Introduced in 1969, the Monaco racing watch was one of the world’s first automatic chronographs, with its blue sunburst dial and contrasting silvered counters, red hands, and square shape with a wide sapphire crystal and faceted edges, popular with Monaco watch enthusiasts. The latest version of the TAG Heuer Monaco Calibre Heuer 02, our test fake watch, has the same visual characteristics, all of which TAG Heuer has refined from the earlier Monaco Calibre 12 model. The once-flat lugs are now slightly recessed, giving the design more depth and interest.
Another update: the symmetrical arrangement now shows elapsed minutes and hours, rather than minutes and seconds. The running second’s indication is now located at 6 o’clock – a clever solution, even though the second’s hand sweeps past the date window for several seconds each minute. With the new movement, TAG Heuer has designed a clear display layout, but this is a compromise. This includes the small seconds display at 6 o’clock, which requires the word “automatic” to be moved up and placed between the two gears.
Now, for the first time, the Monaco Chronograph is powered by a truly in-house movement. This innovation actually offers the user a real advantage. And the new movement visually complements Monaco with its modern, high-tech look, its generous 31 mm diameter, and the large sapphire crystal on the case-back.
The latest variant of this prestigious replica watch shows its strengths both in terms of finish and operation. The interestingly shaped pushers with protective rings are easy to use thanks to the chronograph’s column-wheel control, while the vertical clutch ensures a quick and smooth start of the stopwatch hand. In addition, the alligator strap with its single-sided safety folding clasp opens and closes easily and is adjusted to the perfect length by means of an integrated clamping mechanism.
Since all the positive features of the previous Monaco models remain unchanged and the new movement offers many additional upgrades, we can conclude that anyone who does not mind the small seconds sub-dial at 6 o’clock and the re-positioning of the word “Automatic” will consider this newly manufactured watch to be the best Monaco ever made.
Introduced in 1969, the Monaco racing watch was one of the world’s first automatic chronographs, with its blue sunburst dial and contrasting silvered counters, red hands, and square shape with a wide sapphire crystal and faceted edges, popular with Monaco watch enthusiasts. The latest version of the TAG Heuer Monaco Calibre Heuer 02, our test fake watch, has the same visual characteristics, all of which TAG Heuer has refined from the earlier Monaco Calibre 12 model. The once-flat lugs are now slightly recessed, giving the design more depth and interest.
NASRULLAH KHAN HENJRA
GOVERNMENT OF PAKISTAN
Per Saad Saood Jan, J.
(a) Constitution of Pakistan, 1973, Articles, Preamble, 15 and Federal Legislative List, Part I, item No. 3
It therefore seems that Article 15 was never intended to afford protection against extradition to citizens who are accused of serious crimes in other countries. This view finds support from the fact that item No. 3 of the Federal Legislative List, Part I, of the Constitution specifically empowers the Parliament to make laws on the subject of extradition including the surrender of criminals and accused persons to Governments outside Pakistan. The specific conferment of the power on the Parliament to make laws on the subject of extradition effectively refutes the contention that the Constitution-makers had adopted the practice of the civil law countries with regard to refusal to deport their own nationals for trial in foreign lands. The contention that the legislation enacted in pursuance of this item must be confined to non-citizens is unacceptable; a non-citizen can at any time be deported from Pakistan and in any event, considering the national commitment of Pakistan on the international plane, as avowed in the Objectives Resolution, there is hardly any justification for drawing a distinction between the citizens and non-citizens in this regard. It is therefore difficult to hold that the Act is void on account of its conflict with Article 15 of the Constitution. [pp. 27 &28]A
CHIEF JUSTICE OF PAKISTAN IFTIKHAR MUHAMMAD CHAUDHRY
PRESIDENT OF PAKISTAN THROUGH SECRETARY AND OTEHRS
Per Khalil-ur-Rehman Remady, J-
Constitution of Pakistan(1973) Arts. 209, 211 & 184-
Needless to say that having heard the learned counsel for the parties at some length; having benefited immensely from the invaluable assistance rendered by them, and for detailed reasons to be recorded later about all the questions agitated before us, this Court, passed the following judgment on July 20, 2007 :-
"For detailed reasons to be recorded later, the following issues arising out of this petition are decided as under :-
(1) MAINTAINABILITY OF C.O.P NO. 21 OF 2007 FILED UNDER ARTICLE 184(3) OF THE CONSTITUTION
This petition is unanimously declared to be maintainable.
(II) VALIDITY OF THE DIRECTION (THE REFERENCE) ISSUED BY THE PRESIDENT UNDER ARTICLE 209(5) OF THE CONSTITUTION.
By a majority of10 to 3 (Faqir Muhammd Khokhar, J., . Javed Buttar, J and Saiyed Saeed Ashhad, J, dissenting), the said direction (the Reference) in question dated March 9, 2007, for separate reasons to be recorded by the Hon. Judges so desiring is set aside.
(III) VIRES OF JUDGES (COMPULSORY LEAVE) ORDER BEING PRESIDENT’S ORDER NO. 27 OF 1970 AND THE CONSEQUENT VALIITY OF THE ORDER DATED15-3-2007PASSED BY THE PRESIDENT DIRECTING THAT THE CJP SHALL BE ON LEAVE
The said president’s order No. 27 of 1970 is unanimously declared as ultra vires of the Constitution ad consequently the said order of the President dated 15-3-2007 is also, unanimously declared to have been passed without lawful authority.
(IV VALIDITY OF THE ORDER OF THE PRESIDENT DATRED9-3-2007AND OF THE ORDER OF THE SAME DATE OF THE SUPREME JUDICIAL COUNCIL RESTRAINING THE CJP FROM ACTING AS A JUDGE OF THE SUPREME COURT AND/OR CHIEF JUSTICE OF PAKISTAN
Both these orders are, unanimously, set aside as being illegal. However, since according to the minority view on the question of the validity of the direction (the Reference) in question, the said Reference had been competently filed by the President, therefore, this Court could pass a restraining order under Article 184(3) read with Article 187 of the Constitution.
(V) VALIDITY OF THE APPOINTMENT OF THE HON’BLE ACTING CHEF JUSTICE OFPAKISTANIN VIEW OF THE ANNULMENT OF THE TWO RESTRAINING ORDERS AND THE COMPULSORY LEAVE ORDER IN RESPECT OF THE CJP
The appointments in question of the Hon’ble Acting Chief Justice of Pakistan vide notification dated9-3-2007and the notification dated22-3-2007are, unanimously, declared to have been made without lawful authority. However, this invalidity shall not affect the ordinary working of the Supreme Court or the discharge of any other Constitutional and/or legal obligations by the Hon’ble Acting Chief Justice of Pakistan during the period in question and this declaration is so made by applying the defacto doctrine.
(VI) ACCOUNTABILITY OF THE HON’BLE CHIEF JUSTIE OFPAKISTAN
It has never been anybody’s case before us that the Chief Justice of Pakistan was not accountable. The same issue, therefore, does not require any adjudication.
All other legal and Constitutional issues raised before us shall be answered in due course through the detailed judgment/judgments to follow.
ORDER OF THE COURT
By majority of 10 to 3 (Faqir Muhammad Khokhar, J., M. Javed Buttar, J, and Saiyed Saeed Ashhad, J, dissenting), this Constitution Original Petition NO. 21 of 2007 filed by Mr. Justice Iftikhar Muhammad Chaudhry, the Chief Justice of Pakistan, is allowed as a result whereof the above-mentioned direction (the Reference) of the President dated March 9, 2007is set aside. As a further consequence thereof, the petitioner CJP shall be deemed to be holding the said office and shall always be deemed to have been so holding the same.
The other connected petitions shall be listed before the appropriate benches, in due course, for their disposal in accordance with law.”
For this petition to be competent, what would, therefore be required to be shown would be that it disclosed a breach of a Fundamental Right; sought repair of the said breach and the consequent enforcement of the said right and further and more importantly that the matter was not one which related only to an individual’s private grievance but was one of public importance. We would, therefore, have to find out whether the petition in hand met the said standards.
The petitioner before us is the holder of one of the top five constitutional offices in the country and alleges his illegal confinement in the President’s Camp Office for about five hours; complains of his subsequent detention, along with his wife and children, for about four days and having been so kept, in-communicado; claims a gross violation not only of the privacy of his home at the hands of some unscrupulous aliens but also of a grave and unspeakable offence to his dignity and asserts also that all this had been done to him to manoeuvre his illegal removal from his office in gross violation of the Constitutional guarantees. Further alleges that his trial by a not legally composed forum comprising also of some members who had a serious bias against him and then the forum proceeding against him in a manner which could not be said to be fair transparent, just and lawful, was offensive of the protection which the Constitution had guaranteed to him.
These grievances, the details of which have been noticed in the earlier part of this judgment, might at the initial glance appear only to be individualistic in nature and personal to the petitioner. But then, he is the Chief Justice of Pakistan; the head of the national judicature and thus a symbol of justice and of the independence of the country’s judiciary. The allegedly contemptible exercise in question not having been directed only against the person for the petitioner but being allegedly a device to remove the Chief Justice of Pakistan from his office in a manner not permitted by the Constitution, demonstrated that the matter in question was no longer a mere private affair of an individual by the name of Iftikhar Muhammad Chaudhry but wad much more.
The questions which would, therefore, emerge for determination, amongst other, would be as to what were the powers available with the executive qua the judiciary; whether a power could be conceded to executive to suspend a Judge of a Superior Court of to restrain him from performing the judicial or even administrative obligations cast on him by the Constitution; could the President send such a Judge, leave alone the Chief Justice of the country, on forced leave; was the President’s Order No. 27 of 1970 not offensive of the Constitutional security guaranteed to the Judges of the Superior Courts and thus ultra vires of the Constitution; was the Supreme Judicial Council a forum competent to try the Chief Justice of Pakistan ; was free access to justice and a trial by a valid, independent and an un-biased forum in a fair and a transparent manner not a fundamental right guaranteed to the people; was the manner in which the head of the national judiciary was sought to be removed from office, a proper, a lawful and a bona fide act on the part of the executive or was it not an act rooted in malice and for a collateral purposes; was the whole exercise in question not an offensive encroachment upon the Constitutional pledge about the independence of judiciary thus offending against the right of the people to ask for a judiciary which could guarantee quality justice for all.
The critical indispensability of dispensation of justice in a society, be it between men and men or between the governor and the governed, could never be over-emphasized. The fact that it is justice and justice alone which cold ensure peace in a society and its consequent strength, security and solidarity, was one of the serious lessons taught to the civilization by its history. And history, be it ancient, biblical, medieval or contemporary also tells us that societies sans justice had never bee permitted to pollute this planet for very long and had either to reform themselves paying heavy costs usually in blood or had else been wiped off the face of this earth. The French, the Russian, the Chinese and more recently, the Iranian revolution are some such lessons. It is perhaps for this very reason that doing of justice is conceivably the most repeated Quranic Command after ‘SALAAT’ and ‘ZAKKAT’. And it is also for the same cause that ‘Right of Access to Justice’ which is inconceivable in the absence of an independent and impartial judiciary, was by now a well-established and a universally accepted human right an would be evident, inter alia, from Article 10 of the Universal Declaration of Human Rights and from Article 14 of the United Nations Convention on Criminal and Political Rights and which right was now being secured by the people in different State by making requisite provisions in their respective Constitutions.
The passionate desire and the consequent determination of the people of Pakistan to establish an independent judiciary to ensure justice and the resultant security, peace and prosperity for themselves, is manifested through the Objectives Resolution which is now a substantive part of our Constitution being Article 2-A thereof and Articles 4, 9, 14, 25, 175, 179 and some others stand incorporated in our Constitution towards the attainment of the same declared and sacred objective.
The above-mentioned Article 9 of the Constitution guarantees protection of one’s life. All the judges and jurists in different ages and from different jurisdictions have been one in saying that the word ‘LIFE’ protected and assured by a various constitutions could never be understood to have been used in a limited or a restricted sense and therefore, did not mean jut the vegetative and the animal life of a man or his mere existence from conception to death. This word had, in fact, to be understood in its widest and fullest context to include all such rights, amenities and facilities which were necessary and essential for the enjoyment of a free, proper, comfortable, clean and peaceful life. When confronted with concrete situations, it was held through various judgments from various countries that the right to live meant the right to live with dignity and honour and included rights such as the right to proper health-care, the right to proper food and nutrition, the right to proper clothing, the right to education, the right to shelter, the right to earn one’s livelihood and even a right to a clean atmosphere and an un-polluted environment. And in some other cases, the nuisance created by municipal sewage, industrial affluents and the hazards caused by a magnetic field produced by high tension electricity wires, were found to be an interference with the enjoyment of one’s right to life. In yet another case from Indian jurisdiction, even access to proper roads for people living in hilly areas was held to be an essential part of the right to life. In more than one cases from our own jurisdiction, it was also declared that since right to live in peace in a just and a fair environment was inherent in the right to life, therefore, the right of access to justice was a well recognized and an inviolable Fundamental Right enshrined in Article 9 of the Constitution and its denial, an infringement of the said right. As a necessary consequence, it was further held that since access to justice was inconceivable and would be a mere farce and mirage in the absence of an independent judiciary guaranteeing impartial, fair and a just adjudicatory mechanism, therefore, the demand for a judiciary which was free of executive influence and pressures; was not manipulatable and which was not a subservient judiciary, was also an integral part and an indispensable ingredient of the said Fundamental Right of access to justice.
While endorsing these views, let me also add that the courts set up by the Constitution or under its authority have been so established not just as a means of securing bread and butter for the members of the bench or of the Bar but to provide justice to the people and the resultant peace in the society and it is thus they, who are the actual stake-holders and for whose benefit and welfare, the judicial system stands created. The judiciary was, therefore, an affair of the public; any offence to its independence would be an encroachment on the right of the people to access justice and finally that the security of service and of the tenure of the Judges was critical for the said independence.
I would, therefore, conclude and hold that access to justice was a Fundamental Right which the Constitution had guaranteed to the people; that the existence of an independent and vibrant judiciary was indispensable and crucial for the enjoyment of the said constitutional assurance and in the absence thereof, this right would be a mere illusion; that without security to the Judges of the Superior Courts vis-à-vis, inter alia, their service and the tenure thereof, the independence of judiciary would be a mere delusion and a chimera; that an allegedly illegal and un-constitutional interference with the tenure of office of the Head of the national judiciary would not be just an injury personal to the Chief Justice of Pakistan but would, in fact, be a serious assault on the said assured Fundamental Right of the public at large and thus of public importance. The blood-soaked, unprecedented agitation by the national Bar and by the people of Pakistan which commenced immediately afterthe 9th of March, 2007and which, unfortunately, also witnessed the loss of at least sixty innocent human lives at different occasions in different cities of the country, leaves hardly any room for proof that the matter was one of public importance.
Consequently, it is declared that this petition and the twenty four connected petitions which had also been heard by us vis-à-vis their maintainability, satisfy all the conditions and requirements envisaged by Article 184(3) of the Constitution and are, therefore, competent. I may add another reason for the maintainability of such a petition in such like situation. It is not known that when disciplinary proceedings were taken even against a peon in the public service and even if such proceedings resulted in the most minor of all actions i.e. a censure, he had a right of appeal and in fact had remedies, upto this Court. But here is a public servant who is the Head of the national Judicature and who stands blessed with constitutional guarantees about his service, when he is removed from his office either for misconduct or on account of his mental or physical incapacity, he is left high and dry and without a door that he could knock at for seeking justice for a Mr. Justice. Providing a remedy to any one who had suffered a wrong was one of the basic norms of justice. Reference may be made to REGISTRAR, SUPREME COURT OF PAKISTAN, ISLAMABAD V. QAZI WALI MUHAMAMD (1997 SCMR 141) AND MUHAMMAD MUBEEN-US-SALAM AND OTHERS V. FEDERATION FO PAKISTAN THROUGH SECRETARY, MINISTRY OF DEFENCE AND OTHERS (PLD 2006 SC 602. Since the law does not provide any remedy to a Superior Court Judge who is removed from office, therefore, Article 184(3) of the Constitution was the only mode, in appropriate cases of extra-ordinary nature of the kind in hand, through which such a Judge could seek redress of his grievances.
With these facts and circumstances being available on record, when we juxtapose the two versions i.e. the claim of the CPP that after the President had left the meeting at about 12:30 p.m., he had been kept there in captivity till his denudation had been fully accomplished through installation of Mr. Justice Javed Iqbal as the Acting Chief Justice of Pakistan at 5-03 p.m. and the contrary assertion of the respondents that the CJP was sitting in the Army House of his own pleasure and free will enjoying and appreciating the ‘MATERIAL’ collected against him and had opted to leave the place after 5 p.m. only after he stood stripped of his office, the conclusion is inevitable that it was the CJP’s version which was more plausible and consequently believable and that the claim to the contrary was implausible and unbelievable and we hold accordingly.
The CJP’s claim about the treatment meted out to him, to his lady-wife and children; to the members of his personal staff and even to his domestic servants has been noticed, in some detail, in the opening parts of this judgment. It may, however, be recapitulated that it was the case of the CJP that before he left the Army House/the President’s Camp Office, he had been stripped of all vestiges of his office; that on his way home he had been intercepted by an Army official and a Superintendent of Police who had forced him not to go to the Supreme Court; that when he was nearing his house at about 5:45 p.m., he saw barricades and pickets erected on the road leading to his residence; that on reaching his house, he saw that the national and the emblem flag flying there had been pulled down and he was shocked, though not surprised, that battalions of policemen and men of the ‘AGENCIES’ were swarming inside and outside his house; that his lady-wife, his two young daughters and two young sons stood huddled into one bedroom while the rest of the house had been taken over by the said men; that all his telephone lines and television cables had been disconnected and the mobile telephones and other devices had been jammed; that his domestic servants were whisked away by some ‘AGENCY’ officials and were allowed to return home only after 2/3 days; that till March 13, his daughters were not allowed to go to their school and college; that his seven years old son who suffered from physical handicaps and required constant medical attention, was deprived of the said facilities and that on March 13, when he had decided to walk down to the Supreme Court building to appear before the S.J.C as his cars had been lifted away, he was man-handled by police officials who even caught him from his hair and tried to bundle him into a vehicle which he refused to board on account of his security and safety concerns . He had added that on getting exposed to the world outside on the said March 13, he came to know that some members his personal staff, including an Additional Registrar of the Supreme Court, namely. Hammad Raza who was on officer belonging to the District Management Group and was on deputation with the Supreme Court working also as a Personal Staff office of the CJP, had also been taken away by the men of the ‘AGENCIES’ ; detained at some un-known place; interrogated and pressurized to give evidence against the C.J.P. It may be mentioned here that this Hammad Raza who was the only child of his parents and was the father of three small children including a few months’ old son, was murdered in the early hours of the 14th of May, 2007 i.e. the day on which this Bench was to commence the hearing of this petition and according to his young widow, this was in fact a message for the Judges comprising this Bench.
Summarising the facts and circumstances leading to and attending the impugned exercise in question, it may be stated :-
(a) that it was the CJP who had been SUMMONED to the Army House/the President’sCampOfficefor the 9th of March meeting where the President met him (the CJP) in his Army uniform;
(b) that instead of the persons really concerned with the matter, like the Law Minister and the Attorney General etc., the ones present in the meeting were only the Chiefs of the Intelligence Agencies and General in uniform;
(c) that the CJP was asked to abdicate his office which he declined to do;
(d) that the impugned Reference was then hurriedly put in place asking the concerned officials in the Presidency, the P.M.’s Secretariat and the Law Ministry to remain available despite the said day being a Friday and thus a half working day and while all these matters were being organized and finalized, the CJP was kept in captivity and ‘IN COMMUNICADO” at the Army House/the President’s Camp Office till his ouster was accomplished through making him dysfunctional and appointing an Acting Chief Justice of Pakistan ;
(e) that some imperceptible hands then hastily engineered a meeting of the Supreme Judicial Council the same evening, even using some un-identifiable flying object to transport at least one Hon. Member thereof to ensure his participation in the said meeting;
(f) that the S.J.C. then passed a further order, without there being a request or a prayer for the purpose, and even without being empowered so to do and restrained the CJP from performing his functions as the CJP or even as a Judge;
(g) that to ensure that these designs were fully consummated, without any resistance, the CJP was put under house-arrest and was rendered IN COMMUNICADO; and
(h) that in the rush to achieve the given target, no heed at all was paid by the S.J.C to the objections raised by the CJP about the alleged bias of at least three out of the five Hon. Members of the S.J.C. and to his earnest and persistent demand that the proceedings of the S.J.C. be not held IN-CAMEA and that he be allowed an open and a public trial. [pp. 116, 119, 120, 121, 122, 189, 191, 201] A, B,C, D, F, G, H, I, J, SS, TT, UU
Constitution of Pakistan(1973) Arts. 209(5)(6), 210, 211 & 184-
This then brings me to the next question in the context of maintainability of this petition i.e. whether this Court would have the jurisdiction to deal with the matter in question despite the ouster clause contained in Article 211 of the Constitution. Although, what is relevant for the said purpose are only the provisions of clauses (5) and (6) of Article 209 and the provisions of the said Article 211 of the Constitution but for a better understanding of the issue, it would be appropriate to notice the entire scheme envisaged by the Constitution for the removal of a Superior Court Judge who, on account of some mental or physical disability, was no longer capable of discharging his said obligations or who had misconducted himself and was no longer a desirable person to adorn the said high office.
A perusal of the above-quoted provisions of Article 209 would reveal that clauses (1) to (4) thereof envisage the existence and the constitution of Supreme Judicial Council while the provisions of clauses (5) and (6) of the said Article 209 tell us of various steps of the exercise leading to the removal of a Superior Court Judge. I may add that as would appear from the said provisions, the action in question could now be initiated by both i.e. by the President as also by the Supreme Judicial Council itself. Since in the present case, the proceedings in question had commenced at the instance of the President, therefore, I would confine myself only to the said situation.
It thus transpires that the exercise in question prescribed by Article 209 of the Constitution consists of the above-noted eight stages or steps starting with the receipt of the relevant information by the President and ending, either with the dropping of the proceedings against the concerned Judge, or his removal by the President, as the case may be. Let us now revert to the provisions of the ouster clause i.e. Article 211 of the Constitution to find out the extent to which the Constitution seeks to protect the said exercise against judicial scrutiny. The said provisions have been quoted above but are being reproduced hereunder for ready reference:-
"211. Bar of Jurisdiction. - The PROCEEDINGS BEFORE the COUNCIL, its REPORT to the PRESIDENT and the REMOVAL OF A JUDGE under clause (6) of Article 209 SHALL NOT BE CALLED IN QUESTION in any COURT. (Emphasis and under-lining has been supplied).
It will thus be noticed that out of the above-mentioned eight steps in the exercise in question, what is sought to be protected are the following three matters only, namely :-
(i) proceedings before the Council; (ii) report of the S.J.C to the President, as a result of the said proceedings; and finally, (iii) the removal of the concerned Judge.
Meaning thereby that the Constitution makes no attempt at all to keep the remaining matters out of the purview of the Courts of law, namely :-
(i) receipt of information by the President, from any source, about the mental or physical disability of a Judge or about his being guilty of misconduct; (ii) collection of material in support of the said information; (iii) formation of opinion by the President about such a disability or misconduct of a Judge; and the consequent (iv) direction (generally called a Reference) by the President to the Council to inquire into the matter.
The submission loses sight of the fact that the word ‘PROCEEDINGS’ does not stand alone or unqualified in the said provision but stands restricted and qualified by three other words i.e., ‘BEFORE THE COUNCIL’. What we, therefore, need to find out is not what is meant by the word ‘proceedings’ but the meaning of the expression “PROCEEDINGS BEFORE THE COUNCIL”.
According to the English language dictionaries, the word ‘PROCEEDINGS’ means the ‘ACTS’ the ‘ACTIONS’, the ‘DEEDS’, the ‘STEPS’ and the ‘HAPPENINGS’ while the word ‘BEFORE’ means ‘IN FRONT OF’ or ‘IN THE PRESENCE OF’ . And when translated into simpler language, easily comprehensible by all concerned, the expression, ‘THE PROCEEDINGS BEFORE THE COUNCIL’, would mean, the acts, the actions, the deeds, the steps and all the happenings taking place in front of or in the presence of the Council. Therefore, the said expression would cover only those matters which take place before or in front of the S.J.C. and no other. Meaning thereby that any event or business or any part of the exercise in question taking place elsewhere would not fall within the purview of the said expression e.g., receipt of relevant information by the President; collection of evidence relating thereto; formation of opinion by the President about making a Reference in the matter to the S.J.C. and the consequent direction to the said Council. Needless to add that the exercise envisaged by Article 209 is bi-foral i.e. certain things happening at the President’s end and other things taking place before the S.J.C. And if the framers of the Constitution had understood English language as the said learned ASC for the Federation is canvassing i.e. proceedings before the Council meaning “everything from the start to the end”, then the founding fathers would not have wasted words to mention also the report of the Council to the President and the removal of Judge by him, in the said Article 211. Every student of law is expected to know the principle which is too well established by now that no redundancy or surplusage could ever be attributed to a draftsman much less to the one drafting the Constitution. It may be clarified that the report of the Council to the President should not be confused as a matter happening before the said Council as the report required to be sent to the President was not something taking place before the S.J.C but only a result of whatever had transpired or had taken place before it. It may be added that if the intention of the Constitution was to grant immunity to all the acts and proceedings “from the start to the end”, then there was nothing stopping the Constitution makers from saying in Article 211 simply that no proceedings under Article 209 would be called in question in any court, which was not done and what had instead been done was grant of protection to some only of the proceedings envisaged by the said Article 209.
There is no cavil with the proposition that the word “PROCEEDINGS” is a comprehensive term and would ordinarily include every step towards the progress of a cause in a court or before a tribunal. But then we also need to remember that a narrow or a wider import could be given to the said word depending upon the nature and the scope of the enactment in which the same was used with particular reference to the language of the law in which it appeared. Reference may be made to GANGA NAICEEN VS. SUNDARAM AYYAS (AIR 1956 Madras 597). Reference may also be made to MUHAMMAD ISMAIL’S CASE (PLD 1969 SC 241) wherein it ha been declared by this Court that the purpose of construction or interpretation of statutory provisions was no doubt to ascertain the true intention of the Legislature, yet that intention had, of necessity, to be gathered from the words used by the Legislature, itself and that if the words were so clear and unmistakable that they could not be given any meaning other than that which they carried in their ordinary grammatical sense, then the said were the meanings to be attached to the said words. As has been mentioned above, the word “PROCEEDINGS” used in Article 211 of the Constitution did not stand unqualified in the said provision but stood restricted by express words i.e., ‘BEOFRE THE COUNCIL” and the said word, therefore, had to be given a restricted meaning in the context of the language used in the said provision.
Having thus determined the operational area of Article 211 of the Constitution and the extent to which the immunity granted by it extended, we revert back to the petition in hand and find that the acts impugned therethrough were two-fold i.e. the actions taken on the 9th of March at the President’s end including the making of the direction under clause (5) of Article 209 i.e. sending of the Reference to the S.J.C. and then some proceedings taken before the said Council. It has been declared above that, no immunity attaches to the happenings and the actions prior to the matter reaching the S.J.C. and the said actions were, therefore, subject to scrutiny by this Court like any other administrative act. However, the matter relating to the proceedings before the S.J.C. which also stood questioned before us, warrants further examination.
Essentially, because of the repeated military interventions, our Constitutional and Judicial history is brimful with ouster of jurisdiction clauses and the treatment metted out to the same by the Superior Courts. The issue has been so frequently raised and equally frequently examined that nothing new remains available to be said on the subject. It has been repeatedly and consistently declared by this Court that a mere incorporation of such a provision in the Constitution or in any other law for the matter, did not by itself preclude a court from entering the arena sought to be protected as the judicial power, being inherent in this Apex Court, it was not its privilege but in fact is obligation to examine such like ouster clauses and then to determine the extent of the claimed immunity. [p. 123, 125, 126, 127, 128, 129, 130] K, L, M,N,O,P,Q,S,T
Constitution of Pakistan(1973) Arts. 6, 245(1), 243(1), 244, 237, 238, 239 & Third Schedule—-
- On a plain reading of the provisions of Article 245(1), the functions of the Armed Forces can be bifurcated into two categories, namely, they shall (1) defend Pakistan against external aggression or threat of war, and (2) subject to law, act in aid of civil power when called upon to do so. Under clause (1) of Article 243, the control and command of the Armed Forces is vested in the Federal Government, therefore, in the performance of both the categories of functions, the Armed Forces act under the directions of the Federal Government. Thus, the provisions of clause (1A) of Article 243 under which the supreme command of the Armed Forces vests in the President, does not, in any manner, derogate from the power of the Federal Government to require the Armed Forces to defend Pakistan against external aggression or threat of war, or to act in aid of civil power in accordance with law. The Constitution does not envisage any situation where the Armed Forces may act without any direction by the Federal Government.
Thus, essentially, a proclamation requiring the aid of the Armed Forces must come from the civilian authorities and as soon as the necessity for the exercise of the military power is over, the civil administration must, of necessity, be restored, and assume its normal role. 54. In the cases of Dosso, Begum Nusrat Bhutto, Zafar Ali Shah and Tikka Iqbal Muhammad Khan the Court did not take into consideration the above aspect of the matter and rendered judgments, not on the force of the constitutional provisions, but by recourse to the theory of revolutionary legality propounded by Hans Kelsen, the doctrine of civil and state necessity and the principle of salus populi est suprema lex, and thus kept open the gate for military intervention for all times to come. Let it be made clear that any action of the Armed Forces undertaken without a direction by the Federal Government shall be unconstitutional, illegal, void ab initio and consequently of no legal effect. Any member of the Armed Forces, including the Chairman, Joint Chiefs of Staff Committee and the three Services Chiefs, namely, the Chief of Army Staff, the Chief of Naval Staff and the Chief of Air Staff, or any person acting under their authority, or on their behalf, who acts in the performance of either of his functions of defending Pakistan against external aggression, or of acting, subject to law, in aid of civil power without any direction by the Federal Government acts in violation of the Constitution and the law and does so at his own risk and cost. This Court, in Liaquat Hussain’s case (at page 626 of the report), has held that martial law cannot be imposed in Pakistan in view of the change in the language of Article 237 of the Constitution wherein the words “martial law” have been omitted, the legal effect of which is that the Parliament cannot make any law indemnifying any person in the service of the Federal Government or a Provincial Government, or any other person in respect of any act done in connection with the maintenance or restoration of order in any area in Pakistan. This change in the language of Article 237 of the Constitution was preceded by a discussion of the term ‘martial law’ in Asma Jilani’s case, a decision which was rendered only a year before the promulgation of the Constitution of 1973.
Along with Article 237 as finally approved, the framers of the Constitution also legislated Article 6 of the Constitution, which provided that any person who abrogated or attempted or conspired to abrogate, subverted or attempted or conspired to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason.
In the above background, we affirm and approve the law laid down in Asma Jilani’s case that martial law in any form and by whatever name called, for any purpose whatsoever cannot be imposed in Pakistan. We also firmly lay down that no proclamation of emergency can be issued, the effect of which is to hold in abeyance the Constitution, or its subsequent mutilation by incorporating amendments in it by an authority not mentioned in the Constitution and in a manner not provided for in the Constitution.
- Each member of the Armed Forces, as per his oath under the Third Schedule to the Constitution in pursuance of Article 244, is bound to bear true faith and allegiance to Pakistan and uphold the Constitution which embodies the will of the people. He is also sworn not to engage himself in any political activities whatsoever. He also solemnly affirms and declares that he will honestly and faithfully serve Pakistan in the Pakistan Army (or Navy or Air Force) as required by and under the law. The learned counsel for the petitioners vehemently contended that General Pervez Musharraf, by his actions of 3rd November, 2007, not only violated his oath as a member of the Armed Forces, but also overthrew the solemn pledge he made as President of Pakistan of performing his functions and discharging his duties honestly, to the best of his ability, faithfully in accordance with the Constitution and the law. We agree with the contention of the learned counsel that General Pervez Musharraf failed to abide by his oath to preserve, protect and defend the Constitution. The Constitution was framed to continue to be in force at all times. By Article 6, an in-built mechanism was provided to safeguard the Constitution from its abrogation or subversion by anyone, that is to say, it could neither be cancelled by anyone nor could it be overthrown or undermined by anyone in any manner or mode whatsoever. Thus, unless and until the Constitution is altered or amended in accordance with the procedure laid down in Articles 238 and 239, or it is repealed on the pattern of the Interim Constitution under the provisions of Article 266, which too, is possible by recourse to the provisions of Articles 238 and 239, its operation and enforceability cannot be interrupted even for a single day, nay a single moment except as specifically provided in the Constitution itself. The Constitution has not contemplated any situation where it can be held in abeyance at the will or whims of the Chief of Army Staff and to be revived after he has achieved his objectives. Let it be stated in unequivocal terms that the validity accorded in the past did not give a licence to any holder of the office of Chief of Army Staff of repeating such acts at his will. It is hereby firmly laid down that the holding in abeyance of the Constitution or any other act having the effect of discontinuing the operation and the enforceability of the Constitution for a single moment in a manner not authorized under the Constitution is nothing but an overthrowing of the Constitution, so to say, the subversion of the Constitution and thus constitutes the offence of high treason. Therefore, the military rule, direct or indirect, is to be shunned once and for all. Let it be made clear that it was wrongly justified in the past and it ought not to be justified in future on any ground, principle, doctrine or theory whatsoever. Military rule is against the dignity, honour and glory of the nation that it achieved after great sacrifices 62 years ago; it is against the dignity and honour of the people of Pakistan, who are committed to upholding the sovereignty and integrity of the nation by all means; and it is against the dignity and honour of each and every soldier of the Armed Forces: Pakistan Army, Pakistan Navy and Pakistan Air Force, who is oath-bound to bear true faith and allegiance to Pakistan and uphold the Constitution, which embodies the will of the people; not to engage himself in any political activities whatsoever; and to honestly and faithfully serve Pakistan in the respective services. Within such parameters, a soldier must remain committed to defending Pakistan until the last drop of his blood against external aggression or threat of war, and subject to law, acting in aid of civil power when called upon to do so under the directions of the Federal Government. In the course of the discharge of his duties, a soldier, therefore, is obligated to seeing that the Constitution is upheld, it is not abrogated, it is not subverted, it is not mutilated, and to say the least, it is not held in abeyance and it is not amended by an authority not competent to do so under the Constitution. If a member of the Armed Forces acts in aid of a person who does any of the above acts, or any other similar act, he violates his oath and renders himself liable to action under and in accordance with the Constitution and the law.
- It may be mentioned that the power to amend the Constitution is an onerous task assigned to the Parliament, which represents the will of the people through their chosen representatives. It is to be carried out in accordance with the procedure prescribed in Articles 238 and 239 of the Constitution, viz. by a two-third majority of the members of both the Houses of Majlis-e-Shoora (Parliament), and by no other means, in no other manner, and by no one else. The holding in abeyance of the Constitution in the first place, and then making amendments in it by one man by the stroke of his pen, that is to say, in a manner not envisaged or permitted by the Constitution, are mutilation and/or subversion of the Constitution simpliciter, and no sanctity is attached to such amendments per se. No sanctity attaches to them if they are made after a declaration to that effect is made by the Court while adjudging the validity of such assumption of power. Equally bereft of sanctity remain the amendments of any such authority, which are ratified, affirmed or adopted by the Parliament subsequently and deemed to have been made by the competent authority. In our view, only those acts which were required to be done for the ordinary orderly running of the State could be protected. Similarly, only such past and closed transactions could have been protected, which were otherwise not illegal at the relevant time, and rights, privileges, obligations or liabilities had been acquired, accrued or incurred, or any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment had been taken. The actions taken by General Pervez Musharraf on 3rd November, 2007 and thereafter being unconstitutional, illegal and void ab initio, the principle of past and closed transaction was not attracted even otherwise on account of the distinguishing features between the martial laws of 1958 and 1977 and emergency of 1999 on the one hand, and the emergency of 3rd November, 2007 on the other, as explained in this judgment, including passing of order dated 3rd November, 2007 by a seven – member Bench of this Court in Wajihuddin Ahmed’s case, arrest of Judges, Judges not accepting it or applying for pension, sustained resistance in the shape of protests by the Bar Associations, masses, including civil society, political workers, students, labourers, large scale arrests of lawyers, resolution of foreign bars, etc.
- In the light of the above discussion, it is held and declared that the amendments purportedly made by General Pervez Musharraf from 3rd November, 2007 up till 15th December, 2007 (both days inclusive) were neither made by an authority mentioned in the Constitution nor the same were made following the procedure prescribed in the Constitution and were, therefore, unconstitutional, illegal and void ab initio. Accordingly, the Constitution (Amendment) Order, 2007 (President’s Order No. 5 of 2007), the Constitution (Second Amendment) Order, 2007 (President’s Order No. 6 of 2007) and PCO No. 1 of 2007 as also Oath Order, 2007, which were tantamount to amending Articles 238 & 239 and the Third Schedule to the Constitution (oath of office of Chief Justice/Judge) respectively, or any other instrument having similar effect are unconstitutional, illegal and ultra vires of the Constitution and consequently of no legal effect. [p 1027,1028, 1031, 1032, 1039, 1070]D, E, F, G, H, I, FF, GG
Per Syed Zahid Hussain J-
Constitution of Pakistan(1973) Art. 185(2)(a)-
r/w Penal Code (XLV of 1860) Ss. 302, 342 & 365-
From the perusal of the constitutional and legal provisions and above pronouncements by the esteemed Hon’ble Judges, the developing trend is evident and some of the principles deducible therefrom are that :-
(i) Where the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to transportation for life or imprisonment for life, the appeal lies before this Court as of right under Article 185(2)(a) of the Constitution of Islamic Republic of Pakistan. Provision of a separate procedure for that purpose under Order XXII of the Supreme Court Rules, 1980, is a strong indicator in this regard. This it self is indicative of a the importance and significance of acquittal which places the matter on different footing than others. (ii)This Court has every right of examining evidence in a criminal appeal if the interest of justice so demand for which purpose each case will have to be adjudged upon its on facts and circumstances and in case the Court reaches the conclusion that the person has been dealt with in violation of the accepted principles of the administration of criminal justice then "no technical hurdles should be allowed to stand in its way of doing justice and seeing that injustice is not perpetuated or perpetrated by the decisions of the Courts below." (iii)As an ultimate Court, this Court must give due weight and consideration to the opinions of the Courts below and normally the findings should not be interefered where the same "are reasonable and were not arrived at by the disregard of any accepted principles regarding the appreciation of evidence." But where defect is discovered about tenability of findings in that case it shoudl be open to the Court to come to its own independent finding upon re-examination of the evidence untrammeled by the opinions of the Courts below. (iv)The position of the Trial Court being close to the seen of ocurrence and familiar with the ways and practices of the people involved having the benefit of recording evidence of witnesses, watching their demeanour, view formed by the said Court should not be disregarded lightly. (v) The benefit of any reasonable doubt must go to the accused person but where the conclusion about such a doubt leading to acquittal is wholly illogical or unreasonable, the same can be reversed by the higher Court. (vi)While giving the benefit of all doubts to the accused, the Court has still to discharge the onerous function of not allowing an offender to ascape justice. (vii) The benefit of doubt if any can not be given to the prosecution. (viii) Mere suspicion howsoever strong or possible is not sufficient to justify conviction and all circumstances sought to be relied for basing conviction upon circumstantial evidence must be established beyond doubt. (ix) Straining of evidence either in favour of the prosecution or in favour of the accused should neither be countenanced nor encouraged. (x) While examining the views expressed by the courts below it should be seen that the findings are not based on mere assumptions and conjectures. (xi) The acquittal should not be interfered with, merely on the ground that another possible view of the evidence was available. (xii) It is the fundamental duty of the prosecution to prove the guilt to the hilt and not of the accused to prove his plea of defence to the hilt and that the weakness or falseness of the defence plea is not to be taken into consideration while awarding punishment. (xiii) That the Court is to appraise evidence without being is wayed away emotionally as accused is presumed to be innocent, until the guilt is proved against him by producing evidence of incriminating nature to connect him with the commission of crime beyond shadow of reasonable doubt. (xiv) The principle that if a witness is not coming out with the whole truth his evidence is liable to be discarded as whole is not that absolute and stand modified as his testimony will be acceptable against one set of accused, though rejected agaisnt the other subject to the rider that it must get independent corroboration on material particulars from credible evidence based on the principle of "sifting chaff out of grain".
These are merely some of the known established principles being followed by the Courts and certainly not exhaustive of situations arising from time to time and case to case. [p. 723] A
As the old adage goes about the onerous duty of the Court to sift chaff from the grain, the evidence brought on record by the prosecution and the defence plea of the appellant/accused has been analyzed from all angles to find out as to how far the incriminating material is available to bring home the guilt and his involvement in the commission of the offence. It has to be kept in mind that it is an unseen incident, the charge against him was of the demand of ransom and murder of Abdul Ghafoor. Noor Muhammad facther of the victim as per the evidence is an illiterate person, unable to read or write, it is but natural if there was not that meticulous consistency in his stance. But visible and obvious lapses on the part of prosecution are not understandable. The foundation of the case was raised on the ground of friendly contacts between Muhammad Sharif appellant and Abdul Ghafoor (deceased); the transaction of sale of land and the business of plastic material between them. No investigation however was conducted on this aspect. Even the letter which became the basis for ransom demand its receipt by the father of the victim was also a question mark. No effort was made to reach those children who delivered the said letter to the Chowkidar of the Hotel, nor even the Chowkidar was investigated. Neithr the Chowkidar nor the owner of the Hotel Muhammad Bashir, who read out and explained the letter to Noor Muhammad were produced before the Court. It only means that Investigators did not perform the duty as was warranted by law.
However, the arrest of appellant itself appears to have unfolded the whole episode. He made disclosures and provided solid clues. He led the investigators to the place of occurrence wherefrom the dead body and other incriminating articles were recovered. He, by making confessional statement before the Magistrat solved the mystery as to how and why this all happened. The alteration that took place between the two about the payment of money, the harsh language and abuses hurled by the deceased resulting in spontaneous ugly situation of provocation taking the names of mother, sister and wife, pushing of the deceased by the appellant from the mountain and stoning him. There appears no valid justification to disbelieve Dr. Shaoib Gola AC/SDM, (P.W.6) on official who had neithr any enmity with the appellant nor any reason to misstate the facts.
The chain of events, which led the Investigators to ultimately unearth the facts was the pointation of the place of ocurrence by the appellant and statement of facts given by him before the Magistrate. Being conscious of the risk of use of retracted confesson, it is observed that it can not be used alone as evidence for conviction, the other evidence of linkages is necessarily to be considered. The recovery of the dead body on the lead provided and at the pointation of the appellant and disclosures of events as to how it so happened, the medical evidence, the report of Chemical/Serologist, the recovery of currency notes Rs. 20,000 from his residence on his pointation from the box lying underneath the cot are all important pieces of corroborative evidence which cannot be ignored. The later denial of every thing by the appellant including the disclosures and even appearance before the Magistrate looses its worth in the light of the above hard facts. His plea of torture by the investigators as per his statement u/s. 342, Cr.P.C. also was an after thought. Some doubt if at all that can be entertained is about his intention to kill, which will be examined in the later part of the judgment.
It has carefully been noted, examined and analyzed that the prosecution itself has laid great reliance and emphasis upon the lead provided by the appellant to the place (the mountain) wherefrom the dead body of Abdul Ghafoor (deceased) was recovered from underneath the stones on his pointation. Such an information of fact disclosed, which led to the discovery and recovery of incriminating articles and material assumes relevance and significance. For considering the import and effect of such disclosures, discoveries and consequential recoveries, the provisions of Art. 40 of the Qanun-e-Shahadat Ordr, 1984 get attracted.
There thus remains no doubt that the disclosures made and the clues provided by the appellant himself and unbroken chain of events furnished sound proof leading to the irresistible conclusion that the appellant was the person who was responsible for the commission of the offence, whereby Abdul Ghafoor lost life. However the justification sought to be advanced for this is the provocation by the deceased, which may be examined now.
The provocative conduct and attitude of deceased i.e. huring of abuses and calling bad names addressing his mother, sister and wife before his death cannot altogether be ignored. This, as stated by him, led to the incident of pushing of the deceased by him from the mountain, stoning him and covering him with the stones recovered from the site. All this tends to show the resultant death of Abdul Ghafoor under such peculiar provocative circumsstances, which may be relevant for considering the quantum of the sentence in such a context.
Now, therefore, is the other important question of quantum of sentence, which has engaged our serious attention. As discussed above the complaint of Noor Muhammad fathr of the deceased was that his son had left his house on10-9-1995alone. The appellant had not gone to their residence, to take him along by force or otherwise. He was empty handed and had no crime weapon with him. There was apparently no premeditation for killing of any one. The deceased was carrying a jug & glass for water with him. Who took water and bought some lemons also. He went to the appellant when both of them went to the mountains where the ugly altercation gave rise to the situation as the deceased abused him by taking the names of his mother, sister and wife. Due to this sudden eruption of hot words, attitude and conduct of deceased a a flared up situation arose.
The instances are not lacking for even this Court had been altering and converting the death sentence into a lesser penalty. It is so, as the law itself clause (b) of section 302, P.P.C. empowers the Court to inflict either death penalty or imprisonment for life for which purpose however while exercising the choice, a discretion is left with the Court to be exercised keeping in mid the facts and circumstances of a case.
It has been seen and observed from the perusal of the various precedents in relation to section 302 P.P.C in particular its clause (b), that there is a choice and discretion left with the Court to inflict punishment “with death or imprisonment for life as tazir having regard to the facts and circumstances of the case. “The infliction of death sentence would necessarily mean the “deprivation of life” of the individual i.e. a human being. Life as we know in common parlance is the blessing of God. It is considered o be “the immediate gift of God and a right inherited by nature in every individual”. 1. It means the period during which life lasts or the period from birth to death. Our Constitution bestows a fundamental right under Article 9 that “No person shall be deprived of life or liberty save in acordance with law. ” It starts with “no” which means “not any, not at all. “2. It clearly signifis a prohibition and forbids the deprivation of life of any person. The exception being that such a deprivation can take place in accordance with “law”. It is thus the “law”, which can provide for depriving a person of his life. Imposition of death penalty is provided by certain laws, Pakistan Penal Code, is one such law. In the context of clause (b) of section 302, P.P.C a very heavy duty is assigned to the Courts and the Judges to weigh and analyze the facts and circumstances of the particular case, before exercising discretion of awarding penalty.
There can be no cavil that depending upon the circumstances, the background and the facts of a case, the Court is obliged to exercise option of awarding penalty. Without hesitation it may inflict death penalty if the victim had been done to death in a ghastly, cold blooded, burtal manner or roasted alive etc. In a recent pronouncement in Iftikhar Ahmed Khan v. Asghar Khan and another (2009 SCMR 502) it has been noted that :- “In other words, the law has conferred iscretion upon the Court to withhold the penalty of death and to award the punishment of imprisonment for life, if the outlook of a particular case requires that course. Question arises, as to what could be those facts and circumstances in whch penalty of death must be imposed and lesser penalty of life imprisonment should not be awarded. The analysis of all the cases has led us to a conclusion that from the facts and circumstances of the case, if the Court finds the manner and method of incident, to be in the nature of brutality, horrific, heinous, shocking, involving terrorist nature, creating panic to the society as a whole or in part, callous and cold blooded, in such cases (which list is not exhaustive), the penalty of death must not be withheld. In other words, grave inhuman attitude, acts, manners, method and the criminality of actions are the constituents, elements and the instances, where punishment of death must be awarded.” The Court is therefore, expected to proceed very carefully and cautiously in the exercise of such a discretion and not to ignore the gravity of the offence committed.
Adverting now to the facts of the instant case, on re-appraisal of the entire evidence in this case, we find that the conviction of the appellant by the learned High Court was absolutely justified. However, the peculiar facts and circumstances noted above including that he was acquitted by the Trial court but was sentenced to death by the learned High Court persuade us to adopt a lenient view in the matter of infliction of sentence as, (a) there was no apparent planning, premeditation or intention to kill the deceased; there being no preparatio by the appellant in this regard nor he had any crime weapon with him. (b) filthy and vulgar abuses hurled and cursing by the deceased and thus heated altercation infuriating and giving rise to provocation. (c) that the action of a man is to be judged in the background of the society to which he belongs as he is creature of his environment (d) in any case a serious doubt prevaililng as to what actually happened just before the incident and remaining shrouded in mystery. Thus the death penalty, in the facts and circumstances, mainfestly appears out of al proportions to the offence. We, therefore, find it eminently a fit case in which the awarding of life imprisonment would have met the ends of justice.
Therefore, while deciding this appeal and maintaining conviction, we modify the sentence by converting the same from death to imprisonment for life. The rest of the conviction will remain intact. Benefit fo section 382-B Cr. P.c. will be available to him. The appeal is partly accepted to the extent of modification of sentence as per above. [pp. 738, 741, 744, 745, 748] B, C, D,E, F, G, H & K
Appeal partly accepted.
SH. LIAQUAT HUSSAIN AND OTHERS
FEDERATION OF PAKISTAN through Ministry of Law, Justice and Parliament
(a) Constitution of Pakistan (1973) Arts. 184(3) & 245(3)-
It the learned Attorney-General is relying on clause (3) of Article 245 of the Constitution which suspends the jurisdiction of High Court under Article 199 of the Constitution for such period the Armed Forces Act in aid of civil power, the provision clearly is not attracted to proceedings under Article 184(3) of the Constitution before this Court. To deal with the first part of the above contention of learned Attorney-General, it is necessary to consider the scope of Article 8 of the Constitution, which reads as follows:-
Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void. [p. 653] KKK
(b) Constitution of Pakistan (1973), Art. 8(3)-
r/w Pakistan Armed Forces (Acting in Aid of the Civil Power) Ordinance (XII of 1998) Preamble-
The contention of learned Attorney-General in substance is, that the Ordinance enumerates the power as is evident from the preamble of the Armed Forces acting in aid of civil power as is evident from the preamble of the Ordinance. It is, accordingly, argued by the learned Attorney-General that the Ordinance is a law relating to Armed Forces which has been promulgated to ensure proper discharge of their duties while acting in aid of civil power and as such even if its provisions are found to be in derogation of any of the rights conferred by Chapter I of Part II of the Constitution, it cannot be questioned in view of the provisions of Article 8(3) of the Constitution.
Clause (1) of Article 8 declares all laws, customs or usages having the force of law void to the extent they are inconsistent with the rights conferred by Chapter I (Articles 8 to 28) of Part II of the Constitution. Clause (2) of Article 8 ibid, prohibits the State to enact any law which takes away or abridges the rights conferred by chapter I, Part II and further declares that any law made by the State in contravention of the above prohibition will be void to the extent of such contravention. Sub-clause (a) of clause (3) of Article 8, with which we are concerned here, is in the nature of a proviso or an exception to clauses (1) and (2) of Article 8 (ibid). It provides that any law enacted to ensure the proper discharge of the duty or maintenance of discipline amongst the members of the Armed Forces, a Police Force or any other force charged with the duty of maintaining public order, will be out of the purview of Article 8 of the Constitution. It is well-settled rule of interpretation that the proviso or an exception to the main enacting part is to be construed strictly. Therefore, unless the case falls strictly within the letter and spirit of the proviso or exception, it will be covered by the main enacting part. A careful reading of sub-clause (a) of clause (3) of Article 8 (ibid), shows that in order to take a legislation out of the purview of clauses (1) and (2) of Article 8 of the Constitution two conditions must be satisfied. Firstly, the legislation must relate to Armed Forces or a police force or a force charged with the maintenance of public order and, secondly, the purpose of legislation must be to ensure proper discharge of their duties or maintenance of discipline among them. Here we are only concerned with interpretation of the word “duties” used in Article 8(3)(a) of the Constitution with reference to armed forces which have been called in aid of civil power. The word “duties” in this context would mean duties which can be lawfully assigned to or discharged by the armed forces either under the Constitution or under any law. There is no difficulty in holding that the Ordinance satisfies the above first condition as the legislation relates to Armed Forces. However, the Ordinance fails to satisfy the second condition mentioned in Article 8(3)(a) (ibid). The learned Attorney-General has relied on the preamble of the Ordinance which states “whereas it is expedient to enumerate the powers and duties of the Armed Forces acting in aid of civil power, under Article 245 of the Constitution of Pakistan for the purpose of security, maintenance of law and order, and restoration of peace”, in support of his contention that the Ordinance also satisfies the second condition mentioned in Article 8(3)(a)(ibid). No doubt, the preamble of the Ordinance does State that the object of legislation is to enumerate the powers and duties of armed forces acting in aid of civil power the purpose of security, maintenance of law and or, and restoration of peace, but the preamble can neither restrict nor control the meaning of the enacting part of the Statute. If the enacting part of the Statute goes beyond the preamble it is the enacting part which prevails and not the preamble. The preamble of the Ordinance shows that the Armed Forces have been called in aid of civil power under Article 245 of the Constitution for purposes of security, maintenance of law and order, and restoration of peace. Now if we go to the enacting part of the Ordinance which consists of sections 1 to 14, it shows that the Armed Forces have been vested with powers to convene Courts for trial of civilians charged with the offences specified in the Ordinance. Can the provision in the Ordinance vesting the Armed Forces with power to try civilians for offences nor connected with Armed Forces, be terms as a law which ensures proper discharge of their duties? To answer this question, we must look to the Scheme of the Constitution which is based on the principle of trichotomy of power, meaning thereby that the power is divided between Executive, the Legislature and the Judiciary. Each of these three limbs of the State enjoys complete independence in their own sphere. Since the Armed Forces admittedly are not part of the judicature, the Ordinance vesting the Armed Forces with power to hold trial of civilians in respect of offences which are not connected with Armed Forces, is not immune from scrutiny under Article 8(3)(a) of the Constitution. The preliminary objection raised by the learned Attorney-General to the maintainability of these petitions, accordingly, fails. [p. 654, 655 & 656] LLL
(c) Constitution of Pakistan (1973) Arts. 245, 243, 2A, 5,6,175 & 203-
Thus visualized, the Courts established pursuant to the impugned Ordinance do not fall within the purview of any of the Constitutional provisions. The Constitution envisages trichotomy of powers of the three organs of the State, namely, Legislature, Executive and the Judiciary. The Legislature is assigned the task of law-making, the Executive to execute such laws and the Judiciary to construe and interpret the laws. None of the organs of the State can encroach upon the fields allotted to others. The Constitution dies not countenance the take-over of the judicial functions by the Armed Forces at the direction of the Federal Government in the purported exercise of power conferred on it under Article 245 of the Constitution. Article 245 does not by itself create the law but enables the making of a law which should have nexus with the phrase ‘to act in aid of civil power’. The replacement of Courts either partially or wholly is not recognized under any provisions of the Constitution. A bare reading of Article 243 would show that the Armed Forces are subject to the control and authority of the Federal Government i.e. a civilian Government. No circumstances existed in the country which indicated the breaking down of the judicial organ, necessitating establishment of Military Court. It is imperative for the preservation of the State that the existing judicial system should be strengthened and the principle of trichotomy of power is adhered to by following, in letter and spirit, the Constitutional provisions and not by making deviation thereof on any ground whatsoever. [p. 791] E
The term ‘Court’ as used in the Army Act was intended to include Courts Martial as distinguished from Martial Law Courts. The latter Courts are established during the continuance of Martial Law either during war or even when due to internal disturbances the Civil Administration/ Government completely comes to an end. Military Courts as distinguished by Courts Martial envisaged under the Army Act, 1952, are primarily meant for maintaining discipline in the Armed Forces. The mere fact that the procedure prescribed for trial of offences is mentioned in the Schedule attached to the Ordinance, the provisions of Army Act and the Rules made thereunder are applicable, would not convert these Courts into Courts Martial. The Courts Martial are the creatures of Army Act and Naval Act and Air Force act, which authorise them to decide cases of persons subject to Army Act and to pass orders of sentences in accordance with law. Having regard to the object for which they are created, the functions which they perform, fall within the term “Court” as used in the Army Act, Naval Act, Air Forces Act but do not form part of the judicial hierarchy established under Article 175(1) of the Constitution. The decisions rendered by the Courts martial are entitled to very great respect but are relatable only to persons subject to Army Act but they cannot exercise jurisdiction as is exercised by the ordinary Courts with respect to civilians. The courts Martial can exercise jurisdiction only with respect to persons who are members of the Armed Forces and in certain cases even in civilian offences in respect of those persons alone. But there is no statue, law or any provision of the Constitution conferring jurisdiction on the Military Courts, to try the civilians. It is true that the cases before the Courts Martial are to be disposed of expeditiously but it was never intended under the scheme of the Constitution that under any circumstances they will also hear the cases of the civilians, the adjudication of dispute in respect of whom can only be done by the ordinary Courts as distinguished from Military Courts created under the impugned Ordinance. It is true that the existing conditions, in which the law has to be applied cannot be ignored in adjudging its validity because it is relatable to the object sought to be achieved. It is also true that terrorism and other criminal activities are negation of the principles of democracy, freedom, equality, tolerance and social justice as enumerated by Islam. A law made to facilitate maintenance of law and order and/or to restore peace and curb terrorism, which is the spirit behind the Objectives Resolution, now forming part of the Constitution by Article 2A of the Constitution, is permissible. But in making such a law the Constitutional provisions cannot be permitted to b contravened. Clearly, an accused charged of offences/an unconvicted person is presumed to be innocent and has a vested right to a fair trial before a Court or Tribunal validly established under Article 175(1) of the Constitution. Even if Military Courts are treated as Special Courts, they cannot be declared valid as in the impugned Ordinance, no provision of appeal has been provided against the orders of the Military Courts before the Supreme Court nor their functioning and supervision have been made subordinate to it. Thus visualized, they do not fulfil the criteria of a ‘Court’ exercising judicial functions within the purview of the guide-lines provided in the case of Mehram Ali (supra). The establishment of Military Courts is, therefore, unwarranted by any Constitutional provision. Viewed from this angle as well, the impugned legislation does not fall within the category of reasonable classification. Thus visualised, notwithstanding the bona fides and the noble object of the Federal Government to suppress/curb terrorism and punish the persons/accused mentioned in the Ordinance, the same cannot be called intra vires of the Constitution.
