief Minister for postings and transfers of BS 18 and above officers, as well as other changes brought through sections 3, 5, 6 and 7 of the Impugned Act, on the grounds that these provisions collectively dilute institutional checks, concentrate discretion in the executive and alter the composition and functioning of oversight bodies, thus offending constitutional principles of separation of powers, rule of law and equality, and violating Articles 97, 99 and 139 regarding the conduct of governmental business through rules of business and collective responsibility, along with Articles 4, 9, 10 A, 25, 143 and 240 of the Constitution. Repugnancy with the Police Order 2002 is also asserted, with reliance placed on Article 143 and relies on the reasoning in Karamat Ali (PLD 2018 Sindh 8) to contend that police supervision and administration

cannot be collapsed into direct executive command in a manner inconsistent with federal law. The petitioner prays that this Court may issue a writ of continuing mandamus, declare the impugned Act 2024, particularly sections 3, 5, 6 and 7, as unconstitutional, void ab initio and of no legal effect, direct that the provisions of the Police Act 2017 as originally enacted shall remain operative to the extent of inconsistency with the impugned amendments.

3.The learned Advocate General appearing for the Province submitted that, in a democratic system, elected institutions exercise oversight over the executive organ of the State. Since the police is an executive body, it remains subject to the control and supervision of the Chief Minister, being the elected representative of the people of Khyber Pakhtunkhwa. He further contended that the legislature enjoys constitutional jurisdiction and legislative competence to enact laws and to amend them, whenever required, to achieve better governance outcomes. He added that, in a recent high level meeting, the senior police leadership did not raise any objection to the amendment and that no person from the police hierarchy has challenged the same. It was argued that the petitioner is neither an aggrieved person nor possessed of locus standi to invoke the constitutional jurisdiction of this Court. It was further submitted that the impugned amendment does not infringe any fundamental right. He added that under the Khyber Pakhtunkhwa Government of Business Rules, 1985 (“Rules, 1985”), the Police Department is an attached department of the Home and Tribal Affairs Department, and, according to Schedule-III, Serial No. 1 of the Rules, 1985, the Chief Secretary, in consultation with the Establishment Department and the department concerned, and with the approval of the Chief Minister, is empowered to transfer officers of the All Pakistan Unified Group, including DMG and PSP officers, as well as Provincial Police Officers in BPS-18 and above. Similarly, under Rule 35 read with Schedule-VI, Item No. 15, the appointment of officers in BPS-18 and above is subject to the approval of the Chief Minister. He further submitted that, in terms of Schedule-II read

with Rule 3(3), Rule 9(4)(i), and Item No. 44, matters relating to posting and transfer fall within the domain of the Establishment and Administration Department. Therefore, the posting and transfer of officers in BPS-18 and above already requires the approval of the Chief Minister, and the impugned amendments merely bring uniformity to the existing legal framework. He also argued that the only person who could claim to be aggrieved is the Inspector General of Police, who has not filed the instant petition. It was contended that the matter purely relates to the terms and conditions of service of civil servants and, in view of Article 212 of the Constitution of the Islamic Republic of Pakistan, such matters cannot be agitated through constitutional jurisdiction but lie exclusively before the Service Tribunal. He further submitted that even the Service Tribunal is competent to examine the vires of the relevant law or rules. In support of his submissions, reliance was placed upon the judgments of the Honourable Supreme Court reported as 2013 SCMR 34,1 2015 SCMR 1739,2 and 2021 SCMR 1168.3 On these grounds, he prayed that the petition, being not maintainable, be dismissed.

4.Arguments heard and record perused.

5.Before entering into the merits of the petition, the question of maintainability is taken up first for determination. The petition is in the nature of public interest litigation. In matters of this kind, the petitioner is not required to demonstrate that he is a strictly aggrieved person, because the central purpose is the enforcement of a public or general interest that impacts the public at large or a defined class of the community. Public interest litigation serves as a constitutional mechanism for securing substantive justice by easing rigid technical and procedural requirements and by opening the doors of the Court to those who, due to incapacity, poverty, exclusion, or state coercion, are effectively unable to seek judicial protection on their own.

State Of M.P. Vs Rakesh Kohli (Supreme Court of India),

Lahore Development Authority Vs Ms Imrana Tiwana (Supreme of Pakistan) Khalil Ullah Kakar Vs Provincial Police Officer, Baluchistan (Supreme Court of Pakistan)

At the same time, the jurisdiction must be invoked with bona fide intent and for a genuine public cause, rather than to advance private interests or any collateral objective. In this regard, the Hon’ble Supreme Court of Pakistan in Javed Ibrahim Paracha v. Federation of Pakistan and others (PLD 2004 SC 482) held as:

“10. No doubt with the development of new concept of public interest litigation in the recent years, a person can invoke the Constitutional jurisdiction of the superior Courts as pro bono publico but while exercising this jurisdiction, he has to show that he is litigating, firstly, in the public interest and, secondly, for the public good or for the welfare of the general public. The word `pro bono publico' as defined in Black Law Dictionary, Chambers Dictionary and Oxford Dictionary generally means `for the public good' or `for welfare of the whole' being or involving uncompensated legal services performed especially for the public good. `Public interest' in the Black Law Dictionary, has been defined as the general welfare of the public that warrants recognition and protection. Something in which the public as a whole has a stake; esp., an interest that justifies governmental regulation. It thus signifies that in case of public interest litigation, one can agitate the relief on his own behalf and also on behalf of the general public against various public functionaries, where they have failed to perform their duties relating to the welfare of public at large which they are bound to provide under the relevant laws. Viewing the bona fide of petitioner in the above contest, we are of the opinion that the petitioner has not been able to show that he was aggrieved person within the meaning of Article 199 of the Constitution and can agitate his grievance as `pro bono publico'.”

