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Petitioner: NAEEM SAJID and 4 others VS Respondent: FEDERATION OF PAKISTAN through Secretary, JUDGMENT
Court Name: Sindh High Court Judge(s): Irfan Saadat Khan, Zafar Ahmed Rajput Title:NAEEM SAJID and 4 others vs FEDERATION OF PAKISTAN through Secretary,
JUDGMENT
Reported As: PLD 2017 Sindh 31 Result: Petitions dismissed Judgment JUDGMENT ' IRFAN SAADAT KHAN, J.---The facts and the law points that arise for consideration in both the petitions since are common; hence, the same have been heard and disposed of by this common judgment. 2. The facts, in brief, pleaded in C.P. No,D-7759 of 2015 are that the petitioner No,1 (Naeem Sajid) is stated to be an exporter of hand-knotted carpets, who is running his show-room under the name and style "Peena Carpets Industries" in Karachi. On 27.5.2015 he was arrested by the Counter Terrorism Department (CTD) of Sindh Police from his house and he remained in their custody for eight days; however, when no charge was found against him, he was released. Thereafter, on 03.07.2015 he was again picked-up by the Pakistan Rangers (Sindh). On that his family members filed a Constitution Petition bearing No, D-3980 of 2015 before this Court, wherein the Deputy Superintendent Pakistan Rangers (Sindh) filed his comments on 27.08.2015 denying his arrest, but on 04.09.2015 he was produced before the Anti-Terrorism Court No,1 by the Rangers for execution of Preventive Detention under Section 11-EEE(1) of the Anti-Terrorism Act, 1997 together with the Detention Order mentioning therein that he was involved in offences of extortion/Bhatta, target killing and kidnapping. Later on, his custody was handed over to Sachal Police by the Pakistan Rangers, who obtained his remand from the Anti-Terrorism Court (ATC). In the Meantime, the said petitioner moved an application for bail, however, on 10.12.2015 it was informed to the ATC by the prosecution that the name of said petitioner was included in the case/F.1.R. Bearing No,195 of 2015, registered under Sections 302/324/427/109/34, P.P.C. Read with Section 7 of ATC and Section 512,
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Cr.P.C. At P.S. Sachal, District Malir, known as "Safoora Goth Case" wherein 27 men and 18 women were killed. ' However, during hearing of the bail application a letter, dated 9.12.2015, issued by the Ministry of Interior (hereinafter referred to as "the Letter") was produced before the ATC to the effect that the case of the petitioner No,1 has been sanctioned for trial under the PAKISTAN Army Act, 1952 (hereinafter referred to as "the Act of 1952). Hence, the ATC is seized from proceeding in the matter any further and sent the case of the petitioner No,1 to the Military Court for trial. It is against that Letter that this petition has been filed, with the following prayers: "A. Declare that the impugned letter dated 9.12.2015 issued by the Respondent No,1 for sending trial of the aforesaid case/FIR No,195 under sections 302/324/427/109/34, P.P.C. Read with Section 7 of the Anti-Terrorism Act, read with Section 152 Cr.P.C., to the Military Courts to the extent of Petitioner No,1 only, is illegal, unconstitutional, as well as violative of Articles 9, 10, 10-A, 14, 25 and 175 of the Constitution of Islamic Republic of Pakistan, 1973. B. Declare that the impugned letter dated 9.12.2015 to the extent of Petitioner No,1 only, is violative of Sections 17 and 24 of the Pakistan Protection Act, 2014. C. Declare that due to inconsistency in between the mandatory provisions of Protection of Pakistan Act, 2014 and the Act II of 2015 whereby Pakistan Army Act was amended, due to inconsistency of the provisions of Protection of Pakistan Act, specially its section 24, the Protection of Pakistan Act shall prevail upon and shall have the over-riding effect on the provisions of Act II of 2015 more particularly in respect of its newly inserted subsection (5) of Section 2. D. Declare and direct that the case of the Petitioner No,1 shall remain on the file of Respondent No,3/ATC Court and shall be tried by that court accordingly. E. Declare that the letter of Respondent No,2 dated 26.10.2015 is violative of the rules of natural justice as well as Section 24-A of the General Clauses Act. F. Suspend the operation of the impugned letter of Respondent No,1 dated 9.12.2015 to the extent of Petitioner No,1 only, as well as restrain the Respondents, more particularly the Respondents Nos. ] to 6, not to transfer the trial of Petitioner No,1 and to hand over his custody for trial before the Military Court, until the questions and interpretation of laws is properly made by this Hon'ble Court. (sic) Grant cost of the Petition, G. Pass any other or further order(s) in favour of the petitioner and against the respondents which may be deemed fit and proper under the facts and circumstances of this case." 3. Precisely, the facts pleaded in C.P. No, D-134 of 2016 are that on 17.06.2015, Sultan Qamar Siddiqui was arrested by the officials of the Pakistan Rangers (Sindh) and produced him before the ATC No,1 on 18.6.2015; thereafter, on 15.9.2015 his arrest was shown as a co-accused in FIR No,195 of 2015, registered at P.S. Scha, i,e. Safoora Goth case. On 03.07.2015, the officials of Pakistan Rangers also arrested Hussain Omar Siddiqui, the real brother of Sultan Qamar Siddiqui, from his residence and produced him for the first time on 04.09.2015 before the ATC No,1 and obtained an order for his preventive detention. Thereafter, on 15.9.2015 his arrest was also shown as a co-accused in FIR bearing No,195 of 2015 and their case was also sanctioned for trial under the Act of 1952, vide Letter dated 09.12.2015, which has been impugned in the petition, with the following prayers:-- "a Declare the impugned action annexure 'I' on the part of the Respondents Nos.1, 2 and 4 to be absolutely illegal, uncalled for and amounts to discrimination and pick and choose policy to which has no legal footings as such same merits to be quashed. b. Declare that the impugned action/letter dated 09.12.2015 issued by the Respondent No,1 for sending of trial of FIR. No,195/2015 under Sections 302, 324, 427, 109 and 34, P.P.C. Read with section 7 A.T.A. To the Military Court to the extent of Hussain Umar Siddiqui and Sultan Qamar Siddiqui is illegal, unconstitutional, as well as violative of Articles 9, 10-A, 14, 24 and 175 of the Constitution of 1973.
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c. To suspend the operation of the illegal action/letter annexure to be absolutely illegal, uncalled for and in flagrant violation of law and the legal proposition involved. d. To quash the proceedings of the case as far as Sultan Qamar Siddiqui is concerned. e. Any other relief or reliefs in favour of Hussain Umar Siddiqui and Sultan Qamar Siddiqui and against the respondents which may be deemed fit and proper under the facts and circumstances of this case. f. To declare and direct that the case if any to remain on the file of Respondent No,3/ATC Court and shall be tried by that court accordingly. g To order the learned Presiding Officer of A.T.C. VI Karachi to decide the pending bail applications in accordance to law. h. Costs of this petition in favour of the petitioner." 4. Mr. Khawaja Shamsul Islam Advocate has appeared on behalf of the petitioners in Constitutional Petition No,D-7759 of 2015 and submitted that the petitioner No,1 is innocent and his name has wrongly been included by the police without any evidence and lawful authority, illegally and malafidely in the Safoora Goth case and such act of the police officials amounts to illegal detention of the petitioner No,1, which evidently reflects malice in law and malice on facts. Mr. Khawaja has added that the officials of Pakistan Rangers illegally handed over the custody of the petitioner No,1 to the Sachal Police, who produced him before the ATC on 16.09.2015 by showing his date of arrest as that of 15.09.2015, whereas he was in the custody of law enforcing agencies since 03.07.2015. He has also submitted that the allegations against the petitionerNo,1 that he has facilitated the co-accused persons by purchasing the weapon for them, which were subsequently used in the Safoora Goth case, is ill-founded, as no person of prudent mind could apprehend that some weapons could be purchased four years before the alleged offence. According to him the petitioner No,1 could not be associated with the Safoora incident case in any manner as he has already been declared innocent by the CID, therefore, it would be unjustified if the case of the petitioner No,1 is tried with the case of other co-accused persons under the Act of 1952, as amended by the Pakistan Army (Amendment) Act, 2015 (hereinafter referred to as "the Act of 2015). According to him the case of the petitioner No,1, at worst, could only be tried by the ATC as the case of petitioner No,1 falls outside- the jurisdiction of a Military Court. Hence, according to the learned counsel the impugned Letter is contrary to the rules of natural justice and in violation of Articles 9, 10, 10-A and 14 of the Constitution of the Islamic Republic of Pakistan. 1973, as the fundamental rights of a citizen could not be infringed on account of fanciful, imaginary and arbitrary ideas and on presumptions of the State functionaries. 