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Petitioner: Mahera Sajid VS Respondent: Station House Officer, Police Station Shalimar & 6 others
Court Name: Islamabad High Court Judge(s): Athar Minallah Title: Mahera Sajid vs Station House Officer, Police Station Shalimar & 6 others Case No.: W. P. No.2974/2016 Date of Judgment:2018-07-11 Reported As: 2018 CLC 1858, 2018 CLC 1858, KLR 2018 Criminal Cases 300, 2018 IHC 85 Result: N/A
Judgment ATHAR MINALLAH, J.- The petitioner , namely Mahera Sajid, wife of Sajid Mehmood, has invoked the cons titutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republ ic of Pakistan, 1973 (hereinafter referred to as the 'Constitution' ) asserting that the failure on the part of the respondents and other State functionaries to fulfill their obligations has led to the grave violation of her fundamental rights, which have been guaranteed to every person or citizen by the framers of the Constitution. She has also asserted that the fundamental rights of her husband, namely Sajid Mehmood, son of Capt. Dilawar Khan (hereinafter referred to as the 'Detenu' ), their three young daughters and other family members have also been breached and violated. She has, therefore, invoked the constitutional jurisdiction of this Court for the enforcement of fundamental rights guaranteed under the Constitution. 2. The facts, in brief, are that the petitioner and her husband i.e. the Detenu, are engineers by profession and duly registered as such by the Pakistan Engineering Council. After tying the knot they were blessed with three daughters, namely , Hanaa Sajid, Aymun Sajid and Haadiya Sajid who, at the time of filing this constitutional petition, were 08, 13 and 14 years old respectively . The Detenu was the sole bread earner of the family and his aging parents were also dependent on him. The Detenu was self employed and was, inter alia, engaged in the business of software development. The family appears to have been living happily in House No.13-B, Street No.29, Sector F-10/1, Islamabad. There is nothing on record to show that the Detenu was ever involved in any illegal activity , let alone a crime. There is also nothing on record to even remotely indicat e that he had any enmity or that he was involved in politics or had any connection with any crime. The petitioner and the Detenu had established a firm in order to carry on their lawful business of software development which was duly registered with the Pakistan Software Export Board. The petitioner asserts that on 14-03-2016, around a dozen men, who had come in two vehicles described as "double cabins", forcefully entered their house. Some were wearing masks while others were in uniform, which according to the petitioner resembled that of the special police force. After forcefully entering the
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house they searched the premises and forcibly abducted the Detenu. They also took with them computers/laptops, cell phones and some documents. The crime scene was the home of the petitioner and the Detenu, which is situated in an upscale developed and populated sector of the Capital of Pakistan i.e. Islamabad. The incident had taken place at 06:00 p.m. on 14-03-2016. It is the case of the petitioner that since the persons who had forcibly taken her husband appeared to belong to some security or law enforcing agency of the State, therefore, she expected that she would be informed regarding his whereabouts. However , when no information was received till the next morning she filed a formal written complaint on 15-03-2016 at the Police Station Shalimar , F-10, Islamabad. Admittedly , the detailed narration in the written report was entered in the Daily Diary as rapat no.45, dated 15-03-2016. However , a criminal case was not registered as mandated under section 154 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the 'Cr. P. C.') and thus investigations were not carried out. The father of the Detenu, namely, Capt. Dilawar Khan filed a complaint on 18-06 2016 with the Commission of Inquiry on Enforced Disappearance (hereinafter referred to as the 'Commission'). Pursuant to the direction given by the Commission a criminal case was registered on 05-07-2016 i.e. FIR No.216, dated 05-07-2016, at the Police Station Shalimar, Islamabad. The record shows that a Joint Investigation Team (hereinafter referred to as the 'JZT') was also constituted. When no positive response was forthcoming despite registration of a criminal case and constitution of the JIT, the petitioner invoked the jurisdiction of this Court under Article 199 of the Constitution by filing the instant petition on 03-08-2016. 