6.Similarly, as regard the enlargement of the scope of ‘aggrieved person’ in the context of public interest litigation, the Supreme Court in Premier Battery Industries Private Limited v. Karachi Water And Sewerage Board and others (2018 SCMR 365) held as follow:

“12. Coming to the alternative stand taken by learned counsel for the petitioner that the matter may be treated as 'public interest litigation'. It is noted that on realizing that the petitioner was unlikely to succeed in view of his failure to participate in the process at any stage, the learned counsel tried to persuade us to examine the matter as one of public importance to undo the process, which according to him, had been undertaken in violation of SPP Act, 2009 and the Rules

framed thereunder. It was urged that the entire process be repeated afresh. This necessitates an examination of the scope and parameters of public interest litigation. Such litigation does not strictly fall under any part of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. However, it has received judicial recognition enabling the Courts to enlarge the scope of the meaning of 'aggrieved person' under Article 199 of the Constitution to include a public spirited person who brings to the notice of the Court a matter of public importance requiring enforcement of Fundamental Rights. However, the constitutional jurisdiction of the superior Courts is required to be exercised carefully, cautiously and with circumspection to safeguard and promote public interest and not to entertain and promote speculative, hypothetical or malicious attacks that block or suspend the performance of executive functions by the Government.”

7.The same principle has been reiterated in Riaz Ahmad v. Province of Khyber Pakhtunkhwa (2013 CLC 1291 Peshawar), relying on Moulvi Iqbal Haider V. Capital Development Authority (PLD 2006 Supreme Court 394) and F-9 Park case (PLD 2010 SC 759), where it was held that matters concerning public welfare may be taken up pro bono publico, and such classification does not negate locus standi, as the petitioner may also be an aggrieved person where personal or public rights are affected. The Lahore High Court, in Independent Media Corporation (Pvt.) Ltd. v. Federation of Pakistan (PLD 2022 Lahore 288), similarly affirmed that public interest litigation enables constitutional courts to extend the meaning of “aggrieved person” to include a “public spirited actor,” provided the litigation is bona fide and demonstrably aimed at advancing public good.

8.The power of judicial review is not expressly mentioned in Article 199 of the Constitution of Pakistan; however, the High Court has long possessed inherent jurisdiction, as a guardian of the Constitution, to strike down unconstitutional legislation. This jurisdiction flows from Articles 8 and 199, judicial precedent, and the constitutional oath of judges, and is essential to preserve, protect, and defend the Constitution. It applies even where no specific fundamental right is directly invoked, including cases involving the

violation of any constitutional provision, for instance, legislative overreach, executive overreach, or judicial overreach. In a recent judgment, 4 the Federal Constitutional Court of Pakistan has held that, where the vires of a statute are challenged, the High Court, in substance, exercises a power of judicial review akin to a writ of certiorari under Article 199(1)(a)(ii), by declaring the impugned law to be without lawful authority and of no legal effect. The relevant extract from the judgment is reproduced below for ready reference:- “14. When the validity of a law is challenged (as it is in this case) and a writ is filed before the High Court seeking judicial review, the Court is, in substance, exercising its authority under Article 199(1)(a)(ii), namely the power to issue a writ of certiorari i.e., assessing the action to be “without lawful authority” and “of no legal effect”. While it is settled in Benazir Bhutto case,5 that the High Court’s possess the power of determining the vires of a law, however, it was never assessed (or maybe it never became a point of tension) that in which particular clause of the Article 199 the High Court’s strike down the statutes. Throughout the time, the High Courts exercised a broad and inherent jurisdiction under Article 199 to strike down any statute found to be ultra vires.”

16.When we speak of the High Court’s “inherent power”, the question then arises: how do we arrive at this conclusion that the power is inherent in the High Courts? In this regard, reference is made to the landmark judgment in Marbury v. Madison6, in which the United States Supreme Court, for the first time, articulated the doctrine of judicial review and asserted its authority to strike down legislation as ultra vires, despite the absence of an explicit or clearly defined provision to that effect in the U.S. Constitution. Chief Justice John Marshall grounded this authority in the judges’ constitutional oath, reasoning that their duty to uphold the Constitution necessarily implied the power to invalidate laws that contravene it.”

The aforementioned judgment clarified that the High Court possesses the power of judicial review under Article 199 of the Constitution, which is also inherent in nature. The learned Advocate General, in his submissions, referred to the Ms. Imrana Tiwana6 case, wherein the Supreme Court, after drawing upon Cooley’s Treatise on Constitutional Limitations (pp. 159– 186), H.M. Seervai’s Constitutional Law of India, Vol. I (pp. 260–262), A.K. Brohi’s Fundamental Law of Pakistan (pp. 562–592), and Mr. Justice Fazal Khalid Mehmood Vs Pakistan (C.P No 2202/2025), dated 27.11.2025 PLD 1988 SC 416 (Per Muhammad Haleem CJ)

Lahore Development Authority Vs Ms Imrana Tiwana (2015 SCMR 1739) (Three member Bench)

Karim’s Judicial Review of Public Actions, Vol. I (pp. 488–492), summarized nine principles governing the striking down of a law. Indeed, these principles are binding. However, the Supreme Court has recently supplemented this framework by laying down additional principles, particularly in the case of Naseem Khan.7 The Supreme Court held that “No doubt, it is within the dominion of the Court to exercise its power of judicial review to evaluate and weigh upon the legislative and executive actions in order to maintain and sustain the rule of law, check and balance and render null and void an unlawful action or decision, and with the same spirit and frame of mind, the Court may also invalidate and strike down the laws, acts, and governmental actions if found unlawful and beyond the scope of power and jurisdiction. The judicial review can be sought if the decision maker was misdirected in terms of the law, exercised a power wrongly, or improperly purported to exercise a power that it does not have, which is known as acting ultra vires.” Applying these principles, the petition, which seeks judicial review of the impugned amendments that undermine the operational autonomy of the police and enable political interference in police operations and administration, thereby causing politicisation, diminished performance, and an increased risk of fundamental rights violations and misuse for political ends, is maintainable as a pro bono publico action.

