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Petitioner: ANWAR AHMAD KHAN VS Respondent: THE STATE and another
Court Name: Supreme Court of Pakistan Judge(s): Sajjad Ali Shah, Saleem Akhter, Ajmal Mian Title: ANWAR AHMAD KHAN vs THE STATE and another Case No.: Constitution Petition No, D-2182 of 1993 Civil Petition No, 69-K of 1994 Date of Judgment:1994-05-18 Reported As: 1996 SCMR 24 Result: Leave refused
Judgment ORDER ' SALEEM AKHTAR, J.---The petitioner seeks leave to appeal against the orders passed by learned Judges of the High Court in Constitution listition No,2182/93 praying that adverse orders passed therein may be set aside and the proceedings initiated in the Constitution Petition may be declared illegal, unwarranted and without jurisdiction. 2. The proceedings were initiated by the learned Chief Justice on a letter dated 4-8-1993, received from one Haji Umar, respondent No,2; a fisherman, residing at Kharadar, Lyari, Karachi, complaining that his son Nazir Ahmed had been taken away by Malik Sarwar, ASI of Kharadar Police Station. Who as tortured and has been killed. The letter is reproduced to give a correct picture of the complaint:- "The Honorable Chief Justice High Court of Sindh. Karachi. ' Sir, ' Respectfully it is submitted that on 19-7-1993 at 9-30 a.m. One ASI Malik Sarwar of Kharadar Police Station had captured my son named Nazeer Ahmed and taken him away from the house. For eight days my son was kept in wrongful confinement at Police Station. On 26-7-1993, on the basis of an F.I.R. Lodged in a, theft case, they obtained remand from a Magistrate for seven days. Up to 31-7- 1993, the police officials intensely tortured my son. His both the ears were pulled with plass. They cut hip of my son with blade and sprinkled petrol on it. Skin of both the arms was pealed with saw and blade. His male organ was also pulled with plass. Half portion of body of my son was rendered useless and he could not stand. Police had demanded rupees one lac from me for release of my son, but I could not pay the said amount as I am very poor man. Thereupon, on 31-7-1993, police officials took my son to Magistrate of South Nos.7 and 10 for taking further remand, but the Magistrate refused to give further remand. Due to severe torture, the condition of my son was very
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bad and he was bleeding. The Magistrate sent my son to Landhi Jail and directed the Jail Superintendent to get my son treated in Hospital. The Magistrate directed to the aforesaid ASI of Kharadar Police Station to take my son to Landhi Jail. After seeing the condition of my son, the officials of Landhi Jail refused to keep him in Jail. Police Officials of Kharadar instead of taking him to Hospital, confined my son in a Police Station adjacent to Landhi Jail and handed over him to the personnel of that Police Station. In the same Police Station, my son succumbed to his injuries. The official of the said Police Station informed the officials of the Kharadar P.S. About the death of my son. A.S.I. Sarwar of Kharadar Police Station alongwith his staff members went to the said Police Station, near Landhi Jail and brought the dead body of my son at Kharadar Police Station. In order to save their lives, the officials of Kharadar Police Station cut the hair of my dead son, put nails on his head and cut his entire body with blade and thereafter handed over the dead body of my son to the Civil Hospital stating that my son was Heroin addict and was lying dead on pavement and to keep the dead body of unclaimed. Later, ASI Sarwar of Kharadar Police Station alongwith full mobile force came at my house, caught my elder son named Haji Aziz, gave beating to him and forcibly obtained his signature on a paper. The said police official told Haji Aziz that his brother had died and his dead body can be collected from Civil Hospital. We brought the dead body. At the time of burial, his body was bleeding. No judicial enquiry was conducted about the death of my son. A.S.I. Of Kharadar lives in my Muhallah. He has absconded after the death of my son. Officials of the Police Station are not registering the F.I.R. The officials of Kharadar Police Station have tortured and killed my son aged 25 years. I am an old man of 73 years and I am also a weak man. There is no one to hear my complaint. I request your Honour that judicial enquiry in the cause of death of my son may kindly be ordered. A.S.I. Sarwar and staff members of Kharadar Police Station are murderers of my son. Legal action may be taken against them. Fisherman and grief stricken father. (Sd.) Haji Umar s/o Haji Muhammad." 