3. Pursuant to directions given by this Court, written reports were filed by the respondents. Respondents no.6 and 7 i.e. the Inter Services Intelligence and the Military Intelligence submitted their respective reports through the Secretary, Ministry of Defence. The Secretary, Ministry of Interior was also directed vide order, dated 21-09- 2016, to submit a written report, inter alia, identifying the officials who had failed to protect a citizen of Pakistan from being abducted and thereafter refusing to register a criminal case or to investigate the alleged crime in accordance with the law. 4. Mr Tariq Mehmood Jehangiri, ASC, who at the time was President, Islamabad High Court Bar Association, Mr Babar Sattar , ASC and Mr Ahmer Bilal Sufi, ASC were appointed as amici curiae vide order , dated 06-10-2016. This Court had enquired, vide order dated 18-11-2016, whether the Incharge of the Police Station who had refused/failed in his duty to register a criminal case, was proceeded against. An explanation in this regard was sought from the Inspector General of Police, Islamabad Capital Territory . The respondents were reminded regarding their obligations in the light of the law laid down by the august Supreme Court in the case titled 'Muhammad Bashir v. Station House Officer , Okara Cantt. and others' [PLD 2007 SC 539]. It was after the passing of the aforesaid order that show cause notices , dated 28-11-2016, were issued against Mr Qaiser Niaz Gillani, Inspector and Manzoor Ahmed, ASI respectively who, at the time of filing the complaint were posted at the Police Station Shalimar . Both were found guilty of having committed misconduct and were handed down the minor punishment of 'forfeiture of one year approved service' vide order dated 02-06-2017 respectively . A written report was submitted by the Assistant Inspector General of Police (Operations) on behalf of the Inspector General of Police, wherein details regarding progress made in the course of investigations were mentioned. Copies of the letters written to various other officials were also attached with the written report which clearly establishes that they were sent after the filing of the instant petition and the issuance of notices to the respondents. Moreover , regarding the proceedings conducted by the JIT, it was stated that some meetings were held and minutes relating to only two meetings i.e. 21-01-2017 and 16-05-2017 were attached with the report. The minutes of the meeting held on 16- 05-2017 explicitly acknowledges that it was the first meeting of the 'senior JIT'. In the written report it was also mentioned that the Inspector General of Police, Islamabad Capital Territory had chaired a meeting with the members of the JIT and it was concluded that it was a case of "enforced disappearance". It is noted that the JIT was headed by a senior officer of the Islamabad Capital Territory Police and, inter alia, included representatives of the three intelligence agencies, namely , Intelligence Bureau, Military Intelligence and the Inter Services Intelligence. All the members of the JIT, except the representative of the Military Intelligence, had unanimously concluded that it was a case of "enforced disappearance". However , the represen tative of the Military Intelligence had not recorded any reason to disagree with the other members. On 11-04-2017 the Secretary , Ministry of Interior
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and a Senior Joint Secretary of the Ministry of Defence appeared along with the learned Additional Attorney General and sought time in order to make efforts to trace the whereabouts of the Detenu. A written report was submitted by the Secretary , Ministry of Defence stating therein that the intelligence agencies, under the administrative control of his Ministry , had confirmed that the Detenu was not in their custody . 5. The petitioner , through an application, prayed that since the State had failed in its duty to protect fundamental rights guaranteed under the Constitution or to trace her husband, therefore, the respondents be held responsible and that she and her three young daught ers be directed to be compensated because it was an acknowledged fact that the sole bread earner of the family was a victim of involuntary disappearance. She demanded that since she and her children were suffering solely because of failure on the part of the State and its functionaries to protect their fundamental rights, therefore, the latter be directed to pay for the day to day expenses and put her and the three young children in the same position in which they were at the time of the 'enforced disappearance' of the Detenu. She also gave a break up of her expenses which amounted to Rs.117,500/- per month. None of the respondents have contested the said breakup of the amount of expenses demanded by the petitioner . It is her case that she has no independent source of income and that the Detenu was the sole income earner of the household. 6. This Court, after going through the record and reports filed by the respondents, directed the latter to identify the officials who were posted as Chief Commissioner , District Magistrate, Inspector General of Police, Superintendent of Police, Sub Divisional Police Officer and the Incharge of Police Station on the day the Detenu was alleged to have been taken and the Police Station, despite having received a written complaint, preferred not to respond. They were directed to submit their respective affidavits explaining as to why they may not be held responsible for the obvious failure on their part in protecting the fundamental rights of citizens and for failure to fulfill their obligations towards the petitioner , her daughters and the Detenu. Pursuant to the direction of this Court, Mr Zulfiqar Haider , Mr Khalid Khan Khattak, Capt. (R) Mushtaq Ahmed, Mr Bilal Zafar Sheikh and Mr Qaiser Niaz who, at the relevant time i.e. on 14-03-2016, were posted as Chief Commissioner , Islamabad Capital Territory , Inspector General of Police, Islamabad Capital Territory, District Magistrate, Islamabad Capital Territory , Sub Divisional Police Officer and Incharge Police Station Shalimar , respectively