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Initializing Secure Chambers
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Initializing Secure Chambers
Petitioner: Syed IQBAL KAZMI and others VS Respondent: FEDERATION OF PAKISTAN and others
Court Name: Sindh High Court Judge(s): Muhammad Iqbal Kalhoro, Muhammad Karim Khan Agha Title: Syed IQBAL KAZMI and others vs FEDERATION OF PAKISTAN and others Case No.: C.Ps. Nos,D-1144 and D-1125 of 2007 Date of Judgment:2018-09-11 Reported As: PLD 2019 Sindh 255 Result: Order accordingly
JUDGMENT
JUDGMENT MOHAMMAD KARIM KHAN AGHA, J.--By this common order we propose to dispose of C.P. D-1144/2007 and C.P.D-1125/2007 whereby this bench was constituted by the Hon'ble Chief Justice of the Sindh High Court pursuant to order dated 12.05.2018 in Suo Motu Action Taken in Court (S.M.C. 21/2018) passed by the Hon'ble Supreme Court which reads as under: "At the beginning of the proceedings today , the learned ASCs, present in the Court, have apprised about the sad incident of 12.05.2007. On Court's query , it has been apprised the Constitution Petition No,1144-D/2007 is pending before the learned High Court of Sindh. We have summoned the record of the noted matter and on our examination of the order-sheet, it transp ires that the matter is pending since number of years and no fruitful progress in the matter has taken place. Therefore, we direct the Register of the learned High Court of Sindh to fix the above-noted matter on 28.5.2018 and we are sanguine that the learned Bench before which the matter will be fixed, shall decide the same within a period of three months positively . We further direct the Registrar of the High Court of Sindh to submit monthly progress report of the matter for our perusal in Chambers. The record of the High Court is hereby returned." 2. The facts concerning both of the petitions concern events which occurred in Karachi on 12th May 2007 when the then non functional Chief Justice of Pakistan His Lordship Iftikhar Muhammed Chuadhry as he then was (CJP) came to visit Karachi on the invitation of the Sindh High Court Bar Association in connection with its 50th Anniversary . It should be noted that the then CJP had been declared non functional pursuant to orders passed by the then President and Chief of Army Staff President/General Pervez Musharaf f and a reference was pending against him before the Supreme Judicial Council (SJC) for alleged misconduct. The legal fraternity by way of the so called lawyers movement had seen this act of declaring the then CJP non functional and then filing a reference against him before the SJC by the then President and Chief of Army Staff Preside nt/General Pervez Musharaf f as
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an assault on the Independence of the Judiciary and had thrown its weight behind the then CJP and as such it was anticipated that he would be well received by the legal community on his visit to Karachi through a show of solidarity . 3. At that time tensions were running high in the city and the Home Secretary Government of Sindh had advised the then CJP to cancel his visit. The then CJP however decided to continue with his visit to Karachi and a well planned schedule of his route and his engagements had already been provided to the Government of Sindh. In C.P. D-No,1620/2007 moved by Pakistan International Human Rights Organization fearing that both the Federal Government and Provincial Government would not provide adequate security to the then CJP on his visit to the city on 12th May 2007 made the following prayers (A) To direct the Respondents Nos,1 to 4 (1.Federation of Pakistan, through Secretary Ministry of Interior , 2. Province of Sindh through its Chief Secretary , 3.Home Secretary Government of Sindh and 4.IGP Sindh) to provide foolproof security to the. Hon'ble Chief Justice Mr. Iftikhar Muhammad Chaudhry during his visit to Karachi on 12.05.2007 while addressing the Malir Judicial Complex, Karachi Bar Association, High Court Bar Association and at the time of offering prayer at the mousoleum of Quaid-e-Azam and it is further prayed that while passing from the roads where from the rally will pass tight security measures may be provided. (B) To direct the Respondents Nos,1 to 4 no human violations shall occur on 12.05.2007 at visit of Chief Justice in Karachi. (C) Any other relief, which deems fit and proper in the circumstances of the case. (bold added) 4. After hearing arguments from both sides this Court on 11-05-2007 passed the following order which in material part reads as under; "We have heard all the Learned Counsel, learned Standing Counsel and learned Addl. A.G. and perused the Petition and also statement placed on record . In our opinion, it is the duty of the Federal Government and Government of Sindh to accord foolproof security / protection for the Hon' ble Chief Justice of Pakistan. Consequently , we would direct the Federal Government as well as Govern ment of Sindh to ensure that such security measures are taken during the visit of Hon'ble Chief Justice to Karachi on the route of his choice. Petition stands disposed of in the abov e terms. A copy of this order shall be sent to learned Standing Counsel and learned Addl. A.G."