3. On receipt of this letter, the learned Chief Justice ordered it to be registered as a Constitution Petition and fixed it in Court on 11-8-1993 with notices to the Advocate-General, Sindh and the petitioner. This letter was thus converted into Constitution Petition and proceedings were started by issuing notices to the concerned persons. Haji Umar, respondent No,2, ASI Malik Sarwar of Kharadar Police Station and SHO Anwar Ahmad Khan of the same Police Station, were present. SHO Anwar Ahmed Khan submitted a report which referred to remand report of ACM/FCM, South Karachi, which had clearly mentioned that Nair Ahmed deceased had been tortured by the Investigating Officer. The learned Judges passed the following orders:- "A report has been filed by S.H.O. Anwar Ahmed which shows remand report of A.C.M./FCM, South Karachi in which the ACM has clearly mentioned that the deceased had been tortured by Investigating Officer. There are four cases against deceased Nazir Ahmad and there were two I.Os. One is Malik Sarwar and the other is Abdul Jabbar. A.S.I. Malik Sarwar is present, but ASI Abdul Jabbar is on leave as according to the S.H.O., his father had died. Against ASI Abdul Jabbar also there are serious observations by remanding Magistrate that he had tortured the deceased. Request of police remand by the I.Os was refused and the detenu Was sent to judicial custody. ' S. Sarfraz Ahmed, AA.-G. States that S.D.M. Raisuddin Piracha has been appointed as Magistrate to hold enquiry. He states that instead of S.D.M. a Judicial Magistrate will hold the enquiry. The appointment of Judicial Magistrate instead of S.D.M. Raisuddin will be notified in the next 48 hours. As soon as the judicial enquiry has been completed, the Judicial Magistrate will submit a copy of the report in this case. ' Adjourned to a date in office, to be fixed after 15 days. The enquiry may be completed within 15 days. To come up on 2-9-1993."
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4. On 2-9-1993, the Additional Advocate-General stated that the Judicial Magistrate would complete the inquiry within three weeks' time. The Court adjourned the hearing to 8-9-1993, noting the statement of respondent No,2 that he and his relations are being forced in a highhanded manner to compound the offence and for this reason a short date was given, directing the DSP Eid Gah, Mr. Khursheed Alam, to be present in the Court. On 8-9-1993 the case was adjourned to 9-9- 1993. On this date the Additional Advocate-General appeared with the DSP and request was made for time to complete the Judicial Inquiry. The hearing was thus adjourned to 29-9-1993, when Mr. Khursheed Alam, DSP, informed the Court that the inquiry conducted by him in the cause of death was almost over. He filed his report stating therein that "it has also been proved that deceased was miserably beaten up at P.S. Kharadar which may have resulted in his death." He requested for time to investigate on certain points which he could complete within two days and would further decide as to what action lite would take against the concerned officer. The case was adjourned to 4-10- 1994. On this date, the DSP complained that the complainant party was not cooperating with him for the purpose of identifying accused persons. Mr. Zia Ahmad Awan, Advocate appearing for respondent No,2, undertook that full cooperation would be provided and the case was adjourned to 26-10-1993. The DSP submitted his report on that date when the learned Court also noted the grievance of Mr. Muhammad Iqbal. Advocate, regarding the manner in which the investigation had taken place and also that the real culprits were not shown as accused in the F.I.R. It was also noted that the Judicial Magistrate was also holding an inquiry under section 176, Cr.P.C. And report would be available very shortly. Hearing was thus adjourned to 24-11-1993 expecting that by that time Judicial Inquiry Report of the Magistrate would be available. On 24-11-1993 it seems that the judicial ipquiry report had been completed and the following order was passed:- "Mr. M. A. Awan and Mr. Saifuddin, Advocates for the petitioner with the petitioner Haji Umar present in person. Mr. Abdul Haleem Pirzada A.-G. And Raja M. Irshad, AA.-G. Present. ' The Advocate-General has been apprised of the salient findings of the enquiry conducted by the Enquiry Officer, Dy. Secretary (Police) of the Home Department, appointed by the Home Secretary, in regard to very serious allegations of torture and harassment of peaceful citizens against S.H.O. Anwar Ahmad Khan of P.S Kharadar The report is dated 21-9-1993. Apart from this, there is also a report of the Judicial Enquiry about the death of the son of thy; petitioner while in custody at the hands of police of P.S. Kharadar, while Anwar A. Khan was the S.H.O. According to Judicial Enquiry Report. Sometimes back Anwar/A. Khan was suspended but now it is reported that he has been reinstated and posted as SHO Gadap Police Station. ' Mr. Zia Awan makes grievance that despite the report of the judicial enquiry, only one ASI was arrested and that also very reluctantly, but no action has been taken against others who are prima facie responsible for the death of Nazir Ahmad in police custody. ' At the request of learned A.-G. Sindh, the hearing is adjourned to 2-12-1993, when a statement be made by the learned A.