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Petitioner: ABDUR RASHID VS Respondent: FEDERATION OF PAKISTAN through Secretary Ministry of Iterior and 6 others
Court Name: Peshawar High Court Judge(s): Waqar Ahmad Seth, Lal Jan Khattak Title: ABDUR RASHID vs FEDERATION OF PAKISTAN through Secretary Ministry of Iterior and 6 others Case No.: Writ Petition No,536-P of 2018 and other connected petitions Date of Judgment:2018-10-18 Reported As: PLD 2019 Peshawar 17 Result: Petitions allowed
JUDGMENT
JUDGMENT WAQAR AHMAD SETH, CJ.---Through this single judgment, this Court intends to decide the instant constitutional petition as well as connected petitions bearing Nos, 535--P/2018, 3794, 3837,4071- 2017,637,866,1812,1841,2084,3417,3458,3460,3563,3461,3498,3434,3440,3441,3506,3556,3617,3675,3741,3855,4035,4079,4128,4184,4231,4238,3416,3381,3331,33 3223,3197,3205,3651,3203,3202,2408,2410,4076,2451,2896,3148,3158,3157,3159,4019,3534,4378,4389,4434,4458,4459,4486,4502,4536,4603,4759,4800,3616,4 P of 2018 as all the convicts/internees have been tried under Pakistan Army (Amendment) Acts, 2015/2017. 2. Brief history of the instant as well as connected W.P. No, 535-P of 2018, are that, one Abdur Rashid son of Aslamay petitioner herein, has filed the petitions with the averment that his both sons namely. Muhammad Haleem and Fazal Haleem / detenues / convicts, were arrested by the Rangers from Karachi, some four years ago, and thereafter they were shifted to Paithom Internment Center, where they used to visit, however, through news- clipping it came to know that both the detenues / convicts have been punished with death sentence, while as per record, so produced, detenues / convicts had joined Tehreek-e Taliban, Swat in the year 2005, received war bounty, motivated locals to join Tehreek-e-Taliban, delivered hatred speeches against security forces and attacked the law enforcement agencies, resulting into casualties, vide FIR No, 148 dated May, 2008, FIR No, 05 dated January, 2009 and FIR No,23 dated May; 2009. Detenues / convicts, after their arrest in December 18, 2014, were interned on 9th and 13th July 2016, in Paithom, Internment Center, where-after during investigation, they confessed the guilt by recording their confessional statement before learned Judicial Magistrate and on commencement of trial both the detenues/convicts were charge sheeted under Pakistan Army Act 1952, amended in 2017 with the following charges:-- First charge. PAA Section-59 against both the accused Committing a civil offence, that is to say attacking the law enforcement agency. In that they, at Nangolai (Swat) on 20th May 2008, along with others, attacked the Nangolai Check Post, by firing with submachine Guns, which resulted into the death of Frontier Constabulary Sepoy Mushtaq Ahmad and injuries to Policemen Izhar ul Amin; and thereby committed an offence punishable under the Pakistan Army (Amendment) Act, 2017. Second charge. PAA Section-59 against both the accused Committing a civil offence, that is to say attacking the law enforcement agency/ Armed Forces of Pakistan In that they, at Nangolai (Swat) on 29th January 2009, along with others, attacked the troops of 14 Northern Light Infantry Regiment and Frontier Constabulary by firing with sub-machine Guns, which resulted into the death of following soldiers; and thereby committed an offence punishable under the Pakistan Army (Amendment) Act, 2017. (a) Naik Sajjad Ali ex 14 Northern Light Infantry Regiment. (b) Lance Naik Nowshad Khan ex Frontier Constabulary. (c) Lance Naik Aslat Khan ex Frontier Constabulary. Third charge. PAA Section-59 against both the accused Committing a civil offence, that is to say an act of terrorism. In that they, at Nangolai (Swat) on 3rd May 2009, along with others committed an act of terrorism while causing grievous damage to Government Boys High School Nangolai, by planting/exploding the explosive, resulting into destruction of said school building; and thereby committed an offence punishable under the Pakistan Army (Amendment) Act, 2017 read with Section 6(2) (c) of the Anti-Terrorism Act, 1997. In order to prove the charge against the detenues/convicts, prosecution produced four witnesses, who were examined and crossed examined and thereafter statement of detenues/convicts were recorded and on conclusion of trial both the detenues/convicts were awarded death punishment. W.P. No, 3794-P of 2017. Brief history of petition filed by Mst. Hameeda wife of Farukhzad is that, her son namely Aftab-ud-Din/detenue/convict, was surrendered to one Col.