(bold added) 5. Thus, as per directions of this court it was the responsibility of both the Federal and Provincial Government to provide full proof security to the then CJP on 12th May 2007 from the time he arrived at Karachi airport until he had completed his program and left Karachi. The route of the then CJP was well known in advance by those at the helm of affairs in the provincial government and most probably the concerned high ups in the Federal Government. 6. It appears that before the then CJP was due to reach Karachi on 12th May 2007 by air from Islamabad and despite the orders of this Court plans were made by the provincial government to block nearly every route leading from Karachi Quiad-i-Azam International Airport (where the then CJP would arrive) to the District Courts at Malir , the City and High Courts with containers from the Karachi Port Trust (KPT) and other places. It appears from the record that the placement of these containers may not have been made primarily for security purposes to enable the safe passage of the then CJP from the airport to his destination as these containers completely blocked the roads with no way around them and were not manned by police or other law Enforcement Agencies (LEA's) to ensure law and order . It also prima facie appears that these blockages were made not to ensure the protection of the then CJP during his schedule in Karachi including addressing about 8,000 advocates but rather to ensure that the then CJP was deliberately prevented from leaving Karachi airport in order to fulfill his proposed schedule in the city after his arrival at Karachi airport. 7. In the event when the then CJP arrived at Karachi airport on the morning of 12th May 2007 a serious law and order situation broke out in Karachi. The city was almost entirely shut down even before his arrival, many citizens were killed and injured due to the firing of various miscreants; both the High Court and City courts were completely surrounded and blocked off and besieged by threatening angry mobs; Judges let alone litigants were not permitted to reach the courts which led to the complete denial of access to justice on that day to the citizens of Karachi whilst the LEA's, it appears from the record, looked on as silent spectators who choose to turn a blind eye to the illegal
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activities going on all around them; the then CJP was unable to leave the airport due to this law and order situation and had to return to Islamabad. 8. On 21/5/2007 the Incharge Registrar of this court moved the following note to the then Chief Justice of this court concerning the above incident: 1. "It is respectfully submitted that on 12th May 2007, at about 7.45 a.m, Mr. Fida Hussain, PS to the undersigned had informed me on my Mobile phone that the entire High Court premises was surrounded by a mob and they were not allowing anybody , including advocates and members of the staff, to enter into the Court premises and the police was not helping in that respect. 2. "When at 8.00 a.m, I, on my official car proceeded to the Hon'ble High Court for attending to my duties, I found that each and every road leading to the High Court, was blocked by putting containers, Buses and Tankers, therefore, I could not find a way to enter into the High Court premises. Particularly , I found that the High Court Building was surrounded by a mob, and they were stopping every body from entering into High Court premises. The police force available there was not taking any action against the miscreants and they were sitting as silent spectators. 3. "I then went to the building of my flat, which is in the same vicinity and parke d my car there. Mr. Zulfiqar Ali Shaikh, OSD (Judicial) reached there and he also parked his car there. Then, we both came on foot and managed to enter into the High Court premises. When, I was in my office, District and Sessions Judges Karachi-W est and Karachi-South, informed me on telephone that City Court premises were also sieged by miscreants and they were not allowing anybody to enter into the City Court premises. They also informed that the roads leading to City Court premises were barricaded and had been "blocked". Police was not taking any action. 4. "It was also informed that the miscreants had also maltreated and given beating to the advocates, including one senior lady advocate, MRs, Ismat Mehdi and resultantly , a number of advocates had received injuries. 5. "When the Hon'ble Chief Justice and the Members of the Administration Committee arrived in the High Court, they were disturbed by the fact that acce ss to the Court had been blocked from various entry points reventing the Judges, Court staff, Advocates and litigant public from attending the Court. Their Lordships directed the undersigned, to call the Home Secretary and the Provincial Police Officer, who are required to make security arrangements, to meet their Lordships in the Chamber of Hon'ble Chief Justice and explain their position. 