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Petitioner: PRESIDENT BALOCHISTANHIGH COURT BAR ASSOCIATION VS Respondent: FEDERATION OF PAKISTAN and others
Court Name: Supreme Court of Pakistan Judge(s): Khilji Arif Hussain, Jawwad S. Khawaja, Iftikhar Muhammad Chaudhry Title:PRESIDENT BALOCHISTANHIGH COURT BAR ASSOCIATION vs FEDERATION OF
PAKISTAN and others Case No.:H.R.C. No,13124-P of 2011, H.R.C. No,40403-P of 2011,H.R.C. No,40220-G of 2011 , CONSTITUTION PETITION NO.77 OF 2010Constitution Petition No,77 of 2010C.M.As. Nos. 42 - 43 of 2012C.M.A. No, 178-Q of 2012C.M.A. No,219-Q of 2012C.M.A. No,431-Q of 2012C.M.A. No,516-Q of 2012C.M.As. Nos.42, 43, 178-Q, 219-Q, 431-Q and 516-Q of 2012C.M.As. Nos.178 and 516-Q of 2012C.M.A. No,3966 of 2012C.M.A. No,524-Q of 2012 Date of Judgment:2012-10-12 Reported As: 2012 SCMR 1958 Result: Order accordingly Judgment ORDER ' IFTIKHAR MUHAMMAD CHAUDHRY, C.J.---The petitioner High Court Bar Association through its President on having witnessed repeated incidents of target killing, kidnapping, abduction for ransom and forced disappearance of the members of Bars, instituted instant petition as the lawyers' lives and properties were not secure. Detail of some of the advocates were noted as follows:-- "That some of the instances relating to the advocates are given below: ' On 15th July, 2010, a senior advocate Mr. Habib Jalib was brutally murdered in front of his house. ' On 7th September, 2010, Mr. Zaman Marri was murdered and his dead body was recovered from Mastung area. ' On 14th September, 2010, three persons were abducted by the law enforcing agencies. ' On 24th September, 2010, dead body of Mr. Sher Ali Kur Advocate was recovered from Khuzdar area, who was abducted on 21st September, 2010 from Quetta. ' On 21st August, 2010, dead bodies of Muhammad Umer and Arz Muhammad were recovered from Quetta.
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' There is not a day, when the print and electronic media do not report the incidents of target killing, kidnapping, abduction for ransom etc. Some of the newspapers, readily available, are attached herewith for the perusal of this Humble Court." ' The lawyers apprehended serious threat not only to their lives and properties but also of the people of Baluchistan as they had been continuously watching in the electronic media and reading in the newspapers about such incidents. Being educated and members of civilized society they resorted to peaceful demonstration etc. But the incidents of target killing, kidnapping, abduction for ransom were continuously happening and increasing day by day, therefore, to enforce the fundamental rights directions were sought to the respondents to protect the lives and properties of the people of Baluchistan and take all such steps on account of which target killing, kidnapping, abduction for ransom etc. Be controlled for the protection of their fundamental right. 2. At the initial stage Hadi Shakeel Ahmad, President of Baluchistan High Court Bar Association stated that in the Province of Baluchistan law and order situation is becoming bad to worse every passing day; virtually, according to him reaching unprecedented heights; the electric and gas installations, roads, railway tracks, bridges etc. Have been left no more safe with ever increasing incidents of rioting, looting, firing, abduction and explosion at the hands of notorious elements and no one including the officers and the members of the law enforcing agencies can safely undertake journey amid such an alarming situation. He also informed that during pendency of the petition Agha Zahid advocate was abducted from Quetta whereas his brother Agha Nadir was earlier abducted. On hue and cry of his abduction Agha Nadir was released and his brother Agha Zahid was abducted. Similarly, Saleem Akhtar and Tahir, advocates while travelling in between Quetta to Sibi and Dhadar through Bolan Pass were abducted. These incidents, according to him, led to the growing unrest in the legal fraternity and the members of the Bars, but no tangible progress has been made so far. 3. It is interesting to note that Mr. Amanullah Kanrani, learned Advocate Supreme Court (now Advocate General of Baluchistan) who was present in the Court during hearing of the proceedings on 25th February, 2011 informed that few days before high-up's of law enforcing agencies like IGP and .The chief Secretary were targeted, fired upon and humiliated. Even Governor of the Province was not spared and attempt was made on his life. Somewhat similar incident took place where the Chief Minister was targeted within Quetta Town. He further added that in another incident D.C. Jhal Magsi and four other officers were abducted and later on released but police officials lost their lives. According to him the situation of law and order is aggravated to such a high level that at times it, has become very difficult for the traffic police to stay on Chowks (squares) on roads to control the traffic and for that purpose minimum three officials armed with rifles were detailed to perform their duty as many officials/police officials have been murdered/targeted. They further stated that people of Baluchistan are dismayed because so far no effective step has been taken by the police, administration as well as Federal Government except issuing hollow statements reiterating to deal with the accused person with iron hands but practically taking no effective measures with object to bring about the improvement. 