-G. The case will be taken up at 12-00 noon." 5. On 2-12-1993, the learned Advocate-General requested for time which was granted up to 13-12- 1993. However, the Court further recorded the statement of the learned counsel for the petitioner in the following manner:-- "It may be observed that according to the learned counsel for the petitioner, the judicial enquiry was held into the death of Na7ir son of the petitioner Haji Umar and despite the findings in the judicial enquiry under sections 174, 176, Cr.P.C., the deceased having died in police custody, only one ASI was arrested after a complaint of murder had been registered in connection with the death of Na7ir, but the other ASI has still not been arrested. It is further pointed out that there is an enquiry report in this case also of Deputy Secretary of Home Department (Police) and despite such enquiry report, the SHO of P.S. Kharadar has been reinstated and posted at P.S. Gadap. It is further
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pointed out by the learned counsel for the petitioner that the DSP who was the officer in the case against the deceased Nazir has been promoted as S.P. Crimes. ' A copy of this order may be supplied to the learned Advocate-General, Sindh." 6. On 13-12-103 it was noticed that the judicial inquiry had not been completed as recorded in the order dated 2-12-1993 and only statements of witnesses had been recorded. The case was adorned to 16-12-1993. On this 'date the report of the Judicial Magistrate in respect of the death of Nazir Ahmed was made available, copies of which were supplied to Advocate-General and to the Advocate for respondent No,2. The learned Judges noted that the police officers were not present and they were not giving due importance to the case which it deserved. While adjourning the case to 20-12-1993, the following order was passed:-- "To come up on 20-12-1993 at 1-00 p.m. When S.S.P. (South) should be present along with the then Investigating Officer of the case against the police officers, which was registered, pursuant to order passed in this Constitutional petition for the death of the deceased Nazir in police custody. It is informed by Mr. Zia Ahmed Awan that the Investigating Officer in this case of death of Nazir was a DSP at that time but he has since been promoted as S.P. Anti-Corruption, but no interest is being taken either by him or any other Investigating Officer to whom the investigation might have been transferred. It is reiterated that, despite five police officers who are alleged to have been involved in the torture, only one ASI has been arrested and no action has been taken for apprehension of the other four police officers. A copy of this order may be supplied to the office of the Advocate- General, Sindh." 7. On 20-12-1993 the Additional Advocate-General appeared and showed his ignorance about the receipt of the order and the .Case was adjourned to 26-12-1993. On that date Assistant Advocate- General stated that the interim challenged had been filed before the Volta Additional District/Sessions Judge, Karachi South; Mr. Akhtar Siddiqui, DSP CIA/Incharge of the investigation would be completing the remaining investigation and would submit official report within one week. The case was adjourned to 4-1-1994, directing the three police officers to be present on the date of hearing. On 4-1-1994 SSP District South, Karachi, filed a report. The DSP CIA also filed the report and at the request of Mr. Zia Ahmed Awan, the hearing was adjourned. The matter was again taken up on 19-1-1994 when the Additional Advocate-General stated that the petition had served its purpose. However, the learned Judges, constituting the Bench, ordered that the matter may be placed before the learned Chief Justice, with the following observations:-- "According to the learned Additional Advocate-General Sindh, this petition has served its purpose. However, we find that the Bench presided over by the Humble Chief Justice had applied its mind to the controversy in some details. Adjourned, to be placed before such Bench. ' Meanwhile, learned counsel for the petitioner states that the petitioner may also take steps for filing a suit for compensation at the behest of the aggrieved parties against the alleged offenders as well as against the Government of Sindh. If necessary, a private complaint may also be filed." 8. On 10-2-1994 when the matter was taken-up for hearing, the following order was passed:-- "M/s. Zia Ahmed Awan and Muhammad Iqbal Aqeel, Advocate for petitioner Haji Umar, father of deceased Nazir Ahmed. ' Mr. A.-G. Mangi, Additional Advocate-General has placed on record .The report of SSP (South). It is pointed out by learned counsel for the petitioner that the Judicial Inquiry Report places responsibility on the two ASIs, namely ASI Sarwar Ali and ASI Abdul Jabbar and also the then SHO Police Station Kharadar, Anwar Ahmed Khan. Further, officials of the Police Station Kharadar have also been found to be responsible according to the Judicial Enquiry Reports who are:-- (1) ASI Shaikh Shoib Ali, (2) FC Mumtaz Ali.