submitted separate affidavits under oath. The Secretary , Ministry of Defence also filed his affidavit. None took responsibility for the failure of the criminal justice system in responding to the plight of the petitioner . Not a single official referred to obligations imposed upon him under the law. Interestingly , every official has tried to be evasive and shift the blame on others. Most of them have taken the plea that they had not been informed regarding the incident nor was a written complaint filed till 15-03-2016 by the petitioner . It is ironic that most of these public functionaries, who were holding some of the highest offices of the State, have not hesitated in blaming the petitioner for failing to properly pursue her written complaint. Mr Khalid Khan Khattak, who at that time was holdin g the post of Acting Inspector General of Police in addition to the post of Deputy Inspector General, went to the extent of stating in his affidavit that he was only responsible for the general administration of the police force and that he had "kept his attention mainly towards fulfilling his job related issues and that he exercised powers of Inspector General of Police only in matters of "great importance"'. Likewise the Secretary , Ministry of Defence, in his affidavit, has accused the petitioner of making false assertions regarding the events of 14-03 2016. The relevant portion of his af fidavit is reproduced as follows.- "The Hon'ble Court may appreciate that the alleged incident took place during day time on 14 March, 2016 but ironically Police Station Shalimar, Islamabad which is at a distance of 5 minutes from the place of occurrence was not informed. The Commission and Islamabad High Court were also approached after an inordinate delay of about 5 months. These are all factors, which create suspicion about the actual happening. Hence, the issue needs to be investigated at larger forum i.e. Senior JIT/PTF etc which fall under the domain of Commission of Inquiry on Enforced Disappearances to determine the facts." 7. The three learned amici curiae have also submitted their respective reports. 8. The learned counsel for the petitioner has contended that; the respondents failed to fulfill their obligations imposed under the law and have breached their fiduciary duties towards the petitioner , other immediate members of the family and the Detenu; it is an admitted position that it is a case of enforced disappearance; it is ironic that a criminal case was registered after a direction was issued by the Commission i.e. after a lapse of more than four
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months; even after registration of the criminal case, the investigations carried out were only an eye wash; only two meetings of the JIT were conducted; the disparity in the response of the officials in the case of a similar crime committed against a privileged person or a member of the latter's family and against an ordinary citizen such as the petitioner is obvious from the conduct of the respondents and the record; letters were written by the respondents to other agencies and officials after the instant petition was filed and notices were issued; the affidavit filed by those holding the respective posts at the time of the incident are evasive and makes a mockery of the criminal justice system; the fundamental rights guaranteed under Articles 9, 10, 10A and 23 of the Constitution have been violated. The Chief Commissioner , District Magistrate, Inspector General of Police, Superintendent of Police and the concerned Incharge of Police Station failed to perform their duties and fulfill obligations, inter alia, under the Police Rules, 1934 (hereinafter referred to as the 'Police Rules' ); the breach of duty and failure to fulfill obligations entrusted by the State has led to seriou s violations of the fundamental rights, not only of the petitioner and the Detenue but their three young daughters as well; the officials through their conduct have established that they were complicit; the petitioner and members of the family are entitled as of right to be put in the same financial position as they were when the incident had occurred resulting in the abduction of the only bread winner of the family; reliance has been placed on several judgments cited in the written arguments. 9. The learned Deputy Attorney General has argued that; disciplinary action has been taken against the officials who were found responsible for the delay in registration of the criminal case; penal ties have been awarded against such officials; the matter was not properly pursued by the petitioner or any other family member of the Detenu; the petitioner is not entitled to compensatio n as no such policy exists; the officials of the civil administration of Islamabad Capital Territory had fulfilled their obligations and, therefore, they cannot be held responsible for the abduction of the Detenu; the relevant provisions of the Police Rules prescribe the responsibilities of the respondents, details whereof are mentioned in the written arguments. 10. Mr Umar Hanif Khichi, Advocate, appeared on behalf of Capt. (R) Mushtaq Ahmed, District Magistrate, Islamabad Capital Territory and has argue d that; the latter had fulfilled his obligations and had given strict directions to police officials to conduct proper and transparent investigations; as District Magistrate he has no duty to get involved in the investigations. 