4. It is to be noted that in the replies, the Secretary Home and Tribal Affairs, Provincial Police Officer/IGP and Director General, I.B., D.G. ISI, Ministries of Interior and Defense, Government of Pakistan have not denied about the deteriorating law and order situation in the Province of Baluchistan. 5. Learned counsel for the petitioner, time and again during pendency of the petition, have reiterated that indeed it is the primary duty of the Provincial and Federal Governments to provide protection to the life, liberty and property of the citizens within terms of Article 9 of the Constitution providing that "no person shall be deprived of life and liberty save in accordance with law" and
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under Article 24(1) of the Constitution, which envisages that "no person shall be deprived of his life, liberty and property, save in accordance with law". 6. It has also be observed that prima facie law enforcing agencies working in the Province seem to be helpless and also there could be no reason to say that the Federal Government is oblivious of such grave situation, prevailing in the Province of Balochistan. It was not less than surprise for us that the Federal Government failed to discharge its duty in terms of Article 148(3) of the Constitution of Islamic Republic of Pakistan as it should have played its role with the cooperation, coordination and hand in hand with the Provincial Government to control and maintain the law and order in the Province. Inasmuch as vide order dated 25-2-2011, the Attorney General was asked to take up this matter with the Prime Minister and explain him the situation of Baluchistan and seek his intervention etc. 7. It may not be out of place to note that as per the contents of the orders, we were informed on 2nd March, 2011 by Mr. Tariq Mehmood, Director ISI that Law Ministry has been briefed in respect of the view point of ISI in a high profile meeting held in the office of Secretary Interior and the Attorney General was aware of the same. Not only this, on said date of hearing (2nd March, 2011) once again it was observed that the situation of-law and order required to be tackled in accordance with the Constitution and Jaw as it is the duty of the Provincial Government and the Federal Government to protect the life and property of the citizens in terms of Articles 9 and 24(1) of the Constitution. Therefore, for ensuring enforcement of this fundamental right guaranteed by the Constitution, both the Governments i,e, Provincial and Federal Governments are duty bound to protect life and property of citizens without any discrimination, the local administration has to undertake the remedial measures for due implementation and to enable the Federal Government to provide all assistance to the Provincial Government. It was further observed that immediate steps are required to be taken to do the needful. The Chief Secretary of the Province was directed to suggest measures to the Federal Government as well as to this Court so we may pass appropriate judicial order to ensure the protection of fundamental rights guaranteed to the citizens of Province of Baluchistan. The Chief Secretary GOB placed on record from time to time the facts and figures in respect of the recovery of mutilated dead bodies, which were found lying in different parts of the Province in abandoned places, numbers of the missing persons, victim of target killings/sectarian killing, number of persons abducted for ransom, numbers of law enforcing agencies personnel including FC, police, levies etc. Who also lost their lives. Similarly the number of the wounded persons both civilian and the members of law enforcing agencies were brought on record. 8. On passing orders from time to time for effecting the recovery of missing persons who, though, had not been produced in the Court but at their own surfaced and came to their homes, details whereof are available on record. 9. The Court directed for the registration of the cases in respect of recovery of mutilated dead bodies and missing persons. Although in the areas which are under control of police and levies for the purpose of maintaining law and order, cases were registered in respect of categories of the commission of crimes noted hereinabove but without any positive investigational results. The hearing of the case took place from time to time and uptil now about 70 hearings have taken place and in the meanwhile besides this petition, 162 Civil Miscellaneous Applications have been registered, most of which have been moved by different persons, claiming about the non-recovery of missing persons. 10. It is to be noted that as far as the episode of the missing persons is concerned, it has become a dilemma as their nears and dears are running from pillar to post spending their energy despite poverty and helplessness but without any success, which aggravated the mistrust not only on law enforcing agencies but also on civil administration. Except, which we noticed at the earlier stage of the effective hearings of the case as per the record, presently more than 100 persons are still