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Naeem of 14 NLI Unit Bara Banda on 28.04.2010, and thereafter he was shifted to Paiithom Internment Center, where they used to visit the said Center, however, through news-clipping it came to know that detenue/convict has been awarded death sentence, whereas perusal of record so produced suggests that detenue/convict during the year 2007 and 2008 remained active member of Umar Haqqani Group ex TTS, allegedly used to perform armed guard duties for Tehreek-e-Taliban, Swat in Imam Dheri and Ningolai. On 25th October, 2007, abducted and slaughtered five Police Constables of PS Matta. On 20th May 2008, fired on police check post Ningolai, wherein constable Mushtaq Ahmad, embraced shahadat while two police constables got injured. On October, 5th 2008, looted United Bank Limited, Bara Bandal Branch, and in consequent to the above activities, FIR No, 488 dated 26.10.2007, 148 dated 20.5.2008 and 320 dated 5.10.2008, were lodged against him. Detenue/convict, surrendered on 28th April, 2010, where-after he was interned on 29th March, 2014. During investigation, the detenue/convict confessed the guilt, which was recorded by learned Judicial Magistrate and on commencement of trial, the detenue/convict was charge sheeted with the following charges:- First charge. PAA Section-59 Committing a civil offence, that is to say attacking Law Enforcement Agency. In that he, at Ningolai (Swat) on 20th May 2008, along with others, attacked Police Check Post Ningolai, by firing different with calibers weapons, which resulted into the death of Police Constable Mushtaq Ahmad and injuries to Police Constable Izhar ul Amin and thereby committed an offence punishable under the Pakistan Army (Amendment) Act, 2017. Second charge. PAA Section-59 Committing a civil offence, that is to say possessing fire-arm. In that he, at Ningolai (Swat) on 28th April 2010, was found in possession of following fire-arms; and thereby committed an offence punishable under the Pakistan Army (Amendment) Act, 2017. (a) 2 x Sub-Machine Gun. (b) 1 x Heavy Machine Gun. Third charge. PAA Section-59 Committing a civil offence, that is to say possessing explosives. In that he, at Ningolai (Swat) on 28th April 2010, was found in possession of following explosives; and thereby committed an offence punishable under the Pakistan Army (Amendment) Act, 2017 read with Section 6(2)(c) of the Anti-Terrorism Act, 1997. (a) 240 x rounds of Sub-Machine Gun. (b) 200 x rounds of Heavy Machine Gun. To establish the guilt of detenue / convict, prosecution produced five witnesses, who were examined and crossed examined and thereafter statement of detenue/convict was recorded and on conclusion of trial the detenue/convict was awarded death punishment, which has been confirmed, accordingly. W.P. No, 3837-P/2017. Brief history of petition filed by Munir Shah son of Muhammad Shafiq, resident of South Waziristan Agency is that, his brother namely Shabir Ahmad/detenue/convict, was taken into custody by Security Forces on 07.06.2016, and thereafter he was shifted to Internment Center at Kohat, and through news-clipping it came to know that detenue was awarded death sentence under Pakistan Army (Amendment) Act, 2017, while record so produced, suggests that detenue / convict was an active member of the banned Tahree-e-Taliban. On 22nd March, 2004, at South Waziristan Agency along with Wali and other attacked the convoy on road Tank-Wana near Serwakai Khasaddar Check Post by firing with Kalashnikov (AK-47) and Rocket Propelled Grenade-7, which resulted into death of security forces. At Tangi Barwand (South Waziristan Agency) again during March, 2004, abetted Commander Wali and other in causing death of 4 x soldiers out of 7x abducted soldiers and later on they were slaughtered by holding their