9.As regards the objection raised by the learned Advocate General that the petitioner is not a civil servant and that matters relating to the terms and conditions of service of civil servants fall within the jurisdiction of the Service Tribunal under Article 212 of the Constitution, the same is misconceived and self-contradictory. Admittedly, the petitioner is not a civil servant; therefore, he cannot invoke the jurisdiction of the Service Tribunal. Moreover, while posting and transfer may ordinarily fall within the terms and conditions of service of civil servants, the controversy in the present case is not the posting or transfer of the Inspector General of Police. Rather, the Naseem Khan Vs Govt of KPK (2024 SCMR 1341) (Three member Bench)

impugned issue pertains to the statutory authority of the head of the police force to post and transfer his subordinate officers. This is a distinct question, separable from routine service matters concerning an individual civil servant. Accordingly, the objection is repelled, and the judgments referred to are distinguished on the ground that they do not relate to the present controversy. The learned Advocate General also referred to the Khyber Pakhtunkhwa Government Rules of Business, 1985, and contended that the posting and transfer of officers in BS-18 and above are subject to the approval of the Chief Minister; therefore, to bring harmony, the impugned amendments were introduced. The contention, however, is not persuasive. The Police Act constitutes a special law governing the police and its administration and provides its own mechanism and procedure. Consequently, the general Rules of Business cannot be invoked to control or dilute the scheme of the Police Act in respect of postings and transfers. Accordingly, this argument is also repelled.

10.The petition hinges on the argument that the amendments erode the operational autonomy of the police, thereby violating the Rule of Law and Fundamental Rights guaranteed under the Constitution of Pakistan. Before addressing the impugned amendments, it is imperative to understand the principle of ‘operational autonomy of police’. Admittedly, the police is a civil force of the State charged with maintaining law and order and, for that purpose, it is vested with extensive coercive powers, including the power to arrest, to search and seize, to detain, to investigate, and to prosecute. These powers, though necessary for effective law enforcement, are at times misused for political victimization, personal gain, or other improper and ulterior objectives. It is a widely held perception that the police is often deployed by the ruling party against political opponents, to suppress dissenting voices, and to advance or glorify partisan ideology rather than to serve the rule of law. It is precisely in response to this recurring misuse that the modern principle of police autonomy, also described as operational independence, has emerged. The underlying rationale is that the exercise of

police powers must be regulated by law and guided by professional judgment, not dictated by the preferences of the ruling party or political executives. Operational autonomy is therefore essential to ensure that policing remains impartial, accountable, and faithful to legal duty, so that police authority is exercised for public protection rather than political ends. This principle finds authoritative expression in the celebrated decision of R. v. Metropolitan Police ex parte Blackburn [1968] Q.B. 116 at 135 to 136, where it was held in substance that the Commissioner of Police, like every constable, is independent of the executive and is not subject to ministerial direction in matters of law enforcement. He must enforce the law of the land, deploy his force so that crime is detected and citizens can live in peace, and decide whether suspects should be prosecuted. In performing these functions, he is not the servant of any person or authority but the servant of the law alone. Neither a Minister nor any police authority may direct him to keep surveillance on a particular place or to prosecute or refrain from prosecuting any individual. Responsibility for law enforcement lies with him, and he is answerable to the law and to the law alone. This is one of the locus classicus8 cases, extensively followed and referred to worldwide. In this context, the well-known observations of Lord Denning are instructive9:

“I hold it to be the duty of the commissioner of police of the metropolis, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought. But in all these things he is not the servant of anyone, save of the law itself. No minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone.”

Leading judicial decision or standard authoritative passage R. v. Metropolitan Police Comr., Ex parte Blackburn, [1968] 1 All E.R. 763 (C.A.), at p. 769/(27.07.2023 - SKPK):LEX/SKPK/0985/2023 (Manupatra citation)

The Supreme Court of Canada in R v Campbell 199910, affirmed that in the course of criminal investigations and law enforcement, the police act independently of executive control, which safeguards impartial enforcement of the law and upholds the rule of law.

11.The Supreme Court of India held in the case of Prakash Singh v. Union of India11 that the executive power of superintendence over the police is confined to policy formulation and lawful oversight, and cannot extend to operational control, transfers, postings, or investigative decisions. To secure professional independence, the Court issued binding and enforceable directions mandating fixed tenures for key police officers including the DGP, establishment of State Security Commissions, separation of investigation from law and order functions, and creation of independent oversight and complaint mechanisms, to remain operative until appropriate legislation is enacted. The case cited supra is a leading authority on police reforms and institutional independence in India. In the case of Vineet Narain v. Union of India,12 it is held that governmental “superintendence” does not extend to controlling the initiation, manner, or course of investigation in individual cases; statutory police powers cannot be curtailed by executive instructions. It therefore struck down the Single Directive requiring prior approval to investigate senior officers as violating equality and rule of law, and issued binding interim directions to secure operational autonomy with accountability including fixed tenure and transfer protections for CBI/ED (Enforcement Directorate) leadership, freedom of the Director CBI to constitute teams and allocate work, strengthened oversight (not case interference), improved infrastructure and prosecution, and measures to prevent arbitrary pressure until replaced by legislation.

R. v. Campbell, 1999 CanLII 676 (SCC), [1999] 1 SCR 565

(2006) 8 SCC 1/MANU/SC/8516/2006

(1998)1SCC226/ MANU/SC/0827/1998

12.In the case of Farrukh J. Gulzar13, the Supreme Court strongly disapproved political interference in posting and transfer matters. A similar view was taken by the Supreme Court in the celebrated Anita Turab14 case, wherein it unequivocally held that civil servants must be protected from political interference. In the celebrated Karamat Ali15 case, upheld by the Supreme Court, the Sindh High Court categorically endorsed and espoused the principle of the operational autonomy and functional independence of the police; the relevant paragraphs are reproduced for reference herein below. “87. In our view, the objective that best addresses the problem just noted can be stated as follows: the police force must have autonomy of command and independence of operation. It is this autonomy and independence that must be regained and restored. Autonomy and independence will bring stability and balance to the organizational structure of the police force by curbing and reducing, and ideally eliminating, the farcical frequency of turnover, transfers and postings that now plague the system.