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missing, whereas according to claim of Nasrullah Baloch, who has raised the voice for the missing persons, their numbers are much higher. 11. The situation of law and order has turned worsened day by day on account of which anarchy or unrest is prevailing throughout in the Province, although there is democratic Provincial Government headed by Chief Minister and its Cabinet, who are about 50 along with five Advisors, one Speaker and one Deputy Speaker out of total strength of 65 members of Provincial Assembly, but no one has come forward with a solution of the situation, which is unfortunately prevailing in the Province. 12. In the meanwhile another episode of sectarian killing started, which has intensified the situation of law and order. According to the reports submitted by the administration, following numbers of the sectarian killing has been taken placed during March to August 2012 on record through C.M.A. 445-Q of 2012 by the Home and Tribal Affairs Department on 5-9-2012:-- SUMMARY OF THE TARGET AND SECTARIAN KILLINGS FROM MARCH TO AUGUST, 2012 TotalTypes of Incident Attack on Hazara ShiaAttack on Sunni including UlmasAttacks on FCAttacks on PoliceOther ShiaSettiers KillingOthers No. of Incident21 6 33 26 7 16 16 No. of persons killed46 2033 (7 Civilians)37 14 22 19 No. of persons injured36 67 83 50 8 27 63
It is to be noted that besides the brutal sectarian killing, the target killing including the killing of settlers or the persons who came to Baluchistan for the purpose of earning their livelihood increases manifold. There is no denial of the fact that in repeated incidents the culprits on having get stopped the passenger bus, checked the I.D. Cards, singled out all them, who were found not residents of any of the cities of Baluchistan and killed them brutally by making them to stand in front of killing squads. Similarly, there is no end of incidents, where people of F.C. As well as police and Levies were killed in the same manner brutally. The criminals are free to move anywhere in all parts of the Province without any hindrance and while riding the motorcycles, they use to kill the people but uptil now not a single accused actually involved in the commission of such target killings has been arrested. Similarly, the law enforcing agencies including Police and the Levies are not aware about the killers who had thrown the mutilated bodies of the citizens in different parts of the Province. Failure to maintain the law and order situation by the Police and FC, being the para- military force is visible throughout in the Province though under the law and the Constitution they have to remain within the control and perform duty as envisaged under the law but it appears that they are free to do, whatever they like. In this behalf narration of following incidents is necessary. (a) Reportedly an incident took place in the area of Totak on night between 17th and 18th February, 2011 wherein 30 persons were picked up by the F.C. In presence of Azam Bazai, Tehsildar and their properties were also set on fire. However, later on 14 persons were released but 16 (sixteen) persons were still missing. The explanation/reply was sought from the Tehsildar but he posed that he was totally unaware of the incident but when confronted, he could not deny the happening of incident and started making unnecessary statements. It was also informed to us that there had been meetings between Sardar Ahmad Ali and his sons in the office of then Deputy Commissioner
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Khuzdar (Dr. Parvez Ahmed). According to Brig. Shehzad, DIG, FC the incident took place but it was the exchange of fire between miscreants and the troops. Whereas, the learned counsel for the petitioner claimed that 30 persons were arrested out of whom initially 26 were released and 9 are in the custody of FC. Breakthrough of which is 4 + 5 = 9 as five more persons were arrested after the release of 26 persons including three children of Sardar Ali Muhammad Qalandarani. (b) Similarly, in another incident, in which one Ali Hassan Mengal son of Khan Muhammad was picked up on 4-11-2011 from Wadd. His son Gohar Ali appeared before the Court and stated that his father has been picked up by the FC and he knows the SHO namely Jumma Khan in whose presence his father was picked up. He also named Major Tahir Naveed and Major Nadeem. On the direction of this Court, case was registered. Gohar Ali stated before this Court that he was called in the FC Headquarters Khuzdar, where he