Needless to say that Courts today are choked by ‘legal pollution’ and the society has become litigious. The goal of access to justice is defeated, when too many claims overwhelm the limited resources of the Courts. The right to participate in the legal process as envisaged by the Constitution and a valid law is fundamental to a just society. If the citizens are deprived of their Constitutional rights to have access to justice in accordance with the Constitution and the law because they are unable to utilize the Courts effectively for the resolution of their disputes or the disputes between the Government and the citizens or that a particular class of citizens is excluded from having access to justice by creating a parallel judicial system i.e. a ‘barrier’ to access to justice, certainly such a course would be repugnant to the Constitutional mandate provided under Article 5 of the Constitution that obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may be and of every other person for the time being within Pakistan while Article 4 thereof guarantees the right of individuals to be dealt with in accordance with law. The right of access to justice to all is enshrined in the Constitution, which is also found in the doctrine of ‘due process of law’. Such a right includes the right to be treated according to law; the right to have a fair and proper trial and the right to have an impartial Court or Tribunal. In Al-Jehad Trust case (supra), it was held that without having an independent Judiciary, the fundamental rights enshrined in the Constitution will be meaningless and will have no efficacy or beneficial value to the public at large. [p.792, 793 & 794] F
Viewed from whatever angle, the impugned Ordinance is ultra vires of the Constitution in so far as it takes away the adjudicatory powers of the Judiciary. In this connection, reference may also be made to the observations in the Mehram Ali’s case (supra), wherein one of us (Irshad Hasan Khan, J), observed thus :-
“………. Efficiency in the Courts is serious national problem, an expression o greater public concern than even the threat of war. Article 37(d) of the Constitution of Islamic Republic of Pakistan, 1973, enjoins upon the State to ensure ‘inexpensive’ and ‘expeditious justice’. Thus visualized, speedy resolution of civil and criminal cases, is an important Constitutional goal, as envisaged by the principles of policy enshrined in the Constitution. It is, therefore, not undesirable to create Special Courts for operation with speed but expeditious disposition of cases of terrorist activities/heinous offences have to be subject to Constitution and law. Viewed in this perspective, no objection can be taken to the establishment of Special Courts for speedy trials and prevention of terrorist acts/heinous offences under the Anti-Terrorism Act, 1997 (hereinafter referred to as the Act). [p. 794] G
MAHMOOD KHAN ACHAKZAI AND OTHERS
FEDERATION OF PAKISTAN AND OTHERS
Per Sajjad Ali Shah, C.J.
(a) Constitution of Pakistan (1973) Article 2A and Preamble.
What is the basic structure of the Constitution is a question of academic nature which cannot be answered authoritatively with a touch of finality but it can be said that the prominent characteristics of the Constitution are amply reflected in the Objectives Resolution which is now substantive part of the Constitution as Article 2A inserted by the Eighth Amendment.
The Objectives Resolution was Preamble of the Constitutions made and promulgated in our country in 1956, 1962 and 1973. Perusal of the Objectives Resolution shows that for scheme of governance the main features envisaged are Federalism and Parliamentary Form of Government blended with Islamic provisions. The Eighth Amendment was inserted in the Constitution in 1985, after which three elections were held on party-basis and the resultant Parliaments did not touch this Amendment, which demonstrates amply that this Amendment is ratified by implication and has come to stay in the Constitution unless amended in the manner prescribed in the Constitution as contemplated under Article 239. Article 58(2)(b) brought it the Constitution by the Eighth Amendment, which maintains Parliamentary Form of Govenrment has provided checks and balances between the powers of the President and the Prime Minister to let the system work without let or hindrance to forestall a situation in which martial law could be imposed.
In the result the two Civil Appeals Nos. 397-K/90 (Abdul Mujib Pirzada v. Federation of Islamic Republic of Pakistan), 399-K/90 (Haji Ahmed v. Federation of Pakistna and others), and three Constitutional Petitions Nos. 60/96 (Mahmood Khan Achakzai v. President of Pakistan v. President of Pakistan and others), 67/96 (Habibul Wahabul Khairi v. Federation of Pakistan and others) and 68/96 (Wukala Mahaz Barai Tahafuz Dastoor v. Federation of Pakistan and others) are dismissed.
All the seven Judges on the Bench subscribed to the short order reproduced above but Mr. Justice Zia Mahmood Mirza expressed his desire to write his reasons separately while agreeing with conclusions and his note is reproduced as under :-
“I only agree with the conclusion that the appeals and Constitutional petitions mentioned in para. 4 merit dismissal for which I shall separately record my reasons in detail.” [p. 446, 447] B
There is no dispute about the fact that basic structure as such categorically and specially is not mentioned in the Constitution of 1973 but i can be presumed from reading the Articles in the Constitution as a whole and also preamble to find out the intention of Constitution-makers as to what type of system of governance was contemplated in the Constitution. In order to find out the basic structure of 1973 Constitution, comparison cannot be made with the Indian Constitution for the reason that Indian Constitution provides for Sovereign Socialist Secular Democratic Republic. The other factors mentioned in the preamble of the Indian Constitution are:—
Justice, social, economic and political;
Liberty of thought, expression, belief, faith and worship;
Equility of status and opportunity;
and to promote among them all
Fraternity assuring the dignity of the individual and the unity and integrity of the Nation;
In the Indian Constitution two provisions are very important for discussion on the subject of basic structue of the Constitution. Fundamental Rights are contained int eh Indian Constitution in Part III from Articles 12 to 35. Article 13 in the original form before amendment declares laws void if found inconsistent with fundamental rights and further defines “law” including ordinance, order, bye-law, rule, regulation and so on and “law in force”. Article 368 in its original form before amendment provided, procedure for amendment of the Constitution to be initiated by the introduction of Bill and further required ratification by the Legislatures of not less than one-half of the States specified in Parts A and B of the First Schedule, if amendment was sought to bring a change in Articles 54, 55, 73, 162, 241 or Chapter IV of Part V, Chapter V of Part VI or Chapter I of Part XI or any of the lists in the Seventh Schedule and so on, While interpreting relevant provisions of the Constitution, Supreme Court of India held that an act of Parliament duly passed under Article 368 would be valid even if it curtailed any of fundamental rights conferred by Part III of the Constitution on the ground that such act would come under the expression “law” in Article 13(2). [p. 448, 449] C & D
Study of Constitutions of different countries shows that Constitutions are always made and promulgated keeping in view objective conditions and socio-economic requirements and sometimes in such Constitutions is provided specifically as to what the basic structure is and what is allowed to be amended or not amended on the ground that it wuold be contrary to the basic structure. Normally, in the Constitution provision is amde for amendment of the Constitution and procedure is also provided therein for such purpose. In the Constitution of United States certain amendments to the Constitution are regarded to be within the exclusive purview of the Congress and the Supreme Court has refused to interfere with them on the ground that doing so would amount to entering into political questions as in respect of such matters the Court has no power of judicial review. [p. 454] E
One thing is beyond dispute that in all the three Constitutions Objectives Resolution is common and the same whcih has been incorporated as preamble in all the three Constitutions including the Constitution of 1973. Since this Objectives Resolution is very important and is the sheet anchor of our Constitution because it reflects aspirations of the people of Pakistan as to what they want and how they want to be governed, hance it is reproduced in extenso as under :
Whereas soverignty over the entire universe belongs to Allah Almighty alone and the authority which He has delegated to the State of Pakistan through its people for being exercised within the limits prescribed by Him is a sacred trust;
This Constituent Assembly representing the people of Pakistan, resolves to frame a Constitution for the sovereign independent State of Pakistan;
Wherein the State shall exercise its powers and authority though the chosen representatives of the people;
Wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed;
Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Qur’an and the Sunnah;
Wherein adequate provision shall be made for the minorities to profess and practise their religion and develop their cultures;
Wherein the terriroties now included in or in accession with Paksitan and such other territories as may hereafter be included in or accede to Pakistan shall form a Federation wherein the units will be autonomous with such boundaries, and limitations on their powers and authority as may be prescribed;
Wherein shall be guaranteed fundamental rights including equality of status, of opportunity before law, social, economic and political justice and freedom of thought, expression, belief, faith, worship and association, subject to law and publci morality;
Wherein adequate provision shall be made to safeguard the legitimate interest of minorities and backward and depressed classes;
Wherein the independence of the judiciary shall be fully secured;
Wherein the integrity of the territories of the Federation, its independence and all its rights including its sovereign rights on land, sea and air shall be safeguarded;
So that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the world and made their full contribution towards international peace and progress and happiness of humanity.” [p. 455, 456] F
It is not necessary to dilate upon the case of Ziaur Rehman any further for the reason that at present we are concerned only with Objectives Resolution in the Constitution appended as preamble. Even in that capacity it invariably has remained preamble in all the four Constitutions including the Interim Constitution of 1972 and therefore, it has to be read for the purpose of proper interpretation in order to find out as to what scheme of governance has been contemplated. Let us assume that it does not authoritatively provide grund norm and also it does not describe specifically the basic structure of the Constitution, even then also it does help in interpreting and understanding the scheme of governance and salient features of the Constitution which are described therein including Islamic provisions, federalism and parliamentary form of Government and fully securing independence of judiciary. Islamic provisions are very much embedded in the Constitution of 1973 as Article 2 thereof envisages that Islam shall be that State religion of Pakistan and Article 227 provides that all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur’an and Sunnah. Further Article 228 provides for setting up Council of Islamic Ideology. Similar provisions existed in ARticles 197 and 198of the Constitution of 1956 and Articles 199 to 207 of the Constitution of 1962. Similar Islamic provisions existed int he Interim Constitution of 1972 from Articles 251 to 259. In nutshell it can be said that basic structure as such is not specifically mentioned in the Constitution of 1973 but Objectives Resolution as preamble of the Constitution and now inserted as the substantive part in the shape of Article 2-A when read with other provisions of the Constitution reflects salient features of the Constitution highlighting feeralism, parliamentary form of Government blended with Islamic provisions. [p. 458] G
(b) Constitution of Pakistan (1973) Article 239 [as substituted by Revival of Constitution of 1973 Order (14 of 1985)]—
In the Constitution of 1973 in its original form Article 238 provides for amendment of the Constitution and Article 239 lays down the procedure for such amendment and is composed of seven clauses. Clause (7) provided that a Bill to amend the “Constitution whcih would have effect of altering the limits of a Province could not be passed by the National Assembly unless approved by resolution of Provincial Assembly of that Province by votes of not less than two thirds of total membership of that Assembly. This shows anxiety of the Constitution-makers of that time not to make it easy to alter the limits or boundaries of a Province unless Assembly of that Province consented with votes of not less than two-thirds of the total membership of that Assembly. This anxiety was justified in the aftermath of loss of East Pakistan. Article 239 was amended by P.O. No. 20 of 1985 and substituted by P.O. No. 14 of 1985 which are protected for validity by Constitution (Eighth Amendment) Act No. XVIII of 1985. Apart from other amendments in Article 239, the major amendment is in clause (6) which is substituted by fresh provision providing that for removal of doubts, it is hereby declared that there is no limitation whatever on the power of Majlis-e-Shoora (Parliament) to amend any provision of the Constitution. We are going into the question of validity of the Constitution (Eighth Amendment) Act, 1985, later but for the time being it would suffice to say that freedom bestowed upon the Parliament in clause (6) of Article 239 after amendment does not include power to amend those provisions of the Constitution by which would be altered salient features of the Constitution, namely fedealism, Parliamentary Form of Government blended with Islamic provisions. As long as these salient features reflected in the Objectives Resolution are retained and not altered in substance, amendments can be made as per procedure prescribed in Article 239 of the Constitution. [p. 458, 459] H
Article 239 cannot be interpreted so liberally to say that it is open-ended provision without any limits under which any amendment under the sun of whatever nature can be made to provide for any other system of governance, for example, monarchy of secular, which is not contemplated by the Objectives Resolution. Clause (6) of Article 239 provides for removal of doubt that there is no limitation whatsoever on the power of Parliament to amend any provision/provisions of the Constitution. It therefore, follows that Parliament has full freedom to make any amendment in the Constitution as long as salient features and basic characteristics of the Constitution providing for Federalism, Parliamentary Democracy and Islamic provisions are untouched and are allowed to remain intact as they are. [p. 480] K
(c) Constitution of Pakistan (1973) Article 58(2)(b)
Much has been said against Article 58(2)(b) of the Constitution that it has changed the shape of the Constitution from Parliamentary to Presidential and has concentrated powers in the hands of the President who is not directly elected as is Prime Minister. Perusal of the Constitution, as it is, shows that it is not so and the apprehension is unfounded for the reason that this provision has only brought about balance between the powers of the President and the Prime Minister in Parliamentary Form of Government as is contemplated under Parliamentary Democracy. There is nothing unusual about it and such provisions enabling the President to exercise such power can be found in various Parliamentary and Democratic Constructions like Australia, Italy, India, France and Protugal. In fact Article 58(2)(b) has shut the door on Martial Law for ever, which has not visited as after 1977. The country is entering into 21st century still at the threshold as a developing country with many serious problems as items high on our agenda including economic morass. We have to fix our priorities with extra caution and progmatism. If it is stated that Eighth Amendment was brought in by Parliament which was not elected on party basis then after that three elections took place on party basis in 1988, 1990 and 1993 which did not touch Eighth Amendment showing that they had acquiesced in the Eighth Amendment which amounts to ratification by implication. [p. 480] L
(d) Constitution of Pakistan (1973) Articles 58(2)(b), 239 & 2A [as inserted by Constitution (Eighth Amendment) Act (XVIII of 1985)]-
We are therefore of considered view that Eighth Amendment including Article 58(2)(b) has come to stay in the Constitution as permanent feature. It is open to the Parliament to make amendment to the Constitution of any provision of the Eighth Amendment as contemplated under Article 239 as long as basic characteristics of federalism, parliamentary democracy and Islamic provisions as envisaged in the Objectives Resolution/Preamble to the Constitution of 1973 which now stands as substantive part of the Constitution in the shape of Article 2A are not touched. [p. 480, 481] M
Per Saleem Akhtar, J.
(e) Constitution of Pakistan (1973) Preamble and Article 2A
As observed earlier, there are some characteristic features in every Constitution which are embedded in the historical, religious and social background of the people for whom it is framed. it cannot be denied that ever Constitution has prominent features, characteristics and picture-frame studded with public aspiration, historical inspiration, geographical recognition, political formulations and people’s expectation. These winding paths whcih roll into the stream, with the passage of time and tide do affect the flow in their own perspective which to the rigid theory would amount to unpardonable change but to a flexible theory it would be a natural result of such confluence and influence. Doubtless, Pakistan owes its creation to ideological belief which is so manifestly reflected in the Objectives Resolution that it has always remained the Preamble of almost all our Constitutions and has been a source of guidance to all. The provisions of the Constitution though not rigidly encircled by it, always remain within its horizon subject to all such changes which manifest different shades of the same colour. A Constitution is the aspiration of the people. It is the experience of the past, the desires of the present nation and last but not the least a hope for the future. A Constitution is a document for all times to come. It cannot be made rigid because such rigidity if confronted with the social and political needs of the time, is likely to create cracks in it. The consistent view of the superior Courts of Pakistan is more real and should be followed and maintained.
Rigidity is one of the main features of a written Constitution. But this rigidity is often tuned to flexibility by the provisions of the Constitution itself and interpreatation made by the Courts. According to Mr. Khalid Anwar rigid Constitution may provike violence. [p. 505, 506] S
The historical experience in Pakistan has shown that so far it is only the judicary, which having power to declare any law as void if it is inconsistent with the provisions of the Constitution, has provided safeguards. The force of public opinion except in a rare case, has independently remained ineffective or unconcerned. Out of three Constitutions two were abrogated by military dictators and the third one worked hardly for five years and remained suspended for about 8 years. The Constitution of 1973 after amendments made by the Eighth Amendment has been working from 30-12-1984 uptodate. During this period of abrogation, suspension and restoration it is the judiciary which has by sheer judicial activism and interpretation brought the deviated machinery to the Constitutional rails. In all the Constitutions, the Objectives Resolution has been the pervading spirit. It spells out broad principles for the governance of the country. The common factors throughout have been federal democratic form of Government guaranteeing all the freedoms equality, tolerance and social justice, as enunciated by Islam and fully securing the independence of judiciary. The other aspect singularly unique is that “Sovereignty over the entire universe belongs to Almighty Allah and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust. The Parliament therefore is not as independent as the British Parliament. However, the Court enjoys power to strike down any law which is in conflict with the provisions of the Constitution. In spite of this power vested in the superior Courts, they do not have power to strike down any provision of the Constitution which may be in conflict with any of its provisions, even in the presence of Article 2A as a substantive part of the Constitution, the Court cannot strike down any provision of the Constitution on its (Article 2A) touchstone. Reference can be made to Hakim Khan v. Government of Pakistan (PLD 1992 SC 595) and Mst. Kaniz Fatima v. Wali Muhammad and another (PLD 1993 SC 901). In view of the legal dispensation resting on the judgments of this Court we agree and approve the observations of Ajmal Mian, C.J. (as he then was) in the impugned judgment that “it is not open to the Court to hold that a provision of the Constitution can be struck down on the ground of its being violative of the Objectives Resolution or of national aspirations or of higher ehtical notions or of philosophical concepts of law or of the basic structure”. [p. 506, 507] T, U & V
(f) Constitution of Pakistan (1973) Article 239 and 238
The provision to amend the Constitution seems to be provided in most of the written Constitutions. It is only question of degrees and to what extent it operates. [p. 508] W
The object being to keep the Constituton alive and in line with the pace of progress, aspiration, will, needs and demands of the people. Constitution cannot be made static and stoic. It must progress, blossom and flower. A rigid Constitution having no provision for amendment is likely to suffer crack by violence or Constitutional deviation. Perhaps it is the historical experience that political philosophers and jurists favour provision for amendment in a written Constitution. Such provisions may restrict the power of amendment specifically as provided in France and Germany. But where an unrestricted power is given to the Legislature then Court will see whether an amendment to the existing Constitution has been duly proposed, adopted and assented in the manner required by the Constitution so as to become a part thereof. However there are factors which restrict the power of the Legislature to amend the Constitution. It is the moral or political sentiment, which binds the barriers of Legislature and forms the Constitutional understandings. The pressure of public opinion is another factor which restricts and resists the unlimited power to amend the Constitution. In Pakistan although Article 239 confers unlimited power to the Legislature, yet it cannot by sheer force of morality and public opinion make laws amending the Constitution in complete violation of the provsiions of Islam. Nor can it convert democratic form in completely undemocratic one. Likewise by amendment Courts cannot be abolished which can perish only with the Constitution. It seems to be an emerging legal theory that even if the Constitution is suspended or abrogated, the judiciary continues to hold its position to impart justice and protect the rights of the people which are violated and impinged by the actions of the powers and authorities which saddle themselves by unconstitutional means. As held in Asma Jillani’s case, such actors are usurpers and the Courts had only condoned their action without approving it. The provisions of the Constitution cannot be suspended except as provided by the Constitution itself. The concept of abrogation of the Constitution is alien to the Constitution. The fact that whenever there occurred Constitutional deviation, it was legalised by condonation or validation granted by the Supreme Court, clearly demonstrates that such deviations and actions were avoid ab initio and unconstitutional. The validation or condonation was granted merely to avoid any disruption of civil and personal rights, to maintain continuity of administration and governance and to bring the polity and system of government on democratic and constitutional rails. But such situation, with reference to Article 6 of the Constitution has to be viewed with greater seriousness. [p. 510, 511] X
Significantly by employing the words “any law”, the intention of the Constitution seems to be that Article 8 will apply to all laws made by the Majlis-e-Shoora (Parliament) be it general or any law to amend the Constitution. Likewise no enactments can be made in respect of teh provisions of the Constitution relating to judiciary by which its independence and separation from executive is undermined or compromised. These are in-built limitations in the Constitution completely independent from political morality and force of public opinion. [p. 511] Z
(g) Constitution of Pakistan (1973) Articles 48, 58, 91 and 92
The Constitution of 1973 had vested supreme power to the Prime Minister and though democratic in form it was Prime Ministerial in character. Amendments made in Articles 48, 58, 91 and 92 have curtailed the power of teh Prime Miister and have strengthened the hand of the President. In a democratic system check and balance is provided to avoid autocratic rule and to provide balance of power for a proper functioning of the Government according to the Constitution. No doubt the amendments particularly Article 58(2)(b) have tilted the balance in favour of the President, yet this Court has structured and circumscribed the discretionary power of dissolution. One reason given in favour of Article 58(2)(b) is that it prevents Constitutional deviation. This seems to be plausible because when Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary, the President may exercise his power before any person, agancy or authority taking advantage of such situation strikes not at the Assembly but at the Constitution. One may comment that to save the Constitutoin, Assembly is dissloved. The exercise of power under Article 58(2)(b) or Constitutional deviation can be avoided not by the letters of the Constitution but by political ethics, morality and maturity. Unless a responsible Government exists whcih has respect for law, opportunity shall continue to be provided for Constitutional strike. [p. 518] II
(h) Constitution of Pakistan (1973) Article 58(2)(b)
Article 58(2)(b) brought in the Constitution by the Eighth Amendment, whcih maintains Parliamentary Form of Government has provided checks and balances between the powers of the President and the Prime Minister to let the system work without let or hindrance to forestall a situation in which martial law could be imposed. [p. 521] VV
Per Raja Afrasiab Khan, J.
(i) Constitution of Pakistan (1973) Articles 184, 185, 239, 238 and 2A
It has not been argued before us that the method to amend the Constitution under Article 239 was not adopted by the Parliament in passing the Eighth Amendment. Article 239 provides a mechanism for the amendment of the Constitution. The Amendment Bill may originate in either HOuse and it has to be passed by the votes of not less than two-third of the total membership of the House. It was admitted that the Eighth Amendment Act, 1985 was unanimously passed by the Parliament. Relying upon Articles 238 and 239 of the Constitution and the rule laid down by this Court in Zia-ur-Rehman’s case supra, it can be said that this Court is not competent to strike down the Eighth Amendment which has competently been passed by the Parliament. [p. 536] AAA
The clearly proceeded in good faith as if the impugned amendment was validly and lawfully enacted by the competent Parliament. This can, therefore, be said that dissolution orders of the Assemblies were passed on the assumption that Article 58(2)(b) was validly enacted. This being the position, by implication, this Court has time and again held that the impugned amendment is valid. In this factual background, day to day affairs of the Federation of Pakistan were carried on smoothly without any let or hindrance or objection since the time when the amendment was brought inthe Court. [p. 537] DDD
In case of Hakim Khan v. Government of Pakistan (PLD 1992 SC 595), It has been laid down that Article 2A is not a supra-Constitutional provision inasmuch as it has become an essential and integral part of the Constitution possessing the same weight and status as the other Articles of the Constitution which are already a substantive part thereof. This case arose out of a decision which was rendered by a Full Bench of the Lahore High Court in Mst. Sakina Bibi v. Federation of Pakistan (PLD 1992 Lahore 99). [p. 538] EEE
It has been said in Hakim Khan’s case (supra) that every provision of the Constitution has to be given its meaning and effect. No substantive Constitutional provision can be given any superiority over the other provisions. They have to be read alongwith other provisions as an integral part of the Constitution which is an organic document having come to stay once for all unless it is amended in accordance with Article 239 of the Constitution. [p. 541] FFF
They, therefore, need no further discussion. As already held above, this is not within the authority of this Court to declare the amendment in question as invalid muchless to repeal the Constitution of 1973. [p. 542] HHH
Dates of hearing : 14th to 18th, 21st to 23rd December, 1996, 7th, 8th, 11th and 12th January, 1997.
IN THE SUPREME COURT OF PAKISTAN
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ
MR. JUSTICE MIAN SHAKIRULLAH JAN
MR. JUSTICE TASSADUQ HUSSAIN JILLANI
MR. JUSTICE NASIR-UL-MULK
MR. JUSTICE JAWWAD S. KHAWAJA
MR. JUSTICE ANWAR ZAHEER JAMALI
MR. JUSTICE KHILJI ARIF HUSSAIN
MR. JUSTICE TARIQ PARVEZ
MR. JUSTICE MIAN SAQIB NISAR
MR. JUSTICE SARMAD JALAL OSMANY
MR. JUSTICE AMIR HANI MUSLIM
REFERENCE NO. 1 OF 2011
[REFERENCE BY THE PRESIDENT OF THE ISLAMIC REPUBLIC OF PAKISTAN UNDER ARTICLE 186 OF THE CONSTITUTION TO REVISIT THE CASE OF ZULFIQAR ALI BHUTTO REPORTED AS PLD 1979 SC 38 & 53]
On behalf of President: Mr. Babar Awan, Sr. ASC
On Court notice: Moulvi Anwarul Haq
Attorney General forPakistan
Mr. Dil Muhammad Khan Alizai, DAG
Mr. Amanullah Kanrani, AG, Balochistan
Mr. Asadullah Chamkani, AG, KPK
Mr. Jawad Hassan, Addl. AG,Punjab
Mr. Miran Muhammad Shah, Addl. AG, Sindh
Amicus Curiae: Ch. Aitzaz Ahsan, Sr. ASC
Mr. Makhdoom Ali Khan, Sr. ASC
Mr. Abdul Latif Khan Afridi, ASC
Mr. Ali Ahmad Kurd, ASC
Mr. Yasin Azad, ASC/President, SCBA
Complainant: Mr. Ahmad Raza Khan Kasuri, Sr. ASC
In CMA No. 1629/2011 Nemo.
In CMA No. 1758/2011 Nemo.
Date of hearing: 17.01.2012 -.-.-
IFTIKHAR MUHAMMAD CHAUDHRY, CJ. – On 05.01.2012, an order was passed but instead of repeating the facts noted therein, the said order is reproduced hereinbelow in extenso: –
“Dr. Babar Awan was enrolled as Advocate of this Court on 29.05.2000 and status of Sr. ASC was conferred upon him on 29.05.2008. Presently, he is appearing in Reference No. 1 of 2011 sent by the President of Pakistan under Article 186 of the Constitution. Hearing of the Reference, considering it to be one of the most important matters, is pending in this Court for the last few months. On 04.01.2012, a notice of contempt of Court was issued to him by a Bench of this Court comprising two Hon’ble Judges in respect of a press conference addressed by him on 01.12.2011. After receipt of notice, he addressed the electronic media at the podium of the Supreme Court Gate and perhaps when inquired from him about issuance of the notice, he stated that in the past too, criminal cases were registered against him when he was conducting the cases of Mohtarama Benazir Bhutto and the incumbent President Mr. Asif Ali Zardari and concerning the contempt notice issued to him, he uttered the following words: –
This utterance made on the electronic media was telecast by different channels, which believably had been seen by a large number of people. The content of the utterance, the gestures made and the body language were indicative of an attempt to ridicule the Court. We have inquired from Dr. Babar Awan about it, who instead of denying the same, stated that the words uttered on the television in fact reflected respect. To fully appreciate the content and the manner of what he said, we asked the Secretary Information to make arrangement for displaying the relevant video clips. Accordingly, on multimedia affixed in the courtroom, DVD was played which was not only watched by the senior members of the bar, but also by Mr. Yasin Azad, President, Supreme Court Bar Association and Mr. Latif Afridi,Vice Chairman,PakistanBar Council. Both of them have condemned the same. Mr. Latif Afridi went to the extent of saying that these things should not have happened and in any case he would stand by the judiciary in the matter. We believe that interaction between the Bench and the Bar depends upon mutual respect. Irrespective of the fact which Bench issued the notice, the fact remains that it was part of the judiciary, therefore, a person who is a senior counsel appearing before the Supreme Court, instead of uttering the words reproduced above and making gestures as if he had no care for the issuance of the notice because prior to the utterance under consideration, he said that in the past too he had been charged with criminal cases for conducting the cases of Mohtarama Benazir Bhutto and Asif Ali Zardari. We do not know those facts, but prima facie, we are of the view that the conduct of Dr. Babar Awan is unbecoming of an Advocate of the Supreme Court, therefore, we issue notice to him under Rule 30 of Order IV of the Supreme Court Rules, 1980 to explain as to why his name be not removed from the Roll of the Advocates of this Court.
- Registrar is directed to hand over copies of the notice and the DVD to Dr. Babar Awan, which shall be furnished to him by the Secretary Information during the course of the day. He may file reply to the notice on or before 09.01.2012. Proceedings of the Reference are also postponed till the next date of hearing.”
- In compliance with the above order, notice was issued to Mr. Babar Awan, Sr. ASC, which was served upon him reportedly on 05.01.2012 as the case was fixed for hearing on 09.01.2012, but the same could not be taken up due to unavoidable circumstances, as such, it was postponed for today.
- Mr. Babar Awan, Sr. ASC has appeared and has stated that he needs some time to engage a counsel. It has been pointed out to him that more than sufficient time has already been granted to him and as this Bench is seized with one of the most important cases, i.e., the Reference sent by the President of Pakistan under Article 186 of the Constitution concerning the death sentence awarded to late Zulfiqar Ali Bhutto, former Prime Minister of Pakistan. Therefore, we have to proceed with the case, as early as possible, without causing delay in any manner and unless the question of notice, which has been issued to him under Order IV rule 30 of the Supreme Court Rules, 1980 is decided, it would not be appropriate to proceed with the Reference. It may not be out of place to mention here that on the last date of hearing when the order dated 05.01.2012 was passed, video clips were repeatedly displayed in the Courtroom in the presence of Mr. Babar Awan, Sr. ASC wherein he had uttered certain words/made gestures after receipt of the contempt of Court notice issued to him by a Bench of two Hon’ble Judges of this Court with a view to show a degree of hatred by him. After seeing the video clips, the members of the legal fraternity present in the Courtroom and in particular, Mr. Latif Afridi,Vice Chairman,PakistanBar Council and Mr. Yasin Azad, President, Supreme Court Bar Association, voluntarily came to the rostrum and condemned the above words and gestures of Mr. Babar Awan. Mr. Latif Afridi went to the extent of saying that such things ought not to have happened, and that, in any case, they would stand by the judiciary in the matter.
- We have already observed that good relationship between the Bench and the Bar depends upon mutual respect. This institution, being the apex Court under the Constitution, deserves to be respected by all concerned, particularly the Advocates and the members of the legal fraternity to whom licences are issued for appearing before this Court. If the institution like the Supreme Court is not respected and an attempt is made to lower its prestige in the eyes of the general public, then it would be very difficult to administer justice because this is the Court whose working/decisions send a message down to the Court of the Magistrate and the Civil Judge that they should administer justice without fear or favour, and if the Court is maligned by anyone, then it would not be possible to maintain its dignity and status.
- We have been informed that it is not the first time that Mr. Babar Awan has been issued contempt of Court notice by a 2- Member Bench of this Court, but prior to it also, the Lahore High Court had issued similar notices to him. He had been appearing before this Court and this Court has always respected him, but the attitude shown by him on 04.01.2012 after receipt of notice, details of which have been mentioned hereinabove, compelled this Court to issue a notice to him in terms of Order IV rule 30 of the Supreme Rules, 1980.
However, without dilating further upon the matter, in order to provide him fair opportunity, we grant him time to file reply, but at the same time to ensure dignity and respect of the Court, we temporarily suspend his licence to appear before this Court. And, no sooner he has engaged a counsel and filed the reply, he would make a request to the Registrar for the purpose of taking up this matter.
- As far as the Presidential Reference is concerned, we ask the learned Attorney General for Pakistan to inform the President of Pakistan that in view of the order dated 05.01.2012 and today’s order, the licence of Mr. Babar Awan, Sr. ASC has temporarily been suspended, therefore, it would be appropriate if another counsel is appointed to address arguments in the Reference, which indeed is one of the most important cases in the history of this Court.
- The Registrar is directed to collect the enrolment files of Mr. Babar Awan from the Pakistan Bar Council and the Punjab Bar Council where he was enrolled as Advocate of the High Court as well as the judicial files in pursuance whereof he was issued contempt of Court notices by the Lahore High Court, so that we may know the result thereof.
- The case is adjourned to a date in office and shall be taken up no sooner the President of Pakistan nominates another counsel to address this Court in the Reference.
IFTIKHAR MUHAMMAD CHAUDHRY, CJ.
MIAN SHAKIRULLAH JAN, J. TASSADUQ HUSSAIN JILLANI, J.
NASIR-UL-MULK, J. JAWWAD S. KHAWAJA, J.
ANWAR ZAHEER JAMALI, J. KHILJI ARIF HUSSAIN, J.
TARIQ PARVEZ, J. MIAN SAQIB NISAR, J.
SARMAD JALAL OSMANY, J. AMIR HANI MUSLIM, J.
Islamabad, the 17th January, 2012
APPROVED FOR REPORTING
IN THE SUPREME COURT OF PAKISTAN
Mr. Justice Iftikhar Muhammad Chaudhry, CJ
Mr. Justice Anwar Zaheer Jamali
Mr. Justice Sarmad Jalal Osmany
Mr. Justice Amir Hani Muslim
Mr. Justice Ghulam Rabbani
SUO MOTU CASE NO. 16 OF 2011
[Suo Motu Action regarding law and order situation inKarachi]
CONSTITUTION PETITION NO. 61 OF 2011
Watan Party & another … PETITIONERS
Federation ofPakistan& others … RESPONDENTS
Petitioner: Barrister Zafarullah Khan, ASC
(Const. P. 61/2011)
On Court notice: Maulvi Anwar-ul-Haq, Attorney General forPakistan
Syed Ashiq Raza, DAG
Mr. M. Shoaib Shaheen, DAG
Raja Aleem Abbasi, DAG
Ms. Asma Jehangir, ASC/President SCBA
Mr. Anwar Mansoor Khan, Sr. ASC/President, SHCBA
Mr. Abdul Fattah Malik, AG Sindh
Mr. Shahadat Awan, P.G. Sindh
Mr. Wajid Ali Durrani, I.G.P, Sindh
Mr. Saud Ahmad Mirza, Addl. I.G. Sindh
Mr. Anwar Subhani, Legal Consultant
ForProvinceofSindh: Mr. Abdul Hafeez Pirzada, Sr. ASC
[assisted by Mr. Abdul Sattar Pirzada, Adv.]
For the Federation: Dr. Babar Awan, Sr. ASC
Mr. A.S.K. Ghouri, AOR
For M/o Interior: Mr. Arif Chaudhry, ASC
Mr. A.S.K. Ghouri, AOR
For the applicant: Syed Iftikhar Hussain Gillani, Sr. ASC
For the applicant: Mr. Abdul Mujeeb Pirzada, Sr. ASC
(CMA 531-K/2011) Mr. Mazhar Ali B. Chohan, AOR
Applicants: Mr. Muhammad Aqil, Advocate, President KBA
(CMA 532-K/2011) Syed Haider Imam Rizvi, Advocate, Gen. Secy.
Mr. Iftikhar Javed Qazi, ASC, Vice Chairman
Sindh Bar Council
For the applicant: Mr. Ghulam Qadir Jatoi, ASC/AOR
For the applicant: Khawaja Naveed Ahmad, ASC
(CMA 535-K/2011) Mr. Mazhar Ali B. Chohan, AOR
For the applicant: Mr. Irfanullah Marwat in person
(in CMA 541-K/2011)
For the applicant: Syed Iqbal Haider, Sr. ASC
(in CMA 544-K/2011) Mr. K.A. Wahab, AOR
For the applicant: Mr. Faisal Kamal Aalam, ASC
(in CMA 546-K/2011)Mr. Ghulam Qadir Jatoi, AOR
For the applicant: Mr. Rasool Bux Palijo, ASC
(in CMA 552-K/2011)Mr. Ghulam Qadir Jatoi, AOR
For the applicant: Mr. Jamil Ahmad Virk, ASC
(in CMA 555-K/2011)Mr. Mazhar Ali B. Chohan, AOR
For the applicant: Mr. Javed Ahmad Chhattari, Adv. In person
(in CMA 558-K/2011)
For the applicant: Mr. Ashraf Samoo, Advocate/ President
(in CMA 560-K/2011)Malir Bar Association
For the applicant: Mst. Surriya in person
(in CMA 561-K/2011)
For the applicant: Dr. Farogh Naseem, ASC
(in CMA 565-K/2011)Dr. Kazi Khalid Ali, ASC
Mr. Izhar Alam Farooqi, AOR
For the applicant: Afaq Ahmed (through Jail)
(in CMA 569-K/2011)
Dates of hearing: 26 & 29-30 August, 5-9 & 13-16 September, 2011
IFTIKHAR MUHAMMAD CHAUDHRY, CJ. - Islam is a religion of peace and tolerance and it stands for safety, security and sanctity of human life. Islam abhors unlawful killing of innocent people and strictly prohibits it in a number of Quranic verses and Ahadith. In Surah Al-Maidah verse 32, Allah says:- "Because of that, We ordained for the Children of Israel that if anyone killed a person not in retaliation of murder, or to spread mischief in the land - it would be as if he killed all mankind, and if anyone saved a life, it would be as if he saved the life of all mankind. And indeed, there came to them Our Messengers with clear proofs, evidences, and signs, even then after that many of them continued to exceed the limits (e.g. by doing oppression unjustly and exceeding beyond the limits set by Allah by committing the major sins) in the land."
Some of the other verses of the Holy Quran are as under:-
“And (remember) when We took your covenant (saying): Shed not the blood of your (people), nor turn out your own people from their dwellings. Then, (this) you ratified and
(to this) you bear witness.” [Sura Al-Baqarah verse 84]
“And whoever kills a believer intentionally, his recompense is Hell to abide therein; and the Wrath and the Curse of Allah are upon him, and a great punishment is prepared for him.” [Sura An-Nisa verse 93]
The Holy Prophet [SAW] said –
“O People, just as you regard this month, this day, this city as Sacred, so regard the life and property of every Muslim as a sacred trust. Return the goods entrusted to you to their rightful owners. Hurt no one so that no one may hurt you. Remember that you will indeed meet your Lord, and that He will indeed reckon your deeds. … …” [The Farewell
“The biggest sins are: To join others in worship with Allah; to be undutiful to one’s parents; to kill somebody unlawfully; and to take an oath Al-Ghamus.” [Sahih Bukhari, Vol VIII, P.434, Number 667]
“Narrated Abdullah bin Umar: One of the evil deeds with bad consequence from which there is no escape for the one who is involved in it is to kill someone unlawfully.”
[Sahih Bukhari, Vol IX, P.2, Number 3]
- This aspect of the Islamic teachings, as well finds its reflection in the Constitution of the Islamic Republic of Pakistan 1973. The Constitution, in its very Preamble, postulates that the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed and the fundamental rights, including equality of status, of opportunity and before the law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality; shall be fully guaranteed. These very principles have been made a substantive part of the Constitution under Article 2A.
Thus, it is the duty of the State to protect and safeguard all these Fundamental Rights including the right to life and liberty as envisaged by Article 9 of the Constitution, which has been interpreted by this Court in Shehla Zia’s case (PLD 1994 SC 693) as under: –
“Article 9 of the Constitution provides that no person shall be deprived of life or liberty save in accordance with law. The word “life” is very significant as it covers all facts of human existence. The word “life” has not been defined in the Constitution but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally. For the purposes of present controversy suffice to say that a person is entitled to protection of law
from being exposed to hazards of electromagnetic fields or any other such hazards which may be due to installation and construction of any grid station, any factory, power station or such like installations. Under the common law a person whose right of easement, property or health is adversely affected by any act of omission or commission of a third person in the neighbourhood or at a far off place, he is entitled to seek an injunction and also claim damages, but the Constitutional rights are higher than the legal rights conferred by law be it municipal law or the common law. Such a danger as depicted, the possibility of which cannot be excluded, is bound to affect a large number of people who may suffer from it unknowingly because of lack of awareness, information and education
and also because such sufferance is silent and fatal and most of the people who would be residing near, under or at a dangerous distance of the grid station or such installation do not know that they are facing any risk or are likely to suffer by such risk. Therefore, Article 184 can be invoked because a large number of citizens throughout the country cannot make such representation and may not like to make it due to ignorance, poverty and disability. Only some conscientious citizens aware of their rights and the possibility of danger come forward.”
- In case of Arshad Mehmood v. Government of Punjab (PLD 2005 SC 193) also, the Court observed that the word ‘life’ used in Article 9 of the Constitution includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally. The word ‘life’ in the Constitution has not been used in a limited manner; a wide meaning should be given to enable a man not only to sustain life but to enjoy it. The State is duty bound to protect the life and property of its citizens in accordance with law against all the atrocities, target killings, homicide, etc. The basic human rights of life, liberty and enjoyment of one’s property have been recognized nationally as well as internationally. Article 3 of the Universal Declaration of Human Rights provides that ‘everyone has the right to life, liberty and security of person’, no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment; everyone has the right to recognition everywhere as a person before the law; and all are equal before the law and are entitled without any discrimination to equal protection of the law. Article 17 ibid lays down that ‘every one has the right to own property alone as well as in association with others. It is worth mentioning here that no society can make any progress in a state of chaos and disorder. It is manifest to hypothesize that the law and order condition prevailing in a country has a direct and significant bearing on the pace and pattern of economic development of that country. The existence of basic socioeconomic framework of the country and the continuation of economic growth without any hindrance or interruption depends upon subsistence of better law and order situation. In case of break-down of peace on account of any factors negative effect is exerted on the economic growth. Better law and order as a determinant of economic development was spelled out in explicit terms in the theories of growth advanced by economists such as J.J Spangler and W. W. Rostow. In his Theories of Socio-economic Growth, Problems in the Study of Economic Growth, 1949, J.J. Spangler has mentioned that the structure of the prevalent value system of a community can reasonably be considered as an important condition of law and order, because the value system defines the basic norms and ethos of human conduct. For example, if the value system of a society is predominated by sectarian or ethnic dispensations, then such a society would be continuously ridden by law and order problems, thus putting frequent twists and turns to the process of economic growth. W.W. Rostow, in Politics and the Stages of Growth, 1971, has extended the theme of stage, ‘propensities’ and their linkages to the role of political factors, institutions and the law and order framework in determining the pattern of economic growth. The primary tasks of any legal government are defined as the provision of security, welfare and growth, and constitutional order. Thus there is a clear cut interconnection between law and order and economic development.
- Article 14 of the Constitution of Pakistan ensures dignity of every individual. In the case of ‘Commissioner of Income Tax v. Eli Lilly Pakistan’ reported as 2009 SCMR 1279, this Court observed that: “It is the duty and obligation of the State on account of the various provisions of the Constitution to provide the atmosphere based on honesty by providing equal protection of law. Every citizen must be treated equally, dignity of human being life should be maintained, and liberty of life and honour must be guaranteed as envisaged in the Articles 9, 14 and 25 of the Constitution.”
- Articles 15 and 18 of the Constitution, respectively relate to freedom of movement etc. and freedom of trade, business or profession and have been interpreted by this Court in the case titled “Government of Pakistan v. Zamir Ahmad” reported as PLD 1975 SC 667, in the following words: –
“Article 18 of the Constitution of Pakistan, which relates to the freedom of trade, business or profession, which corresponds to Article 15 of the interim Constitution, and which incidentally held the field at the relevant time, assures the citizens the right to enter upon any “lawful profession of occupation” and “to conduct any lawful trade or business”. It is important to point out that the word “lawful” qualifies the right of the citizen in the relevant field. This clearly envisages that the State can by law ban a profession, occupation, trade or business by declaring it to be unlawful which in common parlance means anything forbidden by law. Prostitution, trafficking in women, gambling, trade in narcotics or dangerous drugs are common place instances of unlawful profession or trade. These are inherently dangerous to public health or welfare. Therefore, on the wording of Article 18 of the Constitution, the right to enter upon a profession or occupation or to conduct trade or business can hardly be described to be a Constitutional or Fundamental Right when such right may be denied by law. In this respect our Constitution stands in sharp contrast with the corresponding provision of the Indian Constitution which omits the use of word “lawful” in the relevant Provision.”
The same principle was enunciated by this Court in the case of Arshad Mehmood (supra). This Court observed that the Government has the authority to regulate a lawful business or trade. Reasonable restriction, however, does not mean prohibition or prevention completely. Article 24(1) of the Constitution envisages that no person shall be deprived of his property save in accordance with law.
- Any democratic set up consisting of citizens and functionaries in the country under the Constitution is bound to show its loyalty to the State, for to be loyal and faithful to the State is the basic duty of every citizen under Article 5 of the Constitution. This Court in the case of Shahid Orakzai v. Pakistan through Secretary Law (PLD 2011 SC 365) held that Article 5(2) of the Constitution has mandated that obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may be and for every other person for the time being withinPakistan. The chosen representatives, who have acquired authority on behalf of their electors as members of the National Assembly, Senate or Provincial Assemblies as per mandate of their oath, which they take before entering upon office, are bound to bear true faith and allegiance toPakistan. The oath of the office of members of the National Assembly and Senate as set out in the Third Schedule provides that the members will perform their functions honestly, to the best of their ability, faithfully and in accordance with the Constitution and law; that they will act in the interest of the sovereignty, integrity, solidarity, well-being and prosperity ofPakistanand they will preserve, protect and defend the Constitution. Therefore, while holding a constitutional office, the chosen representatives of the people have to remain true to their oath and to observe constitutional limits in all circumstances.
- As per the scheme of the Constitution, all the federating units, namely, Balochistan, Khyber Pakhtunkhwa, Punjaband Sindh are the essential components of the Federation by virtue of the parliamentary system of government prevalent in the country. The Federal Government is being run through Prime Minister and Federal Ministers and their executive authority extends to the matters with respect to which Parliament has power to make laws, etc. Similarly the Provincial set-up is being run through Chief Minister and the Provincial Ministers. The Governor of a Province is to be appointed as per Article 101 by the President on the advice of the Prime Minister. It is to be noted that the Governor who is holder of a constitutional post and acts as the agent of the President, has to keep the Federation informed of the affairs of the Province, although as per Article 105, the Governor shall act on the advice of the Cabinet or the Chief Minister.
- Under Article 130 of the Constitution the Chief Minister of the Province has to be elected by the votes of the majority of the total membership of the Provincial Assembly. The member who gets majority votes of the total membership shall be called upon by the
Governor to assume the office of the Chief Minister and holds office during the pleasure of the Governor, however, at any time, if the Governor is of the opinion that the Chief Minister is not commanding majority in the House, he shall summon the Provincial Assembly and require the Chief Minister to obtain a vote of confidence from the Assembly. The Chief Minister shall cease to hold office if a resolution for vote of no-confidence is passed by a majority of the total membership of the Provincial Assembly as per Article 136. The President can suspend the functions of the Provincial Assembly subject to availability of the circumstances under Article 234. The Governor shall not exercise his powers under this clause unless he is satisfied that the Chief Minister does not command the confidence of the majority of the members of the Provincial Assembly. In case the Governor intends to act against the Chief Minister, then it is incumbent upon him to summon the Provincial Assembly and require the Chief Minister to obtain a vote of confidence from the Assembly as referred to above. Reference may also be made to the case of Muhammad Anwar Durrani v. Province of Baluchistan reported as PLD 1989 Quetta 25 wherein the Court while interpreting Articles 107 and 112 of the Constitution observed as under: –
“Under Article 107 of the Constitution, duration of Provincial Assembly is five years. Therefore, dissolution of Provincial Assembly before its constitutional period must be justified on the definite reasons provided by the Constitution…… extraordinary powers of dissolution of Assembly, must be exercised carefully, faithfully and in accordance with the provisions of the Constitution. According to their admissions, the Chief Minister had no clear majority except with the casting vote of the Speaker. In such circumstances, Constitution properly demanded that advice of such Chief Minister should have been weighed with caution and sanctity of basic charter should have been maintained. An Assembly is an important organ of the State and every effort should have been explored which is possible under the law to save the Assembly from dissolution. … … Governor, before taking extreme action of dissolution of Assembly under the advice of Chief Minister, ought to have advised him to seek vote of confidence before his advice was accepted. We have come to the conclusion that a Chief Minister who had not obtained vote of confidence from majority members of an Assembly could not advise the Governor to dissolve the Assembly under Art. 112(1) of the Constitution.”
However, a Provincial Assembly cannot be dissolved by the Governor except under circumstances warranting such dissolution as per Article 112.
- A Proclamation of Emergency may be issued by the President of Pakistan providing for imposition of emergency due to internal disturbance beyond the power of Provincial Government to control, a resolution from Provincial Assembly of the Province shall be required, however, if the President acts on his own, the Proclamation shall be placed before both houses of parliament for approval of each house within 10 days. As per Article 232(7), a Proclamation of Emergency is to be laid before a joint sitting and shall cease to be in force at the expiration of two months, unless before the expiration of that period it has been approved by resolution of the joint sitting. proclamation issued under Article 234 may, by like resolution, be extended for a further period not exceeding two months at a time, but no such Proclamation shall in any case remain in force for more than six months. It is competent for the Majlis-e-Shoora (Parliament), in terms of Article 234(5) of the Constitution, in joint sitting to, inter alia, confer on the President the power to make laws with respect to any matter within the legislative competence of the Provincial Assembly. Under Article 245 of the Constitution, the Federal Government also
intervenes in the affairs of the Provinces and may call upon the military to act in aid of civil administration.
- The Federation and Provinces are equally responsible to adhere to the provisions of the Constitution, particularly for ensuring the enforcement of Fundamental Rights as guaranteed by the Constitution. The Federal and the Provincial Governments, though not directly, but indirectly share their responsibility in running the affairs of the Province in accordance with the relevant provisions of the Constitution.
- The National as well as Provincial Assemblies have to uphold constitutional norms but unfortunately, in the past, the political parties were blamed for having failed to assert their role in bringing true democratic rule based on the norms of social justice, peace and
tranquility and on account of non-adherence to the constitutional provisions, which, resulted in dissolution of these bodies. In the years 1958, 1977 and 1999, when the Army Generals, in their wisdom, dismissed the Governments, dissolved the Assemblies and imposed martial law in the country. Each time, the matter came up before this Court, but legality was accorded to the acts of the Generals. It was, however, for the first time in November, 2007 when like action taken by the then Chief of Army Staff was not accepted by the Superior Judiciary, which ultimately led to the ouster of the retired General and restoration of the democratic set up in the country.
- Primarily, it is the responsibility of the Provincial Government to maintain law and order in the territories of the respective Provinces for the purpose of smooth running of economic and social life and without disturbance in the daily affairs because if the life and liberty of the citizens is, in any part of a Province at stake, highhandedness continues to remain unabated; atrocious acts like target killings, torture, extortion, etc., become the order of the day and then neither the Provincial Government can discharge its duties nor the people consider themselves safe and protected. Virtually, in that case, discomfort painfully envelops the whole Province and decay soon creeps in breaking the very fabric of human life of the citizens.