The administration of the police force is vested in the Inspector General, and through him the hierarchy of officers. For this vesting to be meaningful and effective, it must be exclusive to, and remain within, the police force itself. In other words, the "administration" of the police force must be based on its autonomy of command and independence of operation. There cannot be any interference in this autonomy and independence by any other body or authority, including the Provincial Government. To put it simply, the police hierarchy, acting always through the Inspector General must have control over its own affairs as regards its operations and command. There can be no interference, direct or indirect, in the operational affairs of the force nor can anything be done to affect the autonomy of command. No authority or body, whether the Provincial Government itself, or in or of it (including any minister of whatever rank), can issue any order, direction, instruction, guideline, circular or notification that impacts on, compromises, affects, negates, erodes or otherwise curtails or reduces the force's autonomy of command and independence of operation.

i. In order to redress the situation, there must be autonomy of command and independence of operation in the police force. The police hierarchy, acting through the Inspector General, must have control over its own affairs especially insofar as postings and transfers are concerned (but certainly not limited to that) and outside interference, whether by the Provincial Farrukh J. Gulzar v. Secretary, Local Government & Rural Development Department (1998

SCMR 2222)

Anita Turab case (Syed Mahmood Akhtar Naqvi Vs Federation of Pakistan. (PLD 2013 Supreme Court 195)

Karamat Ali V. Federation Of Pakistan (PLD 2018 Sindh 8)

Government or anybody or authority thereof or otherwise, (including any minister of any rank) must come to an end.

j. For purposes of giving directions and making orders for enforcement of fundamental rights, the Police Act ought to be interpreted and applied by adopting the approach articulated by the House of Lords in the Ghaidan case, in applying the (UK) Human Rights Act, 1998. Sections 3, 4 and 12 of the Police Act in particular have been so interpreted and applied, keeping in mind at all times the objective identified above, namely that there must be autonomy of command and independence of operation in the police force.”

The crux of the judgment is that the Inspector General and the police hierarchy must retain exclusive control over police administration and operations, and that no provincial or ministerial interference direct or indirect is permissible. In the case of Muhammad Jibran Nasir16, the Sindh High Court, endorsing the Karamat Ali case (supra), categorically held as under: “15. The Judgment rendered by the learned Division Bench of this court in the case of Karamat Ali v. Federation of Pakistan (PLD 2018 Sindh 8) depicts that the petitions were filed in the public interest and the judgment is deciphering straightforward articulations that High Court has plenary powers to positively enforce fundamental rights. The proper policing and an efficient and effective police force have a connection with many and perhaps most fundamental rights. The fundamental rights are best enjoyed in an environment where the rule of law is respected and properly enforced and the rule of law is in essential part dependent on the law and order situation which in turn depends on effective policing. The most basic of fundamental rights that of life and liberty enshrined in Article 9 is dependent on proper and effective policing for its proper enjoyment. It is, therefore, clear that in appropriate circumstances it may be necessary to make orders and give directions in respect of policing and the police force in terms of Article 199, and in particular under Clause (1)(c) to ensure the proper enforcement of fundamental rights. The police force must have autonomy of command and independence of operation. The court further held that autonomy and independence will bring stability and balance to the organizational structure of the police force by curbing and reducing and ideally eliminating the farcical frequency of turnover, transfers and postings that now plague the system. The police hierarchy, acting through the Inspector General, must have control over its own affairs especially insofar as postings and transfers are concerned. The judgment of this court was challenged by the Government of Sindh in the Supreme Court and vide Judgment dated 22.03.2018 Civil Appeals Nos.148 to 150 of 2018 were dismissed. The relevant portion of the Judgment is reproduced as under:- "9. On the foregoing analysis, we affirm the impugned judgment by the learned High Court in particular with reference to the autonomy of command and independence of operation of the Police Force governed by the Police Act, 1861. We also uphold a tenure to be attached to PSP senior cadre posts in the Province of Sindh, of which the IGP is a principal officer. Transfers and postings on all senior cadre posts shall be made by order of the IGP pursuant to Muhammad Jibran Nasir Vs Federation of Pakistan (2021 PLC (CS) 179)

transparent rules framed under Article 12 of the Police Act, 1861 framed in consultation with the Provincial Government. It is also declared that "Police" is concurrently subject to the legislative and executive competence of the Federation and the Provinces in the relation to the matters covered by Article 142(b) and Article 240 of the Constitution. For securing integrity, competence, diligence in and accountability for Police performance, the Federation may consider framing a law setting out uniform criteria of appointment on senior cadre posts, their independence of operation, security of tenure, performance assessment and accountability for incompetence, negligence or dishonesty. Meanwhile, it is necessary that the Federal Government and Provincial Government to collaborate in the matter of appointments, transfers of police personnel on senior cadre posts and in any event with respect to crime prevention, detection and investigation as well as prosecution and punishment of criminal offenders in the Province."

20.In the perspective of every citizen and public at large, the good police or bad police both really carry some weight and importance. It is the major responsibility of State to eliminate and eradicate the crime, provide protection to person and property and in order to perform these fundamental responsibilities good policing is necessary which can only be possible if good police officers are posted on merits and allowed to combat against crimes and social evils with accountability but not on basis of sifarish, favoritism or nepotism or with abrupt removal from place of posting with preconceived notion or confrontation and hostility which creates uncertainty. En masse, police is answerable to the people and the law. The honesty, integrity, nice behavior and sober mannerism must be part of ethical practice which is quite essential for good policing and good police officers. They must not only be upright officers but also good citizens as well and should have the audacity and nerve to listen all persons equally especially to those without social power or status. The everyday job of police include enforcement of laws, prevention of crimes, protection of person and property, investigation of crimes and to respond emergency calls. Making good laws by the corridors of power in the public interest is so virtuous and a good deed but if laws are not implemented in its letter and spirit with the interest of bringing some improvements and or revamping or restructuring any institution then situation obviously leads to lawlessness and turmoil affecting public at large.”