was asked that if he will not pursue the matter and cooperate with them, his father would be released but till now his father has not been recovered. (c) Likewise in respect of missing of Abdul Malik son of Abdul Khalil, allegations were on FC for taking 'him away. Inquiry was got conducted by the Sessions Judge Noshki, who in his report concluded as follows:- "FC is in fact a Para--Military Force, if it actually involved in kidnapping/arresting of said missing persons as stated in the statement recorded by the witnesses then it is highly illegal and excess of authority. Police is authorized to arrest any person, who is involved in crime, however, it is necessary to arrest a culprit during searching by FC he may be handed over for interrogation. It is also duty of the abductee family in such cases, when the police is not going to lodge F.I.R., they should approach the competent court of law for lodging the F.I.R." (d) Similarly, F.I.Rs, Nos.36 and 38 of 2012 were lodged wherein it was recorded that FC personnel took away Mehran Baloch along with two persons namely Muhammad Khan Mari and Muhammad Nabi. The incident was witnessed by two traffic police officials (ASI Anijad Hussain and Constable Muhammad Farooq), who stated that all of them were picked up in FC vehicle near Serena Hotel and that vehicle went towards FC Headquarters. Brig. Shehzad undertook before the Court that he will produce these missing persons, however, requested that this fact may not write down in the order and time be given to him to contact the concerned officers. We issued directions time and again to police and FC, inasmuch as, at one stage Brig. Shehzad DIG FC sought time from the Court giving the impression that he was in a position to make a statement about their whereabouts but he did not turn back immediately as such this fact was incorporated in the order dated 11-5-2012. Subsequent thereto, at one stage the police officials succeeded in getting the footage of CCTV, which was displayed in the. Court Room on multimedia in the presence of I.G. FC on 14-5-2012. However, on 1-6-2012 it was sadly reported that on 28-5-2012 three dead bodies packed in gunny bags were found lying in the area of Police Station Shalkot. IG, Police submitted reporting C.M.A. 440-Q of 2012 wherein he has involved the FC with the allegation that FC people are responsible as they pick up the people from time to time. According to the report, in most of the F.I.Rs, allegations were levelled against FC for kidnapping the people. (e) In the matter of Shabbir Ahmad Somalia, who was detained in Brewery Road Police Station along with another person namely Qari Naseer Ahmed the allegation was against the FC personnel that they were taken into custody immediately after their release on 12-10-2009 in presence of Amir Khan Dasti, the then SHO Police Station Brewery. According to the version of Saleem Khatoon, mother of Shabbir Sumalani, the fact of picking up these two persons in front of Police Station was brought into the notice of then SHO, who confirmed the version but could not show any entry in this regard. A report was submitted wherein names of some MI officials were mentioned. The said names were also disclosed to Brig. Shehzad, DIG, FC. Notices were also issued to Shahid Nizam Durrani, the then CCPO Quetta and Abid Nutqani, the then DIG, on whose directions, the above noted persons were detained. In the investigation Shahid Nizam Durrani disclosed the name of one
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Major Moeen to whom he had handed over the custody of above said missing persons. Despite repeated directions, the investigation team has failed to recover the above named missing persons. (f) Likewise in another case allegedly two persons namely Bansra and Kao were forcibly taken away from Dera Bugti by FC and reportedly Kao was handed over to some secret agencies whereas Bansra was taken to Chamman, from where he was allegedly involved in immigration case and he was released after receiving fine from him. He appeared before the Assistant Commissioner, Dera Bugti and recorded statement. Similarly, he also appeared before the Sessions Judge/MIT High Court and confirmed the above fact and also alleged that his brother Kao is in custody of FC in Dera Bugti along with so many other persons regarding whom he stated that they were about 80 persons. Col. Arshad Hussain, Commandant Bambore Rifles was named to be responsible for the same. Despite our direction and cancellation of his leave neither he appeared before this Court nor Kao has been produced. 13. There are so many other allegations on FC for taking away the persons forcibly but few examples have been cited to substantiate that allegations against FC of taking away the persons from different places cannot be overruled. 