- The city ofKarachiis the Capital of theProvinceofSindh, and undoubtedly the hub of great economic and financial activities.Karachicontinues to be an important financial and industrial centre for Sindh and the whole country and handles most of the overseas trade ofPakistanand the Central Asian countries. It accounts for a large portion of the GDP of Pakistan.Karachi’s population has continued to grow and is estimated to have exceeded 18 million people. According to a legend, this city started as a fishing settlement, where a fisherwoman, Mai Kolachi, settled and started a family. The village that grew out of this settlement was known as Kolachi-jo-Goth (The Village of Kolachi in Sindhi). When Sindh started trading across the sea withMuscatand thePersian Gulfin the late 18th century,Karachigained in importance; a small fort was constructed for its protection with a few cannons imported fromMuscat. The fort had two main gateways: one facing the sea, known as Khara Dar (Brackish Gate) and the other facing the adjoining Lyari river, known as the Meetha Dar (Sweet Gate). The location of these gates corresponds to the present-day city localities of Khaaradar (Khārā Dar) and Meethadar (Mīṭhā Dar) respectively. By passage of time, it grew into a bigger city. The foundations of a city municipal government were laid down and infrastructure development was undertaken. New businesses started opening up and the population of the town began growing rapidly. In 1878, the city was connected to the rest ofBritish Indiaby rail. Public building projects such as Frere Hall (1865) and the Empress Market (1890) were undertaken. In 1876, Muhammad Ali Jinnah, the founder ofPakistan, was born in the city, which by now had become a bustling city with mosques, churches, courthouses, markets, paved streets and a magnificent harbour. By 1899Karachihad become the largest wheat exporting port in the east. The population of the city was about 105,000 inhabitants by the end of the 19th century, with a cosmopolitan mix of Muslims, Hindus, Europeans, Jews, Parsis, Iranians, Lebanese, and Goans. By the turn of the century, the city faced street congestion, which led toSouth Asia’s first tramway system being laid down in 1900. In later years, soKarachiprospered as a major centre of commerce and industry during the Raj, attracting communities of: Africans, Arabs, Armenians, Catholics fromGoa, Jewish, Lebanese, Malays, and Zoroastrians (also known as Parsees) – in addition to a large number of businessmen. As the movement for independence almost reached its conclusion, the city suffered widespread outbreaks of communal violence between the majority Muslims and the minority Hindus, who were often targeted by the incoming Muslim refugees. In response to the perceived threat of Hindu domination, self preservation of identity, language and culture in combination with Sindhi Muslim resentment towards wealthy Sindhi Hindus, theprovinceofSindhbecame the firstprovinceofIndiato pass the Pakistan Resolution, in favour of the creation of the Pakistani state. The ensuing turmoil of independence led to the expulsion of most ofKarachi’s Hindu community. While many poor low caste Hindus, Christians, and wealthy Zoroastrians (Parsees) remained in the city,Karachi’s native Sindhi Hindu community fled toIndiaand was replaced by Muslim refugees who, in turn, had been uprooted from regions belonging toIndia. DistrictKarachiwas chosen as the capital city ofPakistanand it accommodated a huge influx of migrants and refugees fromIndiato the newly formed country. As a consequence, the demographics of the city changed drastically. However, it still maintained a great cultural diversity as its new inhabitants arrived from different parts ofIndia. In 1958, the capital ofPakistanwas shifted fromKarachitoIslamabadandKarachithus became the capital of Sindh. During the 1960s,Karachiwas seen as an economic role model around the world. Many countries sought to emulatePakistan’s economic planning strategy and one of them,South Korea, copied the city’s second “Five-Year Plan” and World Financial Centre inSeoulis designed and modeled afterKarachi. With economic growth and prosperity, peace and tranquility reigned in the city, business places were full of activity till late night with a lot of hustle and bustle seen all around and it came to be known as the city of lights. Being a big port city, it contributed, roughly stating, about 60-70 per cent of the total revenue of the country.
- The 1980s and 90’s saw an influx of illegal Afghan refugees from the Afghan war intoKarachi. Political tensions erupted and the city was wracked, at different points of time, with violence among groups widely speculated to be aligned with various political parties. In this behalf, a reference is made to the report of the Commission of Enquiry into Karachi Affairs filed by Syed Iqbal Haider, ASC, which reflects, inter alia, the figures relating to population, geographical area, roads, vehicles, housing, police, number of riot cases of the years from 1985 to 1989, number of persons killed/injured, number of police officers/men martyred/injured, damage to private and public property including vehicles, petrol pumps, houses, shops, factories, cinemas, offices, schools, banks, police stations, railway stations, telephone exchanges, hospitals, imposition of curfews on account of clashes between religious groups (Shias & Sunnis), clashes between police and residents, ethnic riots, drug mafia, firing and looting, etc.
- The law and order worsened during the period from 1992 to 1994 when Operation Clean up was, allegedly, launched against Mohajir Qaumi Movement (MQM). Constitution Petition No.46 of 1994 was filed before this Court by MQM (Mohajir Qaumi Movement) through Senator Ishtiaq Azhar, Convener Central Coordination Committee. It was submitted in the said petition, inter alia, that the law and order situation inKarachi was deteriorating day by day, the workers of MQM were abducted, arrested and murdered and their dead bodies were not handed over to their relatives. It was further submitted that thousands of members of MQM were denied protection from illegal arrest without any warrant, extra-judicial detention, death in custody, etc. It was asserted that Fundamental Rights of the petitioner contained in Articles 9, 10, 14, 15, 16, 17, 18, 19, 22, 25 and 25 were violated, therefore, a declaration was sought that the petitioner be allowed to function in accordance with the scheme of the Constitution. A voluminous reply was filed on behalf of the Federation and the Province denying the allegations attempting to present, allegedly, their side of the case citing horrifying instances holding MQM responsible for the worsening situation. The case was fixed on various dates, but ultimately it was not pursued and vide order dated 26.10.1999, the above petition was dismissed for non-prosecution.
- It appears that on account of the worsening law and order situation, another operation was conducted during the year 1996 and similar action continued thereafter also. In this context, Constitution Petitions Nos. 6 & 13 of 1999 were filed by the MQM wherein complaints of physical torture of the MQM workers and activists by the law enforcement agencies were agitated and directions to the law enforcement agencies for pre- and post-interrogation medical examination of all persons taken into custody by them by an independent medical practitioner of their choice to enable them to obtain certificate about their physical condition, were sought. It was pleaded that no suspect be subjected to any kind of interrogation until such a certificate is handed over to the next of his kin and in the event of evidence of physical torture, the respondent Governments be directed to register appropriate criminal cases against the members of the law enforcement agencies in whose custody the suspect was entrusted for interrogation. Protection was also sought against arrest of elected representatives of MQM unless any incriminating material was available to justify such an action. The case came up for hearing on 14.01.1999, but the representative of the petitioner stated that the case was to be argued by another counsel, therefore, request for adjournment was made. Thereafter, the petitioners never approached this Court for fixation of the petitions.
- Critical/serious and dismal condition of law and order, once again emerged on account of various factors for the past few months, particularly in the months of July and August 2011 as widely reported in the print and electronic media, e.g. Al-Akhbar, The Daily Express, The News, The Daily Nawa-e-Waqt, The Daily Jang, The Daily Times, The Frontier Post, The Daily Nation, The Daily Sahafat, Aaj Ki Awaz and various News Channels, e.g., Express, GEO, SANA, PTV, AAJ, Dunya, Dawn, etc., that the lives and properties of the people of Karachi are not safe, frequent killings of innocent citizens have made their lives miserable; citizens are being abducted for ransom; beheaded dead bodies of innocent people with arms and legs tied and wrapped in sacs, are being recovered in large numbers; street crimes are in abundance and different groups are involved in target killings. Recovery of a large number of dead bodies almost everyday; brutality and heinousness of the offences; passivity of the Government functionaries; involvement of gangs in money extortion, nefarious and bloody activities of land mafia and drug mafia; damage to valuable properties of the citizens; shifting of capital fromPakistantoMalaysiaandBangladesh(as reported in some clippings) and transfer of dead
bodies fromKarachito the places of their origins in different parts of the country causing discomforting stir, harassment and fear in the minds of people, provide substantial evidence thatKarachihas reached the verge of destruction posing a threat to the very stability ofPakistan. Recently, on this issue, different views were being expressed by the observers, analysts and anchor persons about causes of the catastrophe.
- In that scenario, on a note put up by the Registrar of this Court, based on press clippings, CDs and DVDs provided by private TV Channels showing a dismal situation within the jurisdiction of several police stations of Karachi, the instant proceedings were initiated under Article 184 (3) of the Constitution vide order passed on 24.08.2011 in the following terms: –
“I have gone through above noted facts reported in the print/flashed in the electronic media, perusal whereof presents a bleak/dismal picture of bloodshed, arson, kidnapping/abduction for ransom, widespread violence, illegal collection of money (Bhatta) from traders, which prima facie are violative of Articles 9, 14, 15, 18 and 24 of the Constitution. Prima facie, the Executive has failed to protect the life, liberty, dignity, property and freedom of the general public as is manifested in the above note/reported. Therefore, let this note be converted into petition under Article 184(3) of the Constitution. Notice be issued to learned Attorney General forPakistanto appear and submit a comprehensive report about the above incident, which have been taking place inKarachifor the last more than one month. The report should be based on the material to substantiate the same, which should be collected from the Federal and Provincial law enforcement and intelligence agencies.
The Chief Secretary and PPO of theProvinceofSindhare directed through Advocate general to submit details of the incidents in view of the fact noted herein above in the office note. They should also provide the number of persons who have been killed/injured in these incidents for the last one month. They should also place on record copies of the daily situation reports duly prepared by the concerned police officers for the perusal of PPO and the Chief Secretary.
The FIRs and other material be also filed in order to assess violation of the fundamental rights of the citizens noted herein above. Notices be also issued to President, Supreme Court Bar Association as well as President, Sindh High Court Bar Association to appear and assist the Court. Put up in Court on 26th August, 2011.”
- On 26.08.2011, this Court, after a preliminary hearing, in view of ongoing bloodshed, killing, arson, collection of bhatta, etc., being committed inKarachi, passed the following order: – “2. Learned Attorney General forPakistanhas stated that due to paucity of time he could not prepare a report as per the directions of the Court, therefore, he needs some time. It has been explained to him that on account of non-adherence to the constitutional provisions, reference to which has been made herein-above, incidents of brutal murders and commission of heinous crimes have occurred in which, according to the information laid before the Court by the media, gangs are involved in extortion of money, nefarious/bloody activities of land mafia and drugs mafia and damage to the valuable properties of the citizens have taken place, therefore, relevant material need to be collected for ascertaining the extent of the violation of the constitutional provisions as such he may convey to all the law enforcing agencies at Federal and Provincial level that they should provide all the necessary material highlighting the incidents with reference to the jurisdiction of various police stations, involvement of the accused persons, their identity, if possible, and failure of the police functionaries to proceed with them in accordance with law. To achieve this object, he should convene a meeting with the concerned functionaries and place a report on the next date of hearing, as is directed in
order dated 24.08.2011.
- Mr. Abdul Fattah Malik, learned Advocate General Sindh, has submitted copies of DSRs for the period commencing from 24.07.2001 to 23.08.2011 and has also filed brief of more than 232 FIRs which, according to him, could be collected by him so far, therefore, he is required to do the needful before the next date of hearing. Orally, he has pointed out that during the past one month 306 people have been killed and their particulars shall also be furnished. He is required to furnish the same indicating the police stations where people were killed; FIRs, if any, were registered; how many dead bodies of the killed person were found; how many of them were found beheaded and/or their arms and limbs were chopped and whether the investigation commenced and evidence collected or not against the accused involved. We have pointed out to him that he should convey to the Chief Secretary and IGP Sindh who are primarily responsible to ensure law and order in the Province that they should proceed against all types of accused persons across the board and on the next date of hearing he would arrange a presentation in the Court room with reference to details of the police stations where the incidents have taken place and the manner in which the victims were killed, the FIRs registered and the names of persons posted in the police station who are responsible etc. so we may understand that the police is serious in conducting the investigation and to report to/challan the accused; so also in prosecuting them in Courts on solid material so that they may not go scot free on the basis of said information. He is also directed to submit in the same manner the details of the injured persons and the properties destroyed in rowdyism by the culprits and whether in respect of such occurrences evidence has so far been collected or not. The report must be comprehensive one and there should be a presentation on the Power Point by the police. It is to be noted that further proceedings shall, as well, take pace in respect of violation of the constitutional position.
- Mr. Abdul Hafeez Pirzada, learned Sr. ASC, has stated that he would appear on behalf of the Province of Sindh through Chief Executive and shall place important documents on record on or before the next date of hearing.
- Syed Iftikhar Hussain Gillani, learned Sr. ASC, stated that he intends to file an application on behalf of Awami National Party (ANP) to become a party in the instant case. He may do so and even otherwise being a Senior Counsel of this Court he can address the argument on the basis of material if he has in his possession to assist the Court.
- Mr. Babar Awan, learned Sr. ASC, has stated that he will represent the Federation and he has filed nomination on behalf of Secretary, Ministry of Law and Justice,Islamabad.
- Ms. Asma Jehangir, President Supreme Court Bar Association of Pakistan, has stated that there are certain preliminaries which need to be completed by the executive in respect of registration of cases, investigation and arrest of nominated accused persons. According to her, the names of all the accused persons have not been disclosed; no action has been taken against those accused persons whose names have appeared in the FIRs and they have not been arrested. On this, learned Advocate General Sindh has replied that few arrests have taken place. Be that as it may, he is required to submit on the next date of hearing, the details of the same because, unless sufficient evidence is collected, no useful purpose will be served by sending them to face trial.
- Mr. Anwar Mansoor Khan, President Sindh High Court Bar Association, has filed copies of resolutions of the Bar Association as well as press clippings and has pointed out
that during recent incidents starting from January, 2011, nineteen Advocates have been murdered. He has also pointed out that even yesterday i.e. 25.08.2011, one of brilliant Advocates of Sindh High Court namely Mr. Muhammad Murtaza Chinnoy has been brutally yet according to his information the investigation has not been conducted property. The IGP Sindh is directed to look into the matter personally and communicate the report in this behalf through Advocate General Sindh on the next date of hearing. Learned Advocate General Sindh is also required to submit report mentioning the names of the culprits involved in the killings of the Advocates and showing whether they have been arrested or not.
- The Chief Secretary and the IGP Sindh have submitted reports which may be kept on record. Let the case be adjourned to 29.08.2011 to be fixed at Branch Registry of this Court atKarachi.”
- It is important to note that in response to order dated 24.08.2011, the Chief Secretary in his report on the affairs of Karachi, stated as under: –
After 9/11, the Phenomenon of international terrorism emerged in which bomb blasts and beheading of foreigners attracted world attention. The terrorist groups targeted US diplomats and carried out suicide attacks atUSconsulate thrice. The French engineers were killed outside the Sheraton Hotel, even Muharram processions and shrines were not spared, besides suicide attack at CID building.
During the briefing sessions, it was pointed out to me that army operation in the north and insurgency in Balochistan had caused internal displacement, in the garb of which certain criminal/hostile elements have moved intoKarachiand have also smuggled arms. The hostile foreign agencies are backing up to cause chaos in the economic capital ofPakistanunder a clandestine was against the state. Citing various reasons the emerging situation, I was told thatKarachipopulation is approaching 18 million with diverse ethnic communities competing for resources. This mega city has been allowed to expand and grown in an unplanned way by the city managers in the past. Resultantly, the city lacks basic infrastructure to support such a large human settlement and provide basic civic amenities to all the growing urban jungle of Katchi Abadies.
The Police have its own short coming and weaknesses both in terms of man-power and other resources, and have further drained due to security challenged in the post 9/11 scenario.
In early July, 2011 violent incidents took place in which 16 people were killed in Karachi. This was followed by an armed clash on 22nd July, 2011 between militant of two groups in the area of District East (Malir and Landhi), resultantly, 14 people lost their lives. The fragile peace inOrangiTown was disturbed again due to clash between two ethnic communities in the last week of July, 2011 taking a death toll of 37 lives.
On 17th August, 2011, Five (05) dead bodies were found in PS Garden area. On the same day, Ex-MNA was shot dead. These incidents triggered violence in other area i.e. Kharadar, Lyari, Sher Shah, Baldia and Chakra Goth. Resultantly, 62 persons were killed and 95 got injured from 17 to20 August, 2011, which include 03 policemen, who embraced Shahadat in line of duty.
During the past one month there has been incidents of killing.
Cases Registered Persons Killed
Murder Killing 232 306
Gun shot injury 98 159
STEPS TAKEN BY THE CHIEF SECRETARY, SINDH
On 8th July, 2011, the government of Sindh entrusted powers u/s 5 of ATA, 1997 to Pakistan Rangers (Sindh) enabling and making Rangers responsible to apprehend the criminal elements involved in firing and killing of innocent citizens.
The Government of Sindh further authorized Rangers to cordon, search and use force to control the situation in the effected areas ofKarachi. Copy of the Notification bearing
No.SO(LE-I)/HD/6-66/11, dated 8th July, 2011 (copy submitted as Annex A).
On 25th July, 2011, the President of Pakistan, while reviewing theKarachi situation, directed to enhance the operational capability of Police (Annex-B). Accordingly, the Government of Sindh immediately made available and released Rs.450 million for procurement of APCs from HIT.
These 15 APCs will be delivered by end of August, 2011 to Sindh Police.
The policy directive on the subject was issued by the Home Department vide No.SO(LE-II)/HD/3-1/2011 dated23 August, 2011, wherein the lead implementing agency i.e. Police was reminded of legal responsibility to ensure safety of people’s life and establish public order as per law, irrespective of any consideration of political linkage of anyone involved in this cycle of violence. Copy of the letter spelling out the policy of the subject is attached as Annex ‘C’.
- The IGP Sindh also filed a report to the following effect: –
Karachiis the 7th largest city of the world having peculiar/ethnic nature comprising of Punjab, Pakhtoon, Balochi, Sindhi and Urdu speaking communities. It has a population of approximately 18th million and spread over area on 3527 sq. kms.
The ethnic divide became pronounced during last few years as a result of influx of people from other parts of the country. With this change in demography, there are over 150 areas where two or more communities are facing each other.
It has long history of terrorism/violence as is indicated of the cases mentioned below:
HIGH PROFILE CASES
S# Police Station Incidents No. of Deceased
No. of Injured
2004Bomb Blast in Haidery
Masjid situated inside
the compound of
Sindh Madrasat-ulIslam23982.Brigade 2004Bomb Blast in Imam
Bargah Ali Raza
Motor Cade Firing
Bridge10134.Site 2004Bomb Blast at Binoria restaurant
Bomb Blast at Nishtar
12 May, 2007, arrival
of Chief Justice in
Bomb Blast in the
of Ms Benazir Bhutto
Shahrah-e-Faisal1193538.Preedy 2009IED explosion in
near Light House
Traffic Signal, M.A.
17399.Saddar 2010IED explosion Parking
Area in front of
IED explosion Ramp
During past one month there has been incidents of killing:
Cases Registered Persons Killed
Murder/Killing 232 306
Gun shot injury 98 159
In response Karachi Police has arrested 26 accused in target killings in the last month. To date 117 target killings have been arrested and 179 cases have been deterred and challenged.
In the last one month 3075 raids have been conducted wherein 495 Pos/absconders and 1162 criminals have been arrested. 03 K.Koves, 508 Pistols/Revolvers, 02 Rifles, 13 Repeaters and 03 Hand grenades have been recovered from criminals.
The prolonged power and water shortage inKarachicity have also resulted in frequent public disorder on daily basis, which engages the police in fire fighting duties. In the previous months police has arrested 1142 miscreants involves in arson and breach of peace.
Action is also being taken against extortionists/Bhatta collectors. 70 Bhatta collectors have been arrested and 43 cases have been detected. In the previous month 13 extortionists were arrested.
In spite of the limited resources the Police and Law Enforcing Agencies have made hectic efforts to combat the terrorist activities in the city and have been able to control the terrorism and target killing. The law enforcing agencies are now in full control of the situation and are prepared to met any challenging situation for ensuring the safety of life
and property of the citizens.
- On 29.08.2011, the IGP gave a power point presentation in the Courtroom, relevant excerpts whereof are as under: –
Causes of Violence
Recent demographic changes
Ethnicity, Sectarianism and factional in-fighting
Clashes between land and bhatta mafias
Deep mistrust among the ethnic groups
Easy access to illicit weapons and misuse of Arms Licenses
Types of Killings
Killings due to personal enmity
Political motivated killings
Gang war killings
Target killing of Police Officials
Victims of stray/cross fire
ETHNIC INTERFACES/FLASH POINTS IN KARACHI
Katti Pahari Urdu speaking vs. Pathan
Qasba Colony Urdu speaking vs Pathan
Sharafi Goth Urdu speaking vs Baloch
BanarasChowk Urdu speaking vs Pathan
Quaidabad Urdu speaking vs Sunni Tehreek
NewKarachi Sunni Tehreek vs Sipah-e-Sahaba
Sachal Urdu speaking vs Afghanis
SurjaniTown Pathan vs Seraiki speaking
MalirCity Urdu speaking vs Baloch
Landhi Urdu speaking vs Pathan
Al-Falah Urdu speaking vs Baloch
Korangi 2 ½(Chakra Goth) Urdu speaking vs Sindhi
Khokharpar/Saudabad Urdu Speaking vs. Sindhi
DEAD BODIES FOUND BEHEADED/TORTURED
FROM 24-07-2011 TO 24-08-2011
POLICE STATION NO. OF DEAD BODIES
N.K.I Area 4
DEAD BODIES FOUND IN GUNNY BAGS
FROM 24-07-2011 TO 24-08-2011
S. No. POLICE STATION NO. OF DEAD BODIES
1 Baghdadi 6
2 Nazimabad 2
3 Darakhsan 1
4 Risala 1
5 Nabi Bux 1
6 Kharadar 1
7 Bin 1
8 Sharafi Goth 1
9 Rizvia 1
10 Iqbal Market 1
11 Mominabad 1
PATTERN OF VIOLENCE
FROM 24.07-2011 TO 24-08-2011
s.# DATE AREAS OF VIOLENCE DISPURTED PARTIES PERSONS KILLED PERSONS INJURED
1 24 Julyto 31July BaldiaTaimoriaKalakot
i. UrduSpeaking v/sPashtoon
2 1st to 3rdAug2011 SurjaniTown UrduSpeaking &Seraiki v/s
3 6thAugust2011 PeerabadSITE, Orangi UrduSpeaking v/sPashtoon
4 17th to 24thAugust 2011 Kharadar,Mithadar,Lyari, Chakra
Gang warconvertinginto ethnic
New Phenomena of abduction and killings
Starting from 17th August 2011
Triggered by the kidnapping and killing of five Baloch
residents of Singo Lane, Lyari (4 of them footballers)
Date Death Toll Injured
17.08.2011 17 30
18.08.2011 29 23
19.08.2011 22 39
20.08.2011 07 15
21.08.2011 13 09
22.08.2011 13 10
23.08.2011 08 09
24.08.2011 02 11
25.08.2011 04 02
26.08.2011 02 03
27.08.2011 01 06
28.08.2011 02 04
From 24-07-2011 to 24-08-2011
S# Police Station No of PoliceShaheed No of Police Injured
- SITE-B 1
- ZamanTown 4 29
- Rizvi 1
- Sharafi Goth 1
- Awami Colony 1
- Pak Colony 1
Total 9 29
- It has been pointed hereinabove that the peace ofKarachicity had been disturbed by criminals by committing both heinous as well as petty crimes. Some of the major killings have been highlighted in the presentation given by the IGP, which has been reproduced hereinabove, including 232 incidents of murder wherein 306 persons were killed and 98 incidents of gunshots causing injuries to 159 persons also took place. According to available figures, approximately, more than 50 dead bodies in gunny bags have been recovered from several localities including areas where dominant majority of people speaking Urdu, Pashto, Balochi etc. are living. In this behalf, the IGP Sindh furnished details along with FIR numbers and the areas where such dead bodies were found, brief of which is as under:-
Sl.No. Police Station Number of Deadbodies
1 Baghdadi 06
2 Nazimabad 02
3 Darakshan 01
4 Risala 01
5 Nabi Bux 01
6 Kharadar 01
7 Bin Qasim 01
8 Sharafi Goth 01
9 Rizvia 01
10 Iqbal Market 01
11 Mominabad 01
- Some torsos i.e. human bodies without heads and limbs, rendering it difficult to identify the same, have also been found. Besides, buses with passengers have been set on fire as a result whereof several passengers were burnt alive while others died inside the bus due to fear and shock. In this behalf, reference is made to FIR No. 460/2011 Police Station Jackson,West Karachi. Similarly, perusal of FIR No. 314/2011 under sections 302/324 PPC r/w section 7 ATA, dated 05.09.2011 registered at Police Station Pakistan Bazar, reveals how brutally people were killed by the criminals. Besides, so many persons were abducted and later their dead bodies were thrown in the streets. During the months of July and August 2011 the streets ofKarachi, sorrowfully, saw a large number of such like dead bodies. Some of abducted persons were, however, recovered by the intervention of the law enforcing agencies and on our direction, their statements were recorded. Out of them, only four persons, namely, Muhammad Junaid s/o Muhammad Hussain, Muhammad Rafiq s/o Muhammad Hussain, Mehtab s/o Shakeel and Sarfaraz s/o M. Ahmed agreed to lodge the FIR whereas rest of them, on account of fear, were not agreeable to do it. Reference may be made to the following two statements: –
- When the hearing of this case was in progress, about four dead bodies were recovered and on our direction, the IGP submitted a report on 09.09.2011 to the following effect: – “(1) An unknown dead body was found (on 5.9.2011) in Red Color gunny Bag at Katchara Kundi, Grahaib Nawaz Dispensary, previous UC-8, Office Sector-14, B Orangi Town without head, hands and legs inquest u/s 174 Cr.P.C. has been conducted. The dead body is still un-identified. The dead body is kept in theEdhiCenter. A case vide FIR No: 314/2011 u/s 302/324 PPC r/w 7-ATA has been registered through state at Pakistan Bazar Police Station against unknown accused persons, on 5.9.2011. The investigation is under way. The detail report is enclosed at Annex “A”
(2) Another dead body was found in a Bag (Bori) on road between Country Heights & Yasir view Gulzar-e-Hijri Scheme No: 33,Karachi. A case vide FIR No. 580/2011 u/s 302/365/34 PPC, at Police Station Sachal on the complaint of one Zabih Khan s/o Haji Sardar Muhammad was registered against the nominated accused namely Sikandar Javed (APMSO), (2) Ahmed Shah, (3) Umair Siddiki, (4) Zohaib, (5) Liaquat Ali Qureshi s/o Ghazi Uddin, (6) Khurram, (7) Zeeshan. The incident was witnessed by one Muhammad Hassan Saleem s/o Muhammad Saleem Hussain, (2) Syed Obaid-ur-Rehman, along with other PWS Naseeb Ullah s/o badshah Gul. The I.O arrested one accused person namely Ahmed Khan s/o Khan Muhammad on the pointation of the complainant. Later on, after the satisfaction of the complainant he was released being not involved in this offence. Hectic efforts are underway to arrest the nominated accused person, copy of the compressive report is enclosed at Annex-“B”.
(3) The third dead body was found in Garage behind Car Parking of JPMC Hospital,Karachi. Proceeding u/s 174 Cr.P.C. was conducted by police. (7.9.2011). No mark of torture was found on the dead body. Postmortem was held at Jinnah Hospital Karachi by MLO vide TM No: 741/2011, dated: 07.09.2011, in which MLO opined that his death was occurred due to asphyxia/strangulation. In this connection FIR No: 281/2011 u/s 302 PPC was lodged on behalf of state at Saddar Police Station. During investigation no any eye witness has appeared/traced as yet. Efforts are underway and NADRA head office was contacted to provide assistance, who cooperated and identify the deceased as Muhammad Farukh Nawaz having CNIC No: 56302-2990221-9, his temporary address was provided as CB-58/4, Kakool road Abbottabad. The family of the deceased was traced out by the District Police Officer Abbottabad Mr. Muhammad Kareem Khan. The brother of the deceased namely Javed (Cell #. 0334-8963217) was contacted who disclosed that his brother deceased was a chartered accountant and was doing his internship in some organization inKarachiand leaving inDefence Garden. He also disclosed that his brother returned toKarachion 07.09.2011, after celebrating Eid with his family in Abbottabad. Further investigation is underway. The copy of the report as enclosed herewith at Annex-“C”.
(4) On 7.9.2011, Police Constable No.18609 namely Javed Iqbal s/0 Abdul Ghafoor was going on his Motor Cycle. Two unknown Motor Cyclist stopped him atBakra Peri Road, nearEvergreenSchool, Malir City Karachi and opened fire upon him who sustained bullet injures and expired on the spot. A case FIR No.248/2011 u/s 302/34 PPC on 07.09.2011 at Police Station Malir City on behalf of state is registered. During investigation two persons from the locality disclosed involvement of two criminals namely Kaloo Baloch s/o Mawali Baloch & Akbar Punjabi s/o Baloch Khan in this offence. Hectic efforts are underway to arrest them. Copy of the report is attached herewith at Annex-“D”.
The forth death body was found of one Faheem-ulKareem Advocate alongwith two other persons namely Wajid & Mst. Quratul ain from a Flat No.7/C, 14th Commercial Street, DHA, Ph-II, Karachi. A case vide FIR No: 340/2011 u/s 302/34 PPC at Police Station Defence is registered. A detailed report of Mr. Tariq Razzaq Dharejo, SP Saddar Division Sought,Karachi regarding efforts made to trace and arrest the accused is attached herewith at Annex-“E”. (It has been taken back)
(6) One young man namely Sahreef s/o Muhammad Anwar Baloch has been kidnapped from near NADRA Office, near Bahadurabad Police Station. In this regard FIR No.114/2011 u/s 365 PPC has been registered at Police Station Kalakot by one Muhammad Akram s/o Muhammad Anwar. Detail progress report is attached herewith as Annex-“F”.
The list of 17 kidnappees supplied by Advocate Mr. Jameel Ahmed Virk on behalf of the applicants in CMA No.555/2011 who have returned to their homes in injured condition. In this regard the concerned quarters have submitted their report and in all 16 cases the FIRs have been registered the same is enclosed herewith as Annex “G”. The investigation is under way.
Further 34 dead bodies have found in Bags. In this regard a comprehensive report has already been submitted before this Honorable Court on 26.8.2011. ……
- It is noteworthy that the law enforcing agencies have detected a torture cell during hearing of the case atKarachiand succeeded in getting video clips of the most heinous, gruesome, brutal, horrible and inhuman acts of the criminals, who are found cutting throats of men and drilling their bodies. But, now it is informed that more such cells have been detected in different parts ofKarachi.
- As far as the injured or wounded persons are concerned, they are countless in number in all the disturbed areas ofKarachiwhere different political parties have got dominant population on the basis of the language being spoken by them. It may be noted that the objective of above-noted brutal and gruesome incidents is to terrorize the citizens ofKarachiand keep the entire society a hostage.
- An impression has been created that on account of demographical reasons, the above issue has its origin on ethnic divides, but Mr. Abdul Hafeez Pirzada, Sr. ASC appearing for the Province of Sindh, and Syed Iftikhar Hussain Gillani, Sr. ASC for ANP vehemently dispelled such an impression and we also tend to agree with them because we feel that it is a turf war between various groups on account of their financial and economic interests in the huge economic, industrial and commercial activities, etc. of the city of Karachi highlighted in the presentation given by the IGP, relevant aspects whereof have been noted herein above. However, there is, and has for some time in the past, been a visible element of ethnic strife inKarachiand some elements and parties benefited from keeping the tension alive. There are not only Urdu Speaking, (When the Court uses the term ‘Urdu Speaking’ it is for a specific purpose. As it is the language common to all and even those who proudly speak Pashto, Punjabi, Sindhi or Baluchi, can and do speak Urdu), Pashtun, Sindhis, and Balochis, Punjabis, Saraikis, but foreigners and others also live in Karachi and all of them are the victims of violence, crime, fear and insecurity, as is evident from FIRs, reports, etc. submitted from time to time by the police department. Some of the hardened criminals, who associate themselves with the political parties do take support of the powerful groups/political parties as is evident from the reports of the joint investigation team of various intelligence agencies including ISI and others. These reports have been filed by Syed Iftikhar Hussain Gillani, throwing sufficient light on the criminal activities of these heartless criminals such as Ajmal Pahari, Kamran Madhuri and many others. It is to be noted that the aforementioned JIT reports were prepared after causing arrests of various accused persons involved in the commission of offences this year in the month of March.
- It goes without saying that if the involvement of above accused persons allegedly aligned with a political party is established, it may entail serious consequences for said political party as well, because a political party cannot be formed or cannot operate in a manner prejudicial to the sovereignty or integrity ofPakistan.
- It is important to note that the learned counsel representing various political parties have though not categorically denied affiliation of above noted persons with their parties, but have taken exception to the JIT report; on the ground that the same are not admissible in evidence. It is also important to note that during the discussion, it has been informed that two notorious accused persons, namely, Kamran Madhuri and Sohail Commander involved in criminal activities were not nominated in the FIRs, yet on arrest of one of them he has been found in injured condition. Investigation is being conducted to collect relevant material against them. It is also astonishing that most of the accused persons nominated in crimes have got their acquittal on the plea of alibi and false involvement. We are surprised to know that the law enforcement agencies, who are supposed to conduct investigation honestly, had allegedly involved persons falsely or half-heartedly in the commission of offences in which their fellow policemen were murdered. Indeed, they have not shown any professionalism and have failed to bring the real culprits to book.
- It seems that the police primarily being responsible to enforce law and order has no intention to deliver. Either they are scared or they are dishonest or absolutely lack the requisite skills. It could be that in the year 1992 operation clean up was launched against MQM wherein statedly, the police had played an active role, but subsequently, 92 police officers/officials disappeared and up till now there is no clue of their whereabouts nor is it known that by whom, and under whose patronage, such persons were abducted and/or killed. Another reason appears to be that police force has been highly politicized, recruitments have been made on political considerations. It came to light during hearing of the case that in police force many police officers have been recruited on political considerations who have managed to occupy such posts for extraneous considerations and senior officers in the rank of SSP, SP and DSP etc. have been inducted into the force from other organizations without following any rules and even they have not undergone training for the purpose of policing. To highlight this aspect, following information has been obtained from the Advocate General, Sindh: –
- Mr. Dost Ali Baloch from Intelligence Bureau, absorbed in Sindh Police with effect from 14.10.1998, presently working as Director General Finance, CPO Sindh Karachi (BS-20).
- Mr. Muhammad Malik from FIA, absorbed in Sindh Police with effect from 31.10.2007, presently working as Director General Traffic, Planning & Regulation, Sindh Karachi (BS-20).
- Mr. Muhammad Riaz Soomro from Anti-Narcotic Force, absorbed in Sindh Police with effect from 26.2.2008, presently working as SSP, District Mirpurkhas (BS-19).
- Mr. Muhammad Ali Baloch appointed as Assistant Director (Computer) in Sindh Police on 6.4.1999, presently working as SSP, District Tando Muhammad Khan (BS-19).
- Mr. Abdul Hadi Bullo from OMG, absorbed in Sindh Police with effect from 16.7.2003, presently working as SSP District Matiari (BS-19).
- Mr. Attaullah K. Chandio, from Solicitor Department, absorbed in Sindh Police with effect from 1.6.1995, presently working as SP, Special Branch, Mirpurkhas (BS-18).
- Mr. Shahid Hussain Mahesar on deputation from Intelligence Bureau, with effect from 26.7.2009, presently working as SSP Political (SB)Karachi(BS-18).
- Mr. Zameer Ahmed Abbasi on deputation from National Accountability Bureau with effect from 31.12.2008, presently working as SDPO/Frere, District South,KarachiRange(BS-17).
- Mr. Shiraz Asghar Shaikh, on deputation from PEMRA with effect from 23.8.2008, presently working as SDPO/Darakhshan, District South,KarachiRange(BS-17).
- Mr. Faisal Mukhtar Vakaasi on deputation from National Accountability Bureau with effect from 31.3.2009, presently working as Principal, Training & Recruitment,KarachiRange(BS-17).
- Mr. I. D. Mangi, on deputation from ACE, Sindh with effect from 10.4.2009, presently working as DSP/ACLC,KarachiRange(BS-17).
- Major (R) Khurram Gulzar, re-employed on contract basis as DIGP (BS-20) for a period of one year with effect from 27.12.2010.
- Col.(R) M. A. Wahid Khan, re-employed as Principal, S.B.B. EPT Razzakabad,Karachi(BS-19) for a period of one year with effect from 1.9.2008. Extension granted for two years with effect from 1.9.2009.
- Major Col. (R) Muhammad Ahsan Umar, re-employed as SSP, District East,KarachiRange(BS-19) for a period of two years with effect from 24.9.2010.
- The IGP stated that presently, the total strength of police force is 32524, out of which approximately 12000 are performing security duties, including 8000 deployed with VIPs and only 20000 personnel of police force were left for the purpose of policing of 18 million people inKarachi. He stated that by means of the Sindh (Repeal of the Police Order, 2002 and Revival of the Police Act, 1861) Act, 2011 passed by the Provincial Assembly, the Police Order, 2002 has been repealed in theSindhProvince, as a result of which the Police Act, 1861 has been revived and the IGP is helpless in transferring even a DSP from one place to another.
- The majority of the police force performing duty inKarachicomprises brave and devoted officers and men. They risk their lives often targeted by unidentifiable enemies enjoying mobility in action. They deserve the respect of the nation. However, as The IGP conceded that 30-40 percent of police force are non-cooperative either for the reasons that they have secured their appointments on political considerations or they have associated themselves with different groups including political parties, having vested interests in the affairs ofKarachi, therefore, at times it becomes very difficult for him to effectively take action against the real culprits. When called upon to explain as to how two accused persons involved in case FIR No. 434/2011, Police Station Zaman Town, have been released by the Administrative Judge, ATC, accepting their plea of alibi, where a concerted attack was launched upon police officers/officials who were being transported in a private bus towards the disturbed areas for controlling riots and bringing peace, resulting in death of 6-7 policemen, causing injuries to others, the IGP disclosed that the investigating officer has been suspended and the then SHO of the relevant Police Station has already been moved out and disciplinary proceedings are in hand against him. This categorical statement in respect of only one incident is sufficient to infer that the statement so made by the IPG carries sufficient weight. If the police official/officers are not sincere with the victims belonging to their own rank and file, what expectation could one have from such force, which, admittedly, stands politicized, for initiating forceful action against the culprits involved in causing target killing, brutal murders, cutting limbs of human bodies and putting the dead bodies and torsos into bags with a view to terrorizing the society as a whole in general and the inhabitants ofKarachicity in particular. During the period of one month, i.e. from 24 July to24 August, 2011, as per information submitted before the Court about the killing of people of 306 persons 232 FIRs have been registered mostly against unknown persons and on completion of investigation in many cases, reports have been submitted declaring the cases for disposal under A class, which according to the relevant Police Rules means that the crime is untraceable. Summary of the said cases is as under:-
FIR No. and date
- AramBagh 189/2011 dt. 31.7.2011u/s 302/34 PPC A-Class
- Darakshan 265/2011 dt.03.08.2011 u/s 302 PPC A-Class
- Eidgah 197/2011 dt.27.07.2011 u/s302/324/34 PPC
- Eidgah 200/2011 dt. 30.7.2011u/s 302/34 PPC A-Class
- Eidgah 202/2011 dt.01.08.2011 u/s302/324/34 PPC
- Eidgah 203/2011 dt.05.08.2011u/s 302/34 PPC A-Class
- Eidgah 206/2011 dt.09.08.2011u/s 324/302/34 PPC A-Class
- Frere 150/2011 dt.09.08.2011u/s 302 PPC A-Class
- Garden 144/2011 dt.25.07.2011u/s 302 PPC A-Class
- Garden 151/2011 dt.02.08.2011u/s 364/302 A-Class
- Garden 154/2011 dt.05.08.2011u/s 364/302 PPC A-Class
- Garden 146/2011 dt.27.07.2011u/s 302/34 PPC A-Class
- Kalakot 99/2011 dt.24.07.2011u/s 302/324/34 PPC A-Class
- Kalakot 100/2011 dt.25.07.2011u/s 302/34 PPC A-Class
- Kalakot 102/2011 dt.29.07.2011u/s 302/34 PPC A-Class
- Nabi Bux 137/2011 dt.24.07.2011u/s 302 PPC A-Class
- Napier 119/2011 dt.24.07.2011u/s 302/324/34 PPC A-Class
- Napier 124/2011 dt.03.08.2011u/s 302/34 PPC A-Class
- Napier 127/2011 dt.09.08.2011u/s 302/34 PPC A-Class
- Preedy 473/2011 dt.09.08.2011 u/s 302 PPC A-Class
- Risala 127/2011 dt.10.08.2011u/s 302/34 PPC A-Class
- BoatBasin 319/2011 dt.01.08.2011u/s 324/34 PPC A-Class
- BoatBasin 323/2011 dt.04.08.2011u/s 324/34 PPC A-Class
- BoatBasin 324/2011 dt.05.08.2011u/s 324/34 PPC A-Class
- Defence 276/2011 dt.28.07.2011u/s 324/34 PPC A-Class
- Garden 149/2011 dt.31.07.2011u/s 324/34 A-Class
- Eidgah 193/2011 dt.23.07.2011u/s 302/34 PPC A-Class
- Kalri 176/2011 dt.08.08.2011u/s 147/148/149/435PPC A-Class
- Preedy 474/2011 dt.09.08.2011u/s 384 PPC A-Class
- The IGP has also made before this Court another admission while giving his presentation, summary of which has been reproduced hereinabove, that there are no go areas within the jurisdiction of different police stations. In this view of the matter, we are of the opinion that the police without having any commitment/dedication and other reasons highlighted hereinabove, is not in a position to make any break through unless the whole force is de-politicized and their morale is boosted by the senior officers, having credible service/ training, commitment, dedication always ready to discharge their functions willingly and to the best of their ability. In the briefing, it has also been pointed out that so many members of the police lost their lives in encounters with the criminals. It is a matter of great concern that the perpetrators do not feel any hesitation in killing the police personnel for the purpose of creating atmosphere of fear, harassment to terrorize the whole society. The number of such police officers has been noted herein above. In
addition to it, in recent incidents on 5th or 6th September, 2011, a dead body of a policeman, namely, Javed Iqbal was found in the area ofBakra Peri Road, nearEvergreenSchool, Malir City Karachi, regarding which FIR No.248/2011 was registered atPoliceStationMalirCity. The killing of the innocent persons has also not stopped even now, as has been pointed out that a dead body of an unknown person, who was badly tortured, was found lying in the car parking of a hospital, reference of which has already been made herein above. There are series of such incidents, which are taking place, one after the other. Statedly, one policeman succeeded in causing arrest of one alleged accused person, namely, Shah Zore on stated allegation that he was responsible for killing innocent persons and after his arrest, on his pointation, a dead body packed in a carton was recovered, reference of which has been made in the order dated 09.09.2011. In the case, where Rangers had succeeded in identifying a torture cell in Liyari area and a DVD was prepared in respect of an incident, reference of which has been made hereinabove, on watching it, one cannot explain in words the degree of shamelessness, cruelty, barbarity and brutality except summarizing that the heinous acts of committing sodomy upon the victims and butchering them with blunt knives/churris were committed brazenly. This is just one instance of the brutality and barbarity, taking place in a torture cell which has been pointed out to us, and it is not known that how many other such like torture cells are being maintained by the criminals in their dens here and there in the vastness of the city to satisfy their self as a vengeance. As a matter of tit for tat, gruesome and cruel methodologies have been adopted for the purpose.
- On 07.09.2011, Director General Rangers Sindh, Major General Aijaz Ahmed Chaudhry appeared in Court and stated that the problem inKarachiis very serious, rather more serious than that ofSouth Waziristan. However, he submitted that if there was a will to do it and once the State decides to bring peace to the city ofKarachi, no criminal could stand before the State and escape prosecution. He further stated that the factors which contributed to the problem of the city ofKarachihappened to be that it is a huge city, it is based on community system, a lot of development work has been done, but there is unjust development of infrastructure on the basis of communities residing in various parts of the city. There is polarization to an unprecedented level on the political, ethnic, and/or religious divides. According to him one day ethnic problem occurs and next day religious problem starts. The situation has reached such a stage where even the health sector is divided on ethnic and parochial basis. A patient or injured person of one community is refused admission or medical treatment by a hospital under influence of another community. The problem can only be solved through application of special means as well as requesting political leadership to eliminate militancy from their wings. The political face of the city has been taken hostage by militant groups of political parties. Political parties are penetrated by the criminals under the garb of political groups who use party flags. The militants and criminals are taking refuge in the lap of political and ethnic parties which use the flags of these parties to commit illegal activities with impunity. The paramilitary force is, otherwise, fully capable of controlling the law and order situation, the deployment of Rangers be further extended to allow them to bring permanent peace in the city. There are religious gatherings, problems like KESC issue, ethnic violence, protests/riots over issues like Watan card distribution, Namoos-e-Risalat, as a result whereof law enforcement agencies are over stretched. The Government machinery has realized the seriousness of the situation and assured that Rangers would bring the city back to normalcy and ensure that people feel safe. He also suggested the constitution of a high-level body comprising the Chief Minister and other stakeholders to monitor progress in maintaining law and order as well as ensuring good governance and social justice. The committee may be bound to send progress reports to the Chief Justices of the High Court and Supreme Court for perusal.
- The DG Rangers further stated that he had requested in security conferences that there should be no bar for the Rangers to operate anywhere in the city, inasmuch as to go to the offices of political parties, which housed ammunition, weapons and criminals, and now by this notification this power has been given. According to him, in a recent briefing on the law and order situation, restrictions on the operations of the Rangers, were relaxed, directing that the police, Rangers and other law enforcement agencies should not be stopped from conducting raids in any area, including on the offices of political parties, if the criminals take refuge there. He said that Rangers had conducted successful raids and arrested culprits involved in target killings whose details would be shared with the Court. He said thatKarachiis a mega city but unfortunately an unjust infrastructure had divided it on ethnic and political basis.
- In conclusion, the DG stated that no amount of application of kinetic means, be it Rangers, or Army can fix the problem on long term, rather it is the political process, which finally prevails and provides hope to the nation. Suggesting the way forward, the DG Rangers submitted that there is a need to train prosecutors, improve forensic evidence, etc. According to him, the recent issuance of the notification indicates that there is a realization at the political and Government level, forcing them to come up with solution. He expressed the desire that the notification should continue until peace returns and so should the drive to round up the criminals and terrorists.
- Besides, the DG Rangers candidly conceded that bhatta [extortion money] is a normal practice and criminals are collecting bhatta, which, every day, runs into at least 10 million rupees and it is being charged from an ordinary shopkeeper, rehriwala (push-cart
peddler) up to the top businessman by criminals who have got the backing of the political parties who are the stakeholders. In this behalf, Special Branch of the Police Department had filed a report confidentiality of the same has not been claimed. In this report, a list of chanda/bhatta collectors is available, a perusal whereof indicates that bhatta is being collected invariably by the persons who claim their association with ANP, MQM, PPP, Jamat-e-Islami, Sunni Tehrik, etc. Besides, activists of the organizations banned under the Anti-Terrorism Act, 1997 are also indulging in these activities. It is an admitted fact that street crime like snatching cell phones, purses, etc. from the citizens is rampant in the city and there cannot be two opinions that the citizens, by and large, are suffering filled with fear and confusion. They are so frightened that none of them comes forward even to lodge the report, rather they prefer to pay bhatta or unhesitatingly agree to hand over their valuables during the commission of street crimes. The whole city seems to be in the grip of fear.
- The learned Attorney General has also submitted a report of Intelligence Bureau without claiming confidentiality and also arranged briefing of ISI only for the Members of the Bench. The Provincial Government also produced on record report of CID and it too has not claimed confidentiality in respect of the same. Here it will be pertinent to note that although, a notice was issued to the learned Attorney General but the Federation chose to be represented through a private counsel Dr. Babar Awan, learned Sr. ASC, who remained associated with the case throughout the proceedings. As far asProvinceofSindhthrough Chief Minister is concerned, it is represented by Mr. Abdul Hafeez Pirzada, learned Sr. ASC and the learned Advocate General who represented the Chief Secretary and IGP. The names of the interveners are available in the title of the case, which includes MQM through Dr. Farogh Naseem, ANP through Syed Iftikhar Hussain Gillani, Sindh Bachayo Committee through Mr. Abdul Mujeeb Pirzada Sr.ASC, PML (N) through Faisal Kamal Alam ASC, Awami Tehrik Party through its President Mr. Rasool Bux Palijo ASC, etc. They have also put forward their respective pleas containing allegations and counter allegations. Except the learned counsel appearing for the official respondents i.e. Federation and theProvinceofSindh, all others including the interveners, unequivocally affirmed violation of fundamental rights of the public enshrined in Articles 9, 14, 15, 18 and 24 of the Constitution.
- How important has been the Suo Moto intervention of this court and how vital is the “depoliticization of the administration”, particularly police, is indicated in the instant case itself. Although the notification ostensibly empowering the Rangers was issued onJuly 8, 2011, but the killing spree did not stop because, obviously, a depoliticized administration was not available. Thus, in July alone as many as 306 people were murdered as mentioned above, and a greater number were injured. A number of dead bodies were discovered in gunny bags, many mutilated and disfigured. The killing spree continued at this pace and in just one week before this Court, on 24.08.2011, took Suo Moto notice of the situation as many as 109 citizens had been killed as per the power point presentation given by the IGP on 29.08.2011. Out of 25 dead bodies found in gunny bags, 9 were found beheaded and tortured. These, and other related figures, mentioned in para 22 above eminently justified interference by the Court under Article 184(3). In fact the situation was so grave that the Court decided immediately to shift the venue of the hearings toKarachi. All concerned were put on notice. Although a few more tragic incidents did take place during the hearing of the case and these have been mentioned in detail herein, but there was a dramatic drop in the number of crimes of the variety presently under consideration after the court had intervened. The lesson to be learned from this is simple. Initiation of Suo Moto proceedings by the Court sent one straight and simple message to an administration working under political pressures: “Take no political pressure from any quarter whatsoever”. This was an unstated message, but it was loud and clear. The administration remained, and remains, under the political Government of theProvinceofSindhbut the administrators immediately understood that they would not be called upon to obey any illegal orders nor to discriminate between adversaries. They would be fair and impartial and the results have been dramatic so far. A depoliticized administration suddenly came to life in fighting crimes, criminals and Mafias, political and otherwise. That is what the intervention of the Court achieved. We the Judges have no guns to fight the terrorists, but we have the authority to ensure and strengthen the hands of those who actually apply the law. In many cases the Suo Moto intervention of the Court has produced such results, stopping corruption and mal-administration, andKarachidemonstrates this. All over the democratic world judicial review only strengthens democracy and should be welcomed by democratic governments, not resented and resisted. It is now only hoped that this restraint on political and partisan interference will also continue after the Court winds up these proceedings so as to enable the Police, the administration, and the Rangers to do their jobs in accordance with the law.
- Too often representatives of the Government are seen castigating the Courts for the release of alleged terrorists and criminals. This Court itself is often subjected to blistering criticism, especially by members or allies of the ruling party on talk shows and television programmes. The Court has shown restraint and has no illwill. Even otherwise the Judges cannot enter upon a public or private debate about their performance or judgments even though the criticism is highly politicized and unjustified as it often is these days. But the burden that rests upon the executive and the legislature cannot be passed on to the Courts. Courts can only act upon evidence and material presented before them. This has to be collected by the executive. The Courts cannot be blamed if the executive/police fail in their duty. Moreover the evidence thus collected must be evaluated according to the laws and rules prescribed by the legislature. In these especial circumstances it is for the Government to ensure that cogent evidence to support prosecution is collected and presented in the Court. It is for the legislature to provide processes for the protection of witnesses, Policemen and Judges and for the executive/government to fully implement these reforms. Intelligence sharing and action on intelligence that is uncorrupted by political or extraneous influence must also be ensured by the executive. The Court expects that a new culture of independent, depoliticized, and non-partisan prosecution comprising efficient, capable prosecutors will be established by the government to aid and assist the Courts. The Government must also depoliticize the administration/prosecution. This will be for its own good and for that of the nation. The Courts will keep a watchful eye and strike down all illegal pressures and orders that are brought to their notice.
- Adversarial proceedings are defined as proceedings relating to, or characteristic of an adversary or adversary procedures. The term “adversarial” has been defined in the Concise Oxford English Dictionary, Eleventh Edition, Revised, as under: –
“1. Involving or characterized by conflict or opposition. 2. Law (of legal proceedings) in which the parties involved have the responsibilities for finding and presenting evidence.”
In “Advanced Law Lexicon” the term “Adversarial Process” has been defined as under: –
“A process in which each party to a dispute puts forward its case to the other and before a neutral judge, soliciting to prove the fairness of their cases.”
In the American Heritage Dictionary of the English Language, Fourth Edition: Published by Houghton Mifflin Company, the term is defined as under:-
“Relating to or characteristic of an adversary; involving antagonistic elements: “the chasm between management and labor in this country, an often needlessly adversarial …… atmosphere” (Steve Lohr).”
In Collins English Dictionary – Complete and Unabridged, it is defined as under: –
“1. Pertaining to or characterized by antagonism and conflict
- (Law) Brit having or involving opposing parties or interests in a legal contestUSterm adversary”
The adversarial system (or adversary system) is a legal system where two advocates represent their parties’ positions before an impartial person or group of people, usually a jury or judge, who attempt to determine the truth of the case, whereas, the inquisitorial system has a judge (or a group of judges who work together) whose task is to investigate the case.
- The adversarial system is a two-sided structure under which criminal trial courts operate that pits the prosecution against the defense. Justice is done when the most effective and rightful adversary is able to convince the judge or jury that his or her perspective on the case is the correct one.
- As against the above, the term “inquisitorial” is defined in “Concise Oxford English Dictionary, Eleventh Edition, Revised as under: –
“1. Of or like an inquisitor.
- Law (of performing an examining role)”
In “Advanced Law Lexicon” 3rd Edition, 2005, it is defined in the following words:-
“The system of criminal justice in most civil law nations, where judges serve as prosecutors and have broad powers of discovery.”
Webster’s New World College Dictionary Copyright 2010, by Wiley Publishing, Inc.,Cleveland,Ohiodefines it as under:-
“1. of or like an inquisitor or inquisition
2. inquisitive; prying"
Collins World English Dictionary defines it as under:-
“1. of or pertaining to an inquisitor or inquisition.
- exercising the office of an inquisitor.
- law. a. pertaining to a trial with one person or group inquiring into the facts and acting as both prosecutor and judge.
b. pertaining to secret criminal prosecutions.
- resembling an inquisitor in harshness or intrusiveness.
- inquisitive; prying.
- The Free Dictionary describes it in part, as “a method of legal practice in which the judge endeavours to discover facts whilst simultaneously representing the interests of the state in a trial”. Under the inquisitorial model, the obligations of a Judge are far greater and he is no longer a passive arbiter of proceedings but an active member of the fact finding process.
- An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to an adversarial system where the role of the court is primarily that of an impartial referee between the prosecution and the defense. Inquisitorial systems are used in some countries with civil legal systems as opposed to common law systems. Also countries using common law, including theUnited States, may use an inquisitorial system for summary hearings in the case of misdemeanors such as minor traffic violations. In fact, the distinction between an adversarial and inquisitorial system is theoretically unrelated to the distinction between a civil legal and common law system. Some legal scholars consider the term “inquisitorial”
misleading, and prefer the word “non-adversarial”.
- The inquisitorial system applies to questions of criminal procedure as opposed to questions of substantive law; that is, it determines how criminal enquiries and trials are conducted, not the kind of crimes for which one can be prosecuted, nor the sentences that
they carry. It is most readily used in some civil legal systems. However, some jurists do not recognize this dichotomy and see procedure and substantive legal relationships as being interconnected and part of a theory of justice as applied differently in various legal
- In some jurisdictions, the trial judge may participate in the fact-finding inquiry by questioning witnesses even in adversarial proceedings. The rules of admissibility of evidence may also allow the judge to act more like an inquisitor than an arbiter of justice.