5. Mr. Khawaja has maintained that the impugned Letter has no legal value being contrary to Sections 20-A and 24-A of the General Clauses Act, 1897 as it was issued without proper gazette notification. Besides, the impugned Letter is violative of the Rules of Business 1973 particularly Rules 14, 18 and 21 as it was issued by the Ministry of Interior and not by the Ministry of Law, Justice and Human Rights, hence, the impugned Letter is liable to be set at naught on this score. He has further maintained that the Protection of Pakistan Act came into force in the year 2014 and Act of 1952 was amended on 07.01.2015, while the allegation leveled against the petitioner No,1 pertains to that of the year 2010 which would mean that the law has been applied retrospectively; which is in violation of Article 12 of the Constitution of Pakistan. According to him, in the given circumstances of the case, Act of 1952 has illegally been applied; hence the same has been assailed through the instant Constitutional Petition. He has also maintained that the questions involved in the instant Petition require interpretation of Act of 1952, as amended by the Act of 2015, and the Protection of Pakistan Act, 2014 (hereinafter referred to as "the Act of 2014), hence, this Court under its Constitutional jurisdiction, is fully empowered to interpret the aforesaid laws and to declare the transfer of the case of petitioner No,1 to the Military Court through the impugned Letter as illegal, mala fide, without jurisdiction, malice in law and malice on facts and violative of the rules of natural justice and strike down the same in the best interest of justice and fair play. Lastly, he contended that the
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petitioner accused apprehends that he would not have opportunity of fair trial before the Military Court. In support of his arguments, Mr. Khawaja has placed his reliance on the following decisions:- - 1. Mian Manzoor Ahmed Watto v. Federation of Pakistan and 3 others (PLD 1997 Lahore 38) 2 Federation of Pakistan and another v. Malik Ghulam Mustafa Khar (PLD 1989 Supreme Court 26) 3. Arbab Akhtar Adil v. Government of Sindh through Home Secretary, Government of Sindh Karachi (PLD 2005 Karachi 538) 4. Syed Mubbashar Raza v. Government of Punjab through Secretary Home Department and 2 others (PLD 2015 Lahore 20) 5. Shahazad Abid v. The State (2003 PCr.LJ 661) 6. Jahanghir Akhter Awan and 2 others v. The State and 8 others (PLD 2000 Karachi 89) 7. Khizar Hayat v. The State (2012 SCMR 1066) 8. Muhammad Shoaib and others v. The State (2013 MLD 1469) 9. Nizamuddin v. The State (PLD 2014 Sindh 248) 10. Federal Government Wo Defence, Rawalpindi v. Lt. Col. Munir Ahmed Gill (2014 SCMR 1530) 11. Rang Mirani v. The State (2003 YLR 2007) 12. Iftikhar Ahmed v. The State (1990 SCMR 607) 13. Sheikh Muhammad Aslain and another v. The State and 2 others (1991 MLD 1973) 14. The State v. Mirza Azam Beg, P. C. S. And another (PLD 1964 (W. P.) Lahore 339) 15. Ramesh M. Udeshi v. The State (2002 PCr.LJ 1712) 16. Iftekhar Ali v. The State (PLD 2013 Sindh 532) 17. Noor Ahmed v. The State (PLD 1964 Supreme Court 120) 6. Mr. Khawaja Muhammad Azeem, the learned counsel for the petitioner in C.P. No,D-134 of 2016 has adopted the arguments of Mr. Khawaja Shams. 7. Mr. Salman Talibuddin, Additional Attorney General for Pakistan has appeared on behalf of the respondents Nos.1 and 5 in both the petitions and has submitted that under the Constitution (Twenty-First Amendment) Act, 2015 (hereinafter referred to as "the Twenty-First Amendment") Article 175 of the Constitution has been amended and now it is not applicable for a period of two years commencing from 07.10.2015, to the trial of persons under any of the Acts mentioned at serial Nos. 6, 7, 8 and 9 of sub-part III of Part I of the First Schedule and the Sub-part III of Part I of the First Schedule to the Constitution has also been amended to include, inter alia, Act of 1952, and as a result thereof the provisions of the Act of 1952, as amended under the Act of 2015, have been placed outside the ambit of the restrictions contained in Article 8 of the Constitution, in addition, the Constitutional jurisdiction of the High Courts in respect of any "action taken" under the Act of 1952 has been excluded under Article 199(3) of the Constitution,. According to him insofar as the Twenty-First Amendment and the Act of 2015 are ,:oncerned, the Hon'ble Supreme Court has given categorical observations, su also the other grounds raised by the present petitioners challenging the impugned Letter have already been deliberated and decided by the Hon'ble Supreme Court of Pakistan in the case of District Bar Association Rawalpindi and others v. Federation of Pakistan and others reported as PLD 2015 SC 401 (SC Judgment") after a detailed discussion and analysis of the amendments to the Constitution, the policy reasons behind the establishment of the Military Courts, and the case law relating to the application of the Act of 1952 for trial of civilians, such as Brig. (Retd) F.B. Ali case (PLD 1975 SC 506) and in view of the observations and findings of the Hon'ble Supreme Court, it is the Federation's case that the impugned Letter cannot be held to be illegal or without lawful justification on any ground whatsoever. He has added that the petitioners are not "aggrieved" persons to whom any prejudice has been caused through the issuance of the impugned Letter, particularly in view of the Supreme Court's finding that even if an offence is incorporated in two separate statutes or provisions providing for trials by two separate forums, the