legs one by one. The detenue/convict, was arrested from Dajal Check post on 7th June, 2016 and there-after, was interned and during interrogation / investigation, confessed the guilt before Judicial Magistrate, who recorded the same, and on commencement of trial, detenue / convict was charge sheeted with the following charges:- First charge. PAA Section-59 Committing a civil offence, that is to say attacking Armed Forces of Pakistan In that he, at South Waziristan Agency on 22nd March, 2004, along with civilian Wali and others, attacked the convoy of 102 Engineers battalion moving on road Tank-Wana near Serwakai Khasadar Check Post by firing with Kalashnikov (AK-47) and Rocket Propelled Grenade-7, which resulted into death of following officer and soldiers of the said regiment; and thereby committed an offence punishable under the Pakistan Army (Amendment) Act, 2017. a. Maj Adnan Shah. b. Havildar Muhammad Sadiq. c. Naik Sultan Mehmood. d. Lance Naik Khaliq Dad e. Naik (unpaid) Habibur Rehman. f. Sapper Gul Moeed. g. Sapper Ghulam Qasim h. Sapper Manzoor Hussain. i. Sapper Ghulam Sarwar j. Sapper Haider Rehman. k. Craftsman Zahid Hussain Second charge. PAA Section-59 Committing a civil offence, that is to say abetment in causing death of a person. In that he, at Tangi Barwand (South Waziristan Agency), during March 2004, abetted Commander Wali and others in causing death of 4x soldiers out of 7x abducted soldiers of 102 Engineers Battalion, by holding their legs one by one, in consequence of the said abetment, the said soldiers were slaughtered by his (accused) fellow terrorists; and thereby committed an offence punishable under the Pakistan Army (Amendment) Act, 2017.
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To prove charges against the detenue/convict, prosecution produced Four Witnesses, who were examined and crossed examined and thereafter statement of detenue/convict was recorded and on conclusion of trial the detenue/convict was awarded death punishment, which has been confirmed, accordingly. W.P No, 4071-P/2017. Brief history of petition, filed by Mst. Tasleem Bibi wife of Muhammad Saleem, is that her son namely Muhammad Saleem/detenue/ convict, was surrendered to one Maj. Javed in August, 2009, and thereafter he was released, however, again was arrested by Army Personnel and was handed over to PS Kabal, where-after, through post arrest bail, Judge ATC ordered the release of petitioner through bail, but was not released, and again took away by Security forces from jail premises, and went missing, however, through news-clipping it came to know that detenue was awarded death sentence, while record so produced before the Court, would suggest that Internee Muhammad Saleem joined Tehrik-e-Taliban Swat (TTS) and remained an active member of the organization. The Internee was close accomplice of Terrorist Commander Umer and used to guard duties along with other terrorists of the area with his AK-47. The internee is involved in fight against Law Enforcement Agencies in Buner and attached, on security forces, several times and an FIR No, 5 dated 29.1.2009, was lodged in this respect. The Internee was also involved on Army Check Post attack and regularly harboring the offenders after committing anti state activity. The Internee used to collect donation/war bounty from the local. After the arrest on 30th May 2013, the internee was interned on 31st January 2013 and thereafter on commencement of trial was charge sheeted with the following charges:- First charge. PAA Section-59 Committing a civil offence, that is to say attacking the law enforcement agency. In that he, at Nangolai (Swat) on 20th May 2008, along with others, attacked the Police Check Post Ningolai, jointly manned by civil police and troops by firing with weapons of different calibers, which