Case Summary and Outcome

The Federal Constitutional Court of Pakistan held that it would not continue judicial supervision over the investigation into the killing of journalist Arshad Sharif and therefore disposed of the suo motu proceedings. Arshad Sharif, a Pakistani investigative journalist critical of political and military authorities, faced multiple criminal cases and threats after the removal of former Prime Minister Imran Khan in April 2022, which led him to leave Pakistan and travel first to the United Arab Emirates and later to Kenya. On October 23, 2022, he was fatally shot by Kenyan police officers at a roadblock in Kajiado County near Nairobi. The Court held that the federal government had already created a Special Joint Investigation Team and initiated diplomatic cooperation with Kenya through Mutual Legal Assistance mechanisms, while Sharif’s family had also pursued legal remedies in Kenyan courts. The Court emphasized that criminal investigations fall within the domain of law-enforcement authorities and that continuous judicial monitoring could interfere with investigative processes; therefore, there was no justification for maintaining ongoing judicial oversight.

Note: The Kajiado County High Court of Kenya held that the Police authorities of Kenya violated Pakistani Journalist Arshad Sharif’s right to life and that his death was arbitrary and unconstitutional. The Court awarded damages to Sharif’s family of 10 million Kenyan shillings (US $78,000).

Facts

Arshad Sharif was a prominent Pakistani journalist known for his investigative reporting and political commentary. Through his television appearances and digital media platforms, he regularly addressed issues relating to alleged corruption among members of Pakistan’s political leadership and segments of the country’s military establishment. On April 10, 2022, Imran Khan, former Prime Minister of Pakistan, was removed from office after Pakistan’s National Assembly passed a vote of no confidence against his government—a parliamentary procedure that allows legislators to remove a sitting prime minister if a majority withdraws support. Following this political change, several journalists critical of the new leadership reported increased pressure and harassment from state authorities. Sharif was among the journalists who alleged they had been targeted for their reporting.

During 2022, multiple criminal complaints were filed against Sharif in various jurisdictions across Pakistan. Many of these complaints took the form of First Information Reports (FIRs), which are first reports made to the police about the commission of an alleged offense. More than sixteen FIRs were reportedly registered against him. The complaints accused Sharif of violating provisions of the Pakistan Penal Code, including sections 124A (sedition), 131 (abetment or encouragement of mutiny within the armed forces), and 505 (publication of statements likely to cause public mischief). In addition to the criminal complaints, Sharif reported receiving repeated threats to his life. In July 2022, he addressed a written communication to the Supreme Court of Pakistan, informing the Court of the threats and requesting protection. Despite this request, Sharif stated that he continued to fear for his safety. Amid the ongoing criminal proceedings and the threats he reported receiving, he decided to leave Pakistan.

In August 2022, Sharif departed Pakistan for the United Arab Emirates, where he sought to obtain residency in Dubai. However, the Emirati authorities denied his application for a residence visa, reportedly citing security concerns. According to individuals close to him, officials in the United Arab Emirates informed Sharif that he would need to leave the country within forty-eight hours or face deportation to Pakistan. Faced with this deadline and limited visa options, Sharif traveled to Kenya, a country that allowed Pakistani citizens to obtain entry visas upon arrival. He arrived in Nairobi, Kenya’s capital, on August 20, 2022.

After arriving in Kenya, Sharif remained in the country for approximately two months. During this period, he kept his exact location confidential due to concerns about his safety and reportedly avoided disclosing his whereabouts even to close family members. Despite living in relative seclusion, he continued to produce political commentary and investigative content on his YouTube channel, where he discussed political developments in Pakistan and criticized powerful political actors.

On the evening of October 23, 2022, Sharif was traveling in a vehicle in Kajiado County, a region south of Nairobi. At approximately 9:30 p.m., personnel from the General Service Unit (GSU) of the Kenyan police, a paramilitary division within the Kenyan National Police Service, established a roadblock along Losinyani Road in the Kamukuru area. Officers from the GSU subsequently opened fire on Sharif’s vehicle. He was struck by gunfire and died at the scene.

The killing of Sharif generated widespread public reaction in Pakistan. In response to the incident, the Chief Justice Umar Ata Bandial of the Supreme Court of Pakistan initiated suo motu proceedings on December 6, 2022, under Article 184(3) of the Constitution of Pakistan. The Court directed the federal government to present investigative materials relating to Sharif’s death. Pakistani authorities subsequently registered a criminal case (FIR No. 987/22) in Islamabad under sections 302 and 34 of the Pakistan Penal Code, which relate to murder and acts committed by multiple persons with shared intent. The government also established a Special Joint Investigation Team (SJIT) composed of officials from several Pakistani law enforcement agencies to investigate the circumstances surrounding Sharif’s death. Said proceedings were later transferred under Article 175E(4) of the Constitution to the Federal Constitutional Court.

In parallel, members of Sharif’s family initiated legal proceedings in Kenya challenging the circumstances surrounding his killing, and the matter continued to be addressed through both diplomatic and legal channels between the two countries.