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matter can be referred for trial to any of the two forums by virtue of Section 25 of the General Clauses Act, 1897; therefore, merely by virtue of being tried before another validly constituted forum, which also guarantees the accused's rights under ' Article 10-A of the Constitution as held by the Hon'ble Supreme Court, it cannot be said that any prejudice is caused to the petitioners are liable to be dismissed on this ground alone. According to him, any objection that the petitioners may have with respect to the offences they have been charged with, are liable to be determined by the Military Court itself and in view of the findings in the Hon'ble Supreme Court's Judgment the impugned Letter can only be challenged under Article 199 of the Constitution on limited grounds specified by the' Hon'able Supreme Court itself and therefore, in exercising its limited powers of judicial review, this Court is competent only to determine whether the Federal Government's exercise of its function is coram non judice, without jurisdiction or mala fide, including malice in law, while the Judicial review of the impugned Letter on any other ground would entail an analysis of the factual aspects of the case, which is prohibited under Article 199(3) of the Constitution, and has not been permitted by the Hon'able Supreme Court as an exception to the said Article. He has also submitted that in so far as the exercising of powers by the Federal Government under the amended Act of 1952 is concerned, all that the Federal Government is authorized to do in deciding to transfer cases, pending or otherwise, for trial under the Act of 1952, is to identify whether the offences for which an accused has been charged with meet the criteria enumerated in the said Act for trial by the Military Court and in order to arrive at such determination, the factual ingredients have already been expressly set out in the said Act itself. According to him, in exercising the powers of judicial review beyond the grounds laid down in the Hon'ble SC's Judgment for challenging the Executive's decision to transfer cases to the Military Courts, this Court would be (i) requiring the Executive to exercise a judicial function which it is not mandated to do; (ii) annulling the powers and functions to be exercised by the Executive under the Amendment Act of 1952 and the Constitution; and (iii) nullifying the jurisdiction of the Military Court which has been held to be valid under the Constitution. 8. Refuting the arguments of learned counsel for the petitioners with regard to the issuance of impugned Letter by the Ministry of Interior and its non-publishing in the official Gazette, Mr. Talibuddin has submitted that it is the Federation's case that the matter of subject cases for trial under the Act of 1952 is a security matter and hence, falls within the purview of the Ministry of Interior; as such, the impugned Letter has duly been issued by an officer of the Ministry of Interior and cannot be held to be without jurisdiction on the ground that it has not been issued by the Ministry of Law and Justice. He further added that Section 24-A of the General Clauses Act, 1898 requires the Executive to exercise its power to make any order reasonably, fairly, justly and for the advancement to the purposes of the enactment and each of this criteria has duly been fulfilled by the Federal Government for the reasons discussed by the Hon'ble Supreme Court in upholding the Twenty-First Amendment and the Act of 2015. He added that it is the case of the Federation that no prejudice has been caused to the petitioners/accused by transfer of proceedings to another validly established Court. He has further submitted that amended sub-section (4) of Section 2 of the Act of 1952 contains the term "sanction", which does not endorse the requirement to notify or issue a notification. In support of his contentions, Mr. Talibuddin has relied upon the case of Saghir Ahmed v. Province of Punjab and others (PLD 2004 SC 261). He; therefore, finally prayed for the dismissal o1 both the petitions. 9. Mr. Muhammad Aslam Butt, Deputy Attorney General (DAG) has also appeared on behalf of the respondents Nos.1 and 5 and has submitted that the procedure with regard to action against the petitioners/accused has been adopted under the Twenty-First Amendment--wherein all cases, whether fresh or under trial, were placed before the Provincial Apex Committee, which after detailed deliberation finalized its recommendations which were then forwarded to the Ministry of