6. "The Provincial Police Officer was not found available, but the Capital City Police Officer and the concerned Town Police Officer appeared and offered their explanation, stating that they had also arrived on foot and they themselves were helpless. Subsequently , the Home Secretary also appeared and undertook to do his best. But the situation remained the same. 7. "It is also worthwhile to mention that the undersigned being the Incharge Registrar of the High Court had to receive the Hon'ble Chief Justice of Pakistan at the Airport. But, because of the blockade I was not able to reach the Airport. The official car which we had sent for the use of the Hon'ble Chief Justice of Pakistan had also not reached the Airport, as informed by the its driver Mr. Saleem, all roads leading to Airport were completely barricaded and blocked. When the Home Secretary , Government of Sindh, had called upon the Hon'ble Chief Justice, he conceded that all roads leading to the Airport had been blocked and offered me to accompany him there on a helicopter . I then, went with him to the Airport on a helicopter , where I received the Hon'ble Chief Justice of Pakistan. Since all the roads Were blocked, therefore, the Hon'ble Chief Justice of Pakistan, was not able to come to the High Court and I remained with His Lordsh ip at the Airport till about 08.00 p.m.,when His Lordship boarded the plane for Islamabad. When, I returned back from the Airport at about 9.30 p.m on the of ficial car , the blockade was found to have been removed. 8. "Because of the blockade of roads leading to and siege of the High Court premises, a number of the Hon'ble Judges had also faced hardships, which is evident from the D.0 letters dated 15.05.2007 and 17.05.2007 (Flags-A, B, C & D) sent by the P.S Protocol of Hon'ble Justice Azizullah M. Memon, P.S Protocol of
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Hon'ble Mr. Justice Maqbool Baqar , P.S Protocol of Hon'ble Mr. Justice Mohammed Ather Saeed and PS Protocol (without date) to Hon'ble Justice MRs, Yasmin Abbasey and information communicated by driver of Hon'ble Mr. Justice Sajjad Ali Shah, in his letter (Flag-E). (bold added) 9. Submitted for kind perusal and orders. Incharge Registrar Hon'ble Chief Justice Azizullah Memon J. I am directed by Honourable Mr. Justice Azizullah M.Memon that on 12th May 2007, driver Muhammad Ishaque and Hawaldar Muhammad Naseer, both, informed his lordship by phone, that roads leading to the High Court were "blocked" and even people were not being allowed to go towards their respective destinations by foot; however, gunman Allahyar, residing near Boat Basin, managed to reach the residence of his lordship. At about 12:00 Noon, his lordship proceeded to reach the High Court premises by self-driving the official motor car with gunman Allahyar , through a dilapida ted road of Hijrat Colony , to attend to his official duties, but roads were found barricaded and "blocked" all around, and armed people surrounding the High Court premises; hence his lordship could not enter the same and returned back (bold added) (Javed Qazi) P.S.Protocol to Honourable Mr. Justice Azizullah M.Memon The Registrar , High Court of Sindh Karachi. Maqbool Baqar J. As directed by Honourable Mr. Justice Maqbool Baqar , I am conveying to you the facts narrated by his Lordship's driver , Muhammad Saleem regarding 12th May , 2007, as follows:- On 12th May 2007 while driving his Lordship to the High Court in the official car at about 9.30 a.m, Muhammad Saleem reached near F.T.C. building on Shahrah-e-Faisal, he found his track of the road comple tely blocked by a bus and a tanker horizontally parked in the middle of the road, he therefore had to return back to Shahrah-e-Qaideen through Shahrah-e-Qaideen Flyover . Since there was no traffic, he then entered the other track of Shahra-e-Faisal, but this track also was found blocked by a passenger coach, just short of Saddar Police Station. Muhammad Saleem therefore turned back the car and drove over the F.T.C. Flyover but had to return back as the said flyover also was blocked by a sand laden truck. He however , drove the car to the Korangi road/National Highway , through the other track of the flyover but was disappointed to find the road blocked with a heavy vehicle parked across the road. He, therefore drove back towards Shahra-e-Qaideen, but found the same blocked near Khudadad Colony , and then via Tariq Road and Shaheed-e-Millat Road and from in-front of Islamia College, reached Guru Mandar , but there also could not turn left, as the same was blocked and had to proceed towards Soldier Bazaar . Continuing in this direction, he could not find any exit towards M.A. Jinnah Road and thus reached near Pan Mandi, since here also the road towards M.A. Jinnah Road was blocked near Tahir Plaza by a crowd, carrying flags of a political party , he then attempted to proceed towards his right side but found the passage blocked by a trench dug across the road. He therefore turned the car and went back towards Bohrapir , and managed a passage along with the Kidney Centre (SUIT) and reached the section of M.A. Jinnah Road near Jamia Cloth Market. Since at that point, he was wondering as to in what direction to proceed, his Lordship contacted Honourable Mr. Justice Mushir Alam, who had already reached the High Court building and guided Justice Baqar on his cell phone through Fresco Chowk upto Burns Garden and informed his Lordship that except through the road in front of Sindh Secretariat all other passages/roads including those from Masjid e-Khizra, MPA Hostel, Arts Council and Shahrah - e-Iraq are blocked his Lordship thus reached the High Court from in front of the Sindh Secretariat Building.(bold added)