Decision Overview

Justice Aamer Farooq and Justice Rozi Khan Barrech delivered the decision for the Federal Constitutional Court of Pakistan. The main issue before the Court was whether it should continue exercising judicial oversight over the investigation into the killing of Arshad Sharif, or whether the investigation should proceed independently through the relevant law-enforcement authorities and diplomatic mechanisms without ongoing judicial supervision.

During the proceedings, the Additional Attorney General for Pakistan informed the Court that the federal government had taken several steps to investigate the killing of Arshad Sharif and to ensure accountability. He explained that the government had constituted a Special Joint Investigation Team (SJIT) composed of officials from different Pakistani law-enforcement agencies to examine the circumstances surrounding the incident. He further submitted that the government initiated diplomatic engagement with Kenyan authorities and invoked the legal framework for Mutual Legal Assistance, which allows states to cooperate in criminal investigations by sharing evidence and facilitating investigative measures.

Officials from the Ministry of Foreign Affairs explained the diplomatic efforts undertaken by Pakistan to facilitate the investigation. They informed the Court that the ministry had acted as an intermediary between Pakistani and Kenyan authorities and initiated communications with relevant Kenyan officials to secure cooperation. The ministry said it arranged meetings between Pakistani investigators and Kenyan prosecutorial authorities, and facilitated discussions between the two governments at the diplomatic level.

Moreover, the Representatives of the Special Joint Investigation Team reported that the team conducted an extensive investigation into the circumstances surrounding Sharif’s killing. The SJIT stated that it interviewed individuals who were closely associated with Sharif and collected relevant information regarding his activities before the incident. The team also communicated with authorities in the United Arab Emirates to determine the circumstances under which Sharif had left that country and engaged with Kenyan officials—including prosecutors and investigators—to review the available case materials.

On behalf of Arshad Sharif’s widow, it was argued that the suo motu proceedings initiated by the Supreme Court of Pakistan should remain pending so that the Constitutional Court could continue to monitor the investigation into Sharif’s killing. The submission maintained that continued judicial oversight would help ensure that the investigation remained transparent, independent, and effective. Sharif’s widow contended that maintaining the proceedings would allow the Court to periodically obtain updates from the federal government and relevant law enforcement agencies regarding the progress of the investigation and the steps taken to identify and prosecute those responsible for Sharif’s death. The submission also emphasized the seriousness of the case, noting that the killing occurred outside Pakistan and involved actions by authorities of another sovereign state. According to it, these circumstances made it necessary for the Court to retain supervisory jurisdiction to ensure that the investigation was properly pursued through diplomatic channels and international cooperation mechanisms. Sharif’s widow, therefore, requested that the Court keep the suo motu case pending until meaningful progress is made in the investigation.

The Federal Constitutional Court of Pakistan considered whether it should continue supervising the investigation into the killing of Arshad Sharif through ongoing suo motu proceedings. It examined the measures that had already been undertaken by the federal government. The Court observed that the government created a SJIT composed of officials from multiple Pakistani law enforcement agencies to investigate the circumstances of Sharif’s death. It also noted that the government had engaged in diplomatic efforts with Kenya and invoked the Mutual Legal Assistance framework to facilitate cooperation between the two countries in gathering evidence and pursuing the investigation. In addition, the Court recognized that Sharif’s family had independently pursued legal remedies in Kenyan courts regarding the incident. In light of these developments, the Court determined that both domestic investigative mechanisms and international legal cooperation processes were already underway.

In addressing the request to keep the suo motu proceedings pending, the Court emphasized the constitutional principle that criminal investigations are ordinarily conducted by law enforcement authorities rather than by the judiciary. It explained that judicial oversight of the day-to-day conduct of an investigation could interfere with the proper functioning of investigative agencies and potentially affect the fairness of future proceedings. Thus, the Court held that continuous judicial monitoring of the investigation would effectively place it in a supervisory role over investigative authorities, which would exceed the proper limits of judicial involvement in criminal investigations.

The Court supported its reasoning by referring to established judicial precedent. Referring to Ajmeel Khan v. Abdur Rahim, it held that “functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function.” [para. 11] The Court also referred to Malik Shoukat Ali Dogar v. Ghulam Qasim Khakwani, in which it was held that continued judicial control over an investigation could be “prejudicial to the accused and detrimental to the fairness of the procedure.” [para. 12] In addition, the Court cited Fahad Ahmed Gulzar v. ASI/IO Saeed Mahroof, which reaffirmed that courts generally refrain from interfering in police investigations except in exceptional circumstances—such as unlawful detentions or investigations conducted in bad faith.

After considering the submissions of the parties and the legal framework governing investigations, the Court concluded that the ongoing investigative and diplomatic processes were proceeding under the appropriate legal mechanisms. It held that there was no justification for continuing judicial supervision of the investigation at that stage. Accordingly, the Court disposed of the suo motu proceedings while observing that Sharif’s legal heirs remained free to approach the competent courts if they had any specific grievance regarding the investigation or related matters.