- The proceedings, which are initiated as public interest litigation in civil or criminal matters cannot be treated as adversarial because of the definition of nature of the proceedings where without contest between the parties a final finding has to be recorded, as it has so been held in the case of Tobacco Board v. Tahir Raza(2007 SCMR 97). In this judgment, matter relating to maintainability of writ of quo warranto was considered and it was held that such writ is to inquire from a person the authority of law under which he purports to hold public office and it is primarily inquisitorial and not adversarial, for the reason that a relater need not be a person aggrieved; such exercise can be done suo motu, even if attention of High Court is not drawn by the parties concerned. The same principle has been followed by the Court in Ch. Muneer Ahmad v. Malik Nawab Sher (PLD 2010Lahore625).
- In the case of Philips Electrical Industries of Pakistan Ltd. v. Pakistan (2000 YLR 2724) it has been observed that public interest litigation is inquisitorial in nature where the Court may even delve into fact finding so as to promote public interest.
- In the case of Muhammad Munawar v. Deputy Settlement Commissioner (2001 YLR 2350) the Lahore High Court has observed that concept of adversarial proceedings under which it is the duty of the parties to produce all relevant evidence, has been departed from inasmuch as the Courts have also been called upon to share this burden either on the application of the parties or suo motu to summon and record all the relevant evidence in order to decide the case effectively and finally; such rule is one of wisdom, for if a party to the litigation fails in its duty, the Court is not denuded of its power to summon the relevant evidence so that the dispute between the parties is decided fairly and finally.
- The Indian Supreme Court had the occasion to define these expressions in various cases, including the cases of Peoples’ Union for Democratic Rights v, Union of India [AIR 1982 SC 1473] = [(1982)3 SCC 235], Bandhua Mukti Morcha v. Union Of India [AIR 1984 SC 802], Peoples’ Union for Liberties v. Union Of India [AIR 1996 Cal 89] and State of Uttaranchal v. Balwant Singh Chaufal [(2010) 3 SCC 402]. In Peoples’ Union for Democratic Rights’ case (supra) the Indian Supreme Court has observed as follows:-
“2. ……… We wish to point out with all the emphasis at our command that public interest litigation which is a strategic arm of the legal aid movement and which is intended to bring justice within the reach of the poor masses, who constitute the low visibility area of humanity, is a totally different kind of litigation from the ordinary traditional litigation which is essentially of an adversary character where there is a dispute between two litigating parties, one making claim or seeking relief against the other and that other opposing such claim or resisting such relief. Public interest litigation is brought before the court not for the purpose of enforcing the right of one individual against another as happens in the case of ordinary litigation, but it is intended to promote and vindicate public interest which demands that violations of constitutional or legal rights of large numbers of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and unredressed. That would be destructive of the Rule of Law which forms one of the essential elements of public interest in any democratic form of government. The Rule of Law does not mean that the protection of the law must be available only to a fortunate few or that the law should be allowed to be prostituted by the vested interests for protecting and upholding the status quo under the guise of enforcement of their civil and political rights. The poor too have civil and political rights and the Rule of Law is meant for them also, though today it exists only on paper and not in reality. If the sugar barons and the alcohol kings have the Fundamental Right to carry on their business and to fatten their purses by exploiting the consuming public, have the ‘chamars’ belonging to the lowest strata of society no Fundamental Right to earn an honest living through their sweat and toil ? The former can approach the courts with a formidable army of distinguished lawyers paid in four or five figures per day and if their right to exploit is upheld against the government under the label of Fundamental Right, the courts are praised for their boldness and courage and their independence and fearlessness are applauded and acclaimed. But, if the Fundamental Right of the poor and helpless victims of injustice is sought to be enforced by public interest litigation, the so called champions of human rights frown upon it as waste of time of the highest court in the land, which, according to them, should not engage itself in such small and trifling matters. Moreover, these self-styled human rights activists forget that civil and political rights, priceless and invaluable as they are for freedom and democracy simply do not exist for the vast masses of our people. Large numbers of men, women and children who constitute the bulk of our population are today living a sub-human existence in conditions of abject poverty, utter grinding poverty has broken their back and sapped their moral fibre. They have no faith in the existing social and economic system. What civil and political rights are these poor and deprived sections of humanity going to enforce? This was brought out forcibly by W. Paul Gormseley at the Silver Jubilee Celebrations of the Universal Declaration of Human Rights at the Banaras Hindu University: “Since India is one of those countries which has given a pride of place to the basic human rights and freedoms in its Constitution in its chapter on Fundamental Rights and on the Directive Principles of State Policy and has already completed twenty-five years of independence, the question may be raised whether or not the Fundamental Rights enshrined in our Constitution have any meaning to the millions of our people to whom food, drinking water, timely medical facilities and relief from disease and disaster, education and job opportunities still remain unavoidable. We, inIndia, should on this occasion study the Human Rights declared and defined by the United Nations and compare them with the rights available in practice and secured by the law of our country.” The only solution for making civil and political rights meaningful to these large sections of society would be to remake the material conditions and restructure the social and economic order so that they may be able to realise the economic, social and cultural rights. There is indeed close relationship between civil and political rights on the one hand and economic, social and cultural rights on the other and this relationship is so obvious that the International Human Rights Conference in Tehran called by the General
Assembly in 1968 declared in a final proclamation:
“Since human rights and fundamental freedoms are indivisible, the full realisation of civil and political rights without the enjoyment of economic, social and cultural rights is impossible.”
Of course, the task of restructuring the social and economic order so that the social and economic rights become a meaningful reality for the poor and lowly sections of the community is one which legitimately belongs to the legislature and the executive, but mere initiation of social and economic rescue programmes by the executive and the legislature would not be enough and it is only through multidimensional strategies including public interest litigation that these social and economic rescue programmes can be made effective. Public interest litigation, as we conceive it, is essentially a co-operative or collaborative effort on the part of the petitioner, the State or public authority and the court to secure observance of the constitutional or legal rights, benefits and privileges conferred upon the vulnerable sections of the community and to reach social justice to them. The State or public authority against whom public interest litigation is brought should be as much interested in ensuring basic human rights, constitutional as well as legal, to those who are in a socially and economically disadvantaged position, as the petitioner who brings the public interest litigation before the Court. The state or public authority which is arrayed as a respondent in public interest litigation should, in fact, welcome it, as it would give it an opportunity to right a wrong or to redress an injustice done to the poor and weaker sections of the community whose welfare is and
must be the prime concern of the State or the public authority.
- There is a misconception in the minds of some lawyers, journalists and men in public life that public interest litigation is unnecessarily cluttering up the files of the court and adding to the already staggering arrears of cases which are pending for long years and it should not therefore be encouraged by the court. This is, to our mind, a totally perverse view smacking of elitist and status quoist approach. Those who are decrying public interest litigation do not seem to realise that courts are not meant only for the rich and the well-to-do, for the landlord and the gentry, for the business magnate and the industrial tycoon, but they exist also for the poor and the downtrodden the have-nots and the handicapped and the halfhungry millions of our countrymen. So far the courts have been used only for the purpose of vindicating the rights of the wealthy and the affluent. It is only these privileged classes which have been able to approach the courts for protecting their vested interests. It is only the moneyed who have so far had the golden key to unlock the doors of justice. But, now for the first time the portals of the court are being thrown open to the poor and the down- trodden, the ignorant and the illiterate, and their cases are coming before the courts through public interest litigation which has been made possible by the recent judgment delivered by this Court in Judges Appointment and Transfer cases.”
In Bandhua Mukti Morcha’s case (supra) after referring to the cases of Peoples’ Union for Democratic Rights, the Court has observed as under: –
“9. ……………… We have on more occasions than one said that public interest litigation is not in the nature of adversary litigation but it is a challenge and an opportunity to the Government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social and economic justice which is the signature tune of our Constitution. The Government and its officers must welcome public interest litigation, because it would provide them an occasion to examine whether the poor and the down-trodden are getting their social and economic entitlements or whether they are continuing to remain victims of deception and exploitation at the hands of strong and powerful sections of the community and whether social and economic justice has become a meaningful reality for them or it has remained merely a teasing illusion and a promise of unreality, so that in case the complaint in the public interest litigation is found to be true, they can in discharge of their constitutional obligation root out exploitation and injustice and ensure to the weaker sections their rights and entitlements. When the Court entertains public interest litigation, it does not do so in a caviling spirit or in a confrontational mood or with a view to tilting at executive authority or seeking to usurp it, but its attempt is only to ensure observance of social and economic rescue programmes, legislative as well as executive, framed for the benefit of the have-nots and the handicapped and to protect them against violation of their basic human rights, which is also the constitutional obligation of the executive. The Court is thus merely assisting in the realisation of the constitutional objectives.”
In Peoples’ Union for Liberties’s case (supra) after referring to the cases of Peoples’ Union for Democratic Rights and Bandhua Mukti Morcha’s case (supra), the Calcutta High Court has observed as under:-
“122. It is quite obvious that in a public interest litigation the petitioner and the State are not supposed to he pitted against each other, there is no question of one party claiming or asking for relief against the other and the Court deciding between them. Public interest litigation is a co-operative litigation in which the petitioner, the State or public authority and the Court arc to co-operate with one another in ensuring that the constitutional obligation towards those who cannot resort to the Courts to protect their constitu-tional or legal rights is fulfilled. In such a situation the concept of cause of action evolved in the background of private law and adversary procedure is out of place. The only question that can arise is whether the prayers in the petition, if granted, will ensure such constitutional or legal rights.”
- We have observed during the hearing that instant proceedings are not adversarial, but inquisitorial. The information/ material laid/produced before this Court by the State functionaries in pursuance of the order dated 24.08.2011, followed by the order of the Full Bench dated 26.08.2011 and the material produced by the interveners, reference of which has been made in the order referred hereinabove is sufficient for making right conclusions. We were informed that besides figures of crimes committed during one month commencing from 24th July to 24th August, 2011 noted hereinabove; about 1300 persons were killed during this year, whereas about 1800 persons similarly lost their lives in the year 2010. Thus, having gone through the material, we have no hesitation in our mind that at large scale the residents ofKarachi have been subjected to bloodshed, arson, kidnapping/abduction for ransom, widespread violence, illegal collection of money (bhatta) from traders, etc. and that their inalienable Fundamental Rights, such as, security of person; inviolability of dignity of man; freedom of movement; freedom of trade, business or profession and protection of property have been violated.
- The fact that deadliest criminals having affiliation with various groups are responsible for bloodshed, arson, looting, recovery of money (bhatta) from common citizens and traders causing terror in the city ofKarachiis not denied. Fearful as they are, the people ofKarachihave been spending sleepless nights particularly during the past months of July and August is also not denied. The accused persons belonging to any political or specific group are so powerful that the police for the reason stated have failed to arrest or collect evidence for proving the guilt against them before a Court of Law as we have noted hereinabove and according to summary of disposal of cases, most of the cases have already been disposed of as “A” Class, details of which have been mentioned hereinabove. M/S Syed Iftikhar Hussain Gillani, Abdul Mujeeb Pirzada, Ghulam Qadir Jatoi, Rasool Bakhsh Palijo and Syed Iqbal Haider representing various
applicants/interveners have blamed MQM to have let their activists loose who, according to them, are largely responsible for creating dismal situation of law and order perpetrating the alleged wrongful acts and causing terrorism in the city. Whereas, Dr. Farogh Naseem, learned ASC, appearing on behalf of MQM voiced in his submissions that in actual fact the Urdu speaking inhabitants ofKarachiare the victims of atrocious acts of criminals aligned with various other groups, particularly having influence in Baloch area of Lyari and Kati Pahari/Qasba Colony area largely inhabited by Pashtuns.
According to him, hundreds of MQM workers have been tortured and killed at the hands of such groups. Thus, it is quite evident that uncontrollable law and order situation prevails, which has wrapped the city ofKarachiin terror to the utmost discomfort of common citizens including traders, remains undisputed, the details of which are stated more specifically in the foregoing paragraphs. The DG Rangers, in his submissions, has been so vocal to say that the law and order situation inKarachiis worse than it happens to be in Waziristan. The IG Police has also not lagged behind in admitting the brazen facts. This situation has not only heavily affected the common citizens ofKarachi, it has virtually paralyzed the industrial and commercial activities ultimately affecting the whole country asKarachibeing a port city and commercial hub of country, it contributes 60 – 70 % of revenue. Thus, there cannot be two opinions that the worsening law and order situation inKarachibadly affecting the inviolable dignity, life and liberty of multitudes of
people; so also their property, movable and immovable involve violation of Fundamental Rights constituting it a matter of public importance.
- It is to be noted that, primarily it is the duty of the Province through its executive authorities to control the law and order situation and ensure implementation of Fundamental Rights of citizens. But prima-facie it seems that the Provincial Authorities have not fulfilled their constitutional duty. Under the Constitution, equally it is the obligation of the Federation to protect every Province against internal disturbances as well as external aggression and to ensure that the Government of every Province is carried on in accordance with the provisions of the Constitution.
- It has been pointed out by learned counsel for the interveners representing different parties and groups including MQM, ANP, Baloch Ittehad Tehrik and others that their supporters/party men have been butchered and are kidnapped and their whereabouts as yet are not known.
- According to the opinion expressed before us, the Provincial as well as Federal Government cannot be considered to have been oblivious of their duties when right under their nose, a large number of persons were being brutally butchered everyday on the streets of Karachi, which are littered with dead bodies and torsos (human bodies without head and limbs); sometimes also found in abandoned places and the injured writhing in pain; so also when innocent citizens were being burnt inside vehicles and torture cells were being detected by the law enforcing agencies. The state of helplessness prevailed, throughout, in the city ofKarachi- the face ofPakistanbeing its economic hub – accommodating persons belonging to different communities, including Urdu speaking, Pashtuns, Saraiki’is, and others. The dead bodies of the persons belonging to all walks of life i.e. Urdu speaking (word used for the purpose of identifying in this case), Pashtuns, Balochis and Punjabis are being sent to their homes, withinKarachiand outsideKarachii.e. to Khyber Pakhtunkhwa, Baluchistan and Punjab, which is causing insurmountable fear and harassment throughout the country badly affecting economic activities on account of disturbances taking place in Karachi. Many people have wound up their business and have shifted fromKarachito other places inside the country and outside causing colossal loss not only to the residents ofKarachiindividually, but to overall economy of the country. The whole nation is crying hoarse, media highlighting the tragic incidents day and night in such a state also cannot be considered to have not come to the knowledge of Provincial and Federal functionaries. Unfortunately, no appropriate and timely action has been taken by the Provincial as well as Federal Governments to stop these atrocious acts. Material has been brought on record, such as, reports of JIT, CID, IB, etc. (copies of which have been provided to us) bearing horrifying stories of heinous crimes committed by dangerous criminals aligned with various political parties and groups; besides very critical situation of law and order reflected in the classified briefing of ISI cannot be considered that the same are not within the knowledge of the Provincial and the Federal Governments. This sensitive material is, prima-facie, sufficient to hold that the Provincial Government has failed to perform its constitutional obligations and duties. Therefore, for the purpose of enforcement of Fundamental Rights denied to the people as highlighted hereinabove, this Court in exercise of its jurisdiction under Article 184(3), which is in the nature of inquisitorial proceedings, has the same powers as are available to the High Court under Article 199 of the Constitution in view of the judgments passed in the cases of Muhammad Nawaz Sharif v. President ofPakistan(PLD 1993 SC 473), Syed Wasey Zafar v. Government of Pakistan (PLD 1994 SC 621), Bank of Punjab v. Haris Steel Industries (pvt.) Ltd. (PLD 2010 SC 1109) and Federation ofPakistanv. Munir Hussain Bhatti (PLD 2011 SC 752).
- There is no denial of the fact that ensuring good governance, maintaining law and order situation and providing security to the persons is a primary duty of the Government. Our religion has also emphasized upon the significance and sanctity of ‘life’ as it has
been noted in the opening Para of the judgment, according to which, if anyone killed a person, it would be as if he killed the whole humanity, and similarly if anyone saved a life, it would be as if he saved the whole humanity. Similarly, it is the responsibility of the ruler (government) to ensure security of all its citizens, high or low, without any discrimination. It would be appropriate to refer here to the saying of the Second Caliph Umar ibn al-Khattab (R.A) that if a dog dies of hunger on the banks of the River Euphrates, Umar will be held responsible for dereliction of duty. [Mohtsham, Saeed M., Vision and Visionary Leadership – An Islamic Perspective]. Mr. Abdul Hafeez Pirzada, Sr. ASC appearing on behalf of the Chief Executive of the Province suggested in his arguments that a wake up call should be given to the Provincial Government by this Court, so that it may enforce the constitutional provisions. The suggestion of the learned counsel, however, does not sound well as this is the duty of the ruler to maintain the law and order without any interference of the Court. It is the history of this country that on account of law and order situation, disturbance, absence of peace, etc., many governments were dismissed in the past. In this behalf, reference may be made to the instruments of dissolution of Parliaments issued by civilian constitutionally elected Presidents which were upheld by the Supreme Court from time to time:-
Order dated 29.5.1988 whereby the President of Pakistan dissolved the National Assembly under Article 58(2)(b):
“And whereas the law and order in the country have broken down to an alarming extent resulting in tragic loss of innumerable valuable lives as well as loss of property: And whereas the life, property, honour and security of the citizens ofPakistanhave been rendered totally unsafe and the integrity and ideology ofPakistanhave been seriously endangered. [Federation ofPakistanv. Haji Muhammad Saifullah Khan (PLD 1989 SC 166)]
Order under Article 58(2)(b) of the Constitution on 6th of August, 1990 dissolved the National Assembly (d) The Federal Government has failed in its duty under Article 148(3) of the Constitution to protect the Province of Sindh against internal disturbances and to ensure that the Government of that Province is carried on in accordance with the provisions of Constitution, despite the heavy loss of life and property, the rule of terror in urban and rural areas, riots, arson, dacoities, kidnapping for ransom, politics of violence among citizens and widely condemned failure of the Provincial Government and its law enforcing agencies, and also, in this behalf, failed to act under appropriate provisions of the Constitution. [Khawaja Ahmad Tariq Rahim v. the Federation ofPakistan(PLD 1992 SC 646)]
Order dated 5.11.1996 whereby the President dissolved the National Assembly under Article 58(2)(b) “Whereas during the last three years thousands of persons inKarachiand other parts ofPakistanhave been deprived of their right to life in violation of Article 9 of the Constitution. They have been killed in Police encounters and Police custody.
- In Ahmad Tariq Rahim’s case (supra), the dismissal of government was maintained by this Court because of failure of the Federal Government to protect the Provincial Government of Sindh from internal disturbances, relevant Para therefrom is reproduced herein below: –
“28. Ground (d) in the order of dissolution is that the Federal Government had failed in its duty under Article 148(3) of the Constitution to protectProvinceofSindh
against internal disturbances despite heavy loss of life and property. In this respect, stand taken on behalf of the petitioner is that matter relating to law and order situation in the Province was responsibility of the Province as enshrined in the Constitution. It is stated in the rejoinder riled in the High Court that Government of PPP entered into accord with MOM accommodating its members in the Sindh Cabinet. Due to certain reasons there was unilateral break-up of the accord by MQM which had withdrawn support from the Government. The Provincial Government was doing its level best to deal with law and order situation as required under the Constitution and provisions of relevant laws. On this subject, there were several meetings between the Federal Government and the Provincial Government of Sindh and exchange of letters. took place between President, Prime Minister and the Governor of Sindh. In fact joint efforts were made sincerely to deal with the situation of law and order in Sindh to find a permanent solution. It is submitted on behalf of the petitioner that Federal Government and Government of Sindh wanted assistance of the army to the limited extent of aiding the civilian government as contemplated under the provisions of Criminal Procedure Code but for some reason could not succeed in carrying out amendment in section 138-A of Criminal Procedure Code. One suggestion from the Provincial Government was that unlicensed arms should be recovered from people without any discrimination. Then unpleasant incident took place inHyderabadon 26th and27th May, 1990in Pacca Qila. There were so many casualties in the firing. President wrote a letter on28th May, 1990addressed to the Prime Minister, asking hor to appoint judicial enquiry Commission to fix the responsibility for the events that took place inHyderabadexpressing his opinion in favour of use of armed forces in aid of civil power as contemplated under Article 245 of the Constitution.”
RelevantParafrom the judgment of this Court in Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416) is also reproduced hereinbelow: –
“54. The law and order situation inKarachiand other parts of Sindh should not have been allowed to deteriorate and get out of control. The custodial killings are to be explained satisfactorily as is required under the law. The killings in encounters with police are to be explained in proper manner and the Court has to give finding whether they were justified or not. There is absolutely no explanation available or produced on the record as to how the persons taken in custody and some of them in handcuffs while leading the Police party/Law Enforcing Agencies for making recoveries, were allowed to be killed by some unknown persons who did not want recoveries to be made. If a person is taken into custody then he is bound to be dealt with strictly according to law and is to be punished only when the case is proved against him. He cannot be allowed to be killed by any person while he is in custody. If this is done then it clearly shows that there is no writ of law but law of jungle. This shows inefficiency which tantamounts to total failure of the Constitutional machinery. If both the Provincial Government and the Federal Government jointly dealing with such situation fail then it can be said that the ground is available to the President to come to the conclusion that a situation has arisen in which the Government of the Federation cannot be run in accordance with the provisions of the Constitution and the Constitutional machinery has failed.
- It would not be out of context to note that Mr. Pirzada learned ASC had submitted that the Chief Executive was ready to take the following measures in future to maintain law and order situation inKarachi. The statement so filed is reproduced hereinbelow in verbatim:-
STATEMENT ON BEHALF OF COUNSEL FOR THE PROVINCE OF SINDH
In pursuance of the proceedings before, and the order of thisHon’ble Courtin the above matter dated 30.08.2011, the undersigned counsel for theProvinceofSindhhas met the Chief Minister, Sindh and as a result thereof, he has been instructed and requested to make the following/submissions.
- The Chief Minister, Sindh has expressed his resolve and determination to deal with and handle the present criminal and crime situation in the city ofKarachi(the subject matter of the above proceedings) without any discrimination whatsoever, irrespective of any party affiliations, that the criminals may or claim to have and that every effort will be made to deal with and control the situation by all necessary action within the framework and letter and spirit of the Constitution the law.
- The Chief Minister firmly believes that his Government and the law enforcement agencies and instrumentalities available to him are competent in this behalf and that there shall be no lack of will to act on their part.
- Without prejudice to the generality of the above submission, the Chief Minister, respectfully wants to convey to thisHon’ble Court, the specific actions that he proposes to take in this behalf:
a. For the purpose of prevention and control of crime, steps are underway to increase the strength of the police force and supplement and buttress the same by the Rangers. It may be pointed that deployment of Rangers (which are absolutely necessary and vital to work in coordination and cooperation with the Police and are 10,000 in numbers in the city of
Karachi) impose a bearable burden of less than Rs.400,000,000/- (Rupees Four Hundred Million) per year, in juxtaposition to the benefits flowing from their proper utilization. The burden of their salaries and emoluments is and continues to be borne by the Federal Government and not the Provincial Government.
b. 1000 additional Police force has been transferred from the interior of Sindh to perform duties in the city ofKarachi. The large number of the Police force available inKarachi, which has not been allocated to crime control will be reduced beginning immediately so as to provide sufficient numbers to crime control. It may be pointed that at least a half of the number reserved for special duties as disclosed by the Inspector General Police, Sindh, is either assigned to traffic control or security to VIP’s and also nongovernmental private parties and institutions. Notices have already been issued to these non-governmental and private organizations, that the force allocated to them is to be withdrawn and they have been advised to make private arrangements for their security. In
the next immediate step, the force assigned to VIP’s will be reduced, wherever possible in consonance with and without jeopardizing the requirement of their security.
c. Lastly, a 5000 strong contingent Police force, is being recruited, which will be trained and fully capable of performing their duties within the next 12 months. These recruits will receive special and sophisticated training at 9 Police training centers in the Province.
d. Closed Circuit Televisions (CCTV’s) and cameras are being installed at 900 different locations in the city, which shall monitor, record and report commission of crimes. As stated in the power point presentation (from pages 48 onwards), new and effective APC’s have been ordered, which will augment and enable easier penetration by the law enforcement agencies into the crime areas. As stated on page 48, a new motorcycle force named ‘Eagle Force’ has already been introduced and is functional.
e. 20 mobile forensic laboratories are being acquired, which shall be manned by extensively trained personnel, with the assistance of friendly countries with advanced technology and expertise.
f. The next important aspect in the maintenance of law and order is an effective, meaningful and productive investigation for the purpose of apprehension of real culprits, sophisticated and proper collection of evidence, l witnesses and compilation of record, so as to enable the Prosecutors to go with confidence and secure convictions of the guilty. The Police Act 1861 has already been brought into force and solid investigation can be achieved through suitable amendments in the law. In this behalf, desired results can be achieved by strengthening the prosecution agencies and institutions. It may be necessary to bring suitable amendments in the existing laws, which may inter alia, provide for safety and security of witnesses and maintenance of full record and date of habitual offenders, so as to make it difficult for them to be release on bail as a matter of course.
g. As far as the question of aliens/noncitizens living inKarachiand estimated to e 2,500,000, this matter relates to a considerable extent to the Federal Government and the Counsel representing it shall have better locus standi to address thisHon’ble Court.
- That these proceedings have been initiated Suo Motu by thisHon’ble Court, pro bono publico and are not adversarial and therefore, the submissions on behalf of theProvinceofSindhhave been made in that context. ThisHon’ble Courthas also made observation to the same effect. Therefore, the right of rebuttal, of theProvinceofSindh, is not waived if others parties, who have brought in their petitions or have joined these proceedings make any submissions, which are required to be answered rebutted and controverted.” But subsequently, he waived his right of rebuttal.
- Some of the above commitments have already been reiterated by the IGP Sindh in his presentation, summary whereof has been reproduced hereinabove. Similarly, as it has been pointed out in the report submitted by the Chief Secretary Sindh dated 26.08.2011 that after large scale bloodshed in Karachi, now the Administration has realized the gravity of the situation and has conferred powers upon the Pakistan Rangers vide notification dated 08.07.2011, which reads as under:-
GOVERNMENT OF SINDH
Karachi dated July 08, 2011
SUBJECT: PAKISTAN RANGERS (SINDH) EMPLOYMENT IN THE MAINTENANCE OF LAW AND ORDER IN KARACHI
In the wake of recent incidents of terrorism/target killings in certain parts of Karachi, Government of Sindh, in exercise of the powers invested under section 10 of the Pakistan Rangers Ordinance, 1959, read with section 5 of the |Anti-Terrorism Act, 1997, hereby make responsible Pakistan Rangers (Sindh) for the maintenance of law and order and to apprehend the criminal elements involved in firing and killing of innocent citizens in various areas and zones of the city (where situation warrants employment of Sindh Rangers). Pakistan Rangers (Sindh) are hereby authorized by the Government of Sindh to cordon, search and use force in controlling firing by the criminals in effected areas. CCPO Karachi will extend all possible support to Pakistan Rangers (Sindh) in restoring law and order situation in any part of the city.
ADDITIONAL CHIEF SECRETARY
The contents of the report of the Chief Secretary, particularly Paras 7 & 8 thereof, being an eye-opener, have already been reproduced hereinabove.
- Similarly, IG Police in addition to other explanations, referred to the demography of the city and admitted extortion of money (bhatta) being collected from the traders.
- Mr. Farogh Naseem, learned ASC appearing on behalf of MQM in CMA 565-K/2011, pointed out that to prevent extortion of money (bhatta) the Provincial Assembly had already promulgated the Eradication and Curbing the Menace of Involuntary Donation or Forced Chanda Act, 2004 [hereinafter referred to as “the Act, 2004”].
However, it seems that this legal instrument has not been applied strictly whereas other learned counsel for interveners are of the opinion that criminals involved in collection of bhatta are so desperate that no one – be a trader or anyone else – being fearful is interested to expose himself to the wrath of the criminals, rather they feel safety in paying bhatta; besides they are equally hesitant to come forward because of problems and difficulties in perusing cases and also have no trust and faith in the police. As far as the law which has been referred to by the learned counsel, cognizance of an offence under the said Act is to be taken on submission of complaint in writing by a donor within 30 days of the commission of the offence before the Judicial Magistrate having territorial jurisdiction. The victims, instead of going by the letter of the law whereunder they have to become complainants and challenge the criminals, reportedly always armed with lethal weapons, prefer to make payment of bhatta. This thing can only be reversed if the trust of the citizens is restored, which of course is not possible until and unless a neutral and a depoliticized administration as well as honest and dedicated law enforcing agencies, especially police are there to protect the victims of crimes. It seems that this law was promulgated for eradication and curbing the menace of extortion of money in the shape of forced donations (chanda). The word “chanda” has not been defined, but the definition clause of section 2 contains the word “Fund” which includes donation or contribution in the shape of money or kind. Thus, taking advantage of this provision, it was argued before us that there have been complaints that in the name of payment of fitrana, which is to be paid as sadqa by all the Muslims at the end of Ramadan on the eve of Eidul-fitr, exorbitant amounts have been forcibly recovered instead of allowing Muslims to pay the same voluntarily to the deserving people as per Injunctions of Islam. The culprits in an organized manner receive fitrana and in some of the cases ten times of the original amount has been demanded. Although no documents are available on record in this behalf, but these things have been pointed out during the arguments by the learned counsel appearing for the interveners who have spoken before the Court vocally. Similarly, it has been informed that as far as the word ‘kind’ mentioned in the definition of “fund” is concerned, it relates to recovery of hadia (donation), skins of animals (khall) and other body parts of animals on the occasion of Eidul-Azha, however, the representatives of so called welfare organizations working under the flags of their respective political parties used to bind down the people to hand over the same to them, else to face the consequences, but according to the learned counsel for the interveners, this law has also not worked effectively and the practice of forcible recovery of the above items, i.e. skins, etc., has been going on.
- It may be noted that as far as offence of extortion of money is concerned, which can also be considered as bhatta, it is covered by sections 386 to 388 of the Pakistan Penal Code and also falls within the definition of terrorism given in section 6(1)(k) of the Anti-terrorism Act, 1997. Undoubtedly, sufficient legal framework as discussed hereinabove is available on the statute book, but the same is lying dormant because of its non-application as people do not have trust in the law enforcing agencies to counter the deadly and influential persons who happen to terrorize the innocent citizenry and due to this reason no one comes forward. It is common knowledge that mafias i.e. groups of criminals involved in the commission of heinous crimes, such as recovery of bhatta, extortion of money, business of illegal weapons, narcotics, drugs, land grabbing, etc., had
been working in other countries as well in a highly organized manner. Reference in this behalf may be made to the Sicilian and American Cosa Nostra, an Italian group also working inNew York, but in those countries the crime was controlled by promulgating and implementing stringent laws, which we also have in our jurisdiction, namely, Antiterrorism Act, 1997, therefore, we can also control the same by applying such laws strictly. InUSA, to control such underworld mafias, the State authorized through the courts seizure of properties of such like persons, if it was established that they had acquired such properties out of income from the proceeds of heinous crimes. In this behalf, reference may be made to the case of Bracy v. Gramley, Warden, [520 U.S. 899 (1997)], wherein the Supreme Court of United States did not show any concession to the culprits. There are so many other judgments, reference of which may not be necessary at this stage, where the Governments had succeeded to control the mafiasafter applying stringent measures.
- The history ofKarachi, which has been narrated hereinabove, indicates that from 1985 onwards, the rate of crime as well as the situation of law and order have been increasing with the passage of time. Syed Iqbal Haider, Sr. ASC in CMA No. 544-K/2011, has pointed out that General Zia-ul-Haq, with an intension to further divide and de-politicize the people, created three militant groups and fully armed ethnic parties, i.e. Muhajir Qaumi Movement (Now Mutahida Qaumi Movement), Punjabi Pukhtoon Itehad (PPI) and Jiye Sindh (JS), and ethnic warfare started from the tragic road accident death of a student named Bushra Zaidi in April, 1985, followed by numerous incidents of bloody clashes between the three ethnic parties resulting in innumerable deaths of innocent citizens, destruction of public and private property and injuries to thousands of persons, particularly inKarachiandHyderabad. Curfews, hartaals (strikes) and close downs of routine activities of the citizens became a norm inKarachi. He further stated that from 1980 onwards, six Judicial Commissions headed by Judges of High Court of Sindh were constituted, but reports of none of those Commissions were made public nor their recommendations were ever implemented, perhaps to protect the real culprits responsible for such bloody incidents. Inasmuch as, former Prime Minister Mohtarma Benazir Bhutto had constituted a most powerful independent Judicial Commission headed by the then Chief Justice ofPakistan, Mr. Justice Muhammad Afzal Zullah and comprising the Chief Justices of all the four High Courts to investigate into the unfortunate incident of Pakka Qila, Hyderabad on or about 17.05.1990, but according to him, after unconstitutional dissolution of the Government of Mohtarma Benazir Bhutto, during the days of new Caretaker Government with heavy representation of MQM both at Federal and Provincial levels, it decided to dissolve the said Judicial Commission. He handed over the implementation report of one of such Commissions headed by the Chief Secretary, Sindh constituted in 1985-86 after the incident of Bushra Zaidi. We inquired from the learned Advocate General as to whether any other Commission’s report was available and whether the same had been made public or not, he stated that as per instructions, no Commission report is available in the relevant department. From the facts and circumstances narrated by the learned counsel, it seems that in the past as well, the city ofKarachi had been facing the same problem with which it is confronted today in more aggravated form, but unfortunately, no plausible solution to maintain law and order and restore peace inKarachiwas adopted. Inasmuch as, sometimes, there had been military operations followed by operations by the Task Forces constituted by Mohtarma Benazir Bhutto during her regime commencing from 1993 onwards, but without any final permanent solution of the problem. We tried our level best to trace out the reasons as to why democratic as well as non-democratic Governments failed to bring normalcy inKarachi, but nobody came forward with a convincing answer except that identical international solutions, which other Governments like inItaly,America,India, etc., had adopted are available to the State machinery inPakistan, but no one had dared or shown any will to resolve the issue of disturbances inKarachi. Although, Karachi is a city presently accommodating about 18 million people belonging to different communities, as per the history of Karachi who had come from India, Afghanistan and all over Pakistan and had settled permanently over there making it a cosmopolitan city, which houses Pakistanis as well as a large number of foreigners, about 2.5 million in number, who are also there without any check and their involvement in troublemaking can also not be overruled. But the question remains as to why law enforcing agencies have not, to say the least, checked these illegal immigrants and have not managed to deport them to the countries of their origin. The DG Rangers, who operates in the disturbed areas, appeared in person and pointed out in his briefing to the Court that the political forces of the city had been made hostage by the militant groups of political parties; Karachi was a mega city, but unfortunately an unjust infrastructure divided it into various parts on ethnic and political lines; the city was in the grip of polarization on account of which even the health sector was divided on ethnic/parochial basis, so much so that a patient or an injured person belonging to one community is refused admission for medical treatment in a hospital under the control of the rival group; and the situation in Karachi was worse than that prevailing in North Waziristan. The statement of DG Rangers has undoubtedly made important evaluation during his briefing, besides, in the reports available on record and from other credible sources, the situation in Karachi seems to be terrible and needs urgent attention of the Federal and the Provincial Government to handle the same through independent Administration to save the economic, social and political future of Pakistan, which, inter alia, depends upon peaceful life in Karachi.
- Mr. Rasool Baksh Palijo, ASC appearing on behalf of Awami Tehrik Party in CMA No. 552-K/2011, in loud and clear words, held MQM responsible alone for the situation prevailing in the country. He stated that over the last about 20 to 30 years thousands of criminals were not challaned and not a single person was awarded punishment. According to him, unless a ban is imposed upon the militant outfits of the political parties, peace and normalcy would not be brought to Karachi. Therefore, he emphasized that culprits should be brought to book and severe punishments should be awarded to them, which may serve deterrence for like minded persons. In this context, Syed Iqbal Haider, Sr. ASC agreeing with him suggested that a powerful truth finding commission is required to be constituted to decide, once for all, as to who is responsible for destroying peace in Karachi, whereas, Syed Iftikhar Hussain Gillani Sr. ASC was of the opinion that instant matter may not be disposed of finally, and an affective interim order may be passed, as this Court had done in the Petitions challenging the validity of the 18th Constitutional Amendment, enabling this Court to supervise the affairs relating to law and order situation inKarachi.
- Mr. Abdul Mujeeb Pirzada, Sr. ASC appearing on behalf of Sindh Bachayo Committee in CMA No. 531-K/2011, after having narrated the facts and circumstances of the case also insisted for directions to the Government of Sindh to initiate the process of deweaponization and for the assistance of Administration the military be also allowed to be called in terms of Article 245 of the Constitution because in the past as well, the Administration has been calling in aid the Armed Forces in critical situations like during the earthquake of 2005 and floods in different parts of the country in 2010, and also get implemented the orders passed by this Court by invoking Article 190, which according to Syed Iftikhar Hussain Gillani, Sr. ASC is an enabling provision on the basis of which the Court can issue directions to all executive authorities to come forward to provide aid to it in implementation of its orders, and undue objections are being raised to invoking of the provisions of Article 190. According to them, Article 190 is like all other provisions of the Constitution, e.g., Article 187, etc., therefore, adhering to any provision of the Constitution will be tantamount to strengthening the institutions for the purpose of achieving good governance, welfare, peace and tranquility in the society. They have emphasized that no provision of the Constitution can be made ineffective, rather each provision has to be applied when the need arises. It is to be noted that as per the scheme of the Constitution, different institutions are required to fulfill their commitment because our Constitution is based on the principle of trichotomy of powers i.e. Legislature, which is responsible to legislate the laws, Executive/Government headed by the Prime Minister in the Federation and the Chief Ministers in the Provinces to fulfill their duties, and the Judiciary, which has to interpret the Constitution and the law. Violation of constitutional provisions by any of the organs/functionaries of the State is not permitted by law as held in the case of Sindh High Court Bar Association v. Federation of Pakistan(PLD 2009 SC 876) wherein all the actions of the then Chief of Army Staff General Parvez Musharraf dated 03.11.2007, viz., Proclamation of Emergency, PCO No. 1 of 2007, Judges Oath Order, 2007, etc. were declared to be unconstitutional, illegal, mala fide and void ab initio. As a result, whatever was done extra-constitutionally was struck down. As far as the present democratic Government is concerned, it too cannot be allowed to go beyond the Constitutional provisions or allowed to fail in its implementation, particularly with regard to enforcement of Fundamental Rights. There are no two opinions that as far as Fundamental Rights/civil rights of the citizens are concerned, those are to be enforced by the Executive and if it fails to do so, they have to face the consequences envisaged by the Constitution. The Executive functionaries who have also taken oaths both in the Province and Federation to protect and preserve the Constitution cannot be allowed to defeat any provision of the Constitution, whatever the circumstances may be. At this juncture, reference to Article 5 of the Constitution is relevant and appropriate, which commands that loyalty to State is the basic duty of every citizen and obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may be, and of every other person for the time being withinPakistan. Thus, the Executive/public functionaries are bound to enforce the Constitution while protecting the Fundamental Rights of the citizens without any fear or favour or compromise for subjective purpose. Reference in this behalf may be made to the cases of Abdul Majeed Zafar v. Governor ofPunjab(2007 SCMR 330) and Ch. Zahur Ilahi v. Zulfiqar Ali Bhutto (PLD 1975 SC 383). In the last mentioned judgment, the question before the Court was with regard to initiating proceedings of contempt of Court against the then Prime Minister, Zulfiqar Ali Bhutto, vis-à-vis the position of such office holder as well as the immunity under Article 248 of the Constitution, when this Court held that even a Prime Minister is, under clause (2) of Article 5 of the Constitution, bound to obey the Constitution and law as that is the basic obligation of every citizen. Whereas, in the instant proceedings without claiming any immunity whatsoever, the Prime Minister as well as the Chief Minister both are bound to follow the Constitution under Article 5(2) by ensuring security and safety of persons and property of the citizens. An argument could be raised that since the responsibility for incidents of violence, commission of crimes, bloodshed and looting occurring in the society lies on criminals, who are to be held responsible and punished by the Courts of law, as such, in the instant case as well, the law enforcing agencies are performing their duties causing arrests of the accused persons to be put on trial in accordance with law. In our considered opinion, a line of distinction has to be drawn in the cases where there is insurgency in any part of the country and commission of crimes by the individuals for their personal enmities and other motives, and commission of crimes in the shape of a turf war by various groups allegedly having support of political parties to secure their vested interests, vis-à-vis unlawful gains. Such groups represent the organizations/gangs of criminals, drug mafias, land grabbers, etc., who operate against each other to have control over different areas of the city, considering themselves as warlords and obstruct entry of rival groups in each other’s area.
- At this stage, reference to the application of Mr. Javed Ahmed Chhatari Advocate, appearing in person in CMA No. 558-K/2011 may be made with which he has appended a coloured copy of the map to highlight the respective areas under the control of Pashtuns and Urdu speaking communities, divided by a hill. Allegedly, the Pashtuns are inhabitants on the upper side of the hill whereas the Urdu speaking people and other communities are living across and in the bottom of the same, and whenever a dispute arises, according to Mr. Chhattari, the Pashtuns take benefit of their location on the high side of the hill and manage to kill Muhajirs (Urdu speaking). He has also submitted a list of police stations, 112 in number, along with details of different communities living in their respective jurisdictions.
For convenience, the same is reproduced herein below: –
S.No. Name of Police Station Nature of Population
- 1. Peerabad2. Manghopir3. Mochko
- Site Section A
- Site Section B
- Sohrab Goth
- Sohrab Goth
- Bilal Colony
Pukhtoon Majority PoliceStations
- 1. Bahadurabad2. Nazimabad3. Rizvia
- Super Market
- Orangi Ext.
- Shah Faisal
Mahajir Majority PoliceStations
- 1. Chakiwara2. Bagdadi3. Kala Kot
- Eid Gah
- Ibrahim Haidry
- Memon Goth
- Bin Qasim
- Malir Cantt:
- Sharafi Goth
Baloch and SindhiMajority Police Stations
- 1. Mari Pur2.Jackson3.SurjaniTown
- Sher Shah SMC 16/2011 ETC. 81
- Sharfi Goth
- Baloch Colony
- Artillery Maidan
- Civil Line
- Jamshed Quarter
- Khokra Par
- Khawaja A Nagri
- Model Colony
- Nabi Bux
- New Town
- NewKarachiI Area
- Soldier Bazar
- Tepu Sultan
Mix CommunityPopulated Area Police
Thus, according to Mr. Chhattari, the dispute is not confined to individuals, but mostly extends to three communities i.e. Muhajirs, who normally speak Urdu, Pashtuns and Balochs, all of whom try to achieve their nefarious objects by committing murders by way of vengeance and as a matter of tit for tat. The Pakistan People’s Party Parliamentarians (PPPP) being the majority party in the Provincial Assembly of Sindh is the leading parliamentary party, whereas the MQM is the next majority party in the said Assembly. According to the learned counsel appearing on behalf of MQM, out of total 42 seats of MQM in the Provincial Assembly of Sindh, it has 34 seats from Karachi, and ANP has only 2 seats, whereas PPPP alone has 93 seats, which even otherwise is sufficient to form government in the Province.
However, according to him, for the reasons best known to the political groups or their leaders, a coalition government has been formed.
- Dr. Farogh Naseem, ASC has filed an application on behalf of MQM, contents whereof are reproduced hereinbelow: –
“14. The Applicant supports an action against all the criminal elements across the board without any fear, favour or affiliation. The Applicant shuns any form of terrorism and intolerance and requests thisHon’ble Courtto pass corrective orders and some suggestions in this regard are stated below in the prayer clause, while some will be furnished at the time arguments.
- The land, arms and drug mafia predominantly thrive upon unrest in the city. The failure of law enforcement agencies is a safe haven for such mafias, which encroach upon state land and their whereabouts are not traceable, and, therefore, it is imperative that proper survey and investigation is carried out so as to discover the areas and pockets of state land which are encroached and the law enforcement agencies are employed to evict them from such state land, whereafter the perpetrators are prosecuted.”
When we inquired from him as to why precautionary measures were not taken by the party being represented by him to control the law and order situation, he invited our attention towards Para No.7 of his CMA. It is important to note that one of the most important statements of fact has been made on behalf of MQM in Para No.14 above, and at the same time he has orally stated that in view of the circumstances prevailing in Karachi, he concedes that the Government has failed to enforce Fundamental Rights of the citizens. In respect of presence of land and drug mafia, an explicit offer has been made in Para No. 17 reproduced above. As far as jurisdiction of this Court under Article 184(3) is concerned, he has conceded that because the instant proceedings are inquisitorial, therefore, in view of the judgments in the cases of Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416), Darshan Masih v. the State (PLD 1990 SC 513), S.P. Gupta v. President of India (AIR 1982 SC 149) and People’s Union for Democratic Rights (AIR 1982 SC 1473), this Court, in the interest of public, has jurisdiction to adjudicate upon such a matter. He further argued that unless de-politicization of the law enforcing agencies takes place and neutral investigation bodies are constituted for the purpose of conducting transparent proceedings following the due process of law as contemplated under Article 10A of the Constitution and to supervise such independent bodies, unless a Judge of the High Court is appointed to monitor the proceedings of each case, it would neither be possible to bring the culprits to book involved in the commission of crimes nor justice would be done. In this very context, he has also relied upon Vineet Narain v. Union of India[(1996) 2 SCC 199], State ofBiharv. Ranchi Zila Samta Party [(1996) 3 SCC 682], Anukul Chandra Pradhan v. Union of India [(1996) 6 SCC 354], Union of India v. Sushil Kumar Modi [(1996) 6 SCC 500], Union ofIndiav. Sushil Kumar Modi [(1997) 4 SCC 770], Dinesh Trivedi, M.P. v. Union of India [(1997) 4 SCC 306], and Khan Asfand Yar Wali v. Federation ofPakistan(PLD 2001 SC 607). Learned counsel, instead of defending the situation prevailing in the city, has made two very important admissions on behalf of MQM, which are evident from the contents of the application reproduced hereinabove.
- The third most important admission from the coalition partner of the Government is that it has failed to enforce the Fundamental Rights of the citizens and suggested that it be held that under no political expediency or consideration, the Provincial or Federal Government should allow bloodshed, arson, kidnapping/abduction for ransom, widespread violence, illegal collection of money (bhatta) from traders, etc., to continue in violation of Articles 9, 14, 15, 18 and 24 of the Constitution or to encourage the land grabbers, drug mafias and gangs of organized criminals who are brutally committing murders by cutting necks and limbs of innocent people and throwing their torsos in the streets. Even if there is any expediency, it cannot be allowed to prevail at any cost, whatsoever the consideration may be, is the most important admission. Besides, it has been pointed out that except learned counsel appearing for the Government i.e. M/s Abdul Hafeez Pirzada and Babar Awan, learned Sr. ASCs, all the learned counsel for the applicants/interveners, loudly and clearly, with logical reason based on facts, have conceded that the Government has failed to combat and eradicate crimes and to protect Fundamental Rights of the citizens. The nature of the crimes and the horrible acts being shown on DVDs of a torture cell detected by the Rangers in the area of Lyari, as per statement of IGP are hair-raising wherein the criminals are shown cutting throats of persons with blunt knives and committing sodomy. Obviously, this all shows that the Executive/Provincial Government has not dealt with the criminals with an iron hand. Had the Government done so, innocent persons would not have been deprived of their lives, liberties and properties and their dignity would have been saved. It has been mentioned time and again that allowing such incidents without any resistance for the last so many years, and more particularly in the recent months of July and August, 2011, relevant details whereof have been obtained, is beyond comprehension. We may observe here that it is not the question who succeeds in forming the government both in the Centre and the
Province, but here the question is of defending the Fundamental Rights of the citizens. The Executive Authorities cannot be allowed to be negligent to an extent where ultimately the sovereignty and integrity of the country is jeopardized. Availability of heavy and light arms and ammunition, such as pistols, revolvers, rocket launchers, MG, LMGs, etc., in fact, has turnedKarachiinto a volcano, which can erupt at any moment, and then it would not be possible for the Executive to control the same. There are voices from different quarters, including the learned counsel appearing for the interveners that the Government should have initiated action for de-weaponization. In this behalf, Mr. Farogh Naseem, ASC has stated that a private Bill, namely, the Deweaponization of Pakistan Bill, 2011 has been moved by the MQM in the National Assembly, which is still pending with the Assembly.
- Dr. Babar Awan, learned counsel for the Federation and learned Advocate General, Sindh were called upon to explain as to how many licenses of prohibited and non-prohibited weapons have been issued by the Federal and the Provincial Government of Sindh during the last five years. Both of them filed the reports indicating that 180956 licenses of non-prohibited bore were issued by the Home Department, Government of Sindh whereas 46114 licenses of prohibited bore and 1,202,470 licenses of non-prohibited bore were issued by the Ministry of Interior, Government of Pakistan. It is to be noted that usually crimes are not committed with licenced weapons as the criminal perpetrators use un-licenced weapons for the same.
- As it has been pointed out hereinabove that in the past in an identical situation, the constitutionally elected President of Pakistan had dismissed the Governments and such orders were maintained up to the Supreme Court, reference of which has already been made hereinabove. It is important to mention at this stage that whosoever is ruling the country under the Constitution, he being the Leader of the House, is bound to know the constitutional commitments and provisions of law because of the fact that he or they have taken oath(s) to preserve, protect and defend the Constitution, including Fundamental Rights as well as to show obedience to the Constitution and law under Article 5(2) notwithstanding their holding of any high office, as held in Zuhor Ilahi’s case (ibid).
- We may reiterate here that now it is not possible under the Constitution and law for the Armed Forces to dismiss the Government by adopting extra-constitutional measures, detailed reference in this behalf, if required, can be made to the only judgment of this Court in Sindh High Court Bar Association’s case (ibid), but at the same time the chosen representatives also owe a duty to the Constitution and if they feel that on account of any political expediency they can allow the continuance of the present position of law and order in the Province, it will be at their own risk and cost, otherwise under the Constitution they are bound to secure lives and properties, ensuring the proprietary rights, freedom of movement, etc., and failing which constitutionally such government is likely to lose their right of ruling.
- Ms. Asma Jehangir Advocate, in her statement, on the basis of report of Special Branch of Sindh Police, wherein names of persons belonging to different political parties including PPPP, MQM, etc. involved in the collection of bhatta have been mentioned showed her concern and stated that it is an eye opener for the Government and despite such information, no action has been taken by the police. We have no reason to differ with her, and we are constrained to hold for this reason as well that unwillingness of the police force to combat crime could be one of the reasons on account of which criminals are let loose in the society and encouraged to commit crimes.
- According to the assertion of Ms. Asma Jehangir Advocate, the law enforcing agencies have shown slackness in initiating action for extending powers to the Rangers and others, which, according to her, is evident from the parawise comments filed by the Chief Secretary. We have already discussed this aspect of the matter; however, we would share the concerns expressed by her. Actually, as it has been pointed out hereinabove, the situation could have been controlled conveniently, if the police had taken prompt action with full commitment, but in view of the statement of IGP that 30 to 40 percent police officials are not cooperating for the reasons already noted hereinabove, and no expectation could be made from them, unless the whole police is de-politicized by transferring the police officers of the rank of DSP and above to their parent departments, and by discontinuing the practice of allowing retired officers to join police on contract basis or bringing persons from other departments in the police department is discarded. In fact, by way of passing remarks, it may be observed that apart from the police department, the situation perhaps is worse in other departments as well, because appointments on the basis of unauthorized absorptions of different officers in the provincial and district Administration were made by the Government and a Division Bench of Sindh High Court in Constitution Petition No.932-D/2009 set aside such appointments by way of cancelling the orders of such appointments. The persons who were aggrieved by the decision of the High Court preferred petitions for leave to appeal, which were converted into Civil Appeals 404-406/2011 etc. But, in the meanwhile, Sindh Assembly passed the Sindh Civil Servants (Regularization of Absorption) Act, 2011 whereby the transfers/absorptions on permanent basis of such officers against regular posts were declared regular notwithstanding any judgment of any Court, as a result whereof the appeals so filed were withdrawn and stood disposed of vide order dated 16.06.2011.
- Mr. Muhammad Aqil, President ofKarachiBar Association, Mr. Iftikhar Javed Qazi, Vice Chairman, Sindh Bar Council and Syed Haider Imam Rizvi, General Secretary, Karachi Bar Association appeared in CMA No. 532-K/2011 and stated that about 19 Advocates have also been brutally murdered by criminals and so far no action has been taken by the law enforcing agencies. Their arguments were augmented by Mr. Faisal Kamal, learned ASC who has filed an application on behalf of the PML(N), and according to him, two Advocates who were supporters of PML(N) were also murdered. It is to be noted that as per information supplied, following Advocates so far have been killed in different incidents, during the last few years: –
- Mr. Sardar Zulfiqar
- Mr. Muhammad Hanif Khan
- Mr. Altaf Hussain
- Mr. Liaqat Qureshi
- Mr.Nazar Abbas
- Mr. Muhammad Kamal
- Mr. S. M. Zia Alam
- Syed Mukhtar Abbas Bukhari
- Mr. Muhammad Junaid
- Mr. Fahim Riaz Siddiqui
- Mr. Muhammad Saleem Bhatti
- Mr. Muhammad Murtaza Chinnoy
- Mr. Nazeer Ahmed Khuhawar
- Mr. Ali Muhammad Dahiri
- Mr. Muhamma Aslam Burioro
- It is pertinent to mention here that in some of the cases, FIRs have been registered, but the accused persons have remained untraced. We agree with the learned counsel that if the lives of Advocates are not safe at the hands of the culprits, a set back is likely to be caused to the profession of law, which is an important tool in the system of administration of justice. However, the learned Advocate General assured that the matter will be looked into and all efforts will be made to bring the culprits to justice. He has also stated that the Government of Sindh has agreed to pay compensation of Rs.5,00,000/- and one plot to the families/legal heirs of the deceased Advocates. As far as the payment of compensation is concerned, according to him, the claims have already been approved by the Government of Sindh whereas the process of allotment of plots is in progress. The learned representatives of the Advocates, however, requested for enhancement of compensation as according to them, such lawyers have also been killed in the course of performance of their professional duties and according to the Government Policy, a sum of Rs.20,00,000/- is paid to the families of the police officers/officials who have sacrificed their lives while combating crimes. We do agree with the learned counsel for enhancement of compensation in view of the two judgments, which have been cited by Mr. Farogh Naseem, ASC. This Court, in exercise of its jurisdiction under Article 184(3) of the Constitution, has also ordered payment of compensation in the case of Saad Mazhar v. Capital Development Authority (2005 SCMR 1973) to the residents of Margalla Towers, which collapsed in the earthquake of September, 2005. However, in the instant case, this Court perhaps would not be in a position to issue any direction except observing that the cases of the Advocates, belonging to legal fraternity and being one of the important components of the system of administration of justice, if they lay their lives on account of prevailing law and order situation in the city, without any fault on their part and also not on account of any personal enmity, deserve to be dealt with at par with the police officials who have sacrificed their lives in combating crime. The Government of Sindh may consider change in the Policy for the payment of compensation and grant of a plot of land to their families.