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(Jawed Kazi) P.S.Protocol to Honourable Mr. Justice Maqbool Baqar The Registrar , High Court of Sindh Karachi. Athar Saeed J. Submitted On Saturday 12th May 2007 an unpleasant incident took place @ Nazimabad Chowrangi in front of Sir Syed Girls College when two motor cars blocked the passage of the official car bearing No:H-C 0125 of Hon'ble Mr. Justice Mohammad Ather Saeed on way to High Court of Sindh from his residence and the car was prevented from turning away from main road. Finally at Nazimabad second Chowrangi when the driver tried to turn right towards Pak Colony he was stopped by a young man who commanded him to stop and as soon as he stopped the car one of the above cars hit his car from rear side causing dent and heavy damages to the rear bumper . Immediately the car was surrounded by a number of people and one young man snatched the keys and demanded compensation from driver of the Hon'ble Judge. The mob surrounded the car and raised blows on the car and used rude language and broke flag rod with kicks and punches. After some time on interference of some persons keys were returned to the driver and he drove away from the spot. The Hon'ble Judge then reached the P.S Pak Colony where after about 45 minutes he was personally escorted by the S.S.P Investigation Mushtaq Maher towards High Court but when he reached Aiwan-e-Sadder Road it was observed that the lane going towards High Court from P.S. Artillery Maidan was closed due to parking of public buses in the entire lane. The traffic police also informed the Hon'ble Judge that there was no access to the High Court by car therefore Hon'ble Judge got his car parked at D.I.G. Office and proceeded on foot to the High Court with his gunman and driver . The passage was very narrow and thronged by a hostile mob and the Hon'ble Judge was greeted by hostile glances and stares and in this tense atmosphere he approached and entered the High Court through the side gate opening in the secretariat barracks. (bold added) (Munir A. Ghangro) P.S. Protocol to Justice Mohammad Ather Saeed Learned Registrar Yasmin Abbasey J. The Hon'ble Justice Mrs. Yasmin Abbas sey desired me to intimate you that on 12.05.2007 her-ladyship tried her level best to reach in the high Court but all the ways leading to the High Court of Sindh were abandoned with buses and containers, Her ladyship noticed that the roads were closed with abandoned buses and containers. Miscreants and workers of a political Party holding arms and flags were roaming throughout the way . Consequently her ladyship could not reach office and returned back. Hon'ble Judge has desired that the situation be brought in the knowledge of the Hon'ble Chief Justice. (bold added) PS(P) to Justice MRs, Yasmin Abbasey Learned Registrar Sajjad Ali Shah J "To, The Respected Registrar , High Court of Sindh, Karachi. Respected Sir , It is submitted that on Saturday , the 12th May 2007 at 09:30 a.m. morning in High Court Car No,0131 I was bringing the Honourable Mr. Justice Sajjad Ali Shah to High Court and when reached near Sub-Marine
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Chowk found that way was completely blocked. Many containers -- water tankers were parked at so many places thereby no vehicle and even a person could pass out from them . Therefore, I stopped the vehicle. In the meantime, some armed persons came towards us. At the same time, one Rangers Jeep having a Flag reached there. Other Vehicles/Jeeps in which Rangers personnel were sitting also coming in front and behind the said Flagged Jeep. I drove my vehicle behind the said Rangers vehicles. On the directions of the said Rangers jeep some passage was made and I obtaining the benefit of such passage drove away our vehicle. Thereafter , I also found that at so many places the road was blocked by putting hindrances, but I proceeding continuously by availing passage along with the Rangers jeeps. When Rangers Flagged Jeep entered in their Headquarter then our vehicle remained single and near Shaheen Complex I found that road was again closed through many hindrances. Thereafter , I tried to go out through another way but Saddar YNCA and Zaibun-Nisa street were completely closed. Road was completely closed by standing huge tankers and vacant buses. Thereafter , with the permission of Honourable Judge I turned the vehicle towards Artillery Maidan, but the road was also closed. Lastly , I parked our vehicle inside the police station and then we along with the Honourable Judge reached the High Court on foot. At all places police was deployed but they made excuses to do any help, even when armed persons came towards our vehicle at that time police was standing at the distance of some passage but they did not come to our help. If police wanted then they may help us. They did not help us for unknown reasons. I intended to bring the above details within your notice, therefore, I placed the same. (bold added) Yours obediently , Sd/- Nazeer Hussain Driver of Mr . Justice Sajjad Ali Shah" 9. On the basis of the above note from the Incharge Registrar and various notes of complaints of some of the drivers/staf f of the then sitting Judges of this court a full court meeting was held of all the Judges of this court under the then Chief Justice of the Sindh High Court where the following decision was made on 26-05-2007: "It is respectfully submitted that in the full Court Judges Meeting of this Court held on 22.05.2007, in the Committee Room, it was decided as under:- "The Hon'ble Judges in full Court meeting held on 22.5.2007, have carefully gone through the report dated 21.05.2007 of Incharge Registrar and resolved to suggest that the Hon'ble Chief Justice to take it up as a Constitution Petition, which may be placed for hearing before either the full Court or larger Bench". Copy of minutes of meeting is attached at Flag-F). 2. The Hon'ble Chief Justice has been pleased to convert the Registrar's Report into a Constitutional Petition and also constituted a Full Bench comprising of the following Hon'ble Judges to hear the same. 1. Hon'ble Mr . Justice Sarmad Jalal Osmany . 2. Hon'ble Mr . Justice Anwar Zaheer Jamali. 3. Hon'ble Mr . Justice Mushir Alam 4. Hon'ble Mr . Justice Azizullah M.Memon. 5. Hon'ble Mr . Justice Khilji Arif Hussain. 6. Hon'ble Mr . Justice Maqbool Baqar . 7. Hon'ble Mr . Justice Ali Sain Dino Metlo. 3. The Hon'ble Chief Justice has further been pleased to direct that the matter be placed before Hon'ble Mr. Justice Sarmad Jalal Osmany for appropriate ordeRs, (Copy of order is at Flag-G). Submitted for kind perusal and order . Incharge Registrar Hon'ble Mr . Justice Sarmad Jalal Osmany 10. Thereafter the matter was taken up by the aforesaid constituted 7 member bench headed by Hon'ble Mr. Justice Sarmad Jalal Osmany (as he then was).
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11. Notice was issued to AG Sindh, AGP, CCPO Karachi, Home Sec, IGP Sindh, Chief Secretary , DG RangeRs, On 28.05.2007 which was the first date of hearing notice was also given to the Sindh High Court Bar Association (SHCBA), Karachi Bar Association (KBA), Malir . District Bar Association (MDBA), Vice President Sindh Bar counsel and City Government District Karachi (CGDK). Two eminent lawyers were also appointed as amicus curiae in order to assist the court. Namely Mr .Khalid Anwar and Mr .Qazi Faez Issa. 12. From the order sheets it appears that the court was not attempting to fix criminal responsibility for particular acts which had taken place on 12th May 2007 such as murder , for which separate FIR's had already been registered, but rather to find out whether this was a pre planned operation by the concerned authorities to deliberately prevent the then CJP from travelling from Karachi airport to carry out his pre arranged schedule (with route provided in advance to the Government of Sindh (GOS) both at the Malir District Courts, City courts and High Court and other places where lawyers were gathering to receive him and whether any of the LEA's, government officials (both Federal and provincial) were a part of, or played a role in implementin g this plan which led to both the City courts and High Court being placed under siege by a violent mob (potentially belonging to a particular political party) which led to the obvious and foreseeable result of not only terrorizing the legal fraternity as well as the citizens of Karachi but also denying them their fundamental right of access to justice. The court it appears from the record was not investigating individuals acts of criminality for which separate FIR's had been registered and were under investigation by the concerned investigative agency . Rather it was trying to see as to how the situation arose on 12th May 2007 and if any Governmen t or other official were either directly or indirectly responsible for such a collapse in the law and order situation and denial of access to Justice keeping in view the fact that the provincial Government had advance warning of the then CJP's visit and knew that approx 8,000 lawyers intended to receive him at the premises of the Malir District Bar, City courts and the High Court and had even requested the then CJP to cancel his engagements but quite incredibly it appears had given permission for other political parties some of which were…
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