In this case, the Sindh High Court held that the posting of Superintendents of Police and Assistant or Deputy Superintendents of Police lies exclusively within the authority of the Inspector General of Police, and that the Government cannot bypass or dilute this autonomy. The said pronouncement, however, was rendered through an interlocutory order authored by Muhammad Ali Mazhar, J., granting interim relief without finally adjudicating the vires of the impugned provisions. The matter was

thereafter finally decided by Yousuf Ali Sayeed, J., who addressed the broader challenge to the Sindh policing framework, including the architecture of postings, removals, governance, and oversight. Both judgments, though rendered at different stages, proceed on a common constitutional premise: the autonomy of command and independence of operation of the police are indispensable to the rule of law and the enforcement of fundamental rights. In Muhammad Jibran Nasir (authored by Muhammad Ali Mazhar, J.), the Court, while deciding an interlocutory application, held that the statutory requirement of meaningful consultation with the Inspector General of Police under Articles 13 and 17 of the Sindh (Repeal of the Police Act, 1861 and Revival of Police Order, 2002) (Amendment) Act, 2019 is mandatory and cannot be defeated by labeling a transfer as “surrender of services,” as what cannot be done directly cannot be achieved indirectly. Subsequently, in the final judgment17 authored by Yousuf Ali Sayeed, J., the Court reaffirmed and expanded this principle by holding that police autonomy is a constitutional necessity, transcending the text of any single statute, and by striking down or reading down provisions that subordinated police postings to executive discretion. Together, these judgments settle that executive oversight must operate through consultation, not control, and that statutory schemes governing the police must be construed to preserve institutional independence while maintaining accountability. In the case of Syed Hammad Nabi,18 the Supreme Court held as follows:

8.It is best if the Police force is allowed to be regulated by its statutory framework i.e. the Police Order, 2002 and the Police Rules which provide a complete code of internal governance. Disputes, if any, amongst the police officers must first be resolved by the Inspector General of Police or his representatives. Only in case of any legal interpretation or blatant abuse of the process provided under the Police Order or Rules should the courts interfere in the working of the Police force so that the force can maintain its functioning, autonomy, independence and efficiency which is essential for Police which is charged with the onerous responsibility of maintaining law and order and with the onerous obligation to protect the life and property of Muhammad Jibran Nasir V. Federation of Pakistan (LEX/SKPK/0985/2023) Decided on: 27.07.2023 Syed Hammad Nabi Vs. IGP Punjab (2023 SCMR 584)

the citizens of this country. More than any other organization, it is imperative that the Police must function as a rule based organization which is fully autonomous and independent in regulating its internal governance. Strong and smart Police force requires organizational justice firmly entrenched in the institution so that its officers are assured that they work for an institution that firmly stands for rules, fairness, transparency and efficiency. This upholds the morale of the police officers, especially junior police officers who are required to undertake dangerous and strenuous assignments on a daily basis and also uplifts the institution by making it more vibrant and progressive.

In this case, the Supreme Court held that the Police must remain autonomous and independent in regulating its internal governance, and that even courts should exercise restraint in internal matters except where legal interpretation or blatant abuse is involved. This clearly reflects the Supreme Court recognition and reaffirmation of the principle of police autonomy. Thus, Operational autonomy or functional independence means the police remain accountable to law and government policy, but the internal command structure shall be protected. Administration of the force, including internal management, operations, postings and transfers, shall vest in the IGP, while the role of Government is limited to superintendence, namely policy, oversight and resources. All operational directions must flow from the IGP downward, and political executives should not bypass the IGP to issue direct instructions to DPOs or other officers.

13.In a democratic society governed by the rule of law, the police exist to maintain public order and tranquillity, to protect and respect the fundamental rights and freedoms guaranteed by the Constitution of Pakistan and the laws giving effect to them, consistent with Pakistan’s international commitments, to prevent and combat crime, to detect crime, and to render assistance and public service. To secure these ends, the Khyber Pakhtunkhwa Police Act, 2017 was enacted. Its Preamble expressly declares the legislative purpose, while sections 3 and 4 further articulate the required attitude, responsibilities, and duties of the police towards the public. In order to appreciate the objective of the statute, the Preamble is reproduced verbatim for ready reference:

Preamble of Police Act 2017:

WHEREAS in pursuance of the Constitution of the Islamic Republic of Pakistan and the laws in force in the Province of the Khyber Pakhtunkhwa, the Police has an obligation to perform its duties and functions in an efficient manner for prevention and detection of crime and maintenance of public order;

AND WHEREAS it is expedient to make the police apolitical and accountable to the people through democratic institutions and civilian oversight bodies;

AND WHEREAS in order to maintain effective internal discipline, achieve high performance standards and ensure across the board service delivery, it is expedient to give operational, administrative and financial autonomy to Police;

AND WHEREAS it is expedient to reconstruct and regulate the Police in order to be responsible, service oriented and responsive to effectively uphold and enforce laws, maintain public order, protect the lives, properties and honour of the people, without any discrimination through modern proactive policing and community participation;

The Preamble thus sets out clear statutory ideals, namely to depoliticise the police and render it accountable to the people through democratic institutions and civilian oversight, while simultaneously strengthening internal discipline and conferring operational, administrative, and financial autonomy to ensure effective service delivery. Read as a whole, the Act reflects a coherent legislative design, requiring a professional police service that remains independent of political influence, exercises its functions with lawful autonomy, and is answerable under the law for maintaining public order and protecting life, property, and dignity without discrimination. Thus, from the foregoing discussion, it follows that the head of police must remain accountable to the democratically elected provincial government, and that his posting and transfer lie within the executive domain of the Province as the constitutional authority of the State. At the same time, the operational autonomy of the police is to be preserved by ensuring that postings and transfers of subordinate officers fall within the administrative control of the head of police, enabling him to constitute and deploy an effective team as operational requirements demand. This framework, in principle, promotes professional performance and insulates policing from partisan influence. The petitioner, however, contends that the impugned amendments undermine this operational autonomy and expose the police to politicisation, thereby

creating a real risk of arbitrary deployment and misuse of police powers, with consequent infringement of fundamental rights, by placing the force at the effective disposal of the Chief Minister and subjecting its functioning to political considerations. Effective policing in a constitutional democracy requires institutional insulation of the police from political and executive interference, while maintaining accountability to the rule of law. Any grant of autonomy must therefore be matched by clearly defined, robust, and verifiable accountability mechanisms to prevent abuse of authority.