resulted into the death of Sepoy Mushtaq Ahmad and injuries to Sepoy Izhar ul Amin; and thereby committed an offence punishable, under the Pakistan Army (Amendment) Act, 2017. Second charge. PAA Section-59 Committing a civil offence, that is to say attacking the Armed Forces of Pakistan/ Law Enforcement Agency. In that he, at Ningolai (Swat) on 29th January 2009, along with others, attacked the check post Ningolai, by firing with AK-47, which resulted into the death of following 3x soldiers; and thereby committed an offence punishable under the Pakistan Army (Amendment) Act, 2017. (d) Naik Sajjad ex 14 Northern Light Infantry. (e) Lance Naik Noushad Khan ex (f) Lance Naik Aslat Khan ex. Third charge. PAA Section-59 Committing a civil offence, that is to say an act of terrorism. In that he, at Nangolai (Swat) on 30th May 2012, was found in possession of 1x Sub Machine Gun and thereby committed an offence punishable under the Pakistan Army (Amendment) Act, 2017. To establish the guilt of internee, prosecution produced Four Witnesses, who were examined and crossed examined and thereafter statement of internee/convict was recorded and on conclusion of trial the internee/convict was awarded death punishment, which has been confirmed, accordingly. W.P. No, 637-P/2018. Brief history of the petition so filed by Mst. Raheem Begum wife of Sami ur Rehman is that; her husband namely Sami ur Rehman internee/convict, was arrested by security forces on 20.11.2014, and shifted to Fizza Gat Swat, Internment Center, however, through news-clipping it came to know that internee/convict was awarded death sentence, whereas, the record so produced before the Court suggests that internee/convict affiliated with Tehreek-e-Taliban, Swat and involved in number of terrorist activities. In August, 2008, internee/convict participated/abetted the attack by physical planting an Improvised Explosive Device (IED) on Army Vehicles and personnel at Kabal resulting into Shahadat of one officer, Major Muhammad Ehsan and five soldiers and serious injury of five soldiers of 36 Frontier Force Regiment. In October, 2008, participated/abetted the attack by physical planting an Improvised Explosive Device (IED) at Siranai to attack Law Enforcement Agency and later you fired upon the Army vehicles and personnel coming for assistance after the IED attack. In the year 2008 again participated/ abetted the attack by physical throwing grenade on Cedar Golf Club, Kabal; resulting into injury of three soldiers along with damages to the Government property and in consequence to that FIR No, 135 dated 9.5.2008, FIR No, 290 dated 23.8.2008 and FIR No, 337 dated 22.10.2008, lodged against the internee/convict. The internee/convict was arrested on 29th November, 2011 and interned on December, 2011. During investigation/interrogation, internee/convict confessed the guilt, which was recorded by the learned Judicial Magistrate, and on commencement of trial, internee/convict was charge sheeted with the following charges:- First charge. PAA Section-59 against accused No,2. ................................ ................................ Second charge. PAA Section-59 against both accused. Committing a civil offence, that is to say attacking the Armed Forces of Pakistan. In that they, at Kabal (Swat) on 23rd August' 2008, along with others, attacked the Army convoy by planting / exploding an Improvised Device followed by firing with weapons of different calibers which resulted into death of the following one officer and 5 x soldiers of 36 Frontier Force Regiment and injuries to 5 x soldiers of 36 Frontier Force Regiment; and thereby committed an offence punishable under the Pakistan Army (Amendment) Act, 2017. (a) Major Muhammad Ihsan. (b) Sepoy Naseem Iqbal. (c) Sepoy Muqadar Khan. (d) Havildar Muhammad Al Haleem.