- It may be pointed out that immediately after the commencement of hearing of the case, one Barrister Murtaza Chinnoy, Advocate was assassinated in his office. The office bearers of the Sindh High Court Bar Association and Karachi Bar Association pointed out this fact to the Bench, therefore, the IGP Sindh was directed to take personal interest in the matter, and later it was informed that accused persons have been arrested and prima facie their involvement in the murder case is on account of dacoity, as allegedly he was robbed and looted. Similarly, another Advocate, namely, Faheem-ul-Karim along with a lady and another person was killed in a flat and police was directed to expedite the investigation. Mr. Tariq Dharejo, SP Clifton submitted a report to the effect that accused persons are likely to be booked soon in this case as well. Mr. Faisal Kamal Alam, ASC who appeared on behalf of PML(N) also expressed his grievance in respect of killing of workers of the political party being represented by him, including two Advocates and argued that the Government had failed to enforce the Fundamental Rights of the citizens under Article 9 of the Constitution, which has been elaborately interpreted by this Court in the cases of Shehla Zia and Benazir Bhutto (ibid). His grievance is that although the FIRs have been registered, but so far accused persons have not been arrested. As far as the enjoyment of the protection of life and property enshrined in Article 9 of the Constitution is concerned, there is no cavil with the proposition as this issue has been discussed elaborately hereinabove with reference to the case of Shehla Zia, but so far as judgment in the case of Benazir Bhutto, handed down by a 7-Member Bench of this Court, a Bench larger than the present Bench hearing the instant case, wherein dismissal of Government of Mohtarama Benazir Bhutto and dissolution of Assemblies was challenged is concerned, it is to be noted that the President of Pakistan, in exercise of powers under Article 58(2)(b) of the Constitution, dissolved her Government and in his speech to the Parliament on 29.10.1995 warned that law enforcing agencies must ensure that there would be no harassment of innocent people in the fight against terrorism and human and legal rights of persons are to be duly protected. This advice was not heeded to and killings continued unabated. The Government’s fundamental duty to maintain law and order situation has to be performed by proceeding in accordance with law. In consequence of this judgment, the Dissolution Order was maintained by a 7-Member Bench of this Court. If similar circumstances prevail today, we would be bound by that ruling. We may observe here at the cost of repetition that under Article 148(3) of the Constitution, the Federal Government is bound to assist the Provincial Government during the period of disturbances.
- Ms. Asma Jehangir, President, Supreme Court Bar Association argued that in view of the acute law and order situation prevailing in Karachi, a change in the mindset for improving the investigation and introducing the witness protection system is called for. Her voice has been appreciated by the other representatives of the Bar Associations, including Mr. Ashraf Samoo, President Malir Bar Association who appeared in CMA No.560-K/2011 and pointed out that the Government functionaries did not perform their duties due to fear of death at the hands of the criminals, inasmuch as, such incidents had already occurred and about 92 police officials who participated in the Operation Clean up of 1992 had been murdered through target killing. Therefore, under the circumstances, now the investigating officers are not ready to conduct investigation independently nor the witnesses dare to come forward because they do not get protection as already stated by the President of the Supreme Court Bar Association. In absence of any evidence, it is not possible to accept the statement that 92 police officers, who participated in the 1992 Operation Clean up have been murdered. It can only be considered a factor, but at the same time we, during hearing of the cases, looking to the trend of investigation of cases as well as the morale of the police, have no reason except to agree with the learned President of the Supreme Court Bar Association and other representatives of the lawyers coupled with the statement of IGP Sindh that about 30 to 40 percent police officers/officials are non-cooperative.
- In all the civilized countries where hardened criminals are brought before the Court, full protection is provided to the witnesses so that they may not feel frightened while deposing the truth, but unfortunately, no such programme is available throughout the country despite the commission of offences, which seem to have taken place and the criminals have gone Scot free because nobody dares to depose against them and ultimately the blame is shifted to the Courts for acquitting them. In the present incidents, we have noted with concern that most of the FIRs have been registered against unknown
persons and the police officers in the garb of section 173 Cr.P.C. wherein they are required to submit the challan within 14 days, instead of filing interim challan, make request to the court to enlarge the period of investigation and after seeking permission feel satisfied in getting the FIR cancelled after declaring it as an “A” class case. As it has been noted hereinabove, comparative table of the FIRs registered during one month’s period indicates that most of the cases have already been declared as “A” class. So far remaining cases are concerned, no effective progress seems to have been made, may be on account of non-commitment of the investigating officers, or for the reasons that no witness is ready to come forward. The situation in the city has gone from bad to worse to the extent that on our direction 18 persons, who were abducted, were recovered by the police. Prima facie, such abductees were not recovered prior to the direction of this Court because no police official was in a position to afford enmity with the criminals. The statements of two of such persons are reproduced hereinabove.
- Thus, in view of such state of affairs, how could one believe that, in presence of the overwhelming material, which has been brought before this Court in daily situation reports, reports of Special Branch, IB and other sources as well as material discussed hereinabove, the criminals will be punished for the crimes, which they have committed. Therefore, under the circumstances, change in the investigation and improvement in the prosecution system is sine qua non, and that too, through de-politicized, honest and competent officers. In absence thereof the accused persons shall be encouraged if they are arrested but not sentenced knowing fully well that they though have brutally killed so many persons in violation of the Fundamental Rights of the victims, nothing would come of this barbarity.
- Learned office bearers of both the Bar Associations noted above also pointed out that six Special Courts under the Anti Terrorism Act 1997 were lying vacant for the last several months despite the fact that the Chief Justice of High Court of Sindh was continuously pressing hard for the appointment of Presiding Officers in these Courts. Inasmuch as, Mr. Justice Javed Iqbal, former Judge of this Court, who was nominated as Judge to monitor the cases of Anti-Terrorism Courts forKarachi, in view of the observations made in the case of Liaqat Hussain (supra), had taken up the matter with the concerned authorities to ensure early appointment of the Presiding Officers, but no progress was made. This judgment, however, also contains directions which were incorporated in the judicial order to ensure expeditious disposal of cases, but it seems that the concerned authorities were not aware of the same. When we asked the learned Advocate General, Mr. Abdul Fattah Malik to explain the position of the Government, he candidly conceded that delay has been caused in not making the appointment, but as there is no difference between the Chief Minister and Chief Justice of the High Court on the appointment of Judges already recommended, therefore, notification would be issued within two days. Consequently, on 07.09.2011, all the six Judges were appointed vide notification issued by the Government of Sindh. It is to be noted that the Competent Authority of the Province had to make the appointments on the basis of recommendations u/s 14 of the Anti-Terrorism Act, 1997. Admittedly, in the instant case recommendations were lying with the Competent Authority since long, but it failed to make the appointments and reasons of the same have not been disclosed by the learned Advocate General except stating that some delay has occurred. In the case of Liaqat Hussain (supra), this Court had taken upon itself the exercise of monitoring the functioning of Anti-Terrorism Courts through a nominee of the Chief Justice, therefore, vacancies of such Presiding Officers cannot be left un-filled for an indefinite period of time and the appointments have to be made as early as possible instead of causing the delay for one or
the other reason. However, as now appointments have taken place and reportedly these officers have joined duty, we are confident that in future such appointments, subject to availability of the vacancies, will be made promptly.
- Mr. Ghulam Qadir Jatoi, ASC appeared in CMA No.533-K/2011 and highlighted his grievance that one deceased Junaid Zaidi kidnapped in the month of April, 2011 by the terrorists/killers was severely tortured and was killed and his dead body was thrown on Katchra Kundi. Case has been registered u/s 302/34 PPC vide FIR No. 57 of 2011 in Malir Cantt. Police Station. Similarly, one Ayub Ali was killed/murdered in the month of July, 2011 by the terrorists after entering into his house when he was giving Dars-e-Quran, as such FIR No.194/2011 was lodged at Brigade Police Station u/s 302/34 PPC.
This application was followed by another application wherein documents were filed to establish allegations against the sovereignty ofPakistanattributing to Altaf Hussain, leader of MQM along with two CDs. Yet another application has been filed for summoning Dr. Zulfiqar Mirza, former Home Minister, Government of Sindh, who according to him, had deposed on Holy Quran against MQM. We have pointed out to the learned counsel that he should have filed affidavit of Dr. Zulfiqar Mirza and also brought to his notice that instant proceedings are not adversarial but inquisitorial, which have been initiated in the public interest. However, the issue being raised by him is of important nature and if he too considers it so, he can adopt the proper course for the redressal of his grievance in accordance with law. We have also pointed out that by the time it is established that Dr. Zulfiqar Mirza’s statement in the newspapers has not been controverted by anyone, therefore, the same will be presumed to have been accepted as it is held in the case of Dr. Mobashir Hussan v. Federation of Pakistan (PLD
2010 SC 265). He also emphasized that murder of a man in view of the Islamic injunctions is tantamount to murder of the entire humanity, therefore, murders of all those persons, who have been killed inKarachiwithout any reasons being Masoom-ud-Dum clearly indicate failure of the Provincial Government. As far as Islamic injunctions with regard to killing of an innocent person is concerned, there could not be any two opinions. This injunction of Islam has been elaborately discussed in the case of Federation of Pakistan v. Gul Hassan Khan (PLD 1989 SC 633). However, a criminal case in adversarial proceedings is likely to be decided on merits after recording of evidence.
- Mr. Ghulam Qadir Jatoi, learned ASC referred to the case of Sardar Farooq Ahmad Khan Leghari v. Federation of Pakistan (PLD 1999 SC 57) and contended that the Judges of the Superior Courts who have taken oath to protect the Constitution are bound to enforce Fundamental Rights conferred by the Constitution and ensure that the provisions of the Constitution are fully alive and operative. It is to be noted that in the aforesaid reported judgment the Proclamation of Emergency dated 28.05.1998, promulgated under Article 233(1) of the Constitution, was questioned and the Court concluded that it was sufficient to hold that prima facie there was some material on the basis of which the President could issue the impugned Proclamation of Emergency on account of imminent danger of external aggression. However, the same did not warrant passing of an order under clause (2) of Article 233 of the Constitution suspending the enforcement of the Fundamental Rights. To strengthen this argument one of the reasons assigned in the later part of the judgment was that in spite of suspension of enforcement of certain Fundamental Rights under clause (2) of Article 233 of the Constitution, Article 4 thereof remained fully operative, which laid down that to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being withinPakistanand in particular no action detrimental to the life, liberty, body, reputation or property of any person would be taken except in accordance with law. Therefore, according to the learned counsel, Fundamental Rights of the citizens ofKarachihave to be enforced by the Court in the discharge of judicial functions. We have no cavil with the proposition and fully endorse the arguments of the learned counsel. He has also relied upon the case of Syed Jalal Mehmood Shah v. Federation ofPakistan (PLD 1999 SC 395). In this case, the order dated 30.10.1998 issued by the Federal Government under paragraph (c) of clause (2) of Article 232 of the Constitution, pursuant to the declaration of Proclamation of Emergency dated 28.05.1998 under Article 232 of the Constitution was challenged. The order referred hereinbefore was followed by another order dated 10.11.1998, issued by the Federal Government, in pursuance whereof the operation of Article 54 read with Article 127 relating to summoning and prorogation of the Provincial Assembly was suspended; however, no question with regard to the enforcement of Fundamental Rights was involved, therefore, the cited judgment in view of the facts and circumstances of the present case is not applicable. He further contended that Jamat-e-Islami had issued a White Paper according to which sufferings of the citizens ofKarachiwere on account of
commission of heinous crimes in the city since 1985, which were being committed by one party (MQM) and it was admitted and declared by the Government, that serious lawful action was, therefore, taken against them by the Government.
- Similarly, Awami Tehrik Party, through its President Mr. Rasool Bux Palijo, during the arguments stated that MQM was responsible for target killing, attacks on the police, etc., and that MQM was a challenge to the country, therefore, a ban be imposed on this party as innocent people were suffering at their hands and people were so overawed that due to fear created by them, no body was ready to go before the police. He maintained that the people ofKarachiare absolutely insecure, as such, ways and means be found out to give relief to them otherwise there was every likelihood that in the ultimate result there could be uncontrollable anarchy as the people in the town finding themselves without protection to their dignity, life, liberty and property might, as a last resort, take the law in their hands.
- Mr. Irfan Ullah Marwat, petitioner, who appeared in person being the President of Pashtun Punjabi Ittehad too, raised similar voice against MQM.
- From the material so brought on record, namely, reports of the JIT filed by Syed Iftikhar Hussain Gillani, learned ASC, report submitted by the Provincial Government prepared by its Special Branch, report of the IB and information collected from other credible sources during in camera briefing by ISI does highlight the role of the stakeholders and political parties, namely, ANP, PPP, MQM, Sunni Tehrik, Jamat-e-Islami, etc. that in the ranks of these political parties, criminals have succeeded in making their way, some of whom are now involved in target killing, land grabbing, drug mafia, recovery of bhutta as well as forcible recovery of skins of animals during Eid-ul-Azha and due to their vested interests, there is a turf war. In this context the following statement of Mr. Rehman Malik Federal Interior Minister published in Daily Dawn dated 13.09.2011 is quite pertinent: –
“Interior Minister Rehman Malik said on Tuesday that ‘criminals’ arrested inKarachiduring the current operation belonged to all political parties.
The government has evidences (audio and video tapes) against them which will be made public if permitted by the Supreme Court.
“I will consult with the federation’s lawyer, Babar Awan, about getting permission from the Supreme Court to make the names of criminals public,” he told reporters at the National Press Club. Although, he said, the people arrested inKarachibelonged to all political parties, he was of the view that they had not been recruited by the parties, but they somehow managed to get refuge in them after committing crimes. He said that police and Rangers had arrested 48 target killers, 90 criminals and 28 extortionists and seized 308 weapons.
The operation, he said, was being carried out without any discrimination, with the sole objective being to restore normality and peace in the city.
Expressing satisfaction over the way the operation was being carried out, he said there were ‘no-go areas’ in the city and police and Rangers were free to take action even in such areas where they could not enter in the past. Mr. Malik said flags of political parties had been removed in various places and around 14,000 acres of land occupied by the land mafia had been recovered. Rebuffing allegations leveled by the Leader of Opposition in the National Assembly, Mr. Malik said that he had no links with any terrorist. He said he had good relations with the Muttahida Qaumi Movement which was in parliament with
“It will be unjustified to declare any political party ‘terrorist’ without any evidence,” he said. Commenting on an allegation leveled against him by PPP leader Zulfikar Mirza, he said he had not released any criminal inKarachiand if anyone had evidence he could present in the court. The minister claimed that no foreign security agency was operating in the country, adding that he had advised foreigners to visit only permitted areas because of security concerns.
He said a committee had been formed to probe an incident in which journalists of a private TV channel had been tortured by some unidentified elements. Action will be taken on the basis of findings of this committee. “A judicial commission was formed on the demand of journalists to probe into the killing of Saleem Shehzad and the commission has submitted its report to the interior ministry which I have handed over to NPC’s President Afzal Butt,” he said.
The minister said that four people had been arrested in the case about murder of journalist Wali Khan Babar.” Inasmuch as, the Prime Minister also admitted more than once that PPP men were also involved in violence inKarachi. Reference is made to the news item published in The News International dated 25.08.2011:-
“Prime Minister Yusuf Raza Gilani on Wednesday ruled out a military operation inKarachiunless all other options were exhausted first but admitted before his cabinet colleagues that PPP men were also involved in theKarachikillings.
A cabinet minister confided to The News that the prime minister told the cabinet meeting that the law enforcement agencies inKarachiwere confident to control the deteriorating law and order situation in the city in just a fortnight’s time provided they were given a free hand. However, the minister did not explain if the muchdemanded free hand is being given to the law enforcers to apprehend and punish the criminal elements there without any fear and favour. Prime Minister Gilani despite being chief executive is not relevant on key policy and administrative matters includingKarachipolitics as the Presidency is calling the shots and takes decisions on such matters.
The prime minister, according to the source, said that the law enforcement agencies are seeking a free hand and demanding that there should be no political interference from any side to ensure early peace and stop target killings. Political interference and the backing of criminals and killers by the political parties are seen as the major hurdles in the way of durable peace in the city. Briefing the cabinet about theKarachisituation, the prime minister admitted that besides the MQM and ANP, the PPP men whom Gilani described as “our men” are also involved in theKarachikillings.
The cabinet ministers were almost unanimous to demand that the law enforcement agencies should be given a free hand to get hold of the criminals, target killers and gangsters irrespective of their party affiliation. Some of the ministers even demanded that the information regarding such criminals, killers and gangsters should be made public without any political considerations. The cabinet was told that there are nine troubled areas inKarachiwhich require focus of the law enforcers to check crime and curb target killing. The prime minister while referring to a demand for the deployment of army inKarachito launch operations against the criminal elements said that the government would not deploy the army inKarachitill the time all other options were availed.
The cabinet source disclosed that the Sindh government is also unhappy with the interference from the federal government through interior minister into theKarachisituation. The source said that Prime Minister Gilani sounded the provincial government’s urge to let it settle the problem that falls within the provincial domain. Only recently provincial minister Dr Zulfikar Mirza is said to have blasted the interior minister during a high-level official meeting inKarachi for the latter’s uncalled for interference into theKarachiaffairs. Later, however, Mirza was summoned toIslamabadby President Zardari and put up a media show with Rehman Malik to show that there was no ill will between them.”
Similarly, the President of Pakistan is fully aware of the situation as it is evident from various news items appearing in different newspapers.
- As all the stakeholders are desirous of maintaining their hold on the economic resources of Karachi, therefore, it is imperative for all concerned to take necessary steps and disband the militant outfits voluntarily for the sake of Karachi as well as this country because on account of their criminal activities a loss of about 2.5 billion is being caused daily to the Government and ultimately this burden is passed on to the general public. All the circumstances which are prevailing inKarachibased on credible information seem to be very serious and if the situation of law and order is not controlled/improved, happening of a major debacle inKarachicity cannot be overruled, therefore, it is high time for the politicians in particular to co-operate with each other for makingKarachia peaceful city.
- As for as banning of MQM is concerned on the basis of the material and the other information placed before us as well as the statement of Dr. Zulfiqar Mirza, former Home Minister, Government of Sindh, which is sought to be produced by Mr. Ghulam Qadir Jatoi, it may be observed, subject to all just exceptions, that the instant probono publico proceedings, which are essentially inquisitorial in nature, cannot be allowed to assume an adversarial character.
- Moreover, under Article 17(2) it is the duty of the Federal Government to declare that a political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan and within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final, therefore, no further comment on this aspect of the case, lest it may cause prejudice to any of the parties, is called for.
- According to the available record, land grabbing is one of the factors responsible for causing disturbances inKarachiand there is no denial by anyone appearing before the Court. Same position is in respect of drug trafficking, etc. Crimes are also being committed at large scale by foreign nationals – nearly 2.5 million in number – belonging to different countries includingBangladesh,Burma,India, etc. As far as the question of de-weaponization is concerned, no one amongst the interveners has opposed it, therefore, a methodology has to be devised by the Government by following the law on the subject i.e. Surrender of Illicit Arms Act, 1991, and/or if need be, further laws on the subject can be enacted/promulgated to achieve this object. In this behalf, inBangladeshfollowing steps were taken.
(i) Illegal arms collection programme carried out in 2002-2003 as part ofBangladesh’s crackdown on criminals, operation Clean Heart.
(ii)Bangladesh’s biggest illegal arms haul took place in Chittagang on 02.04.2004.
- An identical situation was prevailing inMalaysiaand that Government with full commitment and sincerity had also collected illicit arms from the criminals. Similarly, this task can be completed in our country as well; if there is honest commitment on the part of the law enforcing agencies but in the instant case without depoliticizing the police, positive result apparently seems to be an uphill task, however, to ensure peace inKarachi, certain steps will have to be taken. The law enforcing agencies will have to be de-politicized as well as for recovery of illicit arms effective measures will have to be taken under a proper programme to be launched by the Government. As far as the question of presence of 2.5 million aliens inKarachiis concerned, it is more alarming compared to the activities of the criminals involved in heinous crimes, like target killing, etc. This aspect of the case would reveal that the presence of such persons is not only a factor for increase in crime, but at the same time without proper registration, they are a burden on the national economy, inasmuch as their presence can give rise to so many other administrative problems, including obtaining of National Identity Cards by them. If they have succeeded in this venture and claim themselves to be citizens of Pakistan and have also succeeded in registering their names in the electoral list, it would be tantamount to depriving the actual electorate from choosing their representatives, inasmuch as due to their presence, areas have expanded considerably, which directly affects the delimitation of the constituencies meant for holding elections of the Provincial Assembly and the National Assembly, therefore, the Government should take immediate action against them in accordance with law, namely, the Foreigners Act. NADRA and the Police must undertake a careful cleansing process of such people and NADRA must have separate records and computer files based on proper and cogent evidence. NADRA and police should co-operate inKarachithrough an intensive drive to identify foreigners, block their NIC cards after due process of law and special teams should be appointed and dedicated for this job by DG NADRA and IGP so that this can be completed in the course of next one year or so. Then the law must take it own course in each case. This must be given high priority.
- The learned Attorney General, in his submissions, also referred to the Quranic verse, viz., killing of one person is killing the entire humanity, therefore, there could not be two opinions that killings in Karachi during the last few months are condemnable, but for such reason, question for determination would be as to whether the State can be held responsible for the actions of the criminals, who have committed crimes, or the individuals are to be held responsible for their acts under the relevant laws independently. The learned Attorney General, as per the directions of this Court contained in the order dated 24.08.2011, has placed on record reports of the Special Branch of Police, Government of Sindh and the IB, and he also arranged a presentation by ISI (however, he was not present during the presentation). As far as commission of crimes is concerned, it is always done by the accused persons individually or collectively.
Ordinarily, when any crime is committed by an individual, he is considered to be the accused of the State for violating its laws and when crimes individually or collectively are committed by the perpetrators challenging the authority of the Government creating anarchy, the State is bound to control the crimes and at the same time protect its citizens against the criminals. In the instant case, according to the figures submitted by Mr. Abdul Fattah Malik, learned Advocate General, Sindh, during the hearing, in the current year 2011, 1310 persons have been murdered, whereas, in one month, figures of which have been obtained by the Court vide order dated 24.08.2011, admittedly, 306 persons have been murdered and 159 persons have been injured. When murders of innocent persons at the hands of perpetrators who belong to different communities are being committed as a matter for vengeance and as tit for tat without control of the executive authorities of the Provincial Government, it clearly indicates that lawlessness has reached a point where the State through the Provincial Government in exercise of its executive authority is not in a position to provide security to its citizens and on account of lack of administrative authority of the Government, so many persons have been deprived of their right to life and liberty enshrined in Article 9 of the Constitution.
- As far as the arguments of the learned Attorney General that under the Constitution a procedure has been provided for the removal of the Provincial and Federal Governments ruling the country after the election, therefore, it could only be possible when the procedure so laid down in the Constitution is followed. There is no cavil with this proposition; however, in the instant proceedings, this argument is not relevant. Learned Attorney General has also stated that as far as the suggestions made before the Court for imposing Emergency under Articles 233 and 234 of the Constitution, or calling
the Army in aid of civilian administration under Article 245 of the Constitution, or the steps to be taken by the Provincial Government in this behalf are the actions, which are purely for the Federal Government or the Provincial Government to initiate and no direction can be given by the Court in this respect. Suffice it to observe that the Federal Government is duty bound under Article 148(3) of the Constitution to protect every Province against internal disturbances and to ensure that the Government of every Province is carried on in accordance with the provisions of the Constitution, therefore, the suggestion put forward during the arguments on behalf of some of the parties does not mean that this Court has issued the directions. Only attention of the Federal Government has been drawn towards the Constitutional provisions which, according to their suggestions, should also be invoked for maintaining law and order in theProvinceofSindhinstead of paving way for any unconstitutional action by any adventurer as it had been happening in the past. Reference may be made to the cases of Haji Muhammad Saifullah Khan (supra), Khawaja Ahmad Tariq Rahim (supra) and Benazir Bhutto (supra). Similarly, exercise of the authority to call Army in aid of civil administration to control disturbances under Article 245 of the Constitution is only one of the options, which lies with the Federal Government, as such its consequences are bound to follow strictly in accordance with the provisions of the Constitution.
- Learned Attorney has agreed that this Court has power to pass appropriate orders as called for in view of the facts and circumstances, but his opinion was that as now situation is manageable and under control, therefore, in the instant proceedings no order is required to be passed. For the reasons which we have already mentioned hereinabove, we are not in a position to subscribe to his viewpoint because overwhelming material is available on record, reference of which has already been made hereinabove repeatedly, to
persuade us to form an opinion that bloodshed, arson, kidnapping/abduction for ransom, widespread violence, illegal collection of money (bhatta) from traders, etc., were being committed within the knowledge of the State through Provincial Government/Executive but it remained a silent spectator and primafacie failed to take appropriate action, may be for some political reasons, but the Constitution does not allow the Executive to compromise its position at the cost of innocent citizens who lost their lives, property, liberty and dignity because of the expediency of the Provincial or Federal Government. It may not be out of context to mention here that despite hearing of this case, during course whereof law enforcing agencies have been asked time and again to bring the criminals to book without any discrimination, the criminals continued to harass the general public/innocent citizens continuously, as in the recent past a trader has been kidnapped for ransom from Sher Shah Kabari Market. We have been informed during the hearing that there is a strike in the market and accused persons have demanded ransom,
but so far the matter has not been finalized/resolved. On our direction, concerned SSP of the area appeared in Court and stated that pickets/police check posts have been established at different places, but despite that, there is no control over the crimes. We have pointed out to the learned Attorney General that this is high time when the Executive of the Provincial Government, instead of compromising the position, on account of any reasons known to them, should come forward with iron hands to control the crimes. We may point out here that the material so brought on record and the presentation which has been given by the Intelligence Agency, must also have been brought to the notice of the Executive of the Province and by the time it has become known to everyone about the persons involved in causing disturbances because on such a large scale internal disturbances cannot take place without the support or passivity of the persons who are themselves at the helm of affairs and the Provincial Executive Authorities in such a state of lawlessness ought to have felt no hesitation to bring them to book, but here it appears that there are certain expediencies which are preventing them to do so. In such an abnormal situation the Federal Government also cannot be considered to be oblivious of the happenings, which presumably knows all these facts obviously prevailing in the economic hub of country, as the reports which we have gone through must have been brought to the notice of the Chief Executive of the Federal Government and other authorities as well, therefore, they should have swiftly moved in to take action in order to ensure that the Provincial Government is allowed to work smoothly in accordance with the Constitution. Leaned Advocate General who has also pointed out in his arguments that in the police department, 1100 appointments have been made illegally. At the same time, the IGP Sindh who was present in the Court during the hearing, also conceded that for the last about 10 to 15 years, five hundred thousands arms licenses have been issued by the Home Department for arms and ammunition of prohibited bore, however, according to him, with the assistance of NADRA, an exercise is about to commence to verify the status of the licences. He added that in the past, trucks of arms and ammunitions used to be unloaded before the police stations but police did not dare to check them. Mr. Abdul Fattah Malik, learned Advocate General made before the Court many revelations, but did not disclose the names of the groups who were challenging the writ of the Government and undermining its authority through target killings, bhatta collection, etc., which are committed, not for any ethnic reason, but for settling of accounts by groups among themselves in an attempt to establish their authority in the city
ofKarachiotherwise anyone or all of them would come forward to point out the names of militant outfits involved in the violation of Fundamental Rights of the citizens.
- From the material so placed on record by the Advocate General it is evident that the disturbances in the Province are not recent ones, but it has been going on for the last many years, in which a large number of innocent persons have been killed by way of tit for tat and the authorities, in the past as well have failed to secure their lives, liberties, etc. According to learned Advocate General, theProvinceofSindhbeing thelandofShah Abdul Laif Bhitaiand Sachal Sarmast had been a peaceful place where, after Partition highly educated people migrated toPakistan. They were living peacefully with original residents of Sindh, but the menace of lawlessness started from the period shown in the charts reproduced hereinabove. He conceded that 2.5 million aliens are also living inKarachiwithout any registration, but so far the Government could not deport them. However, we have pointed out to him that organized crimes are being committed inKarachiand there is violation of the Fundamental Rights of innocent people and the Government has failed to protect the rights of the citizens, however, individual type of crime or killing of any person on account of personal enmity is not unusual, and for that matter the Executive Authorities cannot be held responsible, but it is to be noted that in the instant case, as discussed hereinabove in detail, the Executive Authority of the Province had prima-facie failed to exercise its powers to protect the Fundamental Rights of the citizens.
- Barrister Zafarullah appeared in Constitution Petition No. 61 of 2011 wherein following prayer has been made: –
(1) It is therefore respectfully prayed that the judicial Commission under the supervision of Supreme Court ofPakistanmay be appointed, any Hon. Judge sitting or retired may be appointed as its Chairman.
(2) It is further prayed that under in no circumstances Pakistan Army may be summoned to meet the situation inKarachior to restore the law and order, since it is trap desired by foreign forces and will be breach of Articles 55 & 56 UNO and other resolutions of General Assembly.”
The learned counsel has referred to the Charter of United Nations, importance of human rights and also stated that had the Court not taken cognizance of the matter, the crime rate would not have declined and if target killings, etc. had continued unabated, it would
have provided a cause of interference to the United Nation Forces. Except for the dramatic drop in crime rate, we do not entertain this argument because we are of the opinion that in this country there is a written Constitution, which if implemented through the Federal and the Provincial Governments by strictly adhering to its provisions without any political considerations, the situation of law and order can be managed. He also opposed the intervention of the Army by calling it in the aid of Civil Administration. This issue has already been discussed in the preceding paragraphs, therefore, the same need not be further dilated upon.
- Mr. Anwar Masoor Khan, President of Sindh High Court Bar Association, at the outset, contended thatKarachiis faced with complex issues of law and order, which had its origin in the politicoethnic violence in which different communities speaking different languages like Urdu, Pashto, Balochi, Sindhi, Punjabi, etc. were involved. However, he admitted that members of these communities have been involved in such like activities mainly for the socioeconomic reasons. As the residents ofKarachiin different areas, particularly where violence is at its peak, are even deprived of basic amenities of life, therefore, these poor persons are being used by different vested interests including political parties/groups to achieve their ulterior objectives and to watch their economic interests. These persons/groups having so called vested interests are themselves well off having established businesses and are not suffering from any economic problem. The police is so scared of them that they remain under the influence of these groups who use poor persons to achieve their illicit objectives. Inasmuch as, if an ordinary person approaches the police, his FIR is not registered and if a victim succeeds in getting the case registered, prosecution does not take interest, as a result whereof their cases fail. Besides, according to him, mostly the perpetrators belong to an organized group having blessings and support of political parties, therefore, the witnesses are so scared that they avoid to appear in court. Therefore, without addressing the aforenoted problems of persons belonging to different communities who fall within category of less resourceful persons, the law and order situation prevailing in the city cannot be controlled. He referred to a number of cases from the Indian Jurisdiction and the reports of the Indian Law Commission. However, he conceded that no witness protection program is available. When we invited his attention towards sections 21, 21A, 21B, 21C of the Anti-Terrorism Act, 1997 which provide guidelines for the protection of Judges, he submitted that these
provisions of law have also not been made applicable fully, as a result whereof even in Anti-Terrorism Courts, a large number of accused have gone scot-free. Learned counsel stated that there are political parties who apparently are acting against the interests of the country and are involved in disturbing the law and order inKarachi, to achieve their nefarious objects because the persons controlling such parties have got no stake inPakistan. Inasmuch as, there are persons who enjoy dual nationality or who have vast unexplained and unaccounted for assets outsidePakistanor who are not allied with any political party and who are against the sovereignty of the country, all such persons are required to be dealt with according to the Constitution. We have pointed out to him that Article 17 of the Constitution read with section 15 of the Political Parties Order, 2002 can be invoked if the Government succeeds in establishing that any political party is operating in a manner prejudicial to the sovereignty or integrity ofPakistan. Learned counsel emphasized that Article 4 of the Constitution is one of the most important Articles, under which a citizen is entitled to enjoy the protection of law and to be treated in accordance with law being his inalienable right, therefore, this Article confers the Fundamental Rights upon a person to seek security of life or liberty from the State and similarly, Articles 14, 18 and 24 in respect of dignity of man, freedom of trade, business and profession and protection of property. Whereas inKarachifor the last many years the State/Provincial Government had failed to implement their Fundamental Rights and citizens are not safe and secure. According to him, too, there are target killings, murders, bhatta mafia, land mafia, drug mafia, dead bodies in bags are found lying in the streets and the accused persons on account of their influences or being desperate and hardened criminals, could not be arrested. He stated that as per reports, which have been placed on record by different agencies without claiming confidentiality and other information which has been received by this Court, furnish sufficient evidence to hold that the Provincial Government has not been able to act in accordance with the Constitution to protect the dignity, freedom of trade, business and profession and property. He has referred to Islamic Republic of Pakistan v. Abdul Wali Khan (PLD 1976 SC 57), PLD 2004 SC 363 to emphasize that it is the duty of the Government to maintain law and order. We have inquired from him as to whether in a situation where criminals belonging to all political parties are involved in disturbing the law and order, whether the Executive/Provincial Government can maintain the law and order, he stated that, in fact, the prevailing situation indicates that there is no will on the part of the Executive to run the government according to the Constitution otherwise it would not be difficult to remove such elements from their rank and file. In this behalf, it is to be noted that in the Daily Dawn dated 14.09.2011, the Federal Interior Minister made a statement that criminals arrested inKarachiduring the targeted operation belong to different political parties and that the Government has evidence (audio and video) against them, which will be used against them if permitted by this Court. However, he stated that such criminals have not been deputed by the political parties, but somehow such elements have managed to get refuge behind them after committing crimes. During hearing of this case, we have observed time and again that the political parties represented before us asserted in categorical terms, that criminals/militant outfits are not part of their political parties and declared that whosoever claims association with any political party, is incorrect. It is to be noted that in the situation as the Interior Minister has himself explained, it has become admittedly a highly difficult task for the Provincial Government to maintain law and order. Be that as it may, this all depends upon the political considerations in respect whereof we would not like to comment, but we have to confine ourselves only to the extent of the question which has been raised in the order dated 24.08.2011, namely, the situation of law and order which has been disturbed on account of bloodshed, arson, kidnapping/abduction for ransom, widespread violence, illegal collection of money (bhatta) from traders, etc.
- Mr. Abdul Fattah Malik, AG Sindh has submitted a synopsis of his arguments on behalf of the Government of Sindh. It may be noted that in fact he had to appear on the Court notice and theProvinceofSindhput up its appearance through Mr. Abdul Hafeez Pirzada, leanred Sr. ASC who has also filed, under instructions, suggestions which have been reproduced hereinabove. However, he reserved his right to further argue the case after the arguments of learned counsel appearing on behalf the interveners, particularly Syed Iftikahr Hussain Gillani, Sr. ASC who placed on record reports of the JIT. In the meanwhile, Intelligence Agencies also shared classified information with the Bench. The DG Rangers also appeared in person and made submissions which have been dealt with hereinabove, including one that inKarachithe situation of law and order is worse than that ofNorth Waziristan, but surprisingly on 14.09.2011 the learned Advocate General conveyed that Mr. Abdul Hafeez Pirzada, learned Sr. ASC feels contented with the arguments made earlier and does not want to make any further arguments before the Bench. The points he has put up before the Court have been dealt with hereinabove, particularly with regard to the statement of fact in which he has suggested that this Court should give a wake up call to the Provincial Government, which according to him means that in the past violation of Fundamental Rights of the citizens particularly those whose lives and properties have not been secured, was admitted and for the future he was asking the Court to give a wake up call to the Provincial Government.
- The learned Advocate General in the written submissions has stated as follows:-
(1) That the government of Sindh has never failed to deal with the law and order situation in the Province of Sindh and Government of Sindh is fully determined to protect the life, liberty, dignity, property and freedom of general public.
(2) That the government of Sindh and law enforcement agencies along with the relevant authorities are fully competent to control, curb and deal with any internal disturbance and the government of Sindh has proved it in the matter of:-
(a) Control of Law and Order situation in Katcha area and other parts of internal Sindh.
(b) To bring back normalcy in the Law and order situation inKarachi.
(3) That the Government of Sindh denounces all forms of violence, terrorist activities, subversion and lawlessness in the Province and in this regard the government of Sindh seeks support from all the political parties.
(4) That the Government of Sindh has unshaken, irreversible commitment and determination to deal with the criminals in city ofKarachiin particular and on the province level at large and no party affiliation would deter its will and commitment.
(5) That the government of Sindh has taken concrete steps from prevention and control of crime including the deployment of Rangers in the city of Karachi, as well as deployment of additional forces by transfer from the Interior of Sindh of |Karachi.
(6) That the coalition Government of theProvinceofSindhhas strong will of continuing action against criminals inKarachiand in order to deal with any uprising in crime rate, concrete steps have been taken by Government of Sindh to enhance the capacity of the police, to raise the moral of the police as well as to strengthen this institution at the provincial level.
(7) It is categorically made clear that at no stages of these proceedings the Government of Sindh as conceded that it failed to control this situation or has shown any slackness.
(8) It is regrettable that on behalf of political groups appearing before this Court, political insinuation and allegations were leveled upon the ruling coalition Government of Sindh in sheer violation and disregard of the observations made by this Court that these proceedings are no-adversarial.
(9) Present elected Government is mandated by the constitution to serve the people of Sindh for 05 years, therefore, the Government of Sindh has made short term, midterm and long term strategies to eradicate the crime at all costs.
(10) It is worth mentioning that theprovinceofSindhunfortunately is his very severely this year as well as it was hit last year by the natural calamity. The Government of Sindh successfully rehabilitated millions of affectees of last year flood, however due to global changes in the climate Government of Sindh is demonstrating full resolve, utmost will and continuous efforts to enhance capacity for dealing with such disaster. However, side by side full attention is being given to other issues being faced by the people of this province.
- The reports of JIT, CID, Special Branch of Police and IB and other material is available on record including presentation given by the IG Police, the submissions made by Major General Aijaz Ahmad Chaudhry, DG Rangers and admission of IG Police to the effect that 30 to 40 percent police officials are non-cooperative because of their appointments on political considerations, coupled with the fact that it is the basic duty of the police to maintain the law and order, the police has been politicized/demoralized. The learned Advocate General has also admitted that 1100 appointments made on political considerations have already been set aside. The stand taken by him in his synopsis seems to be inconsistent and not acceptable in view of the above facts. It is to be noted that as per his own statement filed in Court, following persons have been murdered during the last three years i.e. 2008 to 2011:-
2011: 1311 (up to 31.08.2011)
He emphasized that the law enforcing agencies have succeeded in causing arrest and in this behalf he has filed the statement for the months of January to September, 2011 prepared by the Karachi police, which reads as under:-
GangBusted DacoitKilled Dacoit/criminalsarrested
P.Os Abs MDs
2010 704 512 64 5286 354 6427 0
However, we have noted that about 80 percent FIRs, which have been registered during the last one month, have been cancelled by declaring them as “A” class and whatever progress has been made in causing arrests of the accused, it is after instant proceedings by this Court. We have also noted as mentioned hereinabove that the Chief Secretary and the IGP Sindh have categorically stated that now powers have been given to the Rangers, so the question arises as to why the Rangers were not put into action earlier when this force was already deployed in theProvinceofSindhfrom 1994 onward; and why the Provincial Government was not interested in securing the life, property and dignity of the citizens. Admissions made by the IGP in respect of no-go areas, drug mafia and the statement of the Interior Minister referred to above are sufficient to hold that the Provincial Government had no intention to secure the life and property of the people in the true spirit of Article 4 of the Constitution, envisaging that all citizens are entitled to enjoy the protection of law and are required to be treated in accordance with law. What protection was given to those persons who have lost their lives and property? While dealing with the argument of the learned Attorney General, we have already emphasized that the alleged crimes have not been committed ordinarily, but these are organized crimes and it was the duty of the Provincial Government to have controlled the same, but it is only after the Court took suo motu notice that some improvement seems to have been made in the law & order situation inKarachi.
- Khawaja Naveed Ahmed, learned ASC stated that he represents the Friends of Lyari International, aUKbased organization. According to his version, since 2009 till date, 65 Balochi speaking people have been killed in target killings, but so far no appropriate action has been taken to trace the accused persons, therefore, it is not understandable as to whom they should blame for such atrocities. It may be observed here that in respect of all the cases in which human beings have been killed irrespective of their ethnic origins, it is the duty of the State/Executive to ensure action and bring the accused persons to book.
- Dr. Babar Awan, Sr. ASC commenced his arguments by reciting verses No.22 & 23 from Sura Almaida. Translation from Arabic to English has been reproduced hereinbelow: –
“[5:22] ‘O my people, enter theHoly Landwhich Allah has ordained for you and do not turn back, for then you will turn losers’.
[5:23] They said, ‘O Moses, there is in that land a haughty and powerful people, and we shall not enter it until they go forth from it. But if they go forth from it, then we will enter
In view of the above Injunction of Islam, as we have already noted in the opening Para of the judgment that if anyone killed a person not in retaliation of murder, or to spread mischief in the land, it would be as if he killed all mankind, and if anyone saved a life, it would be as if he saved all mankind, which is to be accepted by all the Muslims. It is clear from the above verses that life of a human being is very precious, therefore, Allah Almighty has condemned the killing of even a single human being and has equated it with the killing of the whole humanity, and vice versa, if a man is saved, the whole humanity will be deemed to have been saved.
- Leaned counsel candidly stated that he supports the suo motu jurisdiction of this Court, as according to him, in terms of Article 29 of the Constitution, the judiciary being one of the organs of the State can exercise such jurisdiction.
- However, he complained that in respect of incident of 18.10.2007, which took place inKarachiwherein Mohtarama Benazir Bhutto, former Prime Minister of Pakistan was attacked by the terrorists and so many persons lost their lives, according to him, despite request made by him on 27.10.2007 before a Bench comprising one of us (Mr. Justice Iftikhar Muhammad Chaudhry) and Mr. Justice (R) Javed Iqbal, no such action was taken by this Court. It is to be noted that the statement so made by him was not based on correct information, inasmuch as Suo Motu Case No. 25 of 2007 was registered wherein, on 01.11.2007, he personally appeared voluntarily and comments were called, however, subsequently on 07.01.2007 Justice (R) Abdul Hameed Dogar (so called Chief Justice) directed the office to keep that file pending without any further proceeding.
- According to the learned counsel, the executive authority of the Federation includes the four Provinces, Federally Administered Tribal Areas administered through the President, the Islamabad Capital Territory, Gilgit and Baltistan, formerly known as FANA, whereas, in respect of Province of Sindh, the authority of the Provincial Government extends to 23 districts of the Province of Sindh. Out of these areas, internal disturbance relating to law and order had allegedly taken place only in the city ofKarachi. So, his stance is that the Executive Authority has failed neither at the federal nor at the provincial level. He, however, admitted that in terms of Article 232(1) read with Article 148(3) of the Constitution, there is internal disturbance inKarachi.
- Learned counsel further argued that neither the Federal Government nor the Provincial Government has failed to maintain the law and order in the Province of Sindh and any declaration, if made by this Court, which is the most credible institution of the State of Pakistan, being the final arbiter of all disputes and where all interpretation ends, may invite some global trouble with very serious repercussions, inasmuch as the country is in the middle of a war on the western and eastern fronts and the latter front is more hostile and sensitive, therefore, an attempt is being made by someone to obtain such a declaration that the executive authority has failed to deliver. According to him, such a declaration cannot be made asPakistanis a nuclear State, therefore, how can it fail in maintaining its affairs. Argument so raised by the learned counsel has no substance. Perhaps he has lost sight of two important legal expressions, namely, the State and Executive or the Government. Dr. Babar Awan, learned counsel has substituted the term “executive” with the “state”. Hence this requires some elaboration.
- The word “executive” has been defined in the American Heritage Dictionary of the English Language, Fourth Edition as under:-
n. … The chief officer of a government, state, or political division.
- The branch of government charged with putting into effect a country’s laws and the administering of its functions. …
- Of or relating to the branch of government charged with the execution and administration of the nation’s laws. In Collins English Dictionary – Complete and Unabridged, the term has been defined in the following terms:-
n. … the branch of government responsible for carrying out laws, decrees, etc.; administration … having the function or purpose of carrying plans, orders, laws, etc., into practical effect executive branch
n. … the branch of government charged with the execution and enforcement of laws and policies and the administration of public affairs; the executive.”
Some of the other definitions are as follows: –
“The branch of federal and state government that is broadly responsible for implementing, supporting, and enforcing the laws made by the legislative branch and interpreted by the judicial branch. At the state level, the executive includes governors and their staffs. At the federal level, the executive includes the president, the vice president, staffs of appointed advisers (including the cabinet), and a variety of departments and agencies, such as the Central Intelligence Agency (CIA), the Environmental Protection Agency (EPA), the Federal Bureau of Investigation (FBI), and the Postal Service ( see postmaster general). The executive branch also proposes a great deal of legislation to Congress and appoints federal judges, including justices of the Supreme Court. Although
the executive branch guides the nation’s domestic and foreign policies, the system of checks and balances works to limit its power.”
OxfordGuide to theUSGovernment:
“The departments and agencies that take political direction from the President, including the 14 cabinet-level departments, constitute the executive branch of the federal government. “The executive branch” is not a phrase found in the Constitution, but it is favored by Presidents because it assumes that these departments are under their sole direction. The Constitution, however, provides that officials of the departments are to take direction not only from the President but also from laws passed by Congress.
Top officials in the executive branch, generally referred to as “the administration,” are appointed by the President with the advice and consent of the Senate, and they serve at the pleasure of the President. The President uses his Executive Office agencies to supervise their budgets, their legislative requests to Congress, and the regulations they make and enforce. Independent regulatory agencies (such as the Federal Trade Commission), units of government that are insulated by Congress from political direction (such as the Federal Reserve Board), as well as several agencies that perform functions for Congress (such as the Congressional Budget Office) are not part of the executive branch. Presidential appointment and removal powers over officials in these agencies may be limited by Congress, and the President may not provide them with political direction. In politics, a person or persons constituting the branch of government charged with executing or carrying out the laws and appointing officials, formulating and instituting foreign policy, and providing diplomatic representation. In theU.S., a system of checks and balances keeps the power of the executive more or less equal to that of the
judiciary and the legislature.”
- On the other hand, the word “state” is defined as under: –
Advanced Law Lexicon
A body politic, or society of men, united together for the purpose of promoting their mutual safety and advantage, by the joint efforts of their combined strength … Organization of the body politic or one of the constituent members of a federation or organized political community with government recognized by the people …
The political system of a body of people who are politically organized; the system of rules by which jurisdiction and authority are exercised over such a body of people …
A state or political society is an association of human beings established for the attainment of certain ends by certain means. … …
A state is an institution, that is to say, it is a system of relations which men establish among themselves as a means of securing certain objects, of which the most fundamental is a system of order within which their activities can be carried on. Modern states are territorial; their governments exercise control over persons and things within their frontiers…”
Corpus Juris Secondum
n. … it may signify a sovereign political unity as set forth in International Law.
Collins English Dictionary – Complete and Unabridged
n. … (Government, Politics & Diplomacy) a sovereign political power or community
… … the territory occupied by such a community
… … the sphere of power in such a community affairs of state
… … (often capital) one of a number of areas or communities having their own governments and forming a federation under a sovereign government, as in theUS(Government, Politics & Diplomacy)
… … (often capital) the body politic of a particular sovereign power, esp as contrasted with a rival authority such as the Church
… … The supreme public power within a sovereign political entity.
… … The sphere of supreme civil power within a given polity: matters of state.
… … A body politic, especially one constituting a nation: the states ofEastern Europe.
The concept of the state
A state is a form of political association or polity that is distinguished by the fact that it is not itself incorporated into any other political associations, though it may incorporate other such associations. The state is thus a supreme corporate entity because it is not incorporated into any other entity, even though it might be subordinate to other powers (such as another state or an empire). One state is distinguished from another by its having its own independent structure of political authority, and an attachment to separate physical territories. The state is itself a political community, though not all political communities are states. A state is not a nation, or a people, though it may contain a single nation, parts of different nations, or a number of entire nations. A state arises out of society, but it does not contain or subsume society. A state will have a government, but the state is not simply a government, for there exist many more governments than there are states. The state is a modern political construction that emerged in early modern
Europe, but has been replicated in all other parts of the world. The most important aspect of the state that makes it a distinctive and new form of political association is its most abstract quality: it is a corporate entity. A sovereign state is a state with a defined territory on which it exercises internal and external sovereignty, a permanent population, a government, and the capacity to enter into relations with other sovereign states. It is also normally understood to be a state which is neither dependent on nor subject to any other power or state. While in abstract terms a sovereign state can exist without being recognised by other sovereign states, unrecognized states will often find it hard to exercise full treaty-making powers and engage in diplomatic relations with other sovereign states.
The word “country” is often used to refer to sovereign states, although it means, originally, a geographic region. Sovereignty has taken on a different meaning with the development of the principle of self-determination and the prohibition against the threat or use of force as jus cogens norms of modern international law. The UN Charter, the Declaration on Rights and Duties of States, and the charters of regional international organizations express the view that all states are juridically equal and enjoy the same rights and duties based upon the mere fact of their existence as persons under international law. The right of nations to determine their own political status and exercise
permanent sovereignty within the limits of their territorial jurisdictions is widely recognised.
In political science, sovereignty is usually defined as the most essential attribute of the state in the form of its complete self-sufficiency in the frames of a certain territory, that is its supremacy in the domestic policy and independence in the foreign one. In the social sciences, a state is a compulsory political institution that maintains a monopoly of the legitimate use of force within a certain territory.
Etymology and definition
The word state and its cognates in other European languages (stato in Italian, état in French, Staat in German) ultimately derive from the Latin status, meaning “condition” or “status.”
With the revival of the Roman law in the 14th century in Europe, this Latin term was used to refer to the legal standing of persons (such as the various “estates of the realm” – noble, common, and clerical), and in particular the special status of the king. The word was also associated with Roman ideas (dating back toCicero) about the “status rei publicae”, the “condition of public matters”.
In time, the word lost its reference to particular social groups and became associated with the legal order of the entire society and the apparatus of its enforcement. In English, “state” is a contraction of the word “estate”, which is similar to the old French estat and the modern French état, both of which signify that a person has status and therefore estate. The highest estates, generally those with the most wealth and social rank, were those that held power.
According to the Oxford English Dictionary, a state is “a an organized political community under one government; a commonwealth; a nation. b such a community forming part of a federal republic, esp theUnited States of America”. However, the most commonly used definition is Max Weber’s, which defines the state as a compulsory political organization with a centralized government that maintains a monopoly of the legitimate use of force within a certain territory.
General categories of state institutions include administrative bureaucracies, legal systems, and military or religious organizations.
The concept of the state can be distinguished from the concept of government. The government is the particular group of people, the administrative bureaucracy, that controls the state apparatus at a given time. That is, governments are the means through which state power is employed. States are served by a continuous succession of different governments. Each successive government is composed of a specialized and privileged body of individuals, who monopolize political decision-making, and are separated by status and organization from the population as a whole. Their function is to enforce existing laws, legislate new ones, and arbitrate conflicts via their monopoly on violence. In some societies, this group is often a self-perpetuating or hereditary class. In other societies, such as democracies, the political roles remain, but there is frequent turnover of
the people actually filling the positions.
- As against the term “state”, a government is an institution whose existence precedes that of the state. A government is a person or group of persons who rule or administer (or govern) a political community or a state. For government to come into being there must be existence of public on the territory of a State. Ruling within a household is not government. Government exists when people accept (willingly or not) the authority of some person or persons to address matters of public concern; the administration of justice, and defense against external enemies being typical examples of such matters.
- Article 90 of the Constitution defines “executive authority” as “subject to the Constitution the executive authority of the Federation shall be exercised in the name of the President by the Federal Government which consists of Prime Minister and Federal Ministers, who shall act through the Prime Minister who shall be the chief executive of the Federation.” Whereas in relation to the Provincial Government, Article 129 with the substitution of Governor with the President defines the Executive Authority of the Province consisting of the Chief Minister and Provincial Ministers, who shall act through the Chief Minster. Both these executive authorities represent the Federal and Provincial Governments whereas the institution of State is distinguished from executive authorities as defined in Article 7 of the Constitution as under: –
“7. Definition of the State
In this Part, unless the context otherwise requires, “the State” means the Federal Government, Majlis-e-Shoora (Parliament), a Provincial Government, a Provincial Assembly, and such local or other authorities inPakistanas are by law empowered to impose any tax or cess.”
- Here the object of instant proceedings is not to make any declaration against the State of Pakistan, but one of the Governments, namely, the Government of Sindh Province, which is represented through its executive as defined under Article 129 referred to hereinbefore. Although Article 7 of the Constitution defines the State as the Federal Government, Majlis-e-Shoora (Parliament), a Provincial Government, a Provincial Assembly and local or other authorities in Pakistan empowered to impose any tax or cess, therefore, distinction is abundantly clear as the act of the Executive of the Province is under consideration in terms of Article 129 of the Constitution, which is essentially a distinct and a different concept from the State as defined in Article 7. The order dated 24.08.2011 reproduced supra also explicitly makes it clear that the conduct of the Executive in enforcing Fundamental Rights of the citizens guaranteed under Articles 9, 14, 15, 18 and 24 is under examination, and as far as the State is concerned, its role has not been examined. The arguments so put forward by the learned counsel appear to be irrelevant and are not in the context of the proposition under consideration. This is not for the first time that the conduct of the Provincial Executive is being scrutinized. As such, its performance relating to enforcement of the Fundamental Rights or its failure not to enforce these rights is under examination. Admittedly, under Article 184(3), this Court exercises same powers, which are available to a High Court under Article 199(1)(c). The Court can make an order giving such direction to any person or authority including any government exercising power or performing any function and, in or, in relation to, in any territory within its jurisdiction as may be appropriate for the enforcement of Fundamental Rights conferred by Chapter 1 of part II. Reference in this behalf may be made to the cases of Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 SC 473), Syed Wasey Zafar v. Government of Pakistan (PLD 1994 SC 621), Bank of Punjab v. Haris Steel Industries (pvt.) Ltd. (PLD 2010 SC 1109) and Federation ofPakistanv. Munir Hussain Bhatti (PLD 2011 SC 752). Also see Zulfiqar Mehdi v. Pakistan International Airlines Corporation (1998 SCMR 793), Benazir Bhutto (supra), Asma Jilani v. Government of the Punjab (PLD 1972 SC 139), Fauji Foundation v. Shamimur Rehman (PLD 1983 SC 457), Jibendra Kishore v.ProvinceofEast Pakistan(PLD 1957 SC 9).