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Interior by the respective Provincial Home Department and then the designated Committee of Interior Ministry comprising of members from Interior Division, Law Division, Advocate General and officials of the Pakistan Army deliberated upon each case in detail and thereafter recommended to the Federal Government for according of the sanction. He has further submitted that all the required formalities in this regard were completed in the cases of the petitioners/accused and; thereafter, their cases were sanctioned for trial under the Act of 1952 along with the cases of co- accused persons, who were allegedly involved in the Safoora Goth case. He added that the name of the petitioners/accused were included in the final challan after collecting material evidence against them by the prosecution. He further added that subsection (4) of Section 2 of the Act of 1952 has an overriding effect on all other laws. He has also submitted that the matter requires detailed deliberation so far as the charge against the petitioners/accused is concerned and also requires recording of the evidences, which could not be done by this Court, as the same could only be done in a trial. He has maintained that the point taken by the learned counsel for the petitioners with regard to mala tide is not available to them. In support of his above contentions, Mr.-Butt has placed his reliance on the following case-law:-- i. The Federation of Pakistan through the Secretary Establishment Division, Government of Pakistan Rawalpindi v. Saeed. Ahmad Khan and others (PLD 1974 Supreme Court 151) ii. Lt.-General (Retd) Jamshaid Gulzar, Chairman, FPSC and 4 others v. Federation of Pakistan through Secretary Establishment Division, Islamabad and 2 others (2006 PLR 425) iii. MRs, Shahida Zahir Abbasi and 4 others v. President of Pakistan and others (PLD 1996 Supreme Court 632) iv. Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others (PLD 2001 Supreme Court 607) v. Sardar Ahmed Siyal and others v. National Accountability Bureau through Chairman and 4 others (2004 SCMR 265) vi. Akhtar Ali v. Judge Special Court (Offences in Banks), Punjab Lahore ana 3 others (PLD 2004 Lahore 182) vii. Muhammad Nazim-ud-Din v. Chairman, National Accountability Bureau through Director General, National Accountability Bureau, Karachi and 6 others (PLD 2007 Karachi 586) 10. Messrs Sarwar Khan, Additional Advocate General Sindh, Saifullah and Jan Muhammad Khoro, Assistant Advocates General Sindh, have appeared on behalf of the respondents Nos.2, 3, 4, 6 and 7 and submitted that during course of investigation the role of petitioners/accused namely, Naeem Sajid, Hussain Usman Siddiqui and Sultan Qamar Siddiqui have been determined by the law enforcement agencies, as they were found joining with a common intention with the mastermind/co-accused. Tahir Hussain Minhas, Saad Aziz alias Tintan and others, involved in Safoora Goth case. They have further submitted that the objections raised by the learned counsel for the petitioners could be agitated before the trial and it is the trial Court which is empowered to examine the role of each accused so far the innocence and guilt of petitioners/accused is concerned. According to them,, both the petitions being premature are liable to be dismissed. They added that the petitioners have approached this Court with unclean hands just to hamper their trial under the Act of 1952 before the Military Court. They have further submitted that since the petitioners/accused, as per evidence available with prosecution, are facilitators, aiders and abettors of the co-accused persons hence their cases shall be considered at par with that of co- accused persons of Safoora Goth case. In support of their contentions, they placed reliance on the decision given in the case of Shahid Orakzai v. Pakistan Muslim League (Nawaz Group) (2000 SCMR 1969).
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11. Mr. Shahadat Awan, Prosecutor General Sindh, has appeared from the prosecution side and while adopting the arguments of Mr. Salman Talibuddin and other learned counsel appearing on behalf of the respondents has maintained that so far as the matter concerning prayer clauses B & C of the petitions are concerned, these issues have already been decided by the Hon'ble Supreme Court of Pakistan in its Judgment in the case of District Bar Association, Rawalpindi. He has further maintained that since the case of all the accused persons involved in Safoora Goth case has been sent to the Military Court for the trial under the Act of 1952, no malice can be ascribed and attributed and in this regard and the prayer of petitioners/accused for their separate trial by the ATC is uncalled for and misconceived. He added that if after the trial the Military Court comes to the conclusion that the prosecution has failed to prove its case against the petitioners/accused, they would be acquitted; hence, these petitions being premature are liable to be dismissed. 12. We have heard all the learned counsel at considerable length and have also perused the record and the decisions relied upon by them. 13. In order to appreciate the contentions of the learned counsel for the parties, we deem it appropriate to reproduce herein below the relevant provisions of the Constitution, Pakistan Protection Act, 2014, Pakistan Army Act 1952 and General Clauses Act, 1897: Articles 8, 175 and III- Part of First Schedule of the Constitution: 8. Laws inconsistent with or in derogation of Fundamental Rights to be void.---(l) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with…
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