14.The following is a comparative table of the KP Police Act 2017 showing the position before and after the amendment. Original KP Police Act 2017 Amendment through KP Police Remarks (Amendment) Act 2024

S.9: Powers of the Chief Minister S.9(4): Newly Added (1) Any direction given by the Chief sub section 4

(2)Minister in matters related to law and

(3)order, shall be compiled forthwith.

S.11 Administration of the Police. S.11. Administration of Police. Partially Administration of Police in the Substituted Province shall vest in the Provincial The Administration of Police in the Police Officer, who shall exercise Province shall vest in the Provincial such powers and perform such Police Officer, who shall exercise functions and duties and shall have such operational and administrative such responsibilities as may be powers subject to policy, oversight provided by or under this Act and and guidance given by the Chief any other law for the time being in Minister.

force.

S.17 (4) S.17(4): Notwithstanding anything Newly added contained in other laws or rules for proviso at Notwithstanding anything contained the time being in force, the subsection 4 in other laws or rules for the time Provincial Police Officer shall being in force, the Provincial Police transfer and post officers up to the Officer shall transfer and post rank of Additional Inspector General officers up to the rank of Additional in the Police Establishment Inspector General in the Police throughout the Province and issue Establishment throughout the notification thereof:

Province and issue notification Provided that the posting and thereof. transfer of BS-18 and above officers shall be made with the approval of the Chief Minister.

S.21. Posting of Capital City Police Deleted Officer and District Police Officers. (1) The Provincial Police Officer may post a Police Officer not below the rank of Deputy Inspector General of Police as the Capital City Police Officer in Capital City District and a Police Officer not

below the rank of Senior Superintendent of Police as District Police Officer in a District.

S.24. Pre-mature transfer of the Deleted Head of District Police. On the ground of misconduct, inefficiency or exigency of service, the Head of District Police may be transferred before completion of term of office by the Provincial Police Officer.

S.37. Posting in Police Training Deleted College and School and specialized School. (l) Provincial Police Officer may post an officer not below the rank of Deputy Inspector General of Police as Commandant of the Police Training College and an officer not below the rank of Superintendent of Police as Principal of each Police Training School within the Province.

(2)The Provincial Police Officer may with the approval of Government appoint Directors of Specialized School, preferably domiciled from Khyber Pakhtunkhwa, having expertise in the relevant field, on contract basis for such period as Provincial Police Officer may deem appropriate.

The comparative table makes plain that the Khyber Pakhtunkhwa Police (Amendment) Act, 2024 likely offends the doctrine of operational autonomy within statutory oversight. While the executive, through the Chief Minister, may frame policy and exercise lawful superintendence, it cannot intrude into operational command, investigation, postings, transfers, or day to day administration, for such intrusion converts the police into an instrument of political expediency and undermines depoliticized law enforcement. This imperils the effective protection of Fundamental Rights under Articles 4, 9, 10A, and 25 by enabling arbitrary executive direction, compromising personal security, vitiating neutral investigation essential to fair trial, and fostering unequal application of law. In the case of Karamat Ali ibid, the Sindh High Court held that an independent police force is a sine qua non for enforcement of fundamental rights, and clarified that superintendence does

not amount to control over investigation or day to day administration; the police hierarchy, acting through the Inspector General, must retain control over its affairs, particularly postings and transfers, and external interference by the Provincial Government or any authority must cease.

15.The petitioner contends that the impugned amendments, particularly the insertion of subsection (4) in section 9, the substitution of section 11, the proviso inserted in subsection (4) of section 17, and the deletion of sections 21, 24, and 37, erode the essential distinction between superintendence and command. However, a plain reading of the newly inserted subsection (4) of section 9, which provides that “Any direction given by the Chief Minister in matters related to law and order shall be complied with forthwith,” shows that it primarily concerns superintendence and policy oversight. This subsection is not intended to govern postings or transfers. Admittedly, the elected government must retain powers of superintendence, reflecting the democratic mandate of the public from whom it derives authority, and such oversight is necessary because absolute police autonomy may encourage autocratic tendencies within the force. Accordingly, while applying the principle of reading down,19 the words “any direction” are to be construed as confined to policy matters, guidance, and superintendence, and in no manner can they be extended to include postings and transfers. Similarly, the substituted and qualified section 11 provides that: “The Administration of Police in the Province shall vest in the Provincial Police Officer, who shall exercise such operational and administrative powers subject to policy, oversight and guidance given by the Chief Minister.” On its plain terms, this language primarily reinforces the Chief Minister role in policy formulation, oversight, and strategic guidance. It is not directed at, nor does it expressly regulate, postings and transfers, which are matters of internal command and The doctrine is a tool of judicial restraint whereby, without striking down legislation, a vague or overly broad provision is construed narrowly so as to confine its application within constitutional limits thereby saving it from invalidity, rendering it workable, and bringing it into harmony with other provisions. 2023 SCMR 774, 2023 PLC (CS) 475 Peshawar, 2023 PLC(CS) 458 Peshawar.

personnel management. Properly construed, the qualifying words “subject to policy, oversight and guidance” operate at the strategic level by setting the governing policy framework and ensuring democratic accountability. They do not, without more explicit language, authorise direct executive control over day to day operational decisions or the internal chain of command. Accordingly, the substitution does not negate operational autonomy; rather, it delineates a model in which operational administration vests in the Provincial Police Officer, while the elected executive provides policy direction, oversight, and guidance to achieve improved policing outcomes. It is to be noted that the authority to enforce the law is among the gravest powers entrusted by the State, for it carries with it the capacity to preserve public order as well as the potential to intrude upon individual liberty. A democratic system therefore demands a police force that is operationally autonomous, yet firmly anchored within the discipline of law. Independence in policing is not an end in itself, nor a license for unregulated discretion; it is a constitutional necessity designed to insulate lawful action from extraneous influence while remaining subject to legal accountability. This delicate balance between executive oversight and police independence is essential for maintaining the rule of law and public confidence in justice.