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(e) Naik Ghulam Abbas. (f) Sepoy Tasme ur Rehman. (g) Sepoy Abdul Shakoor (Injured) (h) Naik Jaffar Khan (Injured) (i) Havildar Mumtaz Ali (injured) (j) Lance Naik Rehman Khan (injured) (k)Sepoy Sher Nawaz Khan (injured). Third charge. PAA Section-59 against accused No,1 only. Committing a civil offence, that is to say attacking Law Enforcement Agency of Pakistan. In that he, at Sersanai (Swat) on 21st October, 2008, along with other attacked the convoy of Police and Frontier Constabulary by planting an Improvised Explosive Device followed by firing, which resulted into the death of following 1 x police Assistant Sub-Inspector, 1 x Naib Subedar Frontier Constabulary, 3 x soldiers Frontier Constabulary and injuries to 1 x Naib Subedar Frontier Constabulary and 4 x soldiers Frontier Constabulary; and thereby committed an offence punishable under the Pakistan Army (Amendment) Act, 2017. a. Assistant Sub-Inspector Noor Zaman (dead) b. Naib Subedar Hussain Fayyaz (dead) c. Lance Naik Roban Ali (dead) d. Sepoy Gui Wzir (dead) e. Sepoy Badri Zaman (dead) f. Naib Subedar Shams ur Rehman (injured) g. Naik Sadiq Shah (injured) h. Lance Naik Ali Bahadur (injured) i. Sepoy Wahid ur Rehman (injured) j. Sepoy Muhammad Tariq (injured) Fourth charge. PAA Section-59 against accused No,1 only. Committing a civil offence, that is to say attacking the Armed Forces of Pakistan. In that he, at Kabal (Swat) in 2008, along with civilian Ali Shah, attacked the Armed Forces by throwing grenade on Cedar Golf Club, which resulted into injuries to 3 x soldiers of the Armed Forces; and thereby committed an offence punishable under the Pakistan Army (Amendment) Act, 2017. Fifth charge. PAA Section-59 Against accused No,2 only. ........................................ ....................................... To establish the guilt of internee, prosecution produced Four Witnesses, who were examined and crossed examined and thereafter statement of internee/convict was recorded and on conclusion of trial the internee/convict was awarded death punishment, which has been confirmed, accordingly. W.P No, 866-P/2018. Brief history of the petition submitted by Akhtar Ali son of Bakhtiar is that, his brother went missing since 2010 and they were in search of him when through news clipping they came to know that his brother has been awarded death sentence, while as per record so produced, the internee / convict remained involved in various terrorists activities against Law of Pakistan. Internee / convict was involved at Kanju (Swat) during July 2013, abetted terrorist commander Muhammad Khan alias Afghani and others, in causing death of civil Shahi Rahman son of Hanif ur Rehman, member village defence committee, by carrying out reconnaissance and providing accommodation/food to the said terrorists, in consequence of which the said civilian was killed by the said terrorist on 22 July, 2013; the internee at Kanju (Swat) during July, 2013, abetted terrorist commander Muhammad Khan alias Afghani and others, in causing death of civilian Badi ur Rehman son of Firdous, member village defence committee, by carrying out reconnaissance and providing accommodation/food to the said terrorists, in consequence of which the said civilian was killed by the said terrorists on 28 July 2013. and to this effect FIR No, 392 dated 22.7.2013 and FIR No, 403 dated 28.7.2013 have been registered. The internee/convict was arrested on 1st August, 2013 and interned on 4th April 2014, and during investigation recorded his confessional statement before learned Judicial Magistrate, and on commencement of trial, internee/convict was charge sheeted with the following charges:- First charge. PA A Section-59 Committing a civil offence, that is to say abetment in causing death of a person. In that he, at Kanju (Swat) during July 2013, abetted terrorist commander Muhammad Khan alias Afghani and other, in causing death of civilian Shahi Rahman son of Hanif ur Rehman, member of village defence committee, by carrying out reconnaissance and providing accommodation / food to the said terrorist, in consequence of which the said civilian was killed by the said terrorists on 22nd July 2013, and thereby committed an offence punishable under the Pakistan Army (Amendment) Act, 2017. Second charge. PAA Section-59 Committing a civil offence, that is to say abetment in causing death of a person. In that he, at Kanju (Swat) during July 2013, abetted terrorist commander Muhammad Khan alias Afghani and other, in causing death of civilian Bali ur Rehman son of Firdous, member of village defence committee, by carrying out reconnaissance and providing accommodation / food to the said terrorist, in consequence of which the said civilian was killed by the said terrorists on 27th July 2013, and thereby committed an offence punishable under the Pakistan Army (Amendment) Act, 2017. Third charge. PAA Section-59 Committing a civil offence, that is to say possessing fire-arm. In that he, at Kanju (Swat) on 1st August 2013, was found in possession of 2x Sub Machine Guns; and thereby committed an offence punishable under