- So, on the basis of distinction between the State and Executive authority vis-à-vis the jurisdiction of this Court under Article 184(3), it is concluded that instant proceedings are not against the State but to consider whether the Provincial Government of Sindh allegedly had failed to enforce the Fundamental Rights of the citizens. However,Pakistanas a sovereign country as well as a nuclear power for all intents and purposes is a successful State because such a State, in the words of Max Weber, maintains a monopoly on the legitimate use of physical force within its borders. But, coming to the fundamental question of exercise of jurisdiction keeping in view of the facts and circumstances noted hereinabove in detail, it is held that this Court is empowered under Article 184(3) to consider any question of public importance with reference to enforcement of any of Fundamental Rights, conferred by Chapter 1, Part 11 and can make an order of the nature mentioned in Article 199. If the argument of the learned counsel referred to above is accepted, it would be tantamount to abdicating the powers and jurisdiction conferred by the Constitution, thereby refusing to enforce Fundamental Rights conferred by Chapter 1 of Part II in a matter relating to public importance. The scope of the jurisdiction of the Court with procedure, which is to be followed, has been examined in the case of Pakistan Muslim League (Nawaz) v. Federation of Pakistan (PLD 2007 SC 642), wherein it has been held that this Court under Article 184(3) is not dependent only at the instance of the “aggrieved party” in the context of adversarial proceedings and while dealing with a case under Article 184(3) of the Constitution, this Court is neither bound by the procedural trappings of Article 199 ibid nor by the limitations mentioned in that Article for exercise of power by the High Court in any case. RelevantParatherefrom is reproduced hereinbelow:-
“20. After having discussed the law laid down in the above mentioned cases the judicial consensus seems to be as follows: –
(i) That while interpreting Article 184(3) of the Constitution the interpretative approach should not be ceremonious observance the rules or usages of the interpretation but regard should be had to the object and purpose for which this Article is enacted i.e. the interpretative approach must receive inspiration from the triad of provisions which saturate and invigorate the entire Constitution namely the Objectives Resolution (Article 2-A), ‘the fundamental rights and’ the directive principles of State policy so as to achieve democracy, tolerance, equity and social justice according to Islam.
(ii) That the exercise of powers of Supreme Court under Article 184(3) is not dependent only at the instance of the “aggrieved party” in the context of adversary proceedings. Traditional rule of locus standi can be dispensed with and procedure available in public interest litigation can be made use of, if it is brought to the Court by a person acting bona fide.
(iii) That the provisions of Article 184(3), provide abundant scope for the enforcement of the Fundamental Rights of an individual or a group or class of persons in the event of their infraction and it would be for the Supreme Court to lay down the contours generally in order to regulate the proceedings of group or class actions from case to case.
(iv) That under Article 184(3) there is no requirement that only an aggrieved party can press into service this provision. Supreme Court can entertain a petition under Article 184(3) at the behest of any person.
(v) That the Article 184(3) is remedial in character and is conditioned by three prerequisites, namely −
- There is a question of public importance.
- Such a question involves enforcement of fundamental right, and
- The fundamental right sought to be enforced is conferred by Chapter 1, Part II of the Constitution.
(vi) That it is not every question of public importance which can be entertained by this Court, but such question should relate to the enforcement of Fundamental Rights.
(vii) That even the disputed questions of facts which do not require voluminous evidence can be looked into where Fundamental Right has been breached. However, in case where intricate disputed question of facts involving voluminous evidence are involved the Court will desist from entering into such controversies.
(viii) That the language of Article 184(3) does not admit of the interpretation that provisions of Article 199 stood incorporated in Article 184(3) of the Constitution.
Therefore, this Court I while dealing with a case under Article 184(3) of the Constitution is neither bound by the procedural trappings of Article 199 ibid, nor by the limitations mentioned in that Article for exercise of power by the High Court in a case.
(McCabe v.Atchison(1914) 285US151, S.P. Gupta and others v. President of India and others AIR 1982 SC 149, Standard Vacuum Oil Company v. Trustees of the Port of Chittagong PLD 1961 Dacca 289, Sneed Khan v. Chairman, District Council of Bannu PLD 1967 Pesh. 347, Asma Jilani v. Government of the Punjab PLD 1972 SC 139, Muhammad Boota and 77 others v. Commissioner,SargodhaDivision PLD 1973 Lah. 580, Hakim Muhammad Anwar Babri v.PakistanPLD 1973 Lah. 817, National Steel Rolling Mills v. Province of West Pakistan 1968 SCMR 317, Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457, Abanindra Kumar Maity v. A.K. Majumdar AIR .1956Cal. 273, Fazal Din v. Lahore Improvement Trust PLD 1969 SC 223, K.K. Kochumii v. State of Madras AIR 1959 SC 725, Jibendra Kishore v. Province of East Pakistan PLD 1957 SC 9, Messrs East and West Steamship Company v.PakistanPLD 1958 SC (Palo.) 41 and Waris Meah v. The State PLD 1957 SC (Pak.) 157, PLD 1988 SC 413, PLD 1990 SC 513, 1990 PLC 61, PLD 1988 SC 416, KLR 1988 SC 423, 1988 PSC 809.”
- Thus, in view of the principle laid down hereinabove, this Court is empowered to examine as to whether the executive authorities of the Province have failed to enforce Fundamental Rights in terms of order dated 24.08.2011 and the objections raised by the learned counsel that any declaration in this behalf would have serious repercussions against the State of Pakistan being without any substance for the above reasons are overruled.
- Learned counsel has emphasized that in a system based on trichotomy of powers being the basic feature of the Constitution, the Armed Forces of Pakistan are also part of the executive or the government as held in the case of Liaqat Hussain v. Federation ofPakistan(PLD 1999 SC 504). There is no doubt about the fact that the Armed Forces also fall within the definition of the executive, but in the instant case, action of the Armed Forces is not under examination. However, this Court has examined this aspect of the case in the light of the judgment cited by the learned counsel wherein it was held that Pakistan Armed Forces (Acting in aid of Civil Powers) Ordinance, 1998 as amended up-to-date in so far as it allowed the establishment of the Military Courts for control of the civilians, charged with the offences mentioned in section 6 and the Schedule to the said Ordinance is unconstitutional, without lawful authority and of no legal effect. Therefore, it can safely be held that this Court is not exercising such jurisdiction for the first time. This Court has jurisdiction to examine an instrument on the basis of which power to try the accused is conferred upon the executive or the Armed Forces.
- Learned counsel candidly conceded that although in the 18th Constitutional Amendment, more provincial autonomy has been given to the Provinces, but in spite of it under sub-Article (3) of Article 148 of the Constitution it is the duty of the Federation to protect every Province against external aggression and internal disturbance, and to ensure that the Government of every Province is carried on in accordance with provisions of the Constitution. On having so admitted, he has cited following steps taken by the Federation to protect the Government of Sindh from internal disturbances: –
- Placement of civil armed forces (Sindh Rangers and Frontier Constabulary) at the disposal of the Government of Sindh;
- Monetary support of 2.5 billion specifically for training and capacity building of the police department during this financial year;
- Sharing of real time intelligence with the Province, which is actionable intelligence;
- Data regarding family tree of criminals maintained in NADRA and the database is shared with the Province after an order by the Interior Minister;
- Information helped by FIA regarding different crimes and criminals shared with the Provincial Government;
- Blocking of over 20.1 million illegal mobile phone SIMs, which are mostly used in commission of crimes;
- Grant of 5 billion rupees outside the regular budget (besides 2.5 billion rupees) as a special initiative of the President of Pakistan for enhancing the training and capacity of provincial law enforcement personnel, directing the Provincial Government to equip the Police Department with 15 APCs [20 more APCs are in the pipeline];
- Coordination set up is created for Sindh and Balochistan border posts – one of the infamous routes of illicit arms to the city ofKarachi;
- Customs and FIA intelligence another outfit is created to control gun running and drug trafficking intoKarachi;
- Coastal border management also ordered through the Coast Guards to control the incoming traffic of guns and drug trafficking;
- Aerial surveillance from SUPARCO for determination of the factum of land grabbing and to control land mafia;
- Google imageries through NADRA;
- Complaint cell is established against bhatta mafia inKarachion the complaint of Chamber of Commerce, which is being monitored by the Interior Minister directly through the police and all other intelligence sources.
- He has further stated that the President, Prime Minister, Army Chief and Chief of every Intelligence Agency had visitedKarachiand held meetings on the law and order situation. He admitted that the above steps were taken by the Federation from January, 2011 onwards; however, no documentary proof was brought on record. Be that as it may, except the stand taken by the learned counsel in respect of the steps taken by the Federal Government to protect theProvinceofSindhfrom its internal disturbances, although most of the steps fall within the category of long term solutions for the purpose of controlling the disturbances inKarachibut unfortunately neither the executive of the federal government nor of the provincial government succeeded in controlling the internal disturbance as it is evident from the documentary evidence i.e. the report of JIT dated 31.03.201 and the report of Special Branch of Police Department dated 18.08.2011 and the presentations of the IGP Sindh as well as the DG Rangers, and in camera briefing by the ISI to the Members of the Bench, which have already been discussed hereinabove.
- There is no dispute with the fact that only in one month from 24th July to24 August, 2011, 306 persons lost their lives and in this period body bags, drilled bodies of human beings as well as torsos of persons who were tortured to death were recovered. Although the Rangers, vide deployment notification dated 17.05.1995 was available in the Province, but in the recent past despite internal disturbances powers were conferred upon the Rangers only on 25.08.2011.
Although, admittedly the decision was taken in this behalf on 22.08.2011, yet negligence was shown in conferring the authority. In this manner, a huge loss of life and property of the citizens had occurred. It is to be noted that learned counsel, without realizing its repercussions, himself conceded the obligation of the Federation in providing assistance to the Provincial Government in controlling the disturbances in terms of Article 148(3) of the Constitution. As it has been pointed out hereinabove that at the time when in the year 1997 the Federal Government headed by Mohtarama Benazir Bhutto was dismissed by the President, in exercise of powers under Article 58(2)(b) of the Constitution, one of the reasons for dismissal of the Federal Government was that it had failed to discharge its constitutional obligations under Article 148(3). The principle laid down in the case wherein the order of dissolution of Assembly was maintained by this Court, is undoubtedly applicable to the present situation, as it has been explained by means of the documentary evidence produced by the learned Attorney General and the learned Advocate General before the Court. Therefore, the conclusion can conveniently be drawn that despite the steps taken by the Federation, the situation of law and order has not been controlled and the life and property of citizens inKarachihave not been secured.
- It is contended by the learned counsel that the Speaker of the National Assembly has, with the consent of the political parties and leaderships acting in furtherance of the national call and duty, constituted a bipartisan Committee of the House to look into the issues ofKarachiandQuettaand to recommend desired measures for the restoration of peace and tranquility and the Committee is holding its meetings. He has further stated that the Federation and the Provincial Government of Sindh had the will to control internal disturbances and to achieve this object following steps have been taken and the documents produced before the Court: –
- JIT Report dated 31st March, 2011: report is being acted upon to achieve the desired result of controlling internal disturbances inKarachi
- Special Branch report dated 18th August, 2011, which has also been produced before this Court. Both these reports have already been referred to hereinabove, particularly with reference to hardened and desperate criminals including one Ajmal Pahari, who has shown his connection with MQM. We inquired from the learned counsel that in spite of receiving credible information through both the above reports, as to whether any action has been taken while remaining within the Constitutional framework against the political party/organization with whom allegedly some of the accused have shown their linkage, he stated that as there is democratic system; the people have chosen their representatives and the Government of the day while performing its duty as per the will of the voters will take into consideration all these reports in due course of time. We have pointed out to him not only the above reports, but there are also the reports of IB, Daily Situation reports, presentations of IGP as well as other information which have been received through ISI, which are sufficient to adjudge the position of law and order prevailing presently inKarachi, which can confront not onlyKarachi but the whole country with a greater disaster if curative measures in accordance with the Constitution and law to control the situation are not taken. Thus, we may note that internal violence inKarachi is also being noted with concern. Reference to a write-up published in The Economist of 27.08.2011, which is reproduced hereinbelow: –
“ETHNIC warfare inPakistan’s most populous city has reached such a level thatKarachi’s ambulance service now has to send out a driver matching the racial make-up of
the destination district to pick up the victims of gang attacks. Otherwise, the district’s gunmen will not let the ambulance through. Now ambulances themselves are coming under fire, as gangsters try to stop them saving the lives of their enemies. Karachi’s ethnic wars have claimed some 1,000 lives this year, with more than 100 in the past week alone. By contrast the Taliban and other religious extremists kill tiny numbers inKarachi.
A grisly new feature of the carnage is that people are not just being shot. They are being abducted and tortured; then their bullet-ridden, mutilated bodies are dumped in sacks and left in alleyways and gutters. Victims’ limbs, genitals or heads are often severed. Torture cells operate acrossKarachi. The butchery is filmed on mobile phones and passed around, spreading the terror further. Most victims are ordinary folk randomly targeted for their ethnicity.
At the city’sAbbasiShaheedHospital, a public facility, doctors treat only Mohajirs, who dominate the local district and are the biggest ethnic group inKarachi. Mohajirs are descendants of those who moved toPakistanfromIndiain 1947, when the subcontinent was partitioned. Ambulance crews must determine the ethnicity of patients and take them to the right hospital. If this were just a turf war between criminal gangs, things might be brought under control. But each gang has the patronage of a mainstream political party, in a fight that exploded in 2008 when an election was held to endPakistan’s latest period of military rule. Political support for warring ethnic gangs means the police largely stay out of the conflict: each gang will call on political muscle if its henchmen are rounded up. The provincial authorities launched a crackdown this week, but little is expected of it.
The Muttahida Qaumi Movement (MQM), a party established in the 1980s that claims to represent the Mohajirs, once had an iron grip overKarachi. That monopoly is now being challenged by the Awami National Party, which says it speaks for the ethnic Pushtun population, who migrated from the north-west of the country, and the Pakistan Peoples Party (PPP) of President Asif Zardari, which heads the ruling coalition in the capital,Islamabad. Its gang following is ethnic Baloch, from the neighbouringprovinceofBalochistan. It is the MQM versus the rest.
The conflict’s ferocity may yet threatenPakistan’s fragile return to democracy. In recent daysKarachibusinesses have called for the army to restore order. Violence inKarachiwas repeatedly used as part of the justification for toppling four national governments in the 1990s. This city of 18m people isPakistan’s economic lifeline, and the port through which most supplies reach NATO forces inAfghanistan.
Away from the ritzy villas of Defence andCliftondistricts, the people ofKarachi’s 3,500 square-kilometer (1,350 square-mile) sprawl live in decrepit homes and apartment blocks set on narrow, filthy streets, where gangs rule with near impunity. Trouble often flares when one ethnic ghetto abuts another.
In Korangi, a ramshackle semi-industrial district in the east of the city mainly inhabited by Mohajirs, Pervez has not been to work for 20 days. He mends tyres onTariq Roadin the city centre, a half-hour bus ride away. But since gangs started pulling people off buses and killing them, he has been too afraid to venture out. “The Pushtuns will cut your
throat,” Pervez says. “If I am killed, what will my children do?”
Kashif Malik, a 32-year-old rickshaw driver and PPP activist, was at home with a friend, Shoib, inOrangiTown, inKarachi’s north-west, when gunmen came to the door. Shoib was killed, while Mr Malik was lucky only to be shot in the arm. He is sure the assailants were from the MQM. Mr Malik insists that joining a political party offers the safest protection these days. “A lone person cannot survive inKarachi,” says Mr Malik from his bed at theCivilHospital. Most of those killed are not involved with any political party. Language, clothes and even haircuts betray a person’s ethnicity to the killing squads. For more than two decades the MQM has collected extortion money, known as bata, from businesses and homes across the city. Now, using the political backing they acquired in the 2008 election, gangsters associated with the PPP and the Awami National Party, in a loose alliance, also want their share of cash, at the heart of the conflict. Businesses now have to pay off up to three rival groups. In the past weekKarachi’s markets selling marble, bathroom tiles and medicines have separately staged protests against bata. As for the political parties, they seem to be able to turn the violence off and on as it suits them. This suggests that these are not mere criminals draping themselves in the party flag, but rather integral parts of the parties’ political machines. If the violence continues, more ordinary people will be forced to seek the protection of a political party, to which they will have to pay more dues. Perhaps this is what the politicians are aiming for. “You can call this the politicisation of crime, or the criminalisation of politics,” says a security official in the city. “The state has lost its writ inKarachi.”
- It has to be noted that in the past the democratic governments were dismissed either through the extra constitutional instruments or in exercise of the powers available under the constitutional provisions, inter alia, for the reason that both the Federation and the Province had failed to control the disturbance in the Province. Therefore, it is now the right and appropriate time when the democratic set up must adhere to the constitutional provisions to protect the Province as well as the country from internal disturbances. However, in response to this, he has stated that a wake up call is not needed, only a call to attention is sufficient because the Federal Government is answerable to the Parliament and it is very much aware of its duties. We wish that the Federal Government as well as the Provincial Government could succeed in bringing normalcy in the Province according to the Constitution before it is too late to overcome the internal disturbances in view of the material brought before us.
- The Federal Government could have provided assistance to the Provincial Government to control the disturbances without any delay, but we fail to understand the reasons prevailing with the Federal Government in not acting promptly as the learned counsel has himself by reciting verses from Holy Quran pointed out that killing of one human being is tantamount to killing of whole mankind. During the current year, more than 1300 persons were killed. The Chief Secretary had admitted that the decision to extend powers to Rangers to control law and order had taken place on 22.07.2011, but the notification was issued on 25.07.2011, which has already been reproduced hereinabove. Hence, the argument raised by the learned counsel in this behalf does not advance the case of the Federation in any manner. So far the remaining steps, which according to the learned counsel had been taken by the Federation, they all seem to be long term measures. The Federal Government has to protect the Provinces against internal disturbances. Such protection, if required by a Province in terms of Article 148(3) in view of the given facts and circumstances and the scenario presupposes prompt protection and failure to do so makes the Federal Government responsible as it has been held in the cases of Ahmed Tariq Rahim and Mohtarama Benazir Bhutto (supra).
- The learned counsel emphasized that the executive authorities inPakistanhad not failed in maintaining law and order position and in that behalf he quoted the example of Swat. Precisely stating, the situation in Swat was altogether different as in view of the specific facts and circumstances pertaining to the said area and there too, the civil administration had to call the military for ensuring the writ of the Government, but inKarachi, which is the hub of economic activity, breakdown of law and order for a single day allegedly causes loss of 2.5 billion rupees everyday. The Provincial Government and the Federal Government owe a duty to the citizens ofKarachito ensure their Fundamental Rights without comparing the situation prevailing over there with any other part of the country. Without prejudice to any findings recorded herein, whether it is Swat orKarachi, equal responsibility lies on the shoulders of the Provincial Government and the Federal Government to ensure the implementation of the Constitution and law.
- Learned counsel claimed that except inKarachiin other parts/districts of theProvinceof Sindh, the position of the law and order is normal. We do not want to enter into this controversy because the question relating to other districts of Sindh is not under consideration, although Mr. Abdul Mujeeb Pirzada, learned ASC, who appeared on behalf of Sindh Bachao Committee, had uttered a few words to indicate that in the interior of Sindh as well, situation of law and order was not satisfactory. However, it has been pointed out hereinabove that all the limbs of the State, administrative units, etc. have got equal importance as far as the duty of the Provincial Government/Executive or the Federal Government or executive is concerned, but when there is serious situation of law and order like in Karachi and if there is non-adherence to the constitutional provisions, the consequences are bound to reflect on the economic activity of the whole of country as well as internationally. Therefore, the argument so raised by the learned counsel needs no further discussion.
- The learned counsel referred to the case of Jamat-e-IslamiPakistanv. Federation of Pakistan (PLD 2000 SC 111) to contend that internal disturbance cannot be equated with the failure of the executive authority. In this behalf, it may be noted that in the cited case, two petitions, bearing Petitions No. 22 & 25 of 1999 filed by Jamat-e-IslamiPakistanand MQM were filed before this Court under Article 184(3) of the Constitution, challenging the vires of AntiTerrorism Ordinance (No. IV of 1999) dated 27.04.1999 on the ground of being repugnant to the Constitution and contrary to the guidelines provided by this Court in the case of Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445). This Court examined the expression ‘disturbances’ in the context of amendments made and provided its definition. However, no observation/comparison vis-à-vis executive authority of the government was under challenge, therefore, the judgment being inept is not applicable.
- He next contended that the will of the Government can be judged from the fact that this Government has constituted JIT to dig out the truth. He referred to p. 49 of JIT report to demonstrate that the Special Branch, CID, IB,ISI,MIand Pakistan Rangers are Federal agencies, have prepared the reports and all these reports relate to this year, so this is ample proof of the will of the executive authority to bring back normalcy inKarachi. It is important to note that this report was neither filed by the Provincial/Federal Governments nor the learned counsel called for the same. It was Syed Iftikhar Hussain Gillani, learned Sr. ASC, who had filed this report, but in view of the statement so made by the learned counsel, it is abundantly clear that with effect from the date of its compilation, i.e. 31.03.2011, the Government being aware of its contents remained silent. This report contains horrifying facts. No one has claimed its confidentiality. To ascertain the willingness of the Federal or the Provincial Governments to act on this report, life history of one of the persons, namely, Ajmal Pahari, without prejudice to him, is reproduced hereinbelow: –
TRAINING IN INDIAN TRAINING CAMP
I along with Zeeshan PIB Wala on the direction of Nadeem Nusrat (London Secretariat) went toSingaporein 1996. When we reachedSingaporeI informed Nadeem Nusrat and told my location. Nadeem Nusrat told me that I must wait and soon Jameel @ Jimmi will meet me with next schedule. We stayed for one week in hotel (name not remember) in Mustafa Market. Jameel @ Jimmy came to us fromSouth Africa. Also Zeeshan didn’t know about the programme. Jameel @ Jimmy take ours passport and photograph. Jameel @ arrange Indian Visa and send us viaSingaporeAirline. Sunny who was escaped fromKarachireceived us inIndiaDelhiAirport, and took us to the house where we stayed for 15 days. Then he took us to the training center in a jungle near to theDelhi
OTHER TRAINING OF PARTY WORKERS IN INDIAN
When we reached atIndianTrainingCenterwe meet Noora (Shah Faisal Colony Wala), Zafar Tension Duffer Zone Wala), Raja (North Nazimabad Wala) Shakir Choota (OrangiTown) of MQM A group.
MOTIVATION OF TRAINING IN INDIA
After completion of our training Sunny brought different book on Revolution and every body had been motivated that if we didn’t get our rights then we have to work under the Leadership of Altaf Hussain and make our separate state by uniteKarachiand other major parts of Sindh.
WEAPON TRAININGG DURING THE SESSION
We wake up early in the morning for exercise and running. After that we used weapons in which we used AK 47, G-3, MP-5, LMG Rocket launcher, Grenade and other weapons. Our teacher also trained original fire of rocket launcher last day of our training.
RETURN FROM INDIA TO PAKISTAN
Sunny arrange Indian guide who took us to Indian Punjab and one day at about 9’0 clock in evening we illegally crossed the Indian border and entered intoPakistanarea Shakar Garh with our Indian Guide. Then that Indian Guide took us to Lahore in Suzuki pick up and went back. Then we came toKarachiin train (Rail).
MEETING WITH OTHER INDIAN TRAINEES IN KARACHI
I met Noora of Shah Faisal, Zafar Tension of Buffer Zone, Shakir Choota of Orangi Town in Karachi but I never saw Raju ofNorth NazimabadinKarachi.”
Above named person has given details of 53 persons murdered by him from 1986 to 2000. Surprisingly, he also admitted murder of Iqbal Raad Advocate, who was former Advocate General, Sindh. He has also given the details of murder of 58 persons after his release from Jail in 2005. This document is full of information, which he has disclosed. The question here is not the veracity or correctness of his statement. The question is: what did the Federal Government or the Provincial Government do on the basis of this information. Of course the truth of the statement has yet to be determined but it was serious information of grave crimes in an alleged confession. Inaction on the statement, whatever its evidentiary value, means a certain backing and cooperation with criminal activity. However, on the basis of this report, no action has been taken against him as well as the organization with which he showed his affiliation. According to him, he had been getting training outside the country inIndia, etc. The remarks of the agencies of the Federal Government and others, reference of which the learned counsel for the Federation, are as follows: –
“The subject is a hard core and high profile trained target killer affiliated with MQM (A) Group, who has been involved in heinous crimes of murder, attempt to murder, target killing, several activities of creating law and order situation abduction, kidnapping, extortion.”
Without commenting on its evidentiary value, at least when the Federal Government is relying upon it through its learned counsel, some weightage is to be given to it. We posed a question to the learned counsel that on the basis of above report, what action so far was taken by the Government, however, no explanation came forward.
- It is to be noted that all criminals, howsoever influential, have to be dealt with across the board without any discrimination or compromising the position of the law on the subject. As we have already pointed out hereinabove that instant proceedings are not
adversarial, therefore, one cannot discuss the case of all those persons whose names are mentioned in the report, but for the purpose of meeting argument of the learned counsel, reference to one of the same has been given with the observation that no prejudice will be
caused to concerned persons as perhaps he has to face trial in different cases. But perusal of the report qua the argument raised by the learned counsel showing the willingness of the Federal Government to take action inKarachito control the law and order does not appeal to us. Thus, we are constrained to conclude that if an agency of the Federal Government possesses such overwhelming evidence, what could be the reasons for taking no action against concerned persons or organizations.
- Learned counsel stated that every crime committed constituted violation of the Fundamental Rights one way or the other. Bhatta, chanda, abduction, extra judicial killing, etc., whenever committed, constitute violation of the Fundamental Rights qua the individuals against whom such crimes are committed. According to him, the Fundamental Rights of individuals have been violated due to the rivalries between the individuals, there are clashes or crimes committed by individuals against individuals and groups of individuals are pitched against each other. Assuming argument of the learned counsel is correct, then what is the function of the Executive in respect of protecting Fundamental Rights when there is a violation. It is the duty of the Provincial Government as well as the Federal Government to protect and preserve the Constitution, which confers such rights upon individuals. When violation of the Fundamental Rights is admitted, ultimately blame lies with the executive authorities, both Provincial and the Federal, for non-implementation of their rights. In this behalf, detailed discussion has been made hereinabove. When the learned counsel for the Provincial Government, Mr. Hafeez Pirzada, ASC, calls upon this Court “give a wake up call” to his client, and the learned counsel of the Federal Government concedes that a “Call Attention Notice” can be issued, what more needs to be said: If they themselves admit that the Court’s reprimand is need, how can the Governments concerned be defended?
- Dr. Babar Awan, learned counsel stated that the Federation had no intention to invoke Articles 232 to 234 or Article 245 of the Constitution presently. Undoubtedly, it is for the Federation to take a decision, but if any decision is taken, it would be strictly in accordance with the Constitution. This Court has time and again insisted that except adherence to the constitutional provisions in any situation prevailing in the country, no extra-constitutional steps have to be followed. In the neighbouring country, in case of failure of constitutional machinery in the States, Article 356 is attracted to deal with the situation. This Article is identical to Article 232 of our Constitution, therefore, application of these provisions of the Constitution is not alien to our system because on more than one occasion the Executive resorted to the same. Reference may be made to Farooq Ahmed Khan Leghari’s case (supra) wherein it was held as under: –
“48. I am prompted to take above view inter alia for the following reasons:-
(i) That the above view fits in with the above modern jurisprudential theory of proportionality.
(ii) That as a rule of interpretation, the Courts should make efforts to preserve the Fundamental Rights of the citizens while construing the Constitutional provisions. This aspect, I intend to deal with hereinafter while touching upon the aforesaid second question in issue.
(iii) That those who have taken oath to protect the Constitution, particularly, the Judges of the Supreme Court and the High Courts are bound by their oath and duties to act so as to keep the provisions of the Constitution fully alive and operative, to preserve it in all respects, save from all defects or harm and to stand firm in defence of its provisions against attack of any kind as held by this Court in the case of Fazalul Quader Chaudhry (supra), in which the view taken is in line with the above Constitutional mandate.
(iv) That even in spite of suspension of the enforcement of certain Fundamental Rights under clause (2) of Article 233 of the Constitution, Article 4 thereof remains fully operative which lays down that “To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.
In particular –
(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;
(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and
(c) no person shall be compelled to do that which the law does not require him to do.” as held by Salahuddin Ahmad, J. of this Court in the case of Manzoor Ilahi (supra).”
In view of the peculiar circumstances prevailing in Karachi, issuance of a large number of arms licences, both prohibited and non-prohibited, also seems to be one of the reasons for not bringing normalcy in Karachi and perhaps this is another reason that after every 2 to 4 weeks, some incident of torture, gang war, target killing, etc., takes place, which comes to an end after taking heavy toll of life. The Administration/Executive never realized the untold miseries of the sufferers including widows and orphans; therefore, the executive is bound to attend to this aspect of the case.
- After the Court concluded the hearing on 16.9.2011 another very tragic incident took place inKarachi. A car bomb exploded outside the house of Chaudhry Aslam, SSP CID, in the Defence area ofKarachi. Six Policemen and a mother along with her young son were martyred. Although this crime is apparently, and prima-facie of a different variety not related to the turf war or ethnic strife inKarachi, there is something to be learnt from it by the citizens ofKarachi. The vehicle that exploded at the gate of the SP’s House must have been loaded with explosives and prepared with a network of wires, fuses, projectiles such as ball bearings or shrapnels, and triggers. A sophisticated remote control device may also have been needed although it is yet to be determined conclusively whether it was a suicide attack or not. One thing is clear that the vehicle was loaded with explosives and prepared for exploding inKarachiand nowhere else. Surely it was not brought, fully equipped and loaded all the way from the FATA area with explosives, projectiles, wires, fuses, triggers and remote control or suicide oriented equipment. It was indeed prepared inKarachi. All such vehicles and suicide bombers are finally prepared and equipped in our cities, not in FATA. Houses are previously rented for this purpose and rooms are taken in hotels. Whether the vehicle was prepared in a workshop or a house, the neighbours must have noticed some strange or at least dubious movements around and/or inside the workshop or house. The same applies to other terrorists and suicide attackers inKarachi,Lahore,Rawalpindi,Peshawar,Quettaand other cities ofPakistan. The vehicles and suicide bombers and assault teams are all assembled and prepared in our own neighborhoods and Mohallas. These then go out and attack Bazaars, shrines establishments, killing innocent men, women and children. If the citizens were vigilant and responsive, such incidents could be prevented. They must report suspicious activity.
That is the best, perhaps the only way to finish this menace. No doubt the fear of reporting to some extent is due to a lack of confidence in the administration and the Police but that confidence will have to be revived for the mutual benefit of all. It is for the Government to revive that confidence by not using the administration and the police for political or private ends. That is the responsibility of the Government of the Day. We have seen the beneficial and positive effects of a depoliticized administration with the intervention of the Court. It is now the bounden duty of the government to continue with this status and not deflect the administration to its own benefit in preference to the citizen. The Police must also be cleansed of unmerited appointments. We intend to keep an eye on this process and will respond to any genuine complaint.
- The morale of the police is low. Even honest Policemen are demoralized. They are caught between the devil and the deep blue sea. On the one hand, they may be punished for doing their duty if it runs counter to the political objectives of the party in power and on the other, they are afraid of being shot by the persons they have apprehended or their associates. They are conscious of the fact that so many policemen who took part in the operations of 1992 and 1996 have disappeared or have been eliminated. It is necessary, therefore, for the Police to fully and impartially investigate and find out the circumstances of each such disappearance/elimination and provide a detailed report to this Court in respect thereof.
- Thus, from the material produced before the Court and the information conveyed during hearing of the case by the ISI followed by intensified arguments advanced by the learned counsel appearing for the Provincial and Federal Governments, learned Attorney General, learned Advocate General, learned counsel for the Province of Sindh and learned counsel for the interveners, the Inspector General of Police, the DG Rangers, the Presidents of the Sindh High Court Bar Association and the Karachi Bar Association as well as all others, we – Observe that violence in Karachi during the current year and in the past is not ethnic alone but it is also a turf war between different groups having economic, socio-politico interest to strengthen their position/aggrandizement, based on the phenomenon of tit for tat with political, moral and financial support or endorsement of the political parties, who are claiming their representation on behalf of public of Karachi including components and non-components of Provincial Government/ Executive;
A N D
Declare that recent violence in Karachi represents unimaginable brutalities, bloodshed, kidnapping and throwing away dead bodies and torsos in bags; as illustration, indicating toll of 306 lives in one month; detection of torture cells video of which has been produced; receiving bhatta to strengthen the ranks of one group against the other; grabbing land; drug mafia etc., destroying moveable and immovable properties of the citizens, establishes that the Fundamental Rights of the citizens enshrined in Articles 9,14,15,18 and 24 of the Constitution have not been protected/enforced by the Provincial Government/Executive authority and this failure has made the lives and properties of the citizens insecure, inasmuch as Federal Government/ Executive has also not protected Province of Sindh against internal disturbance, thus the government ofProvinceofSindh,
on this account, too, failed to carry out functions in accordance with the provisions of the Constitution [Article 148(3)];
A N D
Further observe that both the Provincial and Federal Governments/Executives have to find out solutions of the present scenario as per provisions of the Constitution;
A N D
Further observe that to come out of instant grave situation of law and order in Karachi, police force being principal law enforcing agency has to be de-politicized and strengthened so that they could, with full commitment, dedication, zeal and zest, perform its bounden duty, and unless there is a de-politicized police, the situation of law and order is likely to become more aggravated, no sooner the assistance of Rangers is withdrawn;
A N D
We apprehend that any further failure to protect the lives and property of the citizens is likely to cause unprecedented disaster, therefore, all efforts should be made to avoid the same in the interest of the nation and country, which is supreme as per the mandate of the Constitution and the law;
A N D
Further observe that in respect of banning any political party including MQM, against whom all the interveners mostly had voiced complaints is not within domain of the Court at this stage as in terms of Article 17(2) of the Constitution every citizen, not being in the service ofPakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or
integrity ofPakistanand it is the responsibility of the Federal Government to act under Article 17 for action against any party violating this Article. The Court will only review such issue at any other appropriate stage or proceeding if then necessary to determine whether the actions of any party are directly or indirectly prejudicial to the sovereignty or integrity ofPakistanwithin the meaning of the Article. The Court will remain, in appropriate proceedings, the ultimate arbiter of this question but will not allow any government to avoid its duty under the law and the Constitution;
A N D
Further observe that as per material brought before the Court, there are criminals who have succeeded in making their ways in political parties notwithstanding whether they are components or non-components of government, and are getting political and financial support allegedly from such parties, therefore, the political parties should denounce their affiliation with them in the interest of the country and democratic set up and they should
not allow them to use their names as militant outfits of the political parties. Failure to do so may entail consequences of a penal nature against the party or person responsible, whether in office or not;
A N D
Further observe that to avoid political polarization and to break the cycle of ethnic strife and turf war, boundaries of administrative units like police stations, revenue estates, etc., ought to be altered so that the members of different communities may live together in peace and harmony, instead of allowing various groups to claim that particular areas belong to them and declaring certain areas as NO GO Areas under their fearful influence. Subsequent thereto, on similar considerations, in view of relevant laws, delimitation of different constituencies has also to be undertaken with the same object and purpose, particularly to makeKarachi, which is the hub of economic and commercial activities and also the face ofPakistan, a peaceful city in the near future. The Election Commission of Pakistan may also initiate the process on its own in this behalf;
A N D
Further observe that equal chances should be provided to different communities ofKarachi to participate in economic and commercial activities instead of confining the same to different political groups on the basis of parochial, racial, tribal, sectarian, partisan and provincial prejudices;
A N D
Further observe thatKarachiis full of arms and ammunition of prohibited and non-prohibited bores including licensed and illicit, therefore,Karachihas to be cleansed from all kinds of weapons by adhering to the laws available on the subject, and if need be, by promulgating new legislation. All licensed arms genuinely required for security concerns and personal safety may be retained but these must also be registered with NADRA. All other licenses, where such need cannot be shown, or where multiple licenses have been issued to the same individual (as distinct from security firms) if not justified, or which are used for unnecessary display at ceremonies or elsewhere for aerial firing should be cancelled after summary and expeditious proceedings in accordance with law;
A N D
Further observe that there is a need for a fresh comprehensive law to eliminate and punish land grabbers and encroachers. This is one ofKarachi’s greatest problems. The Court has already dealt with some cases Suo Motu and otherwise, and will continue to do so whenever necessary or appropriate. Sometimes this Court is the last hope of the citizens or a community which turns to it for redress when all other avenues are denied to them. But overall it is the duty of both Governments to formulate such law and initiate it in the appropriate assembly; and thereafter to implement it fully without showing any favour or immunity to any person whether a political favourite, ally or for any other personal or party consideration;
A N D
Further reiterate that monitoring of the criminal cases should take place in view of the observations made in the case of Sheikh Liaqat Hussain (supra). Besides, the appointments of the Presiding Officers of the Anti-Terrorism Courts should also not be delayed for any reason, as we experienced during the hearing of the case that those appointments were delayed for a period of nearly two years. However, under the direction issued by the Court, the Presiding Officers were appointed and we expect that such delays shall not be allowed to occur in future;
A N D
We observe that since innocent citizens have lost their lives, number of which comes to 1310 during the current year. Similarly, a good number of citizens have been injured and/or lost their valuable property, both movable and immovable, therefore, provincial government/executive shall constitute a Commission to assess their losses and on its recommendation, compensation must be paid to the sufferers without partisan consideration, as early as possible;
A N D
We direct that there must be no ‘NO GO AREAS’ at all inKarachi. If any is found or credibly reported to the Court the Police and, if required by the Provincial Government, the Rangers shall take strong and decisive action to eliminate it. Moreover, if such an area is proved to exist to the satisfaction of the Court, we may require the IGP himself, and if necessary the DG Rangers also, to personally lead the operation into such areas. The Police and Rangers are therefore, expected to conduct the on-going operation across the board without showing any favour to any one and without being influenced from any quarter, be it political or otherwise. In case they are asked to obey any illegal orders, or to show leniency to any criminal, it will be their duty to bring it to the notice of the Court and appropriate orders will be passed accordingly;
A N D
Further direct that an independent and a depoliticized investigation agency be deputed to conduct investigation of cases fairly, honestly and without being influenced in any manner. Similarly, the prosecution agency comprising competent prosecutors and the Provincial Government/Executive must provide protection to the witnesses so that they may depose against the perpetrators of crimes without any fear, enabling the courts to decide cases against them in accordance with law. The prosecutors, particularly for the Anti-Terrorism Courts should be appointed in a highly transparent manner according to the Constitution and the law. Appointments of prosecutors are required to be undertaken without any political whims and considerations;
A N D
Further direct that DG NADRA and the IGP will set up a special joint cell with specialized officials and experts along with sufficient manpower to establish several teams to visit on the spot and identify illegal foreigners so that they may be dealt with strictly in accordance with law after a proper hearing and opportunity to present proof of their citizenship. They should attempt to conclude this exercise preferably in one year;
A N D
Further direct that the IGP shall collect the record and facts about the disappearance or elimination of all police and other officials who took part in the Karachioperations of 1992 and 1996 or were witnesses in ethnic or related crimes and present a report to the Court within the next one month also showing whether their families were compensated or not;
A N D
Further direct that the Provincial Government shall place on record of the Court copies of all judicial inquiries instituted in the matter of law and order inKarachisince 1985. These shall be retained for perusal and for any necessary action or appraisal of the situation at any time in the future;
A N D
Further observe that the Provincial Government/Executive shall ensure smooth running of economic and commercial activities and shall take necessary steps that the protection is provided against uncalled for and illegal shutter down and strikes to the businessmen. During arguments, it was also brought to our notice that due to illegal strikes and shutter down calls, the normal life of citizens ofKarachiis paralyzed, and allegedly it causes loss of billions of rupees in a day, therefore, it is observed that the Government and the political parties shall evolve a respectable way out to avoid such a situation in future;
A N D
Finally, it is directed that a Committee be constituted by the Provincial Government/Executive, headed by the Chief Justice of Sindh High Court, who shall be assisted by the Chief Secretary, the heads of the security agencies i.e. para-military organizations and I.G. Police, to supervise and ensure that law enforcement agencies take action indiscriminately, across the board against the perpetrators involved in causing disturbances inKarachi. The Chief Justice shall convene the meeting at least once in a month to review the implementation of this judgment and copy of the proceedings shall be transmitted to the Registrar of this Court for our perusal and passing appropriate orders at a later stage, if need be.
- In view of above declarations/observations, instant SuoMotu proceedings as well as Constitution Petition No. 61 of 2011 under Article 184(3) stand disposed of while parting with the saying of James Bryce that “Our country is not the only thing to which we owe our allegiance. It is also owed to justice and to humanity. Patriotism consists not in waving the flag, but in striving that our country shall be righteous as well as strong.”
Iftikhar Muhammad Chaudhry, CJ
Anwar Zaheer Jamali, J. Sarmad Jalal Osmany, J.
Amir Hani Muslim, J. Ghulam Rabbani, J.
Announced in open Court on 06th October, 2011
APPROVED FOR REPORTING
IN THE SUPREME COURT OF PAKISTAN
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ
MR. JUSTICE MIAN SHAKIRULLAH JAN
MR. JUSTICE TASSADUQ MR. HUSAIN JILLANI
MR. JUSTICE JAWWAD S. KHAWAJA
MR. JUSTICE TARIQ PARVEZ
MR. JUSTICE MIAN SAQIB NISAR
MR. JUSTICE EJAZ AFZAL KHAN
MR. JUSTICE IJAZ AHMED CHAUDHRY
MR. JUSTICE MUHAMMAD ATHER SAEED
CONSTITUTION PETITIONS NO. 77 TO 85 & 89 OF 2011 & CMA NO. 5505/2011 IN CONST. P. 79 OF 2011
[Constitution Petition under Article 184(3) of the Constitution regarding alleged Memorandum to Admiral Mike Mullen by Mr. Husain Haqqani, former Ambassador of Pakistan to the United States of America] …
Watan Party … PETITIONER
M. Tariq Asad Advocate Supreme Court … PETITIONER
Muhammad Nawaz Sharif … PETITIONER
Senator Muhammad Ishaq Dar & another … PETITIONERS
Iqbal Zafar Jhagra & another … PETITIONERS
Lt. General ® Abdul Qadir Baloch & 2 others … PETITIONERS
Raja Muhammad Farooq Haider Khan & another … PETITIONERS
Syed Ghous Ali Shah & 2 others … PETITIONERS
HafeezurRahman … PETITIONER
Shafqatullah Sohail … PETITIONER
Federation ofPakistan& others … RESPONDENTS
For the petitioners: Barrister Zafarullah Khan, ASC in person
Mr. Tariq Asad, ASC in person
Mr. Rashid A. Razvi, Sr. ASC
Senator Muhammad Ishaq Dar &
Khawaja Muhammad Asif, MNA in person
Mr. Muhammad Rafiq Rajwana, ASC
Mr. Attique Shah, ASC
Dr. M. Salahuddin Mengal, ASC
Sardar Asmatullah Khan, ASC
Syed Ghous Ali Shah, ASC
Dr. M. Shamim Rana, ASC
Mr. Naseer Ahmad Bhutta, ASC
Mr. M.S. Khattak, AOR
For the President of Pakistan: Nemo.
For the Prime Minister of Pakistan: Nemo.
For Chief of Army Staff, Maulvi Anwar-ul-Haq
DG, ISI & M/O of Cabinet, Attorney General forPakistan
Defence, Foreign Affairs, Mr. Dil Muhammad Alizai, DAG
Interior & Law:
For Mr. Husain Haqqani: Ms. Asma Jahangir, ASC
Ch. Akhtar Ali, AOR assisted by
M/s Idrees Ashraf and Asad Jamal, Advocates
For Mansoor Ijaz: Nemo.
Date of hearing: 19-23 & 27-30 December, 2011
O R D E R
IFTIKHAR MUHAMMAD CHAUDHRY, CJ. – We have upheld the maintainability of the listed petitions vide following order dated 30.12.2011:-
“The Objectives Resolution, which has been made substantive part of the Constitution by means of Article 2A of the Constitution of Islamic Republic of Pakistan commands that:
“And whereas it is the will of the people ofPakistanto establish an order;
Wherein integrity of the territories of the Federation, its independence and all its rights, including its sovereign rights on land, sea and air, shall be safeguarded;
So that people ofPakistanmay prosper and attain their rightful and honoured place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity.”
- This short order shall be followed by detailed reasons, to be recorded later. The above petitions have been instituted under Article 184(3) of the Constitution of Islamic Republic of Pakistan.
- For the purpose of understanding the issues involved in these petitions precisely the facts noted from the pleadings of the parties are that on 10th October, 2011, the respondent Mansoor Ijaz wrote an Article in Financial Times, London. The contents of the said Memo have already been reproduced in the order dated 1st December, 2011, however, same are repeated herein below:-
“CONFIDENTIAL MEMORANDUM BRIEFING FOR ADM. MIKE MULLEN, CHAIRMAN, JOINT CHIEFS OF STAFF
During the past 72 hours since a meeting was held between the president, the prime minister and the chief of army staff, there has seen a significant deterioration inPakistan’s political atmosphere. Increasingly desperate efforts by the various agencies and factions within the government to find a home – ISI and/or Army, or the civilian government – for assigning blame over the UBL raid now dominate the tug of war between military and civilian sectors. Subsequent tit-for-tat reactions, including outing of the CIA station chief’s name inIslamabadby ISI officials, demonstrates a dangerous devolution of the ground situation inIslamabadwhere no central control appears to be in place.
Civilians cannot withstand much more of the hard pressure being delivered from the Army to succumb to wholesale changes. If civilians are forced from power,Pakistanbecomes a sanctuary for UBL’s legacy and potentially the platform for far more rapid spread of al Qaeda’s brand of fanaticism and terror. A unique window of opportunity exists for the civilians to gain the upper hand over army and intelligence directorates due to their complicity in the UBL matter. Request your direct intervention in conveying a strong, urgent and direct message to Gen Kayani that deliversWashington’s demand for him and Gen Pasha to end their brinkmanship aimed at bringing down the civilian apparatus – that this is a 1971 moment inPakistan’s history. Should you be willing to do so,Washington’s political/military backing would result in a revamp of the civilian government that, while weak at the top echelon in terms of strategic direction and implementation (even though mandated by domestic political forces), in a wholesale manner replaces the national security adviser and other national security officials with trusted advisers that include ex-military and civilian leaders favorably viewed by Washington, each of whom have long and historical ties to theUSmilitary, political and intelligence communities. Names will be provided to you in a face-toface meeting with the person delivering this message.
In the eventWashington’s direct intervention behind the scenes can be secured through your personal communication with Kayani (he will likely listen only to you at this moment) to stand down the Pakistani military-intelligence establishment, the new national security team is prepared, with full backing of the civilian apparatus, to do the following:
- President ofPakistanwill order an independent inquiry into the allegations thatPakistanharbored and offered assistance to UBL and other senior Qaeda operatives. The White House can suggest names of independent investigators to populate the panel, along the lines of the bipartisan 9-11 Commission, for example.
- The inquiry will be accountable and independent, and result in findings of tangible value to the US government and the American people that identify with exacting detail those elements responsible for harboring and aiding UBL inside and close to the inner ring of influence inPakistan’s Government (civilian, intelligence directorates and military). It is certain that the UBL Commission will result in immediate termination of active service officers in the appropriate government offices and agencies found responsible for complicity in assisting UBL.
- The new national security team will implement a policy of either handing over those left in the leadership of Al Qaeda or other affiliated terrorist groups who are still on Pakistani soil, including Ayman Al Zawahiri, Mullah Omar and Sirajuddin Haqqani, or giving US military forces a “green light” to conduct the necessary operations to capture or kill them on Pakistani soil. This “carte blanche” guarantee is not without political risks, but should demonstrate the new group’s commitment to rooting out bad elements on our soil. This commitment has the backing of the top echelon on the civilian side of our house, and we will insure necessary collateral support.
- One of the great fears of the military-intelligence establishment is that with your stealth capabilities to enter and exit Pakistani airspace at will,Pakistan’s nuclear assets are now legitimate targets. The new national security team is prepared, with full backing of the Pakistani government -initially civilian but eventually all three power centers – to
develop an acceptable framework of discipline for the nuclear program. This effort was begun under the previous military regime, with acceptable results. We are prepared to reactivate those ideas and build on them in a way that bringsPakistan’s nuclear assets under a more verifiable, transparent regime.
- The new national security team will eliminate Section S of the ISI charged with maintaining relations to the Taliban, Haqqani network, etc. This will dramatically improve relations withAfghanistan.
- We are prepared to cooperate fully under the new national security team’s guidance with the Indian government on bringing all perpetrators of Pakistani origin to account for the 2008 Mumbai attacks, whether outside government or inside any part of the government, including its intelligence agencies. This includes handing over those against whom sufficient evidence exists of guilt to the Indian security services.
Pakistanfaces a decision point of unprecedented importance. We, who believe in democratic governance and building a much better structural relationship in the region with India AND Afghanistan, seek US assistance to help us pigeon-hole the forces lined up against your interests and ours, including containment of certain elements inside our country that require appropriate re-sets and re-tasking in terms of direction and extent of responsibility after the UBL affair.
We submit this Memorandum for your consideration collectively as the members of the new national security team who will be inducted by the President of Pakistan with your support in this undertaking.”
- Petitioners invoked original jurisdiction of this Court by means of Constitution Petitions, questioning therein the contents of above Memo on stated allegations that question of public importance involving their fundamental rights under the Constitution has been made out as according to the version of Mansoor Ijaz-respondent, Memo was prepared/drafted for the purpose of delivering the same to Chairman of theUSJoint Chiefs of Staff Admiral Mike Mullen through Gen. (Retd.) James Logan Jones, former US National Security Advisor.
- All the petitions were taken up for hearing on 1st December, 2011 when after hearing the petitioners, either through counsel or in person, notices were issued to the respondents for filing of their replies and to conduct a probe regarding the Memo, Mr. Tariq Khosa, former Secretary Narcotics/DG, FIA, subject to his consent, was directed to act as a Commission. On the same day, by means of press-conference held in PID office by Dr. Babar Awan, Sr. ASC along with two Ministers and others, the order of the Court was criticized contemptuously. Inasmuch as, brother of Mr. Tariq Khosa, namely, Mr. Justice Asif Saeed Khan Khosa, a learned Judge of this Court, who although was not member of the Bench, was referred in terms which prima facie are contemptuous, therefore, for such reasons, Mr. Tariq Khosa recused to act as a Commission. In this context, reaction of the Chief Executive/Prime Minister of Pakistan had been obtained and appropriate directions shall be passed in the later part of the order.
- Parties, including the Chief of Army Staff, DG, ISI, Mansoor Ijaz as well as Mr. Husain Haqqani and the Federation of Pakistan through Secretary Interior, Foreign Secretary represented by learned Attorney General for Pakistan, filed their replies. No separate reply has been filed by the President of Pakistan.
- With a view to narrow down the controversy between the parties, directions were issued to them to file counter affidavits/rejoinders to the replies of each others vide order dated 19.12.2011. A perusal of the pleadings suggests:-
(i) After the publication of above Article along with Memo in Financial Times, Londonon 10th of October, 2011, DG, ISI (Mr. Shujah Pasha) established his contact with Mansoor Ijaz in London and on his return to Pakistan shared his views with the Chief of Army Staff, General Ashfaq Parvez Kayani, thus, both of them in their replies to the petitions as well as affidavits have maintained that Memo dated 10th May, 2011 exists.
(ii) On 16th November, 2011 Mr. Husain Haqqani addressed a letter to the President of Pakistan wherein after mentioning certain facts, he desired to tender his resignation from the post of Ambassador of Pakistan inUnited States and expressed to probe into the matter.
(iii) About 3 to 4 meetings were held between the Prime Minister and Chief of Army Staff, the President and Chief of Army Staff and joint meeting between the President, Prime Minister, Chief of Army Staff, DG ISI and Mr. Husain Haqqani, whereafter, Mr. Husain Haqqani on account of their persuasion tendered his resignation on 22.11.2011, which was accepted vide notification dated 23.11.2011.
(iv) Former Ambassador, Mr. Husain Huqqani has denied categorically about his role in preparation of the Memo who at the same time has relied upon an affidavit tendered by James Jones, to establish that Mansoor Ijaz has concocted this story that such Memo was sent by him for delivering to Admiral Mike Mullen before 9th May, 2011.
(v) In the meanwhile, vide letter dated 28.11.2011, issued under the signatures of Mr. Khushnood Akhter Lashari, Principal Secretary to the Prime Minister referred the matter to the Parliamentary Committee to conduct probe on the subject issue. The proposed terms of the reference are as under:-
a. To probe into the memo purportedly written and sent by Mr. Mansoor Ijaz.
b. To give consequential recommendations.
(vi) Federation ofPakistanthrough Secretary Interior had not denied the existence of the Memo in their counter affidavits except raising technical flaws in respect of undertaking journey by DG, ISI toLondonto conduct a meeting with Mansoor Ijaz without permission of the Prime Minister.
(vii) Mansoor Ijaz in his reply and in counter affidavit has contradicted the stand taken by Mr. Husain Haqqani, former Ambassador and he has offered to provide further evidence to substantiate his plea that allegedly on persuasion of Mr. Husain Haqqani, Memo dated 10th may, 2011 was drafted to be delivered to Mike Mullen through James Jones.
- On 1st of December, 2011 the Court itself raised the question about the maintainability of the petitions and at the same time it was observed that it would be appreciated if the outcome of the proposed inquiry by the Parliamentary Committee on National Security is shared with the Court, if possible.
- After having heard the parties and having taken into consideration the relevant provisions of the Constitution and the law, judgments cited on behalf of both the sides and the pleadings of the parties carefully, we hold as under:-
(a) In exercise of powers of Judicial Review, we hold that in these petitions, petitioners have succeeded in establishing that the issues involved are justiciable and question of public importance with regard to enforcement of fundamental rights, prima facie, under Articles 9, 14 and 19A of the Constitution has been made out. Thus, the petitions under Article 184(3) of the Constitution are maintainable.
(b) To delineate measures with a view to ensure enforcement of the fundamental rights noted in para ibid, a probe is called for to ascertain the origin, authenticity and purpose of creating/drafting of Memo for delivering it to Chairman of the US Joint Chiefs of Staff Admiral Mike Mullen through Gen. (Retd.) James Logan Jones, former US National Security Advisor. Thus, in exercise of powers conferred upon this Court under Article 187 of the Constitution, Order XXXII, Rules 1 and 2 read with Order XXXVI of the Supreme Court Rules, 1980 coupled with the principle of Civil Procedure Code, a Commission is appointed. As the due process of law is the entitlement of all the stakholders, therefore, to ensure probe into the matter in an transparent manner the Commission shall be comprising of:
(i) Mr. Justice Qazi Faez Isa, (Chairman)
Chief Justice of Balochistan High Court
(ii) Mr. Justice Iqbal Hameed-ur-Rehman (Member)
Chief Justice,IslamabadHigh Court
(iii) Mr. Justice Mushir Alam (Member)
Chief Justice, High Court of Sindh
Raja Jawwad Abbas Hassan, District & Sessions Judge,
Islamabadis appointed as Secretary to the Commission.
(c) The Commission shall hold its meetings in the building of Islamabad High Court. The Commission shall be exercising all the powers of Judicial Officers for the purpose of carrying out the object mentioned hereinabove and it shall be free to avail services of advocates, experts of forensic science and cyber crimes. All the Federal Secretaries, including Interior Secretary, Secretary Cabinet, Secretary Foreign Affairs; Chief Secretaries of all the provinces; DG, FIA; Inspector Generals of Police of all the provinces and Ambassadors of Pakistan in USA and UK, shall provide necessary assistance to the Commission.