16.As regards the insertion of the proviso to subsection (4) of section 17 by section 6(a) of the impugned Act, which states that “Provided that the posting and transfer of BS-18 and above officers shall be made with the approval of the Chief Minister.” It plainly makes the posting and transfer of BS-18 and above officers subject to the Chief Minister approval. This constitutes direct executive control over a core aspect of internal personnel management and, in practical terms, enables interference with the operational chain of command. Consequently, it undermines the principle of operational autonomy and functional independence discussed above. Similarly, section 7 of the impugned Act, whereby sections 21, 24, and 37 of the Police Act were deleted, removed provisions which collectively vested

the Provincial Police Officer with the authority to post and transfer senior police officers as Capital City Police Officer, District Police Officer, and heads of police training and specialized institutions, including the power to effect premature transfers of district heads on specified grounds. The deletion of these sections demonstrates that the relevant powers have been taken away from the head of the police, thereby rendering him ineffective, as he can no longer transfer a subordinate police officer even on the grounds of misconduct, inefficiency, or exigency of service. This curtailment has, in turn, undermined operational autonomy and weakened internal accountability.

17.It is clarified that superintendence, vested in the Provincial Government, is properly confined to policy guidance in matters of public order, such as prioritising measures against street crime or any specific category of crime, and formulating special measures to control the crime rate. It does not extend to operational directions in individual matters or to day to day administration, such as directing the arrest of a named person or the transfer of a particular officer. However, the proviso to subsection (4) of section 17, which requires that the postings and transfers of BS-18 and above officers be made with the approval of the Chief Minister, removes the institutional buffer necessary to ensure impartial policing and independent decision making. In effect, it enables executive control over transfers of BS- 18 officers serving as DPOs or SSPs and thereby makes investigative and field leadership vulnerable to political influence, with career security becoming contingent on political favour. This risks the creation of a captive police force, undermines the neutrality of investigations, and consequently impairs the guarantee of due process under Article 10A of the Constitution. Such a dispensation also permits a political filter to enter law enforcement decisions, with supporters potentially shielded and opponents targeted, thereby offending Article 25 on equality and Article 4 on protection of law. It is, moreover, inconsistent with the settled principle that civil servants and

police officers are not personal servants of political executives but public functionaries bound to act strictly in accordance with law.

18.The Inspector General of Police must enjoy genuine operational autonomy, particularly in relation to postings and transfers within the force. The Provincial Government cannot bypass the Inspector General to micro manage individual officers, for such intrusion destroys the chain of command, undermines discipline, and compromises institutional coherence. A clear constitutional boundary exists between superintendence and administration. Superintendence vests in the Provincial Government and is confined to broad policy direction and oversight in matters of public order. It does not extend to day to day administration, including operational deployments, investigations, or the transfer and posting of subordinate officers. Superintendence, therefore, is not a warrant for political executives to treat the police as a personal fiefdom. It is in this sense that the superior courts have repeatedly underscored that an independent command structure requires security of tenure for the Inspector General and administrative control over postings and transfers, so that policing remains neutral, professional, and insulated from partisan pressures. The Inspector General, as the captain of the ship, must have authority to select and deploy his team. If the political executive assumes direct control over transfers of field commanders, including RPOs, DPOs, and other Grade 18 officers and above, it fractures the organisational fabric of the force, reduces the Inspector General to a titular head, and renders meaningful discipline and strategy impossible. A police leadership deprived of essential administrative levers cannot ensure performance, accountability, or lawful command. This proposition is consistent with the Denning principle of constabulary independence, namely that the police chief is answerable to the law and to the law alone, and that political authorities cannot dictate operational decisions. Against this settled framework, the proviso inserted in subsection (4) of section 17 seeks to reverse the jurisprudential direction set by the

superior courts and to reintroduce the mischief of political interference that the courts have repeatedly sought to curtail.

19.While the Provincial Legislature is competent to legislate on police matters under Article 142 of the Constitution of Pakistan, that competence must be exercised in a manner consistent with constitutional guarantees and the doctrine of operational autonomy developed by the superior courts. In practical terms, divesting the Inspector General of authority over the posting of District Police Officers, SPs, and other supervisory ranks weakens the chain of command and fosters career dependency on political favour, thereby undermining the neutrality of policing and the fairness of investigations. An independent, non-political police service is a prerequisite for the effective protection of fundamental rights, including the right to life and liberty under Article 9 and the guarantee of lawful treatment under Article 4. If postings, transfers, and operational decision making become subject to political dictate, law enforcement risks becoming selective, partisan, and arbitrary, with a corresponding erosion of due process, equality before law, and public confidence in the administration of justice.