14. It may be observed that we have repeatedly demanded from all the law enforcing agencies including FC etc. For the production of missing persons and in this behalf categorical directions were made time and again but the orders of producing them were not carried out by simply denying that missing persons are not in their custody. Contrary to it, there is overwhelming evidence as it has been noted hereinabove, on the basis whereof prima facie involvement of FC cannot be overruled. Inasmuch as on 6-2-2012 Mr. Sadiq Umrani, the Provincial Minister to the GOB disclosed the fact about involvement of FC personnel in killing some of the persons on Floor of the House, whose statement was supported by Haji Ali Madad Jatak during the proceedings of the Provincial Assembly, who while making statement had stated that incident of kidnapping of two persons had been shown by him along with Mr. Zafarullah Zahri, Home Minister and Mr. Younas Mulazai, Provincial Minister and next day when they were coming from Qalat to Quetta, they have found dead bodies of the same. Surprisingly, no action was taken on this report. 15. During hearing of the case learned counsel for the petitioner drawn our attention towards the difficulties of the inhabitants and citizens of Dera Bugti, who belong to different tribes after the incident of killing of late Nawab Akbar Khan Bugti and because of conflict between the law enforcing agencies and the tribes, no one can visit Dera Bugti without the permission of the Local Administration and Law Enforcing Agencies. More than half of the population has migrated from there. Therefore the Secretary Home was directed to clear all the hindrances and to submit comprehensive reports in this regard. On 3-9-2012 the Court observed that as far as the Constitution and law is concerned, subject to law, it does not prohibit or restrict any citizen to move in any part of the country wherever they intent to stay without any restriction or objection of whatsoever. The Chief Secretary Balochistan on his own stated that he would be submitting report on this issue after his visit to Dera Bugti. The Chief Secretary visited Dera Bugti and prepared a report, which is reproduced herein below:-- "(a) Dera Bugti, as a civil district is dysfunctional. It appears districts heads mostly remain away from the district headquarters or stay conveniently at Sui. For instance, even the SP of the District prefers to live at Sui rather than at Dera Bugti. The result is obvious. Dera Bugti as a District headquarter is no longer providing service to the local people., (b) Absenteeism of government employees is across the board and not limited to district headquarters or district heads. The District Accounts Officer did not have any idea of how many government functionaries were drawing salaries from the treasury. Maximum absenteeism appeared on the education side.
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(c) Performance of social sectors like education and health appears abysmal. Clean drinking water is not available. There is hardly any road network in the district. Economic sectors like agriculture and livestock do not have much to show. It is obvious why Dera Bugti is one of the poorest districts in the world in terms of economic and human development. (d) The role of PPL and OGDCL etc. Was discussed at length. While people treated these as providers of employment and facilities, maximum complaints were also against these Companies for alleged irregularities. It is true that these Companies should provide service under corporate social responsibility but this should not absolve the provincial government of its duties towards people of Dera Bugatti. (e) During the meeting with waders and notables, everyone stressed that Dera Bugatti was not a no go area. However, there is no doubt that security situation is precarious. The road from Sui to Dera Bugatti was manned and guarded by the FC. There were check posts on the road but everyone insisted they were meant for intercepting miscreants. Visibility of ordinary vehicles plying on the road was significant. Visit by members of Bar Association may give a more accurate picture. However, for ordinary residents of Dera Bugatti there does not appear any problem. There is a general apprehension that members of late Nawab Akbar Bug's family may not be comfortable in travelling to Dera Bugatti. The Waderas of Bugatti tribe openly stated that groups travelling with large numbers of armed guards would not be welcome. In my opinion situation is not such where late Nawab Akbar Bugatti's family members can settle peacefully in Dera Bugatti. ' For this to happen, the Government will have to create an appropriate environment." 16. Mrs. Noor Jehan wife of Mr. Talal Akbar Bugatti filed C.M.A. No,443-Q of 2012 for declaration of orders passed against Bugatti family restricting their movement as null and void. She appeared in person and stated that the administration namely, the FC, MI and ISI are causing hurdles in their movement from Quetta to Dera Bugatti and that they have a constitutional right to have permanent abode in the place of their origin where they have got their estate as well as agricultural property and other interests/benefits but after the assassination of Nawab…
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