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Superintendent Landhi Jail, Abdul Majeed Siddiqui and also Chief Warden Chulam Rabbani, Medico-Legal Officer Dr. J. Ramdas have also been found to be responsible according to the Judicial Inquiry ' Report, for the killing of deceased Nazir Ahmad while in custody in a theft case. ' Mr. Zia Ahmad Awan points out that an enquiry was also conducted by the Deputy Secretary of the Home Department (Police) who alio found SHO Anwar Ahmed Khan responsible for the killing of deceased Nazir Ahmed. ' Reference may also be made to the orders passed in this case on 24-11-1993, when Mr. Abdul Haleem Pirzada, A.-G. And Raja M. Irshad, Addl. A.-G. Were present. On that date, Mr. Zia Ahmed Awan had made a grievance that despite the report of the Judicial Enquiry, only one ASI had been arrested and that also very reluctantly but no action had been taken against others who are prima facie responsible for the death of deceased Nazir Ahmed in the police custody. Learned Additional Advocate-General took time to make a statement. The matter again came up before this Court on 2-12-1993, but then again he took time. No statement has been made by the Additional Advocate- General. ' Mr. Zia Ahmed Awan points out that the then SHO Kharadar, during whose tenure Nazir Ahmad died in police custody, had been suspended but, later on, for reasons best known to the Government, specially to the Home Department, the SHO was. Posted as SHO, Police Station Gardap but then again he was suspended but then he was posted for one day at Police Station Kharadar and now he has been posted again back to Gadap P.S. As SHO. ' Despite the report of the Judicial Enquiry and the report of the Enquiry Officer (Deputy Secretary in the Home Department), SSP South had made a statement in writing that the SHO was not involved in connection with the torture on deceased Nazir Ahmad. Mr. Zia Awan complains that only ASI Sarwar Ali and ASI Abdul Jabbar have been made accused in the case and only ASI Sarwar All is in custody, whereas ASI Abdul Jabbar is reported to have absconded. No further Police or Jail Official has been named as an accused in the case. ' Mr. A.G. Mangi may either ask the learned A.-G. To make a positive statement as to why other police officials have not been made accused and arrested in this case including SHO Anwar Ahmed Khan and secondly, why SHO Anwar Ahmed Khan after having been suspended twice, has again been posted as an SHO of Gadap Police Station. In case, the learned Advocate-General is not available, Mr. Abdul Ghafoor Mangi may obtain instructions from the Home Secretary and make a statement in writing signed by the Home Secretary, on the next date, in connection with the clarification required by this Court. ' This case will come up for hearing on 14-2-1994. On the next date, SSP South, Karachi should also be present. ' At this stage, Mr. Arshad Lodhi, Advocate appears stating that the counsel for the petitioner have made an incorrect statement that ASI Abdul Jabbar is an absconder. He states that ASI Abdul Jabbar had surrendered himself before the trial Court on 9-1-1994. It is further informed that the case has been challaned under section 302, P.P.C. Against ASI Sarwar Ali and ASI Abdul Jabbar and he is defending Abdul Jabbar. The statement made by Mr. Arshad Lodhi is taken on record. It is reported that SHO Anwar Ahmed Khan was at one time posted at North Nazimabad and during his tenure, one undertrial prisoner died in custody and this Court directed that a case may be registered against him for killing of the undertrial prisoner in custody. Learned Addl. A.-G. May also make enquiries in this regard. ' A copy of this order may be supplied to the learned Additional Advocate-General." 9. On 14-2-1993 when the matter came up for hearing, it was argued by the learned counsel for the parties when SSP Mr. Muhammad Ramzan Channa stated that the report submitted by him was without going through the inquiry reports as the same were not made available to him in spite of
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the efforts made by him. The case was adjourned to 23-2-1994. After that it was adjourned to 7-3- 1994 and immediately thereafter this petition was filed. 10. Mr. Azizullah K. Shaikh, learned counsel for the petitioner, contended that the High Court had no jurisdiction to interfere with the investigation of the case and further actions taken by the High Court, suo mote, were also without jurisdiction and all orders passed after 19-1-1994 are illegal and without jurisdiction. Reliance was placed on Shahnaz Begum v. The Honorable Judges of the High Court of Sindh and Baluchistan PLD 1971 Supreme Court 677. It was further contended that from the orders passed by the High Court, the entire exercise seems to be to get Anwar Ahmad arrested and registration of a murder case against him, whether there is any evidence or not. It was in view of these contentions that we have reproduced the major part of the orders which have been challenged by the learned counsel for the petitioner. According