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the Pakistan Army (Amendment) Act, 2017. To probe the guilt of internee, prosecution produced Four Witnesses, who were examined and crossed examined and thereafter statement of internee/convict was recorded and on conclusion of trial the internee/convict was awarded death punishment, which has been confirmed, accordingly. W.P No, 1812-P/2018. Brief history of the petition filed by Muhammad Ali son of Ali Sher is that, his son Hazrat Ali went missing and he was in search when through news- clipping it came to know that his son was awarded death sentence by Military Court, while as per record so produced, the internee/convict was the cousin of terrorist commander Irfanullah Mehsud of Sararogha, who actively participated in terrorist organization Tahrik-e-Taliban Pakistan (TTP). The internee/convict received training at Barwand Market from Commander Azmatullah Mehsud in April, 2006 and in the year 2007, participated in attack against security forces along with 40 x other terrorist under Command of Irfanullah Mehsud near Government High School Sararogha. In the year 2008, along with other terrorists went to Paktika-Afghanistan, participated in Jihad and stayed there for 2 x months. In the year 2008, suspect also participated in missile/rocket and mortar firing on Sararogha Fort. The internee also accompanied with foreign fighter and two locals mastermind. The internee/convict was arrested on 10th December, 2009 and thereafter on 16th August, 2017, was interned. During investigation/interrogation, internee /convict confessed his guilt by recording his confessional statement before learned Judicial Magistrate, and on commencement of trial on 6.2.2018, the internee/convict was charge sheeted with the following charge:- PAA Section-59 Committing a civil offence, that is to say attacking Law Enforcement Agency. In that he, at Sararogha Fort (South Waziristan) on 15 January, 2008, along with other attacked the troops of 1 Wing South Waziristan Scouts, by firing with different calibers weapons, which resulted into the death of following soldiers of the said Wing; and thereby committed an offence punishable under the Pakistan Army (Amendment) Act, 2017. a. Havildar Wahab Ali. b. Naik Sher Alam. c. Sepoy Muhammad Akram. d. Sepoy Gul Mateen. To probe the guilt of internee, prosecution produced Four Witnesses, who were examined and crossed examined and thereafter statement of internee/convict was recorded and on conclusion of trial the internee/convict was awarded death punishment, which has been confirmed, accordingly. W.P No, 1841-P/2018. Brief history of the petition filed by petitioner Fazal Nabi son of Abdul Mateen is that, his brother, convict/internee Fazal Muhammad, serving as Security Guard was taken into custody by Military Intelligence in December, 2012 and since then he was missing, however, through news-clipping it came to know that brother of petitioner i,e, convict/ internee was awarded death punishment, whereas record so produced before the court would depict that convict/internee joined Tehreek-e-Taliban, Tariq Geedar Group in 2007 and took part in Afghan Jihad. On return to Pakistan, under the Command of terrorist Gul Saeed, attacked Bush Khel Tower, Post, Kohat Tunnel on 25th January, 2008. The convict/internee also in the year 2008 at Torr Chapar, Darra Adam Khel, provided necessary weapons and ammunition to Terrorist Commander Waqar in carrying out attack on security forces post. The convict/internee was arrested on 12 December, 2017 and thereafter interned on 22nd January 2013. During investigation/interrogation, the convict/internee recorded his confessional statement on 20.5.2017 and on commencement of trial charge sheeted with the following charges:- First charge. PAA Section-59 Committing a civil offence, that is to say attacking Armed Forces of Pakistan. In that he, near Kohat, on 25 January, 2008, along with other attacked the Bush Khel Tower post manned by Baloch Regiment by firing with different calibers, which resulted into…
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