(d) Government ofPakistanthrough Secretary Cabinet Division shall provide logistic support to the Commission, subject to its demands through the Secretary of the Commission.
(e) The Commission shall be authorized to collect evidence within and outsidePakistanaccording to prevailing laws on the subject.
(f) The Commission shall provide full opportunity of hearing to all the parties.
(g) The Commission is required to complete this task within a period of four weeks after receipt hereof.
- It is to be noted that the reply submitted before the Court by Mr. Mansoor Ijaz, inter alia, comprises of certain documents including exchange of e-mails and other communications using the BlackBerry Messaging service commonly known as BBM between them i.e. Mansoor Ijaz and Mr. Husain Haqqani were in constant touch either through BBM, e-mails or voice calling w.e.f. 9th to 12th May, 2011. In fact during relevant days, as many as 85 BBMs, voice calls and e-mails were exchanged between the two. Prima facie these communications form the most important piece of evidence regarding purported contacts between the two for the purposes of drafting the alleged Memo. In addition to these dates, Mansoor Ijaz also claims that he had electronic/telephonic interactions with Mr. Husain Haqqani on October, 28 andNovember, 1 2011. Therefore, in the interest of justice, it is appropriate to get the confirmation about the veracity and authenticity of these communications from the original company known as Research in Motion (RIM) based inCanada being the sole and exclusive custodian of such information. Therefore, the learned Attorney General is directed to contact the said Company RIM through Secretary, Ministry of Foreign Affairs for getting confirmation about the authenticity of the above mentioned electronic communications exchanged between Mansoor Ijaz and Mr. Husain Haqqani. This confirmation may be obtained at the earliest and in order to save and protect the forensic evidence and to scrutinize the same it should be produced before the Commission. As forensic evidence is likely to be collected from the company Research in Motion (RIM) based inCanada, therefore, the High Commission of Pakistan inCanada is directed to cooperate and assist the Commission as well.
- Vide order dated 1st December, 2011, Mr. Husain Haqqani was directed not to leave the country without the permission of the Court. This order is kept intact.
- Office is directed to put a separate note in the Chambers of Chief Justice of Pakistan along with the transcription of the pressconference dated 1st December, 2011 of Mr. Babar Awan, Sr. ASC along with replies/reactions of the Prime Minister of Pakistan dated 23rd December and 26th December, 2011 for passing appropriate orders.
- The petitions are adjourned for a date to be fixed by the office after receipt of the report from the Commission.”
- Detailed marshaling of the facts of instant case are not called for because of the settled principle of law with regard to exercise of jurisdiction under Article 184(3) of the Constitution that the Court should not enter into disputed questions of fact involving appreciation of voluminous evidence. However, to decide the question brought before the Court relating to the public importance and enforcement of fundamental rights, there is no prohibition to consider facts, which do not require consideration of voluminous evidence. Reference may be made to the cases of Nawaz Sharif v. President of Pakistan (PLD 1993 SC 473), Pakistan Muslim League (N) v. Federation of Pakistan (PLD 2007 SC 642), Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879), Dr. Mubashir Hassan v. Federation of Pakistan (PLD 2010 SC 265) and Al-Jehad Trust v. Lahore High Court (2011 SCMR 1688). It is also settled practice of the Court that proceedings are not undertaken for academic purposes but on the basis of admitted or proven facts to resolve the controversy [Dr. Mubashir Hassan’s case(supra)].
- According to the contentions of Mr. Tariq Asad, ASC in respect of Memo dated 10th May, 2011 originated/drafted by Mansoor Ijaz in the circumstances, which have already been noted hereinabove information whereof was communicated by the media. Therefore, he instituted petition No.78/2011 on 21st of November, 2011 wherein inter alia it was prayed to constitute high level Commission to investigate into the matter of Memo written to US Government and to fix the responsibilities for damaging the sovereignty of the country.
Prior to filing of this petition, another petition was filed by Wattan Party through Barrister Zafarullah Khan, ASC on 19th November, 2011 wherein inter alia it is stated that text of the Memo, which contains six points, are regarding the concessions, which will be given to America so that all the desired demands of American Army are met and Pakistan will change its security team and new national security team will make arrangements, provided the pressure of Pakistan Army on civilian governments is released or control by the Army on civilian government is removed through America’s interference, etc. It was prayed that issue of secret Memo, issued after the approval of government and President be determined whether it is treasonous document or fabrication imputed to the government of day/President and Judicial Commission be appointed for its investigation. Similarly, Mian Muhammad Nawaz Sharif and others submitted petitions on 23.11.2011 wherein other important facts were disclosed that copy of the transcript of the said conversation released by said Mansoor Ijaz as published in the issue of 18th November, 2011 of the Daily “the News” was available which was appended as annexure P/II. However, it was mentioned that in the meantime frightfully disturbing comments also came from the spokesman of Admiral Mike Mullen to the effect that:-
“Admn. Mullen had no recollection of the Memo and no relationship with Mr. Ijaz. After the original Article appeared on Foreign Policy’s website, he felt it incumbent upon himself to cheque his memory. He reached out to others who he believed might have had knowledge of such a Memo, and one of them was able to produce a copy of it”.
It was prayed that the ones responsible and/or involved in initiating the process leading to the said memorandum; authoring the same; providing any assistance whatsoever in the process and the ones blessing or approving the said act, may graciously be identified.
- Undisputedly, an Article has been published in Financial Times, Londonon 10th October, 2011, reference of which has been made in the short order, reproduced hereinabove. Subsequently, on 22nd October, 2011, DG ISI (Lieutenant General Ahmad Shuja Pasha) contacted the author of Article (Mansoor Ijaz, respondent) in London. The Federation, through Secretary Interior in counter affidavit, has not denied this fact except raising the objection that the DG ISI had gone to London without permission of Chief Executive/Prime Minister. It has also not been disputed by the Federation that on 13th November, 2011 the Chief of Army Staff advised the Prime Minister that details of the Memo were gradually coming to light and that contents of the Memo, so far leaked, were highly sensitive in nature, therefore, position would have to be taken on the veracity or otherwise of the said issue. It was, therefore, important that complete details be collected as early as possible. He strongly recommended to the Prime Minister that Ambassador of Pakistan in the United States, who was best suited and informed on the matter, be called to brief the Country’s leadership, as the time was of essence and that earlier they knew the truth, the better it would be to address the negative fallout for the country. On 15th November, 2011, the President asked him for a meeting. He met him at the Presidency at 1400 hours on the same day. The Prime Minister had already informed the President about his recommendations. The President told him that he had already decided to call Mr. Husain Haqqani for a briefing. On 16th November, 2011, another meeting was held between Chief of Army Staff, President and Prime Minister, wherein, it was decided that Mr. Husain Haqqani should come to Islamabad as early as possible. On 22nd November, 2011 at 1500 hours, a meeting was held in the Prime Minister House, which was attended by President, Prime Minister, Chief of Army Staff and DG, ISI, whereby, Mr. Husain Haqqani was called in to brief. Thereafter, the Prime Minister took the decision to ask for Mr. Husain Haqqani’s resignation and also ordered for investigation.
- Likewise, a copy of the letter dated 16th November, 2011 addressed to Mr. Asif Ali Zardari, President of Pakistan has been filed in Court by respondent Mr. Husain Haqqani through his learned counsel Ms. Asma Jahangir, ASC. The letter, which has been relied upon by the respondent himself, needs to be reproduced hereinbelow as it discloses important aspects of the case:-
3517 International Court, N.W.
November 16, 2011
Dear Mr. President,
Since my appointment as Ambassador of Pakistan to the United Statesin 2008, I have strived to serve the country and represent it forcefully in the country of my accreditation. I have faithfully followed the directions of the Prime Minister and the government in executing my duties and dealt with many crises that have bedeviled US-Pakistan ties.
It is unfortunate that I have been consistently vilified by those who oppose the democratically elected government as well as the opponents of good relations between the United StatesandPakistan. This vilification has often included the baseless charge that somehow I undermine or defame the armed forces ofPakistaneven though many members of my family have faithfully served the country as military officers. Like many Pakistanis, I have consistently opposed military intervention in politics but I have never connived, conspired or sought to undermine our armed forces or their leadership.
Most recently allegations have been made that I wrote a letter or memo on your behalf to theUSChairman Joint Chiefs, Admiral Michael Mullen, soon after the May 2 raid in Abbottabad that resulted in the killing of Al-Qaeda leader Osama Bin Laden. The alleged memo/letter proposed US support for civilian rule in return for changes inPakistan’s military leadership. I want to categorically state that at no point was I asked by you, or anyone else, in the government of Pakistan to write such a letter or memo and that I did not draft or deliver such a letter or memo nor did I ask anyone to do so on my behalf or that of the government or President of Pakistan. I may add that as ambassador it is my official duty to communicate with US officials at all levels and I am perfectly capable of drafting and delivering all official communications myself.
It has been my privilege to servePakistanas its ambassador in theUSbut I cannot do so effectively under the shadow of suspicion and vilification. I, therefore, request that an inquiry be set up to ascertain the veracity of any specific allegations against me. Pending ascertainment of facts I propose to resign to your will in the national interest.
I am a Pakistani patriot who serves as ambassador at the pleasure of the Prime Minister and yourself. I do not wish to be a distraction from the more important challenges faced by our country and its government. As instructed, I am preparing to travel toIslamabadfor consultation.
With highest consideration and regards.
Mr. Husain Haqqani
His Excellency Asif A. Zardari
Two things are very prominent from the recitation of the above letter;
(i) he had taken upon himself to make the reference of the letter/memo with reservation that he had not associated himself to originate/draft it on behalf of the President of Pakistan; (ii) he had made the reference to the incident, which took place on 2nd May, 2011, which resulted in killing of Al-Qaeda leader, Osama Bin Laden.Said incident generated the public interest in the length and breath of the country as a whole and the nation vociferously condemned the incident publically, as a consequence whereof a joint session of Parliament was held on 13th and 14th May, 2011 to consider the situation in depth and as a result of discussion including presentation made on the relevant issues, a unanimous resolution was passed, which called upon the government to appoint an independent Commission of Inquiry for the said purpose. Accordingly, on 31st May, 2011 vide notification No.NIL/2011, Government of Pakistan, Ministry of Law, Justice and Parliamentary Affairs, a Commission was constituted u/s 3 and 5(1) of the Pakistan Commissions of Inquiry Act, 1956 headed by Mr. Justice Javed Iqbal, senior most Judge of the Supreme Court as President with four other members. The notification was followed by another notification dated 21st June, 2011 in supersession of earlier notification as the former notification was issued for the appointment of a learned Judge as President/Chairman of the Commission, without approval of the Chief Justice of Pakistan and such action apparently seemed to be contrary to the principle of independence of the judiciary, hence rectified. The Commission so constituted, in respect of incident of Abbottabad, continues its probe, which has not so far been concluded.
- It might not be out of context to mention that the Memorandum does not disclose the name of any of the persons, who allegedly got it originated. However, subject to all just exceptions and without causing prejudice to the case of any of the parties, the letter of Mr. Husain Haqqani reproduced hereinabove, relied upon by the respondent’s counsel herself discloses that Mr. Husain Haqqani was being involved on having written a letter or Memo on behalf of the President of Pakistan to Chairman US Joint Chiefs of Staff Admiral Mike Mullen soon after the 2nd May, 2011 raid in Abbottabad that resulted in the killing of Al-Qaeda leader Osama Bin Laden. It is also not disputed that in the meeting between high-ups i.e. President, Prime Minister, Chief of Army Staff and DG ISI, resignation was tendered by Mr. Husain Haqqani, addressed to the Prime Minister at Islamabad on 22nd November, 2011, contents whereof read as under:-
“Islamabad,November 22, 2011
Having served as Ambassador of Pakistan to the United Statessince 2008, I have faithfully fulfilled my obligations under your direction and guidance.
- I serve at your pleasure and pursuant to your instructions and under the terms of the contract of my appointment, I hereby tender resignation from the position entrusted to me by you.
Mr. Husain Haqqani
The Honorable Prime Minister”
- As far as an Ambassador of Pakistan is concerned, including the one who is on contract appointment is deemed to be holding the post in connection with the affairs of the Federation and is to be governed by the rules applicable to the general body of civil servants, such as the Government Servants (Efficiency and Discipline) Rules, Government Servants Conduct Rules and the Civil Services (Classification, Control and Appeal) Rules. Reference may be made to the case of Abida Hussain v. Tribunal for N.A.69 (PLD 1994 SC 60).
- A perusal of resignation of Mr. Husain Haqqani reveals that pursuant to the instructions of the Prime Minister and under the terms of contract of his appointment, he tendered resignation, which was accepted on 23rd November, 2011 vide notification No.Estt(I)- 10/177/2008 w.e.f. 22nd November, 2011. It is equally significant to note that in the letter dated 16th November, 2011, Mr. Husain Haqqani also requested to the President Asif Ali Zardari that an inquiry be set up to ascertain the veracity of any specific allegations against him. Further, pending ascertainment of facts, he proposed to resign in the national interest.
- It may not be out of context to infer from the facts and circumstances of the case that existence of the Memo has been accepted because otherwise there was no necessity for holding four consecutive meetings between the Constitutional figures i.e. President, Prime Minister and the Chief of Army Staff as well as DG ISI and Mr. Husain Haqqani, and as a consequence of these meetings, resignation was tendered by the latter and order was also passed by Prime Minister for initiating probe in the matter.
- Barrister Zafarullah Khan, ASC appearing in Constitution Petition No.77/2011, has contended that as a matter of right being a citizen, he has right to have access to information in respect of the Memo. He contended that Articles 5, 9 and 14 of the Constitution, deal with security of person; if there is no security, there is no liberty of individuals. The action of originating/drafting Memo in relation to the affairs ofPakistan, as has been mentioned therein, is tantamount to compromising security and sovereignty of Pakistan and if such effort had succeeded, Americans would have been allowed to control our security, the independent character of the government of the country would be totally lost. Thus, the security of life and dignity of citizens and of persons, which are fundamental right guaranteed under the Constitution, shall have seriously been violated. He placed reliance upon the cases of Malik Asad Ali v. Federation of Pakistan (PLD 1998 SC 161), Wattan Party v. Federation of Pakistan (PLD 2006 SC 697) and in Re: Corruption in Hajj Arrangements (PLD 2011 SC 963).
- Mr. Tariq Asad, learned ASC appearing in CP No. 78/2011 has stated that when citizens know that their rulers were conspiring against people, Army, Intelligence Agencies, etc., it is against the dignity of man. Further, Articles 14 and 19A of the Constitution have to be read together to ascertain as to whether fundamental rights of citizens guaranteed under both these Articles have been violated or not. He further contended that Federation while denying the existence of the Memo, is not coming forward with the truth about the circumstances which led to issuance of Memo dated 10th May, 2011.
Though the article published in the Financial Times suggests that the Memo was prepared on 10th May, 2011 outside the country, but it shows concern about the security in side Pakistan and security agencies ofPakistan. He further emphasized that seeking intervention, as is evident from the contents of the Memo, is against the dignity of the people and he being a citizen has no source to collect the information about genuineness or otherwise of the Memo, therefore, he has impleaded in his petition the COAS, DG ISI and others. He referred Sura Al-Mumtaĥanah wherein it has been ordained as under:-
“O you who have believed, do not take My enemies and your enemies as allies, extending to them affection while they have disbelieved in what came to you of the truth, having driven out the Prophet and yourselves [only] because you believe in Allah, your Lord. If you have come out for jihad in My cause and seeking means to My approval, [take them not as friends]. You confide to them affection, but I am most knowing of what you have concealed and what you have declared. And whoever does it among you has certainly strayed from the soundness of the way.” [60:1]
In Sura Al-Mā’idah it has been said that:-
“But the Jews and the Christians say, “We are the children of Allah and His beloved.” Say, “Then why does He punish you for your sins?” Rather, you are human beings from among those He has created. He forgives whom He wills, and He punishes whom He wills. And to Allah belongs the dominion of the heavens and the earth and whatever is between them, and to Him is the [final] destination.” [5:18]
- Mr. Rashid A. Razvi, learned Sr. ASC contended that the fact noted in the petitions as well as replies on behalf of the respondents in CMAs, touches the question of security, independence and sovereignty of this country; therefore, apparently, Articles 9 and 14 of the Constitution have been violated. There are so many cases, which indicate that this Court is bound to enforce the fundamental rights. Reliance was placed in the cases of Miss Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416), Pakistan Muslim League (N) v. Federation of Pakistan (PLD 2007 SC 642), Shahida Zaheer Abbasi v. President ofPakistan(PLD 1996 SC 632), and Zulfiqar Mehdi v. Pakistan International Airlines Corporation (1998 SCMR 793) and in Re: Corruption in Hajj Arrangements in 2010 (PLD 2011 SC 963). As in the instant case fundamental rights have been violated, therefore, this Court is bound to enforce the same because an important question of public importance has been raised before this Court and Court has no discretion to decline the relief as it is possible under Article 199 of the Constitution. And principle of judicial restraint cannot be applied to deprive the citizens as their security/integrity of the entire country is involved.
- He further stated that objection raised by the learned counsel for Mr. Husain Haqqani that issue presented before the Court falls within the definition of sensitive political question, therefore, the Court may not go into the same, has no relevance as there is absolutely no political question and the matter relates to civil liability as well as criminal responsibility subject to establishing that Memo was originated and executed to compromise the integrity/security of this Country. He has referred the case of Mehmood Khan Achakzai v. Federation of Pakistan (PLD 1997 SC 426) in support of his arguments.
- Senator Muhammad Ishaq Dar, appeared in person in Constitution Petition No. 80/2011 and contended that overall perspective is linked with violation of fundamental rights. None of the respondents has disputed the contents of the Memo, however, without disclosing the name, what was the object and motivation of its dissemination. He further stated that probe of the Memo has been conceded by all of them except raising the dispute in respect of forum. He stated that he had written a letter to Parliamentary Committee on National Security for the purpose of taking up the issue, but on having seen that no progress was made out, he approached this Court for redressal of his grievance. He further has contended that the Committee [of which he himself is a member] was originally comprised of 17-members but presently strength of the Committee has reduced to 14-members. He was also of the opinion that in view of the rules framed by the Committee and considering the past history of the Committee, it would not be able to achieve the progress beyond a threshold. He explained that this Committee was notified on 11th November, 2008, whereas, the Memo Issue cropped up on 10th May, 2011 and was brought to the lime light after publication of Article written by Mansoor Ijaz on 10th October, 2011 in the Financial Times,London. Therefore, the Committee would not be authorized to look into this matter. Without prejudice to the arguments, he added that not a single report so far has been received from the Committee and like other Committees it has failed to deliver, therefore, suggestions made by the respondent in his reply that let the matter be probed into by the Parliamentary Committee on National Security, is not in accordance with its mandate.
- Mr. Attique Shah ASC and Mr. Muhammad Rafiq Rajwana, ASC learned counsel in Petition No. 81/2011 framed following two questions:-
(i) Whether it is a case in which question of infringement of fundamental rights arises?
(ii) Whether the present lis involves controversy relating tojudicially discoverable and manageable standards? They have referred to the case of Powell v. McCormack [395US 486(1969)] to substantiate their plea that the issue presented before the Court is justiciable and is to be resolved by the Judicial Forum. They have also relied upon the cases of Mehmood Khan Achakzai (supra), Darshan Masih v. the State (PLD 1990 SC 513) and Muhammad Yasin v. Federation of Pakistan (Civil Petition No.42 of 2011).
- Mr. Attique Shah learned ASC also made a categorical statement that in the past few years, the people of Malakand Division have suffered atrocities and miseries, and have sacrificed life and honour. In the operation of Swat, etc., apart from other damages and destruction suffered by the people of Malakand, two million people became IDPs and had lived in camps, only for the sovereignty and integrity of this country. Out of them, 4000 were members of the legal fraternity. The Memo contains concessions on the one hand, and the destruction on the other. This court is to appreciate that right from 1979 till date, onlyPeshawaris having the burden of 3 million Afghan migrants. We have lost dignity, profession and finances for the sake of integrity and sovereignty of this nation. At present on western borders spreading over 500 km, due to the activities of the troops, 21000 civilian casualties have occurred for the honour, integrity and sovereignty of the country, but through the Memo the concessions are being given. This is the result of serious active connivance amongst the responsible persons. There are drone attacks and activities of militants. Thus it is a case of serious violation of Fundamental Rights.
- Dr. Salahuddin Mengal, ASC stated that by means of Article 2A, which is now the substantive part of the Constitution, adequate provision to safeguard the interests of judiciary have been provided including the sovereignty, security and dignity of this country; that the crux of the Memo is admitted by Mansoor Ijaz; DG ISI travelled to UK, inspected BBM and other computer material, submitted report to the President; a meeting was convened in the President House; Paras 1, 2, 3 of the Memo speak of the new National Security Team, etc.; this falls within the definition of violation of fundamental right of the people of this country. Previously, Amal Kansi was handed over to Americans, which was very unfortunate and it also needs to be probed. The Memo has shaken the entire nation. He has stated that he is representing the elected members of the National Assembly who belong to Balochistan. His emphasis was mainly on the violation of Article 9 of the Constitution.
- Sardar Asmatullah Khan, ASC has appeared in Constitution Petition No. 83/2011 and argued that the petitioners are former President and Speaker of Azad Jummu & Kashmir and are also citizen ofPakistan. It is a matter of violation of Articles 9 and 19A of the Constitution. He also referred to the case of Shehla Zia v. WAPDA (PLD 1994 SC 693).
- Syed Ghous Ali Shah, ASC has appeared in Constitution Petition No. 84/2011 and adopted the arguments of other counsel for the petitioners, however, has added two things; firstly, it is absolutely incorrect that if the matter is decided by this Court, supremacy of the Parliament will be affected, because except the Court or a Tribunal constituted by it, no other forum would be in a position to conduct a thorough probe; secondly, the issue of Memo has affected every citizen of Pakistan and not just merely one or two institutions of the State. Thus, it is a matter of public importance with reference to enforcement of fundamental right.
- Rana M. Shamim, ASC has appeared in Constitution Petition No.84/2011 and adopted the arguments of other learned counsel while relying upon the judgments cited by them. He, however, added that COAS has filed affidavit in this Court requesting for a probe into the matter, as sovereignty and integrity of the country is involved.
- Mr. Naseer Ahmad Bhutta, ASC has appeared in Constitution Petition No.85/2011. He has adopted the arguments of other learned counsel for the petitioners.
- Maulvi Anwar-ul-Haq, learned Attorney General for Pakistan appeared on behalf of the Federation and contended that as the Court has observed that respondents, COAS and DG ISI also fall within the definition of Federation, therefore, he is appearing on behalf of all of them. It is a matter of record that replies dated 14th December, 2011 on behalf of respondents Chief of Army Staff and DG ISI were duly filed under covering letter No.1(3)/2011-AGP dated 15th December, 2011 before this Court through the learned Attorney General for Pakistan. Similarly, affidavits of Chief of Army Staff and DG ISI dated 21st December, 2011, which were delivered by the M/o Defence vide letter No.1/603/Dir (Legal)/11 to the office of Attorney General for Pakistan, were filed in Court vide C.M.As No.5625/2011 and 5691/2011 respectively.
He further contended that there is no existence of Memo because a person, whose name is Mansoor Ijaz, is sitting outside the country who is an American National. And he on his own, originated/drafted a Memo allegedly to involve Ambassador of Pakistan in US, for which no cogent and tangible reasons exist. He contended that the Federal Government as well as the Presidency has already denied the contents of the said Article published on 10th October, 2011 and having taken notice of the same, proper steps have already been initiated by the competent authority, on the executive side as well as at Parliamentary Forum, for the purpose of conducting probe in the issue. The Parliamentary Committee is fully empowered not only to probe into the matter but also to ensure production of such evidence as it deems necessary. He stated that the former Ambassador of Pakistan to US has put in his resignation on the call of Chief Executive and its acceptance has been notified.
- Mr. Mansoor Ijaz has sent his reply through e-mail along with attached documents to substantiate the plea that Memo dated 10th May, 2011 originated at the behest of Respondent No.4, Mr. Husain Haqqani.
- Ms. Asma Jahangir, Learned counsel appearing on behalf of Mr. Husain Haqqani has vehemently contested the petition for want of infraction, violation and breach of any of the fundamental rights of the petitioners, as according to her, absence of such elements is sufficient to render the petitions liable to be dismissed being not maintainable. She has contended that question of public importance and enforcement of fundamental rights should have direct link with each other, enabling this Court to exercise jurisdiction under Article 184(3) of the Constitution. There must be bona fides of the petitioners to approach this Court for a relief under Article 184(3). This Court has to safeguard the fundamental rights on the basis of cogent evidence, as merely on the basis of assumptions and presumptions, jurisdiction cannot be exercised as the same is likely to create chaos, if ultimately it is found that the declaration is not enforceable. Exercise of jurisdiction must not be vague and based on hypothesis. The remedy sought should strengthen and enforce the fundamental rights. Jurisdiction under Article 184(3) is remedial in character and exercise of the jurisdiction under this provision is conditioned by following three pre-requisites; namely, there is a question of public importance; such question involves enforcement of the fundamental rights; and fundamental rights to be enforced are conferred by Chapter 1, Part II of the Constitution. When there is a question of fact, which is disputed, copious or too intricate, then restraint has to be exercised while exercising jurisdiction under Article 184(3). Actions or inactions of the State, which result in actual breach of fundamental rights, would warrant exercise of jurisdiction. The fundamental rights have to be established in tangible terms for establishing bona fides. Safeguard provided under the Constitutional jurisdiction for the due process of law has to be adhered to strictly, as now through Article 10A of the Constitution, it has become a fundamental right of the citizens. No infraction, breach or violation of Article 9, 14, and 19A, as is alleged, has been involved in the instant case. Therefore, petitions deserve to be dismissed with special costs. She has relied upon the judgments in the cases of Miss Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416), Pakistan Muslim League (N) v. Federation of Pakistan (PLD 2007 SC 642), Corruption in Hajj Arrangements, 2010: (PLD 2011 SC 963), Mrs. Shahida Zaheer Abbasi v. President of Pakistan (PLD 1996 SC 632), Syed Zulfiqar Mehdi v. Pakistan International Airlines Corporation through M.D. (1998 SCMR 793), K.B. Threads (Pvt.) Limited v. Zila Nazim, Lahore (PLD 2004 Lahore 376), Jamat-e-Islami v. Federation of Pakistan(PLD 2008 SC 30), Ch. Muhammad Siddique v. Government of Pakistan (PLD 2005 SC 1), Haji Muhammad Saifullah Khan v. The Federation ofPakistan(1989 SCMR 22), Grp. Capt. (Retd.) Cecil Sohail Chowdhry v. Federation of Pakistan(1989 SCMR 523), Al-Jehad Trust v. The President ofPakistan(PLD 2000 SC 84), Mian Muhammad Shahbaz Sharif v. Federation ofPakistan(PLD 2004 SC 583), Al-Jehad Trust v. Lahore High Court (2 0 1 1 S C M R 1688), In Re: Suo Moto Case No.10 OF 2007 (PLD 2008 SC 673), Nawaz Sharif v. President of Pakistan (PLD 1993 SC 473), State Life Insurance Employees Federation v. Federal Government of Pakistan (1994 SCMR 1341) and Ashok Kumar Pandey v. The State ofWest Bengal(AIR 2004 SC 280) = [(2004) 3 SCC 349].
- Learned counsel for the parties have no serious reservations about the question of public importance in this matter to be one of the components to attract the jurisdiction of this Court under Article 184(3) of the Constitution coupled with the fact that three elements i.e. question of public importance, question of enforcement of fundamental right and fundamental rights sought to be enforced as conferred by Chapter 1, Part II of the Constitution, are required to be satisfied.
- Learned Attorney General, however, conceded that petitions relate to matter of public importance.
- According to the dictionary meaning, the term “public importance” could be defined that the question, which affects and has its repercussions on the public at large and it also includes a purpose and aim, in which the general interest of the community, particularly interest of individuals is directly or vitally concerned. In Words and Phrases Vol. 18-A, ‘Great Public Importance’ has been defined as under:-
“A case in which a court is proceeding without jurisdiction of person or subject matter involves a matter of ‘great public importance’ within rule providing that relief in nature of prohibition will not be granted by Supreme Court except in matters of great public importance.”
- This Court had undertaken exercise to define this phrase in the cases of Manzoor Elahi v. Federation of Pakistan (PLD 1975 SC 66), Miss Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416), Maqbool Ahmad v. Pakistan Agricultural (2006 SCMR 470), Mian Muhammad Shahbaz Sharif v. Federation of Pakistan (PLD 2004 SC 583) and Shahida Zaheer Abbasi v. President of Pakistan (PLD 1996 SC 632). In the case of State ofJammu and Kashmirv. Bakshi Ghulam Mohammad (AIR 1967 SC 122) some of the actions of Bakshi Ghulam Mohammad (the then Chief Minister) were challenged before the High Court and the High Court expressed the view that such acts would have been acts of public importance if he was in office but they ceased to be so, as he was out of office, when the notification was issued. The Supreme Court reversed the finding while observing that this was a misreading by the High Court and held that what is to be inquired into in any case are necessarily past acts and it is because they have already affected the public well-being or their effect might do so, that they became matters of public importance. It was further held that it is of public importance that public men failing in their duty should be called upon to face the consequences. It is certainly a matter of importance to the public that lapses on the part of the Ministers should be exposed. In the case of Sohail Butt v. Deputy Inspector General of Police (2011 SCMR 698) it was held that the word ‘public importance’ can only be defined by a process of judicial inclusion or exclusion because the expression public importance is not capable of any precise definition and has not a rigid meaning, therefore, each case has to be judged in the circumstances of that case as to whether the question of public importance is involved. But it is settled that public importance must include a purpose or aim in which the general interest of the community as opposed to the particular interest of the individuals is directly and vitally concerned.
- This Court in Manzoor Elahi’s case (supra) has observed that in order to acquire public importance the case must obviously raise a question, which is of interest to, or affects the whole body of people or an entire community. In other words, the case must be such as gives rise to questions affecting the legal rights or liabilities or the public or the community at large, even though the individual, who is the subject matter of the case, may be of no particular consequence.In the case of Munir Hussain Bhatti advocate v. Federation of Pakistan and others( PLD 2011 SC 407) it has been held that a wealth of jurisprudence is available on this subject. The issue, therefore, which has to be addressed while deciding the respondent’s preliminary objection is whether or not these petitions raise issues of public importance. Furthermore, in making this determination, the Court is not to be swayed by expressions of public sentiment nor is it to conduct an opinion poll to determine if the public has any interest in an issue being agitated before the Court under Article 184(3) of the Constitution. Instead, a whole range of factors need to be kept in mind, which have, over the years, been expounded in numerous precedents of this Court. It is important to keep these precedents in view because, as noted in an earlier judgment, it is through the use of precedent that the contours of the law are constantly defined. In the case of Muhammad Shahbaz Sharif (PLD 2004 SC 583) it has been held that in order to acquire public importance the case must obviously raise a question, which is of interest to, or affects the whole body of people or an entire community. What is essential is that the question so raised must relate to the interest of whole body of the people or an entire community. To put it in other words, the case must be such, which raises a question affecting the legal rights or liabilities of the public or the community at large, irrespective of the fact that who raised such question. In the case of Kellner v. District Court [256 P.2d 887 (1953) 127 Colo 320], the Supreme Court of Colorado has laid down that as to the question of what is of great public importance, sole determination in all cases, according to the peculiar features of each, is within the province of the court. In some cases there may be an adequate remedy at law, but not speedy. In some instances, and we believe applicable here it is apparent on the face of the pleadings and record before us. The Supreme Court of Judicature, UK in the case of the Queen on the Application of Compton v. Wiltshire Primary Care Trust [(2008) EWCA Civ 749] has held that the first governing principle requires the judge to evaluate the importance of the issues raised and to make a judgment as to whether they are of general public importance. In the case of Jamat-e-Islami v. Federation of Pakistan (PLD 2009 SC 549), the dual office of General Pervez Musharraf as Chief Executive and the Chief of Army Staff was challenged. Although the petitions were dismissed being not maintainable, however, in the majority view, it was held that the condition precedent for following the precedent must be question of public importance. The learned Judge, who authored the majority judgment, accepted the principle that jurisdiction under Article 184(3) of the Constitution cannot be exercised unless the matter is of public importance involving the fundamental rights conferred by Part-II Chapter 1 of the Constitution. In the case of Muhammad Yasin v. Federation of Pakistan (Civil Petition No.42 of 2011) it has been held as under:-
“It is clear from the text of this article that the Court’s powers and jurisdiction are broad in scope. We have elaborated the contours of our jurisdiction in a recent judgment wherein it has been held that “Article 184(3) ibid empowers this Court to exercise jurisdiction thereunder whenever the Court considers a matter to: (i) be of public importance and (ii) that it pertains to the enforcement of fundamental rights. The determination on both these counts is made by this Court itself keeping the facts of the case in mind”. The exercise of jurisdiction by the Supreme Court, thus is not dependent on the existence of a petitioner. We have also before us precedent where this Court has exercised jurisdiction under Article 184(3) even where a legal proceeding in respect of the same matter was pending or had been finally decided by a High Court. Reference in this behalf can be made to Suo Moto Case No.10 of 2009, (2010 SCMR 8845).”
- As noted above, existence of Memo dated 10th May, 2011 has not been denied by the Federation, otherwise there was no necessity for holding four meetings between the Constitutional and other senior figures i.e. President, Prime Minister, the Chief of Army Staff and DG ISI as well as Mr. Husain Haqqani and as a consequence of these meetings tendering of resignation by Mr. Husain Haqqani and initiation of probe by the Prime Minister. What was the nature of discussion between all of them is not available as only the Chief of Army Staff and DG ISI have submitted their replies as well as counter affidavits whereas the Federation through the Secretary Interior has also not disputed this fact but without sharing information with the Court on account of which two important decisions referred to hereinabaove were taken. The persons who represent the masses, are bound by the Constitution but when any decision is taken, it also creates curiosity amongst masses to know the reality about the events, which persuaded the Constitutional figures to take prima facie extreme steps like obtaining resignation from respondent No.4 (Mr.Husain Haqqani) and directing the probe. We may mention here that this angle of the case has been examined in view of the admitted facts as it has been pointed out hereinabove. The body of the people, who are the citizens of this country, are always interested in well being and security of their beloved country. There are not only many people who are interested to know the reality but the media, both electronic and print, had highlighted the issue extensively. Rightly so, because as a living nation, they have every right to know about the affairs of their country.
- In view of above principle/observations and after considering the nature of the issue it is observed that the expression “public importance” is tagged with the enforcement of the Fundamental Rights as a precondition of the exercise of the power. This should not be understood in a limited sense, but in the gamut of the constitutional rights of freedoms and liberties, their protection and invasion of such freedoms in a manner which raises a serious question regarding their enforcement. Such matters can be viewed as of public importance, whether they arise from an individual’s case touching his honour, liberty and freedom, or of a class or a group of persons as they would also be legitimately covered by this expression. Thus, it is held that “to delineate measures with a view to ensure enforcement of fundamental rights, a probe is called for to ascertain the ORIGIN, AUTHENTICITY and PURPOSE of creating/drafting for delivering it to Admiral Mike Mullen through James Jones”, thus, a question squarely fallen within the definition of term ‘public importance’.
- Now next question for examination is as to whether the matter involves the enforcement of any of the fundamental rights conferred by Chapter 1, Part-II of the Constitution of Pakistan.
- Ms. Asma Jahangir, learned ASC has vehemently contended that the petitioners have failed to show the infringement of any of their fundamental rights as they have prayed for conducting inquiry/probe into the matter, and such prayer does not confer any fundamental right as per Constitution.
- On the other hand, learned counsel for the petitioners in rebuttal have stated that in the petitions they have categorically stated that the matter involves the sovereignty and integrity of the country, therefore, their right to life is involved. Further, they contended that this Court has jurisdiction in case of any threat to the fundamental rights of the petitioners, to conduct probe to enforce fundamental rights envisaged by the Constitution.
- On having gone through facts of the case and the judgments cited by the learned counsel for the parties, following principles are highlighted to exercise jurisdiction under Article 184(3) of the Constitution:-
(1) It is not necessary that who has approached the Court for the enforcement of fundamental rights as an information has to be laid before the Court, may be by an individual or more than one person.
(2) The case must involve decision on an issue in which the public-at-large is interested.
(3) The case also relates to the enforcement/violation of any of the fundamental rights mentioned in Chapter I, Part-II of the Constitution, namely, Articles 8 to 28.
(4) If it is permissible for the next friend to move the Court on behalf of a minor or a person under disability, or a person under detention or in restraint, then why not a person, who were to act bona fide to activise a Court for the enforcement of the Fundamental Rights of a group or a class of persons who are unable to seek relief.
(5) Under Article 184(3), it is not a traditional litigation which, of course, is of an adversary character where there is a lis between the two contending parties, one claiming relief against the other and the other resisting the claim.
(6) The Court while dealing with a case under Article 184(3) of the Constitution is neither bound by the procedural trappings of Article 199 nor by the limitations mentioned in the said Article for exercise of power by the High Court.
(7) The provisions of Article 184(3) of the Constitution are self-contained and they regulate the jurisdiction of this Court on its own terminology.
(8) In a given case where a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, it should directly interfere, and any rigid or a strait-jacket formula prescribed for enforcement of the Rights would be self-defeating.
(9) In order to ascertain the violation of a fundamental right, the Court has to consider the direct and inevitable consequences of the action which is sought to be remedied or the guarantee of which is sought to be enforced.
- It is also significant to note that the Court seized with the inquisitorial kind of proceedings is bound to be careful while examining the matter placed before it, lest it should cause injustice or prejudice to any of them and shall make reference of the material/ documents or circumstances, which are not disputed between them. As in the instant case reference has only been made to the documents in respect whereof the parties before the Court have no controversial attitude against each other and despite it, final determination about the civil liability and criminal culpability has to be made by the forum empowered to determine the extent of the involvement subject to following the due process as defined in Articles 4 and 10A of the Constitution. In short order dated 30.12.2011 except appointing a Commission to probe into the matter for the purpose of delineating measures with a view to ensure enforcement of fundamental rights i.e. Articles 9, 14 and 19A to ascertain the origin, authenticity and purpose of creating/drafting of Memo for delivering it to Chairman of Joint Chiefs of Staff, Admiral Mike Mullen through General (R), James Logon Jones, Former US National Security Advisor. No reference concerning involvement of any of the respondents has been made. Inasmuch as in the earlier order dated 1st December, 2011 after having observed that no sooner the issue of Memo came to limelight, former Ambassador of Pakistan tendered his resignation. We do not want to attribute to him anything adverse on account of his involvement as he is entitled to due respect but we desired that he should fully cooperate with the Commission and during pendency of the cases before this Court he would not be leaving the country without prior permission of this Court. As far as later portion of leaving the country without permission of this Court is concerned, it shall be dealt with later separately, in the light of arguments of Ms. Asma Jahangir, ASC. However, in view of the fact that instant proceedings are inquisitorial in nature, the expression in contradiction to adversarial proceedings has been defined in following paras in Watan Party’s case (PLD 2011 SC 997):-
“42. Adversarial proceedings are defined as proceedings relating to, or characteristic of an adversary or adversary procedures. The term “”adversarial” has been defined in the Concise Oxford English Dictionary, Eleventh Edition, Revised, as under:-.
“1. Involving or characterized by conflict or opposition. 2. Law (of legal proceedings) in which the parties involved have the responsibilities for finding and presenting evidence.”
In “Advanced Law Lexicon” the term “Adversarial Process” has been defined as under: –
“A process in which each party to a dispute puts forward its case to the other and before a neutral judge, soliciting to prove the fairness of their cases.”
In the American Heritage Dictionary of the English Language, Fourth Edition: Published by Houghton Mifflin Company, the term is defined as under:-
“Relating to or characteristic of an adversary; involving antagonistic elements: “the chasm between management and labor in this country, an often needlessly adversarial …..atmosphere” (Steve Lohr).”
In Collins English Dictionary – Complete and Unabridged, it is defined as under:
“1. Pertaining to or characterized by antagonism and conflict
- (Law) Brit having or involving opposing parties or interests in a legal contestUSterm adversary”
The adversarial system (or adversary system) is a legal system where two advocates represent their parties’ positions before an impartial person or group of people, usually a jury or judge, who attempt to determine the truth of the case, whereas, the inquisitorial system has a judge (or a group of judges who work together) whose task is to investigate the case.
- The adversarial system is a two-sided structure under which criminal trial courts operate that pits the prosecution against the defence. Justice is done when the most effective and rightful adversary is able to convince the judge or jury that his or her. perspective on the case is the correct one.
- As against the above, the term “inquisitorial” is defined in “Concise Oxford English Dictionary, Eleventh Edition, Revised as under: –
“1. Of or like an inquisitor.
- Law (of performing an examining role)”
In “Advanced Law Lexicon” 3rd Edition, 2005, it is defined in the following words:
“The system of criminal justice in most civil law nations, where judges serve as prosecutors and have broad powers of discovery.”
Webster’s New World College Dictionary Copyright 2010, by Wiley Publishing, Inc.,Cleveland,.Ohiodefines it as under –
“1. of or like an inquisitor or inquisition
- inquisitive; prying”
Collins World English Dictionary defines it as under:-
“1. of or pertaining to an inquisitor or inquisition.
- exercising the office of an inquisitor.
a. pertaining to a trial with one person or group inquiring into the facts and acting as both prosecutor and judge.
b. pertaining to secret criminal prosecutions.
- resembling an inquisitor in harshness or intrusiveness.
- inquisitive; prying.
- The Free Dictionary describes it in part, as “a method of legal practice in which the judge endeavours to discover facts whilst simultaneously representing the interests of the State in a trial”. Under the inquisitorial model, the obligations of a Judge are far greater and he is no longer a passive arbiter of proceedings but an active member of the fact finding process.
- An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to an adversarial” system where the role of the court is primarily that of an impartial referee between the prosecution and the defense. Inquisitorial systems are used in some countries with civil legal systems as opposed to common law systems. Also countries using common law, including theUnited States, may use an inquisitorial system for summary hearings in’ the case of misdemeanors such as minor traffic violations. In fact, the distinction between an adversarial and inquisitorial system is theoretically unrelated to the distinction between a civil legal and common law system. Some legal scholars consider the term “inquisitorial” misleading, and prefer the word “non-adversarial”.
- The inquisitorial system applies to questions of criminal procedure as opposed to questions of substantive law; that is, it determines how criminal enquiries and trials are conducted, not the kind of crimes for which one can be prosecuted, nor the sentences that they carry. It is most readily used in some civil legal systems. However some jurists do not recognize this dichotomy and see procedure and substantive legal relationships as being interconnected and part of a theory of justice as applied differently in various legal cultures.
- Thus, following the principle/judicial consensus that while interpreting Article 184(3) of the Constitution, the interpretative approach should not be ceremonious observance of the rules or usages of the interpretation but regard should be had to the object and purpose for which this Article is enacted i.e. the interpretative approach must receive inspiration from the triad of provisions which saturate and invigorate the entire Constitution including the Objectives Resolution (Article 2-A), the fundamental rights and the directive principles of State policy so as to achieve democracy, tolerance, equity and social justice according to Islam. The term as defined in article 9, 14 and 19A of the Constitution is interpreted hereinbelow with reference to matter under discussion.
- It is observed that the preamble which is now the substantive part of the Constitution by means of Article 2A, commands that it is the will of the people of Pakistanto establish an order wherein the integrity of the territories of the Federation, its independence and all its rights, including its sovereign rights on land, sea and air, shall be safeguarded; so that the people ofPakistanmay prosper and attain their rightful and honoured place amongst the nations of the World and made their full contribution towards international peace and progress and happiness of humanity. These words of the Constitution comprehensively define the stature of an independentPakistanwhere the people ofPakistanmay prosper and attain their rightful and honoured place amongst the nations of the world. Undoubtedly, this provision of Constitution has overwhelming nexus with the fundamental rights of the citizens ofPakistan(people) specifically guaranteed under Articles 9 and 14 of Chapter 1, Part-II of the Constitution.
- The expression ‘life’ implied in Article 9 of the Constitution, is also used in the corresponding Article 21 of the Indian Constitution. Article 9 of the Constitution of Pakistan prescribes that “no person shall be deprived of life or liberty save in accordance with law”. Whereas in the Indian Constitution it reads that “no person shall be deprived of his life or personal liberty except according to procedure established by law”. Fourteenth Amendment of the American Constitution provides, “no State shall deprive any person of life, liberty, or property without due process of law”. In Shehla Zia’s case (ibid), it is held that the word “Life” used in Article 9 of the Constitution is very significant as it covers all facets of human existence. The word “life” has not been defined in the Constitution but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally. In the case of Munn v. Illinois (100 U.S. 1) Field, J., in his dissenting opinion has held that by the term “life,” as here used, something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm or leg, or the putting out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world. The deprivation not only of life, but of whatever God has given to everyone with life for its growth and enjoyment, is prohibited by the provision in question if its efficacy be not frittered away by judicial decision. The Indian Supreme Court in Francis Coralie Mullin v. The Administrator (AIR 1981 SC 746) has held that any act which damages or injures or interferes with the use of any limb or faculty of a person either permanently or even temporarily, would be within the inhibition of Article 21. Fundamental right to life which is most precious human right and which forms the ark of all other rights must therefore be interpreted in a broad and expansive spirit so as to invest it with significance and validity endure for years to come and hence the dignity of individual and the worth of human person. It was further observed as under:-
“It is the fundamental right of everyone in this country … to live with human dignity free from exploitation. This right to live with human dignity enshrined in A. 21 derives its life breath from the Directive Principles of State Policy and particularly clauses (e) and (f) of A. 39, A. 41 and A. 42 and at least, therefore it must include protection of the health and strength of the workers men and women, and of the tender age of children against abuse, opportunities an facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief. These are the minimum requirements which must exist in order to enable a person to live with human dignity and no State has the right to take any action which will deprive a person of the enjoyment of these basic essentials.” [emphasis supplied]
In this case, the term “life” has been defined with an expansive spirit, according to which every limb or faculty, with which life is enjoyed is protected by Article 21 and a fortiori, which would include the faculties of making and feeling. The expression “life” in this Article does not connote mere animal existence or continuing drudgery through life. It means something much more than just physical survival. It has a much wider meaning which includes right to livelihood, better standard of living, hygienic conditions in the work place and leisure. It would be advantageous to reproduce relevant extracts from the case of Bandhua Murti Morcha v. Union of India [1984 (3) SCC 161]:-
“It is the fundamental right of everyone in this Country, assured under the interpretation given to Arty. 21 by this court in Farancis Mullin’s case (1981) 1 SCC 608 to live with human dignity, free from exploitation. This right to live with human dignity enshrined in Art.21 derives its life breath from the Directive principles of State Policy and Particularly cls. (e) and (f) of Art. 39 and Arts. 41 and 42 and at the least, therefore, it must include protection of the health and strength of the workers, men and women, and of the tender age of children against abuse, opportunities an facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just as human conditions of work and maternity relief. These are the minimum requirements which must exist in order to enable a person to live with human dignity and no state neither the central Government has the right to take any action which will deprive a person of the enjoyment of these basic essentials.” [emphasis supplied]
Similarly, in the case of Sunil Batra v. Delhi Administration (AIR 1978 SC 1675) the word “life” has been defined as “every act which offends against or impairs human dignity would constitute deprivation protanto of this right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stands test of other fundamental rights. In the case of Bira Kishore Naik v. Coal India Ltd. (AIR 1986 SC 2123) it has been held that Article 21 of the Constitution guarantees right to life, which right would be meaningless unless the citizen has a right to live with dignity. In the case of Common Cause v. Union of India (AIR 1999 SC 2979) it has been held that the rights also include the right to live with human dignity and all that goes along with. Same view was taken in the cases of Bandhua Mukti Morcha v. Union of India (AIR 1984 SC 802) = [(1984)2SCR 67] and N. P. S. NPC Teachers’ Association v. Union of India (AIR 1993 SC 369).
- In the case of Shehla Zia (ibid) citizen having apprehension against construction of a grid station in residential area sent a letter to the Supreme Court for consideration as human rights case raising two questions; namely, whether any Government agency has a right to endanger the life of citizens by its actions without the latter’s consent; and secondly, whether zoning laws vest rights in citizens which cannot be withdrawn or altered without the citizen’s consent. The Court declared the petition to be maintainable on the ground that if there are threats of serious damage, effective measures should be taken to control it and it should not be postponed merely on the ground that scientific research and studies are uncertain and not conclusive. The word ‘life’ constitutionally is so wide that the danger and encroachment complaint would impinge fundamental right of a citizen. In the case of Bank of Punjab v. Haris Steel Industries (PLD 2010 SC 1109), the matter was related to one of the gravest financial scams in the banking history of Pakistan as a result of which the Bank stood cheated of an enormous amount of around eleven billion rupees which amount of money in fact belonged to around one million innocent depositors including depositors of small amounts of money whose life savings and property had come under serious threat, therefore, it was held that the facts cast an obligation on the Supreme Court to move in to protect and defend the right of property of such a large section of the population i.e. about one million depositors and customers of the Bank which right of property stood guaranteed to them by Art.24 and Art.9 of the Constitution and it was in view of the facts and circumstances that the Bank had felt compelled to approach Supreme Court under Art. 184(3) of the Constitution read with O.XXXIII, R. 6 of the Supreme Court Rules, 1980 through Constitutional petition. It was further held that Supreme Court was possessed of power to make any order of the nature mentioned in Art.199 of the Constitution, if in its opinion, a question of public importance relating to the enforcement of any of the Fundamental Rights was involved in the matter. In the case of D. A. V. College, Bhatinda v. The State ofPunjab[AIR 1971 SC 1731] the Indian Supreme Court has held that whether or not ultimately any fundamental right in fact is threatened or violated so long as a prima facie case of such a threat or violation is made out a petition under Art. 32 must be entertained. So long as the petitioner makes out a prima facie case that his fundamental rights are affected or threatened he cannot be prevented from challenging that the law complained of, which affects or invades those rights, is invalid because of want of legislative competence. In the case of Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar (AIR 1958 SC 538) it has been held that quite conceivably the conduct of an individual person or company or a group of individual persons or companies may assume such a dangerous proportion and may so prejudicially affect or threaten to affect the public well-being as to make such conduct a definite matter of public importance urgently calling for a full inquiry.
- The term ‘life with dignity’, defined by the Superior Courts, pointed out hereinabove, prima facie suggests that a citizen who is constitutionally under the obligation to be loyal to State, the Constitution and the law, whatever his status may be, also remains under the command of the Constitution to have an honoured place amongst the nations of the world. The attempt/act of threatening to the dignity of the people, collectively or individually, concerning the independence, sovereignty and security of their country, prima facie, raises a serious question tagged/linked with their fundamental rights.
The existence of Memo dated 10th May, 2011 may have effects of not only compromising national sovereignty but also its dignity. The loyal citizens have shown great concern, to live in the comity of nations with dignity and honour, as according to expanded meanings of ‘life’, the citizen have a right to ask the State to provide safety to their lives from internal as well as external threats. Undoubtedly this nation had achieved independence at the cost of great sacrifices. Inasmuch as, at present security forces are fighting against the unscrupulous persons involved in terrorism, not in a particular part but throughout the country, without any distinction.
- Learned counsel for respondent No.4 emphasized that there must be a serious question involving enforcement of the fundamental rights. Prima facie, what could be more threat to the life of citizens who are loyal to this country and the Constitution where on the basis of activities, which resulted in originating Memo dated 10th May, 2011. Its existence, as discussed above, has been established.
Inasmuch as, the Federation itself, is of the opinion that the matter requires to be probed into and the initiative apparently has been taken in view of the letter dated 16th November, 2011, copy of which has been produced by learned counsel for respondent No.4, in which besides mentioning other facts he himself has offered for a probe into the issue of the Memo, therefore, in such like cases when cogent, concurrent and undisputed facts have come on record about the existence of the Memo dated 10th May, 2011 and contents whereof have threatened the independence, sovereignty and security of the country, the loyal citizens are, prima facie, justified to raise a voice about the denial of their fundamental rights under Articles 9, 14 and 19A of the Constitution, which are tagged with the question of public importance, thus, call for their enforcement. Learned counsel, however, stated that for enforcement of the “Fundamental rights to have access to information, under Article 19A of the Constitution”, alternate remedy is available under the Freedom of Information Ordinance, 2002 (Promulgated on 26th October, 2002).
On having gone through the scheme of the Ordinance, we are not inclined to agree with her, as in the instant case, enforcement of fundamental rights in terms of Article 184(3) of the Constitution has been prayed for.
- Subject to all just exceptions, Mansoor Ijaz has shared with DG ISI evidence to prove that he had written Memo, which the latter brought into the notice of Chief of Army Staff, so on and so forth. But surprisingly, in the reply submitted by Mr. Hussain Haqqani, he has not mentioned about the briefing given to the President in the presence of Chief of Army Staff and D.G. ISI on 22nd November, 2011 in Prime Minister House, nor has he stated about the resignation. As far as D.G. ISI is concerned, he has furnished complete detail/description of his meeting held by him inLondon with respondent Mansoor Ijaz. On receipt of reply from Chief of Army Staff and D.G., ISI, copies of the same were handed over to all the parties for re-joinders, if any, by means of order dated 15.12.2011. No reply contradicting statement of both the respondents was filed, except vide CMA 5539/2011 Ms. Asma Jahangir filed affidavit, received from James Logan Jones, which he has not sent though Embassy of US nor the Government or to the Registrar of this Court. This affidavit, however, has been contradicted by Mansoor Ijaz, copies of which have also been supplied to all concerned. Interestingly, the Federation despite knowing all these facts had not taken position in respect of events which have been pointed in the concise statement of the Chief of Army Staff and D.G. ISI. For sake of arguments and to be on safe side at the moment without discussing or taking into consideration the statement of Mansoor Ijaz (respondent No.4) and James Jones, prima facie it is established that a Memo was drafted and prepared, which was sent to Mike Mullen, who initially denied its existence but later he admitted that he received such a Memo. Reference to the statement has been made in Constitution Petition No.79/2011 (Mohammad Nawaz Sharif v. Federation of Pakistan). These assertions are important to, prima facie, draw an inference that the memo episode has an impact on national security. The contents of memo, if believed to be true, primafacie, are tantamount to compromising the security, sovereignty and independence of the country. It is not desirable to discuss its contents, lest it should cause prejudice to either parties.
- In all these petitions specifically amongst the respondents, no one has been sought to be held liable to take brunt of the civil liability or criminal culpability, except praying to probe into the matter and to identify those who are responsible in issuance of the derogatory Memo, though they have alleged threat to life, security, dignity as well as denial of fundamental right to have complete information about the issue wherein allegedly independence, sovereignty and security of the country is likely to be compromised. Seeking no relief against any of the respondents suggests that in accordance with the provisions of Article 184(3) of the Constitution, this Court is empowered to make a declaratory order to enforce any of the fundamental rights conferred by Chapter-I, Part II. Such kind of litigation falls within the category of inquisitorial proceedings and not adversarial, which is generally undertaken by the litigants against each other for determination of their respective rights in the common law countries.