to the learned counsel, orders passed after 19-1-1994 and other orders from 10-2-1994 to 23-2-1994 are illegal and without jurisdiction. The High Court had initiated the action on the complaint of the father of the deceased Nazir Ahmed, who had alleged illegal arrest and torture leading to his son's death. Under these circumstances and in the facts stated in the complaint, the Court treated it a Constitution petition and issued notices to the concerned parties. This has not been objected to by the petitioner as without jurisdiction because his entire effort seems to be to challenge orders passed after 19-1-1994. From these orders it seems that the judicial inquiry had been instituted and side-by-side Mr. Khursheed Alam, DSP, was also conducting the inquiry into the cause of death. In his report as is reflected from order dated 29-9-1993, he had concluded that "it has also been proved that the deceased was miserably beaten at Police Station Kharadar, which may have resulted the cause of death". Then came judicial inquiry in which the inquiry officer had examined 28 witnesses and in his report, running in 59 pages, concluded as follows:- "In view of the foregoing discussion of the evidence placed before the judicial enquiry, I am of the opinion that: ' A. Deceased Nazeer Ahmed @ Nujo was apprehended from the house between the night of 19-7- 1993, and his brother Haji Abdul Aziz was also apprehended from the house between the night on 19/20-7-1993, and ASI Sarwar Ali, ASI Abdul Jabbar, ASI Sheikh Shoaib Ali and PC Mumtaz Ali are responsible for causing torture/maltreatment, which resulted into his death in Landhi Jail, Karachi, on 3-8-1993 and SHO SI Anwar Ahmad Khan is also equally responsible for this sorrowful incident as the deceased Nazeer Ahmad @ Nujo was tortured/maltreated by said Police personnel with his connivance. ' B. Following staff of Juvenile Jail are responsible for not providing the proper medical treatment to deceased Nazeer Ahmed @ Najo s/o Haji Umar:-- (1) Abdul Majeed Siddiqui, Superintendent Jail. (2) Ghulam Rabbani, Chief Warden. C. MLO Dr. Jai Ram Das is also liable for departmental action for his not preparing the Post-Mortem Report carefully and with full attention and has not mentioned two vital natures of injuries in his Post-Mortem report. ' From the above sorrowful incident which resulted into death of a young man due to torture/maltreatment of police staff of Kharadar Police Station, it appears that some Police Stations are being used as torture cell, not for safety of lives and property of citizens, but to take their lives, which is entirely against the human rights." 11. It may be mentioned that this inquiry was held under the directive of Government of Sindh, Home Department, Karachi, dated '19-8-1993 by which Mr. Muhammad Afzal, Judicial Magistrate-II South, Karachi, was appointed Inquiry Officer to hold judicial inquiry into the alleged maltreatment of Nazeer Ahmad @ Najo by Kharadar Police, resulting into his death in Landhi Jail and the alleged negligence of Jail authorities by not providing medical treatment to the deceased.
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12. After this report was submitted, the learned Advocate-General stated that the purpose of the proceedings had been served meaning thereby that further proceedings could not be taken and - matter should be closed. This was recorded in the order dated 19-1-1994 but the learned Judges did not agree with this request and put off the matter for consideration by the Bench presided over by the learned Chief Justice mainly for the reason that he had been hearing the matter and passed most of the orders in the proceedings. It is this order which, according to learned counsel for the petitioner, should be the end of the matter. The learned Judges had not passed any such order that on submission of the inquiry report the purpose of the petition was served and proceeding be terminated. The petitioner had prayed for due and proper action to be taken against the persons found guilty and causing death of his son by torturing him in the Police Station. It was a serious allegation touching the freedom of citizens and fundamental rights including the dignity of man which had been violated as alleged by the petitioner in his complaint. The purpose of the complaint was not that a judicial inquiry should be held and put the case in the cold storage but his prayer was that guilty should be punished. The learned Judges have exercised their jurisdiction under Article 199 of the Constitution under which proper direction can be given to any person performing functions in connection with the affairs of the Federation or Province to refrain from doing anything he is not permitted by law to do, or to do anything he is by law required to do and also to examine the legality of any action or proceedings taken on a complaint alleging violation of fundamental rights. It was not a habeas corpus petition or proceedings under 491, Cr.P.C. Where on the report of the police, which involves the…
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