20.The State often conflates superintendence, namely policy direction and oversight, with administration, namely the day to day management of the force. The Chief Minister may legitimately set policing priorities, for example zero tolerance for street crime or enhanced focus on counterterrorism or any other kind of crime. However, decisions regarding which DPO or SP or SSP is posted in a particular district, and the timing and manner of such transfers, fall within the domain of administration. If the political executive handpicks District Police Officers and other BPS 18 field commanders, those officers are incentivised to bypass the Inspector General and to look instead to political patronage, thereby fracturing the chain of command and corroding discipline. The Khyber Pakhtunkhwa Police Act, 2017 was enacted precisely to depoliticise policing, as is evident from its Preamble reproduced above. The Preamble of the Act and the original

scheme of section 17 operated as a safety valve by vesting operational autonomy in the Inspector General and preserving a professional command structure. The impugned proviso inserted in subsection (4) of section 17 constitutes a colourable exercise of legislation, retaining the outward form of the 2017 framework while destroying its core substance, namely depoliticisation and autonomy. The office of the Inspector General is thereby rendered functionally ineffective, because accountability for law and order cannot fairly be imposed on an office holder who is denied authority to select and deploy principal field commanders, including SSPs, SPs, and DPOs. An independent and non-political police service is not merely a matter of administrative convenience but is intrinsically linked with constitutional guarantees. As recognised in Karamat Ali (supra), citizens are entitled to policing structures insulated from partisan control, so that investigations remain fair and the security of life is effectively protected. If, through legislative design, postings and transfers are made dependent on political approval, officers are compelled to seek political favour for career progression, transforming them from servants of the law into political agents. In this manner, the impugned proviso institutionalises political interference, particularly at the level of BPS 18 officers who constitute the operational pivot of policing. The amendment is arbitrary and unreasonable, and discloses no discernible administrative rationale for Chief Minister Control over mid-level operational postings beyond the exertion of political influence.

21.The principle is well settled that the quantum of responsibility must be commensurate with the quantum of authority and autonomy conferred by law. Police performance and accountability can be meaningfully assessed only where operational autonomy exists, subject to transparent oversight and lawful checks. In the light of the principle articulated in Anita Turab,20 Anita Turab case (Syed Mahmood Akhtar Naqvi Vs Federation of Pakistan: PLD 2013 Supreme Court 195)

postings and transfers of key field officers, including DPOs and RPOs, are liable to be restrained where shown to have been made at the behest of elected representatives, for such interference undermines the autonomy of the police hierarchy contemplated by the Police Act, 2017. Effective policing remains a sine qua non for the practical enforcement of fundamental rights guaranteed under Articles 9, 10, 10A, 14, 15, and 16 of the Constitution. The Provincial Government is therefore confined to high policy and oversight, and must not, directly or indirectly, encroach upon operational command or the independence of the police hierarchy in the discharge of its lawful functions.

22.For the foregoing reasons, we find merit in the challenge to the extent it concerns police operational autonomy which is curtailed by sections 6(a) and 7 of the impugned Act. Section 6(a) of the Khyber Pakhtunkhwa Police (Amendment) Act, 2024, which inserted a proviso to subsection (4) of section 17 of the Khyber Pakhtunkhwa Police Act, 2017 by subjecting postings and transfers of BS 18 and above officers to the approval of the political executive, fundamentally erodes the concept of a depoliticised police force. Such depoliticisation is a sine qua non for the effective enforcement of fundamental rights guaranteed under Articles 4, 9, 10A, and 25 of the Constitution. While the Provincial Government retains the prerogative of policy formulation and superintendence, that authority, cannot metamorphose into direct interference with investigations or the day to day administration of the police, a distinction explained above. The impugned proviso, by concentrating the power of transfer and posting of senior field and supervisory officers in the hands of the Chief Minister, violates the principles of tenure security and administrative autonomy that are essential to impartial policing. As regards section 7 of the impugned Act, whereby sections 21, 24, and 37 were deleted from the Police Act, it may be noted that these provisions collectively conferred upon the Provincial Police Officer the authority to post and transfer senior police officers to key

positions, including the Capital City Police Officer, District Police Officer, and heads of police training and specialized institutions, as well as the power to order premature transfers of district heads on specified grounds. The deletion of these sections is directly linked with the proviso inserted in subsection (4) of section 17 of the Police Act. The insertion of the said proviso necessitated the enactment of section 7 of the impugned Act so as to shift the authority relating to transfers to the approval of the Chief Minister. Consequently, once the proviso is struck down, sections 21, 24, and 37 of the Police Act are liable to be revived, as they embody the operational powers of the head of the police which were curtailed by the insertion of the proviso. Therefore, section 7 of the impugned Act is also liable to be struck down on the same grounds as those recorded above for section 6(a) of the impugned Act. Likewise, the challenge to sections 3 and 5 of the impugned amendment does not merit interference, as those provisions do not affect operational autonomy and are confined to matters of policy, oversight, and guidance, as discussed above.

23.Consequently, this Constitutional Petition is partially allowed. Section 6(a) of the Khyber Pakhtunkhwa Police (Amendment) Act, 2024, whereby a proviso was inserted in subsection (4) of section 17 of the Khyber Pakhtunkhwa Police Act, 2017, and section 7 of the Khyber Pakhtunkhwa Police (Amendment) Act, 2024, whereby sections 21, 24, and 37 were deleted from the Khyber Pakhtunkhwa Police Act, 2017, are hereby declared ultra vires the Constitution, the principle of operational autonomy, and the rule of law, and are void ab initio. The original Sections 17, 21, 24, and 37 of the Khyber Pakhtunkhwa Police Act, 2017 are hereby restored in their pre-amendment form to safeguard the operational independence and professional autonomy of the police force, uphold the rule of law, and enable effective enforcement of fundamental rights, particularly those guaranteed under Articles 4, 9, 10, 10A, 14, and 25 of the Constitution. However, the head of the Police, while exercising the authority to post and transfer

subordinate officers, particularly CCPOs/DPOs21 and SP (Investigation) shall do so with rationality, fairness, and propriety, in accordance with a uniform policy, and strictly on the basis of performance so that an effective framework of accountability and oversight remains intact.

Announced

-Sd-

CHIEF JUSTICE

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JUDGE

(D.B) Justice S. M. Attique Shah, HCJ and Mr. Justice Muhammad Ijaz Khan HJ Capital City Police Officer/District Police Officer