- Ms. Asma Jahangir, learned ASC also has not resisted the question of probe into the issue of Memo dated 10th May, 2011 and she made a categorical statement that as it is not a fundamental right of the petitioners to insist for inquiry according to their own choice, thus, subject to following the principle of due process of law, a probe, whether conducted by a Commission appointed by the Federal Government under Commissions of Inquiry Act, 1956 or by the Parliamentary Committee to whom the job is assigned by the Prime Minister ofPakistan, or by means of the departmental inquiry against Mr. Husain Haqqani can be held. However, she opposed the probe by a body or the Commission constituted by this Court.
- Learned Attorney General stated that the Parliamentary Committee on the National Security on the request of one of the petitioners, namely, Senator Ishaq Dar vide letter dated 21st November, 2011 addressed to the Chairman of the Committee constituted under a Joint Resolution of both the Houses has already commenced probe into the matter and its first meeting has been held on 25th November, 2011, therefore, let the Committee accomplish its assignment. As such, all the petitions being pre-mature, may be dismissed. As far as this aspect of the case is concerned, on the first day of hearing i.e. 1st December, 2011, the learned Attorney General for Pakistan had advanced the same arguments and without any reservation we had observed:-
“We are told that the Prime Minister of Pakistan has also announced that the Parliamentary Committee on National Security will probe into the matter. We do not know the mandate of the Committee. However, we have been informed that as far as this Committee is concerned, it has no constitutional backing, i.e. it has not been constituted under any provision of the Constitution. Be that as it may, if any incriminating evidence is collected by the Committee both for civil and criminal action by probing into the matter, we would welcome the same. During the pendency of the proceedings, we would appreciate if the outcome of the proposed inquiry by the Committee is shared with us, if possible.”
As in the instant case in view of the facts noted hereinabove, contained in the letter dated 16th November, 2011 addressed by the former Ambassador Husain Haqqani to the President of Pakistan, the letter dated 28th November, 2011 and the request made in Constitution Petitions No.77 and 78/2011 as well as by other petitioners during course of the arguments including the learned Attorney General as well as the counsel for respondent No.4 Mr. Husain Haqqani all are one on the point that probe should be conducted in the matter. This fact itself indicates the importance of the issue, otherwise respondent No.4 and the Prime Minister in the letter dated 28th November, 2011 would have not referred the matter for probe by the Parliamentary Committee on National Security.
- The mandate of the Parliamentary Committee as conferred by the Consensus Resolution passed at the conclusion of the Joint Sitting of Parliament (8th to 22nd October, 2008) is given below:-
“This in-camera joint session of Parliament has noted with great concern that extremism, militancy and terrorism in all forms and manifestations pose a grave danger to the stability and integrity of the nation-state. It was recalled that in the past the dictatorial regimes pursued policies aimed at perpetuating their own power at the cost of national interest. This House, having considered the issue thoroughly and at great length is of the view that in terms of framing laws, building institutions; protecting our citizens from violence, eradication of terror at its roots, re-building our economy and developing opportunities for the disadvantaged, we all commit to the following:-
- That we need an urgent review of our national security strategy and revisit the methodology of combating terrorism in order to restore peace and stability to Pakistan and the region through an independent foreign policy.
- The challenge of militancy and extremism must be met through developing a consensus and dialogue with all genuine stakeholders.
- The nation stands united to combat this growing menace, with a strong public message condemning all forms and manifestations of terrorism, including the spread of sectarian hatred and violence, with a firm resolve to combat it and to address its root causes.
- That Pakistan’s sovereignty and territorial integrity shall be safeguarded. The nation stands united against any incursions and invasions of the homeland, and calls upon the government to deal with it effectively.
- That Pakistan’s territory shall not be used for any kind of attacks on other countries and all foreign fighters, if found, shall be expelled from our soil.
- That dialogue must now be the highest priority, as a principal instrument of conflict management and resolution. Dialogue will be encouraged with all those elements willing to abide by the Constitution of Pakistan and rule of law.
- That the development of troubled zones, particularly the tribal areas, and NWFP (Pukhtoonkhwa), must also be pursued through all possible ways and legitimate means to create genuine stakeholders in peace. New economic opportunities shall be created in order to bring the less privileged areas at par with the rest of Pakistan.
- That a political dialogue with the people of Balochistan, the redressal of grievances and redistribution of resources shall be enhanced and accelerated.
- That the state shall maintain the rule of law, and that when it has to intervene to protect the lives of its citizens, caution must be exercised to avoid casualties of non-combatants in conflict zones.
- That the federation must be strengthened through the process of democratic pluralism, social justice, religious values and tolerance, and equitable resource sharing between the provinces as enshrined in the Constitution of 1973.
- That the state shall establish its writ in the troubled zones, and confidence building mechanisms by using customary and local communities (jirga) and that the military will be replaced as early as possible by civilian law enforcement agencies with enhanced capacity and a sustainable political system achieved through a consultative process.
- ThatPakistan’s strategic interests be protected by developing stakes in regional peace and trade, both on the western and eastern borders.
- That mechanisms for internal security be institutionalized by; paying compensation for victims of violence; and rehabilitate those displaced from their homes as soon as possible; that spill-over effects of terrorism be contained throughout the country and that public consensus be built against terrorism through media and religious participation.
- That a Special Committee of Parliament be constituted to periodically review, provide guidelines and monitor the implementation of the principles framed and roadmap given in this Resolution. This House authorizes the Speaker to constitute the said Committee in consultation with the parliamentary leaders of both Houses. The Committee will frame its own rules upon meeting.”
- Senator Ishaq Dar explained that despite filing of application before the Parliamentary Committee no action was initiated, therefore, he had to file a petition before this Court on 23.11.2011 as according to his contention the first meeting of the Committee was convened after issuance of letter dated 28th November, 2011, the Principal Secretary to Prime Minister, whereby the matter was referred to Parliamentary Committee on National Security for probe. Reference to this letter has already been made in the short order dated 30.12.2011. He however, further stated that in pursuance of consensus resolution passed at the conclusion of incamera Joint Sitting of Parliament (8th to 22nd October, 2008) a Committee was constituted. As per contents of the resolution, the joint session of Parliament noted with great concern that extremism, militancy and terrorism in all forms and manifestations posed a grave danger to the stability and integrity of the nation/state. It may be recalled that in the past, the dictatorial regimes pursued policies aimed at perpetuating their own rule at the cost of national interest, therefore, the Committee would not be empowered for conducting probe in this matter.
- Following the above consensus resolution dated 22nd October, 2008 the rules of procedure for the Parliamentary Committee on National Security were framed on 17th November, 2008. Its preface categorically stated that the Parliamentary Committee on National Security was constituted with specific terms of reference to periodically review, provide guidelines and monitor the implementation of the principles framed and roadmap given in the Resolution. Essentially, these rules and resolution are self explanatory, which calls for no interpretation by this Court with reference to undertaking a probe into the issue of Memo dated 10th May, 2011. Despite serious issues raised qua its jurisdiction to probe into the origin of Memo dated 10th May, 2011, in the order dated 1st December, 2011 and 30th December, 2011, it was observed that if evidence was collected, it may be shared with this Court, if possible, and we again reiterate the same in the interest of country and the nation.
- Apprehension of the learned counsel about non-observance of the principle of due process by the commission set up by the Court, as it has been argued by her, is unfounded. Instant proceedings are inquisitorial in its nature and the Commission to whom job of probing into the matter is entrusted, shall be bound to discharge its function to draw its proceedings following the judicial norms, i.e. fair opportunity of hearing, right to participate in the proceedings with a view to assist the Commission for reaching at a correct conclusion. Learned counsel in support of her contention relied upon the judgment in the case of Aftab Shaban Mirani v. President ofPakistan (1998 SCMR 1863), relevant para wherefrom is reproduced hereinbelow:-
- ……….. It may be observed that by now it is a well settled proposition that a person cannot be condemned without providing him a fair opportunity to meet rte allegation. In this regard reference may be made to the case of Government of Balochistan through Additional Chief Secretary v Azizullah Memmon and 16 others (PLD 1993 SC 341), wherein after referring certain case law the following conclusion was recorded by this Court as to the right of access to Courts and justice:-
“12. Another aspect …………… This aspect of the case was considered in Sharaf Faridi v Islamic Republic of Pakistan (PLD 1989 Karachi 404) when after referring to Syed Abul A’la Maudoodi’s case (PLD 1964 SC 673 at 710) and Ms. 13enazir Bhutio s ease (PLD 1989 SC 416) observed as follows:-
‘The right of ‘access to justice to all’ is a well-recognised inviolable right enshrined in Article 9 of the Constitution. This right is equally found in the doctrine of ‘due process of law’. The right of access to justice includes the right to be treated according to law, the right to have a fair and proper trial and a right to have an impartial Court or Tribunal. This conclusion finds support from the observation of Willoughby in Constitution of United States, Second Edition, Vo1.II at page 1709 where the term ‘due process of law’ has been summarised as follows:-
(1) He shall have. due notice of proceedings which affect his rights.
(2) He shall be given reasonable opportunity to defend.
(3) That the Tribunal or Court before which his rights are adjudicated is so constituted as to give reasonable assurance of his honesty and impartiality, and
(4) That it is a Court of competent jurisdiction. “
- The above extract indicates what are the basic requirements of the doctrine “due process of law”, which is enshrined inter alia in Article 4 of our Constitution. It is intrinsically linked with the right to have access to justice, which this Court has held inter alia in the above report as a fundamental right. This right inter alia includes the right to have a fair and proper trial and a right to have an impartial Court or Tribunal. A person cannot be said to have been given a fair and proper trial unless he is provided a reasonable opportunity to defend the allegation made against him. In the instant case the Returning Officer was seized of the question, whether respondent No.1 was qualified to be a candidate for the office of the President. His decision that respondent No.1 was not qualified to be elected as a member of the Parliament would have entailed his non-seating as a member of the Senate, which was a question of the nature, which could not have been adjudicated upon in a summary inquiry under Rule 5(3)(a) of the rules, particularly when the correctness of the contents of the interview was not admitted by respondent No.1. She also relied upon the case of Muhammad Nadeem Arif v. Inspector-General of Police, Punjab, Lahore (2011 SCMR 408), wherein it has been observed that the right of “access to justice to all” is a well recognized inviolable right enshrined in Article 9 of the Constitution and is equally found in the doctrine of “due process of law”. It includes the right to be treated according to law, the right to have a fair and proper trial and a right to have an impartial court or tribunal.
- The crux of the above judgments persuades us to hold that right of due process, inter alia, envisages the right to have a fair and proper trial and right to have impartial court or tribunal. The phrase/expression in the principle highlighted therefrom are referable to the basic judicial function, which necessarily are known to judicial minded persons. For the safe administration of justice we may observe that the principle discussed in both the judgments can only be adhered to strictly by the forums manned by the persons responsible to deliver judicial findings subject to following principle of natural justice.
- It was strenuously argued by Ms. Asma Jahangir that the question of probe into origin, authenticity and purpose of creating/drafting of Memo is a political question, therefore, Parliamentary Committee on the National Security is a competent forum to look into this issue. This aspect of the case has also engaged our attention during the hearing. In this context, Mr. Rashid A. Razvi, learned Sr. ASC contended that issue of probe into the Memo is a question, which is justiciable only by the Judicial forums, being a question of public importance with reference to the enforcement of any of the fundamental rights conferred by Chapter 1, Part-II of the Constitution, as it has been highlighted hereinabove.
- Arguments so raised in this behalf give rise to the proposition namely, as to whether question of ascertainment of the origin, authenticity and the purpose of creating/drafting the Memo dated 10th May, 2011 is justiciable or non-justiciable by the Court in exercise of its power of judicial review, and if jurisdiction is not vested in the judicial forum then essentially the matter has to be decided by a forum other than it.
- Thus, so far as the question of justiciability or non justiciability of the issue is concerned, it would provide a test for the purpose of exercising the jurisdiction or otherwise?
- The history of the judiciary in our country indicates that in the past, the court had been approached from time to time for granting relief in which political issues are involved, either to express its opinion under Article 186 or to exercise jurisdiction or under Article 184(1) or 184(3) of the Constitution. Reference in this behalf may be made to the cases of Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416) and Muhammad Nawaz Sharif v. Federation of Pakistan (PLD 1993 SC 473), where dissolution of the Assemblies were challenged before the Court notwithstanding the fact that such issues may give rise to a political question. Similarly, at times, references have been made for the purpose of getting permission to make expenditure out of consolidated fund in absence of Parliament.
Inasmuch as, a Reference was sent to this Court to adjudicate upon purely political matter regarding formal recognition ofBangladesh. The Court considered the issue and expressed its opinion that there was no legal bar in considering or adopting such resolution. Similarly, in the case of Benazir Bhutto’s case (PLD 1988 SC 416), the amendments in the Political Parties Act, 1962 regarding compulsory registration of political parties were challenged. The Court declared certain provisions of the law to be void being inconsistent with the fundamental rights.
- At this juncture, reference may be made to the case of Baker v. Carr [369 U.S. 186 (1962)], wherein the complainant sought a declaration that Tennessee Apportionment Act, 1901 was unconstitutional followed by the relief of injunction restraining the defendants from conducting any further election under the Act. It was their case that Act violated the Fourteenth Amendment in its disregard of the slander, thereby affecting a gross disproportion of the population to vote and place the complainant in a position constitutionally unjustifiable in equity. The District Court, presided over by three Judges, dismissed the action on the ground that it lacked jurisdiction of the subject matter and the complainant failed to state that the claim was justiciable and the relief could be granted. On appeal, the Supreme Court reversed the judgment of the District Court and remanded the case. Brennan J., expressing the view of six members of the Court, held that the District Court possessed jurisdiction over the subject matter; that a justiciable cause of action was stated upon which plaintiff would be entitled to appropriate relief and that the plaintiff had standing to challenge the Tennessee Apportionment Act. Two Hon’ble Judges Douglas and Clark concurred with the Brennan J. in separate opinion stating that in their view a case for relief was established if the allegations in the complaint could be sustained. Stewart J. also concurred in separate opinion and made it clear that in his view the merits of the case were not before the Supreme Court. However, Frankfurter J., with the concurrence of Harlan J. dissented on the ground that case involved the class of political controversy, which by the nature of its subject is unfit for federal judicial action, whereas Whittaker J. did not participate. This case in fact went down in history as one of the most important decisions ever. The matter involved a delineation of the extent of the judicial review, while dealing with whether ‘equal protection of law’ was violated by the borders of a district not being redrawn appropriately to adjust for population movement. The issue placed before the Court was whether it could, in fact, investigate and adjudicate on such issues, giving the existence of a strict separation of powers between the legislation and the judiciary. Mr. Rafiq Rajwana also cited the case of Powell v. McCormack [395US486 (1969)], which has in fact proceeded as the principle laid down in Baker’s case.
- It is to be noted that precisely question raised in the said petition before the Supreme Court was whether appellants’ allegations of impairment of their votes by the 1901 Apportionment Statute will ultimately, entitle them to any relief, in order to hold that they have standing to seek it. If such impairment did produce a legally cognizable injury, they would be among those who had sustained it. They were asserting “a plain, direct and adequate interest in maintaining the effectiveness of their votes,” not merely a claim of “the right, possessed by every citizen, to require that the Government be administered according to law…”. The Supreme Court, after having taken into consideration the principles which were highlighted by the learned counsel granted relief to the appellant, inter alia, observing that the challenge to an apportionment presented no non-justiciable “political question”. It was further held that:
(1) The claim pleaded here neither rests upon nor implicates the Guaranty Clause and that its justiciability is therefore, not foreclosed by our decisions of cases involving that clause. The District Court misinterpreted Cole-grove v Green and other decisions of this Court on which it relied. Appellants’ claim that they are being denied equal protection is justiciable and if discrimination is sufficiently shown, the right to relief under the equal protection clause is not diminished by the fact that the discrimination relates to political rights.
(2) That to show why reject the argument based on the Guaranty Claus, we must examine the authorities under it. But because there appears to be some uncertainty as to why those cases did presently political questions, and specifically as to whether this apportionment case is like those cases, we deem it necessary first to consider the contours of the “political question” doctrine. (2) That re-view reveals that in the Guaranty Clause cases and in the other “political question” cases, it is the relationship between the judiciary and the coordinate branches of the Federal Government, and not the federal judiciary’s relationship to the States, which gives rise to the “political question.”
(3) In determination whether a question falls within[the political question] category, the appropriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations.”
(4) Non-justiciability of a political question is primarily a function of the separation of powers. Much confusion results from the capacity of the “political question” label to obscure the need for case by case inquiry. Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.
(5) To demonstrate this requires no less than to analyze representative cases and to infer from them the analytical threads that make up the political question doctrine.
In the Corpus Juris Secundum Volume 16, it has been stated that:-“It is not easy to define the phrase ‘political question’, nor to determine what matters fall within its scope. It is frequently used to designate all questions that lie outside the scope of the judicial power. More’ properly, however, it means those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or to regard to which full discretionary, authority has been delegated to the legislative or executive branch of the Government. A political question encompasses more than a question about politics, but the mere fact that litigation seeks protection of a political rights, might have political consequences does not mean it presents a political question.”
It was further observed :
“The doctrine is based on Constitutional provisions relating to the distribution of powers among the branches of Government, and it is as a function of the separation of powers that political questions are, not’ determinable by the judiciary . thus, the limitations on judicial review imposed by the political question doctrine apply only when the Court is M faced with a challenge to action by a coordinate branch of the Government, and not where the issue involved falls within the traditional role accorded to Courts to interpret the law or the Constitution. “
In Ballentines Law Dictionary “political question” means:-
“A question, the determination of which is a prerogative of the legislative or executive branch of the Government, so as not to be appropriate for judicial inquiry or adjudication.”
- This Court has always emphasized that it has no concern with powers of other organs of the State. In the case of Muhammad Nawaz Sharif vs. Federation of Pakistan (PLD 1993 SC 473) Shafi-urRahman J. observed that it was not easy to draw a line of demarcation between a political and a non-political question. This has to be determined by the Court on the facts of each case. The Courts’ function is to enforce, preserve, protect and defend the Constitution. Any action taken, act done or policy framed, which followed the provisions of the Constitution are not permissible under the Constitution or law. The Court irrespective of the fact that it is a political question must exercise power of judicial review. Abuse, excess or non-observance of the provisions of the Constitution has to be checked by the Court unless its jurisdiction is barred by the Constitution or law. In the case of Mahmood Khan Achakzai v. Federation of Pakistan (PLD 1997 SC 526) a larger Bench held that a political question is one, which, because of its political sensitivity, is not fit for adjudication by the Court or the Constitution requires it to be determined finally by any other organ of the State. This ‘political question doctrine’ is based on the respect for the Constitutional provisions relating to separation of powers among the organs of the State. But where in a case the Court has jurisdiction to exercise power of judicial review, the fact that it involves political question, cannot compel the Court to refuse its determination.
- In view of the above discussion it is held that this Court enjoys jurisdiction to proceed in all those matters which are justiciable. However, if there is an issue, which is alleged to be non-justiciable it would be the duty of the Court to examine each case in view of its facts and circumstances, and then to come to the conclusion whether it is non-justiciable or otherwise.
- The arguments raised before this Court pose two questions; firstly, to conduct probe to ascertain the origin, authenticity and effect of Memo, for the purpose of enforcement of Fundamental Rights; and secondly, consequential effect of such probe, which would determine civil and criminal liability against the person(s), who were responsible for it. In view of the test laid down hereinabove, such questions, in exercise of power of judicial review are justiciable by this Court treating it to be proceedings of criminal nature as in exercise of Article 184(3) of the Constitution, Court is seized with the case which falls in category of inquisitorial nature.
- Learned counsel also suggested for probe through a Commission to be constituted under the Pakistan Commission of Inquiry Act, 1956. It is to be noted that the Federal Government is empowered to constitute an Inquiry Commission but the same has not been done because the matter has been referred to Parliamentary Committee, reference of which has been made hereinabove. She also pointed out that the petitioner who is in service of Pakistan can be subjected to disciplinary proceedings as he has tendered resignation pursuant to the directions of the Prime Minister, therefore, it would be for the department to initiate any proceeding if permissible under the law, which so far have not been commenced, as such, this argument has no substance to be considered at this stage. Therefore, the points so raised need no elaborate discussion. In these circumstances, for the foregoing reasons, we are of the considered opinion that issue of probe to ascertain the origin, authenticity and purpose of creating/drafting of the Memo is justiciable.
- As far as jurisdiction of the Supreme Court to initiate proceedings in the cases with the object of enforcement of fundamental rights guaranteed under Chapter 1 Part II of the Constitution, relating to a matter of public importance is concerned, the Court enjoys ample powers to constitute Commission. Same is the position in the neighbouring country.
- The Supreme Court ofIndia, under Articles 32 and 131 of the Indian Constitution, exercises invariably such powers, whereas, under Article 184(3), more power/jurisdiction is conferred upon the Supreme Court of Pakistan as compared to Indian Constitution for enforcement of fundamental rights, relating to the question of public importance. Before citing any judgment from our own jurisdiction, reference to the case of Vineet Narain v. Union of India (AIR 1998 SC 889) may be made, which is commonly known as ‘Jan Havala case’. In this case, jurisdiction of the Supreme Court was invoked under Article 32 of the Constitution in the public interest for the enforcement of rule of law. In the said case, an alleged terrorist was arrested inDelhi. During the raids conducted by the Central Bureau of Investigation (CBI), Indian and foreign currency as well as two diaries and two note books were seized, containing the details of accounts of vast payments made to some persons, allegedly high ranking politicians in power and out of power, and of high ranking bureaucrats. The writ petitions were filed in the public interest under Article 32 of the Constitution of theIndia, as nothing was being done in the matter of investigation. The gist of the allegations in the writ petitions was that Government agencies like the CBI and the revenue authorities had failed to perform their duties and legal obligations inasmuch as they had failed to investigate matters arising out of the seizure of the “Jan diaries”; that the apprehension of terrorists had led to the discovery of financial support to them by clandestine and illegal means using tainted funds obtained through `havala’ transactions; that this had also disclosed a nexus between politicians, bureaucrats and criminals, who were recipients of money from unlawful sources, given for unlawful consideration; that the CBI and other Government agencies had failed to investigate the matter, take it to its logical conclusion and prosecute all persons who were found to have committed the offence; that this was done with a view to protect the persons involved, who were very influential and powerful; that the matter disclosed a nexus between crime and corruption at high levels in public life and it posed a serious threat to the integrity, security and economy of the nation; that probity in public life, the rule of law and the preservation of democracy required that the Government agencies be compelled to duly perform their legal obligations and to proceed in accordance with law against every person involved, irrespective of where he was placed in the political hierarchy. The Court observed that:-
“8. The sum and substance of these orders is that the CBI and other Governmental agencies had not carried out their public duty to investigate the offences disclosed; that none stands above the law so that an alleged offence by him is not required to be investigated; that we would monitor the investigations, in the sense that we would do what we permissibly could to see that the investigations progressed while yet ensuring that we did not direct or channel those investigations or in any other manner prejudice the right of those who might be accused to a full and fair trial. We made it clear that the task of the monitoring court would and the moment a charge-sheet was filed in respect of a particular investigation and that the ordinary processes of the law would then take over. Having regard to the direction in which the investigations were leading, we found it necessary to direct the CBI not to report the progress of the investigations to the person occupying the highest office in the political executive. This was done to eliminate any impression of bias or lack of fairness or objectivity and to maintain the credibility of the investigations. In short, the procedure adopted was of “continuing mandamus”.”
- Above judgment was followed in so many other cases by the Indian Supreme Court including Rubabbuddin Sheikh v. State of Gujrat and others [(2010)2 SCC 200], Zahira Habibullah Sheikh (5) v. State of Gujrat [(2006) SCC 374] and Common Cause, Registered Society v.UnionofIndia(Air 1999 SC 2979).
- Similarly, superior courts inPakistanin the case of Pervaiz Elahi v. Province of Punjab (PLD 1993 Lahore 595), Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879), Dr. Mubashir Hassan v. Federation of Pakistan (PLD 2010 SC 265), in Re: Construction of Fast Food Chain in F.9 Park (PLD 2010 SC 759), Bank ofPunjabv. Haris Steel Industries (PLD 2010 SC 1109), In Re: Suo Moto Case No.18 of 2010(PLD 2011 SC 997), In Re: Corruption in Hajj Arrangements (PLD 2011 SC 963) and Munir Hussain Bhatti v. Federation of Pakistan (PLD 2011 SC 407) have exercised jurisdiction with reference to enforcement of fundamental rights.
Our consensus remain that following the trichotomy of powers, all the three organs of the State i.e. Legislature, Executive and the Judiciary have to exercise their powers within their respective spheres. Most importantly, the Judiciary could not remain oblivious from its duties nor can compromise the mandate of the Constitution i.e. 2A, because it is the will of the people ofPakistanto establish an order wherein independence of judiciary shall be fully secured. However, in view of its distinction and difference, a separate character has been bestowed upon it under Article 175(3) of the Constitution. This aspect of the case has been highlighted in the case of Government of Balochistan v. Azizullah (PLD 1993 SC 341).
- In the case of In Re: Corruption in Hajj Arrangements (PLD 2011 SC 963) the power of judicial review of the Supreme Court discussed in detail. Relevant paragraphs from the said judgment are mentioned hereinbelow:-
“27. The power of judicial review which was exercised in the case of Sindh High Court Bar Association (supra) has been accepted by the Government as it has not supported the actions of3rd November, 2007. As far as Parliament is concerned, we have also admired it as a body, which for the first time in the history of the country did not validate the actions taken on3rd November, 2007, whereas in the past the situation had been different. A number of judgments can be cited for assuming jurisdiction and exercise of power of judicial review available to this Court under the Constitution, to which we need not make reference here, but going through the same one can well understand that this Court has always been enjoying the jurisdiction of judicial review against administrative actions of the executive which is a settled law by now. If any reference is required, right fromMadisonup to the case of Sindh High Court Bar Association, there are chain of authorities where the Supreme Court has assumed jurisdiction of judicial review, which even otherwise is the final arbiter of disputes in order to maintain check and balance. For these reasons, the independence of the judiciary has been guaranteed and the very preamble of the Constitution provides that the people ofPakistanand the independence of judiciary shall be fully secured. The judiciary cannot compromise at any cost its independence as guaranteed under the Constitution, as such compromises would lead us to the situation of the last, so many years. It is for the first time the judiciary asserted its authority and as a result thereof the’ democratic system is prospering in the country. In the case of Dr. Mubashir Hasan v. Federation of Pakistan (PLD 2010 SC 265) whereby NRO was declared to be illegal, unconstitutional and void ab initio, this Court has exercised its constitutional jurisdiction of judicial review.
- At times, present case was fixed for the purpose of seeking implementation of the order, but we postponed in order to ensure that the democratic system under the Constitution must prevail and avoid chaos. However, when the cases of massive corruption, not only one, but so many came for hearing, therefore, this Court in the exercise of its constitutional jurisdiction had enforced fundamental rights of the citizens under Articles 4, 9, 14 and 25 of the Constitution. It is quite heartening to observe that even the worthy Parliamentarians had also approached 1 this Court, like in the case of Rental Power Projects where one of the sitting Ministers namely, Makhdoom Syed Faisal Saleh Hayat had approached the Court. Likewise, Ms. Marvi Memon, MNA, approached this Court in the matter of Breach of embankments of rivers in floods causing damages. Similarly, Khawaja Muhammad Asif MNA brought the case of OGDCL, all of them acknowledge power of judicial review of this Court. In matters of the steal Mills, LPG case, National Police Foundation, NICL, Hajj arrangements and RPPs are under consideration including the Bank of Punjab case where, in exercise of the power of judicial review for the enforcement of fundamental rights millions of rupees have been recovered which were being looted by government officials and others. Undoubtedly, whenever the Court will notice that there is corruption or corrupt practices, it would be very difficult to compromise or digest it because the public money of the country cannot be allowed to be looted by any one whatsoever status he may have.
- The jurisdiction of this Court is always exercised judiciously and with judicial restraint. All those cases which are quoted hereinabove clearly indicate that in the matter of exercise of power of judicial review inPakistanwe have not travelled so far as is the position in the neighboring’ country. By now, the parameters of the Court’s power of judicial review of administrative or executive action or decision and the grounds on which the Court can interfere with the same are well settled. Indisputably, if the action or decision is perverse or is such that no reasonable body of persons, properly informed; could come to or has been arrived at by the authority misdirecting itself by adopting a wrong approach or has been influenced by irrelevant or extraneous matters the Court would be justified in interfering with the same. [Commissioner of Income Tax v. Mahindra (AIR 1984 SC 1182)]. The exercise of constitutional powers by the High Court and the Supreme Court is categorised as power of judicial review. Every executive or administrative action of the State or other statutory or public bodies is open to judicial scrutiny and the High Court or the Supreme Court can, in exercise of the power of judicial review under the Constitution, quash the executive action or decision which is contrary to law or is violative of Fundamental Rights guaranteed by the Constitution. With the expanding horizon of Articles dealing with Fundamental Rights, every executive action of the Government or other public bodies, if arbitrary, unreasonable or contrary to law, is now amenable to the writ jurisdiction of the Superior Courts and can be validly scrutinised on the touchstone of the Constitutional mandates. [Common Cause, A Regd. Society v.UnionofIndia (AIR 1999 SC 2979)]. In the case of Union Carbide Corporation v.UnionofIndia[AIR 1992 SC 248 = 1991 SCR (1) Supl. 251], the Court while taking up the issues of healthcare and compensation to the victims, supervised the distribution of the money among the victims ofBhopalgas tragedy and monitored the hospitals set up to treat the victims. In Vishaka v. State ofRajasthan[AIR 1997 SC 3011] = [(1997) 6 SCC 241], the Court laid down guidelines to make the workplace safer for women making a grievance redressal mechanism in all private and public offices mandatory. In the case of Vineet Narain v. UnionofIndia (AIR 1998 SC 889), commonly known as Hawala case, the Supreme Court of India had taken over the charge of CBI to ensure transparent investigation into corruption and corrupt practices under its own supervision. In the case of Zahira Habibullah Sheikh v. State ofGujarat [(2006) 3 SCC 374], the Court reopened several cases and set up a special investigation team where the police deliberately botched up the probe to help perpetrators of the post Godhra mob violence against Muslims in 2002, including overseas investigations into the Sohrabuddin fake encounter case of 2005 whereby several senior police officers and key politicians were put in the dock. In the Case of Rubabbuddin Sheikh v. State of Gujarat [(2010) 2 SCC 200] petitioner wrote a letter to the Chief Justice of India complaining about the killing of his brother in a fake encounter and disappearance of his sister-in-law at the hands of the Anti-Terrorist Squad (ATS) Police (Gujarat) and Rajasthan Special Task Force (STF). Taking notice of this letter, the Court forwarded it to the Director General of Police,Gujaratto take further action. The CID (Crime) conducted an enquiry and the statements of a number of witnesses, including the petitioner, were recorded. The learned Attorney General for -India submitted that in view of the serious nature of the offence in which some highly placed police officials of the State of Gujarat were alleged to be involved, orders may be immediately passed directing the CBI to take charge of the investigation and report .to this Court. The CBI Authorities were directed to investigate all aspects of the case relating to the killing of the deceased including the alleged possibility of a larger conspiracy.’ The report of the CBI Authorities was directed to be filed in the Court when the Court would pass further necessary orders in accordance with the said report, if necessary. Ultimately, it was held that accusations were directed against the local police personnel in which high police officials of the State were involved. Therefore, it was directed that if investigation was allowed to be carried out by the local police authorities, all concerned including the relatives of the deceased may feel that investigation was not proper and in the circumstances it would be fit and proper that the petitioner and the relatives of the deceased should be assured that an independent agency should look into the matter and that would lend the final outcome of the investigation credibility. In the case of Center for Pil v. Union of India [Appeal arising out of SLP (C) No. 24873 of 2010 decided on 16-12-2010], the Court ordered probe into a mega crore scam against the sitting Telecom Minister. In the case of Center for Pil v. Union of India [Writ Petition (C ) No. 348 of 2010, decided on 3-3-2011], the Court quashed the illegal appointment of P J Thomas as Central_ Vigilance Commissioner because of a charge-sheet pending against him in Kerala. The Court also laid d o n guidelines for future appointments to this post. In the case of Radhy Shyarn v. State of UP (Civil Appeal No.3261 of 2011, decided on 15-4-2011), the Supreme Court quashed Government’s notification to acquire land for the planned industrial development in District Gautam Budh Nagar through Greater Noida Industrial Development Authority, which appeared to be a device to grab the land of the poor farmers. In the case of Nandini Sundar v. State of Chattisgarh [Writ Petition (Civil) No. 250 of 2007 decided on 5-7-2011], the Court disbanded and disarmed Special Police Officers involved in anti-Naxal operations in many states. Thus, the Supreme Court of India has been monitoring public distribution system, treatment at hospitals and conservation of forests for more than two decades. It also set up a judicial commission to examine the public distribution system and directed the Government to provide more facilities in the poorer districts.67. In the Bank of Punjab’s case (PLD 2010 SC 1109), this Court observed that not only a colossal amount of money/property belonging to a large section of the public but the very existence of the Bank of Punjab was at stake, thus not only the right of the Court but in fact its onerous obligation was to intervene to forestall the assault on the said fundamental right to life and property of the public.
- In the recent past, a decision has been given by the Supreme Court in Suo Moto Case No.16/2011, in respect of nonadherence to the Constitutional provision and providing guarantee to life and security in target killing inKarachi. The said judgment has been welcomed by all and sundry. The effect of the proceedings and the judgment passed in the said case have brought calm and peace in Karachi and the jurisdiction, exercised by this Court in the said case was also under Article 184(3) of the Constitution. Inter alia such jurisdiction is exercised to ensure effectiveness of the orders passed by the Court under Article 190 of the Constitution, which commands that all the executive and judicial authorities through out Pakistan to act in aid of Supreme Court. In the case of Tirupati Balji Developers Pvt. Ltd. v. State of Bihar (AIR 2004 SC 2351), while interpreting Article 144 of the Indian Constitution, which is corresponding Article of the Constitution of Pakistan, the Supreme Court observed that under Article 144 all the authorities, civil and judicial, in the territory of India- and that would include High Court as well- shall act in aid of the Supreme Court.
- The issue of probe through experienced judicial officers who are Chief Justices of three High Courts itself is sufficient to attach importance with the case from two angles (i) that the matter relates to sovereignty, independence and security ofPakistanand during course of probe procuring of evidence shall be helpful to determine civil liability as well as criminal culpability based on forensic evidence and other material, which is likely to be produced before the Commission. Thus, senior judicial office holders in view of their experience would conduct thorough probe into the matter in order to ascertain the correct facts.
- Thus, for the foregoing reasons, we are of the opinion that issue of probe to ascertain the origin, authenticity and purpose of creating/drafting Memo is required to be determined by holding a Judicial Probe. Therefore, in exercise of judicial powers conferred upon this Court under Articles 187 and 190 of the Constitution, Order XXXII, Rules 1 & 2 read with Order XXXIII, Rule I of the Supreme Court Rules, 1980 (in short order inadvertently typed as Order XXXVI) coupled with the principles of Civil Procedure Code including Order XXVI, Rule 10 and following the principles/observations discussed hereinabove, a High Powered Commission has been constituted.
- Learned counsel for respondent No.4 contended that the petitions submitted on behalf of the petitioners are benami petitions as the pleas taken by the respondents Chief of Army Staff and DG, ISI seem to be the case of the petitioners and the petitions have been filed with a mala fide intention. We failed to appreciate the argument of the learned counsel except observing that the defence functionaries under the Constitution are bound to discharge their functions strictly in accordance with the Constitution. The affidavits/counter affidavits filed by both the high-ups of the Pakistan Army the events, which took place after 10th October, 2011, details whereof have been mentioned, and such events have not been denied by the Federation through learned Attorney General. As certain facts have been placed before the Court, it does not mean that they are supporters of the petitioners. In addition to it, ascertainment of origin, authenticity and the purpose of the drafting/creating the Memo is a matter of public importance and prima facie calls for enforcement of their Fundamental Rights provided under Articles 9, 14 and 19A of the Constitution, hence, whosoever has laid information before the Court, calls for due consideration as the object is to see what he is speaking, and not who is speaking the same. In this behalf we cannot do better than to reproduce a para from the judgment in Civil Petition No.42 of 2011 composed by Mr. Justice Jawwad S. Khawaja:-
- Before concluding our discussion on the issue of maintainability of this petition we need to address the respondent’s submission that the petition has been filed mala fide. We have found no lawful basis for this submission. Simply because the petitioner may have been a contender for the office of Chairman, OGRA, does not per se translate into mala fides. The petitioner can genuinely consider himself to be a suitable candidate for the position while simultaneously holding the view that the respondent does not meet the eligibility criteria set out in section 3 (4) of the Ordinance. Furthermore, we have already held in the case titled Moulvi Iqbal Haider versus Capital Development Authority and others (2006 SC 394 at 413) that the contents of a petition under Article 184 (3) ibid will override concerns arising on account of the conduct or antecedents of a petitioner. This approach is reflective of the sagacity of wise men such as Maulana Jalaluddin Rumi who have emphasized the importance of the message rather than the messenger. Learned counsel for the respondent then cited the Indian case titled Dattaraj Nathuji Thaware v. State of Maharashtra and others [(2005) 1 Supreme Court Cases 590] to support his plea that the petition had been filed mala fide and should, therefore, be dismissed. We have gone through the cited judgment and find the same to be wholly irrelevant. In that case it was determined by the Indian Supreme Court that the petitioner therein “had resorted to blackmailing the respondents . . . and was caught red-handed accepting ‘blackmailing money”. No such circumstances arise, or were even suggested in this case. In view of this discussion, we are satisfied that this petition is not liable to dismissal on the ground of mala fides of the petitioner. Thus, objection being unfounded is accordingly repelled.
- Learned counsel for respondent No.4 vehemently contended that instant petitions lack bona fides. She relied upon news clippings filed by her with C.M.A. No. 5440/2011 as under:-
Haqqani detain. (Dawn Thursday, May 6, 1999)
Haqqani remanded in FIA custody for 4 days. (Dawn Tuesday, May 18, 1999.)
Haqqani’s medical record ‘goes missing’. (Dawn Wednesday, May 19, 1999)
Ehtesab Bureau decision in Haqqani case embarrasses FIA” (Dawn May 21, 1999)
URDU TEXT IS MISSING
Reliance is placed on the case of Ms. Benazir Bhutto (PLD 1988 SC 416). On the other hand, Mr. Rashid A Razvi, learned counsel vehemently denied the allegations and contended that the mala fides are required to be proved through cogent evidence. He has relied upon the cases of Lt. Col. Farzand Ali v.ProvinceofWest Pakistan(PLD 1970 SC 98), Federation of Pakistan v. Saeed Khan (PLD 1974 SC151) and Tabassum Shahzad v. I.S.I. and others (2011 SCMR 1886). It is to be noted that allegation of mala fides has been raised in Constitution Petitions No.79 & 80/2011, whereas, there are other petitions bearing Constitution Petitions No.77-78/2011, etc., reference of which has been made hereinabove, wherein no such allegation is leveled. This Court in the case of Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14) has held that bona fides are to be presumed unless the party challenging the action is able to substantiate that the action was mala fide or without any grounds whatsoever. The petitioner in Constitution Petition No.79/2011 cannot be attributed mala fides because he has not claimed any relief against respondent No.4. In addition to it, except filing news clippings, no other cogent evidence has been produced. Moreover, there are other petitioners as well who have also joined Respondent No.4 as party. Thus, objection being without substance, is repelled.
- Learned counsel vociferously stated that respondent No.4 is a law abiding citizen and his liberty has been curtailed by placing his name on the ECL. She has relied upon the judgments in the cases of Munir Ahmad Bhatti v. Government of Pakistan, Ministry Of Interior through Secretary (2010 CLD 1829), Govt. ofPakistanv. Dada Amir Haidar Khan (PLD 1987 SC 504) and Satwant Singh Sawhney v. D. Ramarathnam, Assistant (AIR 1967 SC 1836).
- There is no cavil with the above propositions of law, but in the instant case no restraint has been placed on his movement vide order dated 1st December, 2011 except that he has been asked not to leave the country without prior permission of this Court as to ascertain origin, authenticity and affect of memorandum is under probe before a Commission.
- Thus, instant petitions have raised serious question of public importance, which, prima facie is linked with the enforcement of fundamental rights under Articles 9, 14 and 19A of the Constitution based on cogent material available on record. Therefore, petitions being maintainable, empowered this Court to make declaration for the enforcement of fundamental rights based on the report of probe through the Commission, which has already been constituted to ascertain the origin, authenticity and purpose of creating/drafting Memo dated 10th May, 2011.
Above are the reasons for the short order dated 30.12.2011.
IFTIKHAR MUHAMMAD CHAUDHRY, CJ
MIAN SHAKIRULLAH JAN, J.
TASSADUQ MR. HUSAIN JILLANI, J.
JAWWAD S. KHAWAJA, J.
TARIQ PARVEZ, J.
MIAN SAQIB NISAR, J.
EJAZ AFZAL KHAN, J.
IJAZ AHMED CHAUDHRY, J.
MUHAMMAD ATHER SAEED, J.
Islamabad, the 30th December, 2011
Approved For Reporting.
CONSTITUTION PETITIONS NO.77 TO 85 & 89 OF 2011 & CMA NO.5505/2011 IN CONST.P.79 OF 2011
Jawwad S. Khawaja, J. “And ye shall know the Truth, and the Truth shall set you free” (John8:32). Thus spake Hazrat Isa, the Messiah and champion of the oppressed. In the same vein, the Persian savant Hakeem Sinai Ghaznavi said: “embrace the truth and become free of grief and torment”. It is these Biblical and sage sentiments and other similar sensibilities which appear to have inspired an important change in the Constitution – the recent incorporation of Article 19A in the Chapter on fundamental rights. The said Article stipulates that “every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law”. Most petitioners and respondents, and their learned counsel seem to have ignored or glossed over the significance of this major constitutional change. While the circumstances in which these cases arise have been elaborated in fair detail in the reasoning of Hon’ble the Chief Justice, I only reiterate this salient aspect of the case.
- It is an unfortunate facet of our history that during the 64 years since Pakistan’s independence in 1947, the people of Pakistan have been, at times, disserved by a non-inclusive governance paradigm where information critical to them has been withheld from them. Pakistan has faced many crises of public importance. This, in itself, is not unexpected in the life of a State. What has, however, been aggravating for the People is that numerous inquiries and probes have been undertaken by Governments which have spent substantial amounts of public time, money and effort, but the citizens of Pakistan, the most direct affectees, have remained clueless and uninformed as to the causes or the progenitors of the multiple crises in our history.
- Major events in our history in the past six decades since 1947 have included the dismemberment of the country in 1971 and the murder of one incumbent and one former Prime Minister of Pakistan. We have witnessed the extraordinary case of those in the seats of governance in December 1971 informing us that all was going well inEast Pakistaneven after the surrender of forces in Dhaka. The results of probes into such events have almost invariably been withheld from the people ofPakistanor, at times, selectively disclosed. The people in quest of the truth have mostly been left with conjectures, rumours and half truths. Concealment of information has, in turn led to a distorted history of the country and to a destabilizing division in the polity.
- This paradigm has shifted through the recent incorporation of Article 19A in the Constitution. By virtue of the said Article the right of a citizen to have information “in all matters of public importance” is made a fundamental right which is guaranteed by the Constitution. Article 184 (3) of the Constitution stipulates, inter alia, that this Court shall have jurisdiction to pass an order in a case “if it considers that a question of public importance with reference to the enforcement of any of the fundamental rights conferred by Chapter I of Part II [of the Constitution] is involved”.
Article 184 (3) read in conjunction with Article 19A has empowered the citizens of Pakistan by making access to information a justiceable right of the People rather than being largesse bestowed by the State at its whim. Article 19A has thus, enabled every citizen to become independent of power centres which, heretofore, have been in control of information on matters of public importance.
- Many of the arguments that came up during the hearing of these petitions are premised on a lack of appreciation not just for this aspect of our constitutional law, but also for the intrinsic worth of Truth as a value in itself. What, it may be asked, is the intrinsic worth of information as a stand-alone fundamental right?
The answer to this is simple. The very essence of a democratic dispensation is informed choice. It is through such choice that the political sovereign, the People ofPakistanacquire the ability to reward or punish their elected representatives or aspirants to elected office, when it is time for the People to exercise their choice. If information on matters of public importance is not made available to citizens, it is obvious they will not have the ability to evaluate available choices. Information on matters of public importance thus, is a foundational bedrock of representative democracy and the accountability of chosen representatives of the people. It is in this context, both historical and conceptual, that the fundamental right to information has to be seen. Through Article 19A in the Constitution, the citizens ofPakistanhave also been freed from the caprice of a sorry fate and have become independent of whistle-blowers in foreign lands or the magnanimity of the likes of WikiLeaks or biographies of political actors, to get to the information they are now entitled to as of right under the Constitution. This provides for and makes good a crucial missing element of responsible state governance in our Constitutional scheme.
- At this point it is necessary to highlight an important aspect of our Constitution which is often over-looked. The Constitution of 1973 has not been bestowed as a matter of grace on the People of Pakistan by a monarch or a foreign Parliament as, for instance, is the case withCanada,Australiaand a number of other countries. Our Constitutional Order has been established by “the will of the people ofPakistan”. All State functionaries have to understand that in a very real sense, they are employed in the service of the People of Pakistan and are paid for by them. The loyalty, therefore, of these State functionaries has to be to the Constitutional Order established by the People. Once this context is understood, the issue in these petitions stands greatly simplified. There is no contention between the parties arrayed before us that the Memo and the events surrounding it are “matters of public importance”. The parties are also agreed that these events should be probed. It is, therefore, clear that a petition under Article 184 (3) to enforce the fundamental right granted by Article 19A is maintainable.
- We are cognizant that there may be situations where the Government may want to justify non-disclosure of information on a matter of public importance. That plea, however, does not arise and nor has it been taken in these cases. It is, therefore, not necessary to comment on the same as a mere speculative exercise. Learned ASC for Mr. Haqqani contended that these petitions raise a political question and the Court should, therefore, avoid deciding the same. This argument has been adequately discussed in the reasoning of Hon’ble the Chief Justice. I would only add that the conduct of a government’s foreign policy is indeed, by and large, a political question. But the fact is that the present petitions do not require us to devise the country’s foreign policy or to direct the government in that regard. These petitions only seek to enforce the People’s right to know the truth about what their government, and its functionaries, are up to. And that is by no means, a political question. It is a fully jusiticiable fundamental right enumerated in Chapter II, of the Constitution no less. We need not look any further than Article 19A, for this conclusion.
- This brings me to a consideration of the Freedom of Information Ordinance, 2002 (“FIO, 2002”) and to see if there is anything therein which can support the contention advanced on behalf of Mr. Haqqani, that the information sought by the petitioners should be denied to them in these proceedings or that the FIO 2002 is an adequate and complete alternate to Article 19A. Section 3 (1) of the FIO 2002 specifies the substantive right provided for thereunder. It is couched in restrictive language and reads as under:-
“3. Access to information not to be denied:- (1) Notwithstanding anything contained in any other law for the time being in force, and subject to the provisions of this Ordinance, no requester shall be denied access to any official record other than exemptions as provided in Section 15.”
In stark contrast Article 19A in affirmative and expansive language avows as under:
“19A. Every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law.”
- It is clear from a reading of Article 19A and section 3 (1) ibid, that the Constitutional right is much broader and more assertive than the statutory right which by its own terms is restricted to disclosure of official record only.
Furthermore, the principle of law is that the fundamental right under Article 19A is a grant of the Constitution and, therefore, cannot be altered or abridged by a law enacted by Parliament. The submissions of learned ASC for Mr. Haqqani, based on the FIO 2002 are, therefore, misconceived and have no merit.
- At this point it may also be added that when the quest is for the truth under Article 19A, and nothing but the truth, the Court cannot foresee the result of the probe which has been ordered. The arguments on behalf of Mr. Haqqani amount to asking the Court to adjust its opinion according to some anticipated consequences of such inquiry. As an objective enforcer of fundamental rights we cannot do that. Whether the petitioners or the respondents stand to benefit from our order or which institution or functionary of the State ends up being indicted by the Truth, we are not called upon to say. In fact, that is the very point of the inquiry; the only calculus this Court is entitled to engage in is the calculus of true information and its availability to the citizens ofPakistan.
- The Truth will indeed be critical if the nation is to achieve the goal the Constitution, in its Preamble, sets for all organs of the state: viz. “the preservation of democracy achieved by the unremitting struggle of the people against oppression and tyranny.” It, therefore, will not do for this Court to deny to the citizens their guaranteed fundamental right under Article 19A by limiting or trivializing the scope of such right through an elitist construction whereby information remains the preserve of those who exercise state power.
(Jawwad S. Khawaja)
URDU TEXT IS MISSING
EJAZ AFZAL KHAN, J.- I have gone through the judgment authored by my lord the Chief Justice. It is complete and comprehensive in all respects. Reasons recorded and the case law referred are so persuasive and powerful that one cannot have any other choice but to agree therewith. I respectfully agree with the judgment thus authored. However, I would like to add a few words to illustrate nexus between security of person and State and dignity of person and State and also nexus between a right and its different implications and manifestations.
- The right to vote, for instance, is not a right confined to casting a ballot. It is a wider and more comprehensive term. If it, on the one hand, aims at choosing the representative, it on the other includes the right to participate in the electoral process, political activity consisting in forming a political party, projecting a programme through a manifesto and propagating it and thereby persuading the people to accept it. In the case of Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416) and many other cases cited in the main judgment this Court has interpreted the expression fundamental right as of much greater amplitude and of much wider ring and connotation. It has been extended to include all the possible implications and manifestations of such right. Apparently registration of a political party has no nexus with a fundamental right. The more so when the vires of a statute making its registration compulsory is challenged in a Court of law. But since it is one of the manifestations and one of the consequential effects of such right, it was extended to cover the same.
- Security of person is one of the most important fundamental rights. It is inextricably linked with the security of the State. If and when a person performing functions in connection with the affairs of the Federation acts in a manner which imperils the very existence of the State a writ of prohibition or any other appropriate writ, according to the circumstances of the case could be issued against him. A petition filed by a citizen asking for the issuance of an appropriate writ cannot be declined simply because his fundamental right has not yet been infringed. A narrow and pedantic interpretation may lend support to the argument that security of person is not imperiled or infringed by a mere threat to the security of the State, but actually it is otherwise. Security of person in the absence of a strong, secure and stable State would be inconceivable. It would be as imaginary as drinking water from a mirage. Therefore, fundamental right of person would stand infringed the moment something tending to imperil the security of State is done.
- Why is loyalty to the State the basic duty of every citizen? Why is obedience to the Constitution and law the inviolable obligation of citizens? Why are fundamental rights suspended when security of the State is at stake? Because the State is a fortress protecting such rights. Because the Constitution and the law are the fountains of such rights. So long as the fortress is intact fundamental rights shall remain protected. So long as the fountains are secure fundamental rights would continue flowing from it. It would thus be naive to say that threat to security of the State has nothing to do with fundamental rights of person. A threat to the fortress protecting such rights would, therefore, be a threat to the security of person. A citizen with seeing eyes and thinking mind would not sit relaxed and relieved till the fall of such fortress by seeking refuge in the belief that security of person is yet to be attacked or assaulted. Such belief seems have originated from no other state except that of self-deception. A person hacking a branch of a tree another is sitting on, does not harm the latter but when the branch is hacked, its fall would coincide with the fall of the person sitting thereon.
- The Constitution of the Islamic Republic of Pakistan not only guarantees the security of person but also his right to live with dignity. The word “dignity” has various shades of meanings. It, according to Chambers 21st Century Dictionary means “stateliness, seriousness and formality of manner and appearance, goodness and ability of character, calmness, self-control and high rank and position.” This right has various effects and implications ranging from individual life to the collective national life. Within the confines of his individuality he may be respectable but he cannot live with his head high within or outside his country, when the country does not command respect in the comity of nations. If the dignity of State which cannot be detached from the dignity of person, appears to have been compromised or made negotiable by express or implied terms he not only looses his moorings but also ceases to live with dignity and respect. His right thus stands infringed. In the case of Benazir Bhutto vs. Federation of Pakistan (PLD 1998 SC 388) this Court while highlighting this aspect held in no uncertain terms that the right to live includes the right to live with respect, honour and dignity. Therefore, dignity of person being commingled with the dignity of State cannot be dealt with as something apart from the latter. Wherever an act or omission of a person who is at the helm of affairs in any department of life tends to compromise or even negotiate the dignity of the state that would be an affront to the fundamental right of the citizen guaranteeing his dignity, notwithstanding his person may not be subjected to any indignity. This is what has been portrayed in the preamble of the Constitution in the words as follows:-
“So that the people ofPakistanmay prosper and attain their rightful and honoured place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity;”
- What is sovereignty and what does it mean? Sovereignty means supreme and independent power or authority. According to the preamble of the Constitution, authority over the entire universe belongs to Almighty Allah alone. This has been delegated to the people as a trust. It is to be exercised by them through their chosen representatives within the limits prescribed by Him. Principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam are the norms to be followed. Those who are chosen are not given carte blanche to rule according to their whim and caprice but according to the provisions of the Constitution and law. Any chosen representative who does not exercise this authority in accordance with the provisions of the Constitution shall betray the mandate given to him pursuant to the exercise of right to vote. Such a course though does not infringe a right at its primary level but it does so in its ultimate form and manifestation. Because the very condition for the exercise of such right is that those who are chosen shall exercise their authority in accordance with the provisions of the Constitution.
- Consent to, connivance at or complicity in the infringement of security of person may not be so criminal, as an act, an omission or an attitude evincing the aforesaid attributes in the infringement of security of State. It is rather pedantic, perverse and preposterous to detach or disassociate security, solidarity and sovereignty of the State from fundamental rights. Security of person and security of State are integral part of each other. Existence of one cannot be conceived without existence of the other. All this is a part of an organic, integrated and indivisible whole. As an injury to a limb of one’s body can’t be considered in isolation, so can’t be an injury to a vital organ like the brain or the heart when it tends to paralyze or benumb all the limbs. One cannot keep them in water tight compartments or away from or independent of each other. Security of the State is like a ship. One cannot have a safe and smooth sailing in the ship by permitting others to drive a hole into that. Such an approach or outlook, we are afraid, would be dangerous, devastating and even catastrophic for all those who live in the hard world of reality and, of course not in fool’s paradise. Partial and piecemeal approach or outlook in such matters cannot be approved of. It, therefore, follows that the nexus between security of person and State and dignity of person and State cannot be lost sight of while hearing a lis for enforcement of fundamental rights. The probe ordered by us is a prelude thereto as it aims at uncovering the truth for taking remedial measures before the situation goes beyond repair.
(Ejaz Afzal Khan)