11. Mr Tariq Mehmood Jehangiri, ASC assisting as amicus curiae was of the opinion that enforced disappearance is a serious offence and that the State is under an obligation to protect and safeguard the life and liberty of a citizen; in the instant case the respondents have not been able to show that they had fulfilled their obligations in letter in spirit. 12. Mr Babar Satar , ASC (amicus curiae) placed reliance on several judgments from Pakistan and foreign jurisdictions in support of the contention that in an appropriate case, particularly when violation of fundamental rights stands established, constitutional Courts are empowered to direct that affected persons be adequately compensated by the State and its functionaries. The case law has been cited in the written brief which was made part of the proceedings. 13. Mr Ahmer Bilal Sufi, ASC (amicus curiae) submitted his amicus brief and has described in detail the reasons for disappearances; he has explained that on the one hand the State is under an obligation to implement the United Nations Resolution No.1373 which urges for taking effective measures against terrorism and terrorist acts and on the other the State is also under an obligation to uphold human rights as enshrine d in the International Covenant on Civil and Political Rights; the State functionaries are in a difficult situation beca use of the wide spread terrorist activities in Pakistan; Pakistan is passing through a phase where its security is being threatened; this factual aspect was acknowledged by the august Supreme Court in the case titled 'District Bar Association, Rawalpindi and others v. Federation of Pakistan and others' [PLD 2015 SC 401]; no legislation has been enacted keeping in view Article 10(8) of the Constitution; various laws have been enacted whereby persons can be detained lawfully . 14. The learned counsel for the petitioner and the learned Deputy Attorney General have been heard and the record perused with their able assistance. Moreover , this Court has also benefited in rendering this judgment due to the briefs of the amici curiae.
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15. The admitted facts are that the petitio ner had filed a written complaint on the morning of 15-03-2016 narrating therein the facts regarding the alleged abduction of her husband i.e. the Detenu, the previous evening by persons who appeared to be State functionaries, some of whom were in the uniform of some law enforcing agency . They searched the premises and took with them the Detenu, laptops, cellular phones and some documents. Despite the graveness of the alleged incident, the details whereof were explicitly mentioned in the written complaint, the then Incharge of the Police Station, namely , Qaiser Niaz Gillani, Inspector , casually forwarded the same to Manzoor Ahmed, ASI. The latter was satisfied with entering the narrated facts in the Daily Diary as rapat no.45, dated 15-03- 2016, and obviously investigations did not ensue because a criminal case under section 154 of the Cr.P.C was not registered. The incident which allegedly had the characteristics of an 'enforced disappearance' was not amongst the priorities of the administration beca use neither the Chief Commissioner nor the Inspector General were informed. The said officials also appeared the least interested in knowing about the crimes taking place in their jurisdiction because they did not make any enquiry nor had they given instructions that they be kept informed. On 18-06-2016, the father of the Detenu approached the Commission and pursuant to the latter's direction a criminal case was registered, almost after four months from the date of occurrence. 16. Perusal of written reports, affidavits and copies of minutes of meetings placed on record, makes it obvious that the JIT had held only two meetings i.e. on 21-01-2017 and 16-05-2017. The Inspector General of Police had also held a meeting with the JIT and except for the representative of the Military Intelligence all other members had concluded that abduction of the Detenue was a case of 'enforced disappearance'. The officials holding respective public offices at the relevant time have submitted affidavits and none have accepted responsibility for the delay in taking timely action and to effectively investigate the crime. It is also evident from the record that pursuant to registration of a criminal case that too after a considerable delay of almost four months from the date of occurrence, effective investigations were not conducted. The criminal justice system appears to have become active when the instant petition was filed but remained confined to writing letters and holding of a few meetings. Some officials in their affidavits have tried to hold the petitioner responsible for the delay because according to them she did not pursue the case. The Inspector General was of the view that abduction of a citizen from one of the most upscale area of the Capital of Pakistan, refusal of the Incharge Police Station to register a criminal case despite having been informed in writing and failing to promptly and effectively investigate the disappearance of a citizen were not important enough so as to require his attention. The Secretary, Defence who happens to be the administrative head of a Ministry under whose control one of the reputable and competent intelligence agencies are working went to the extent of suspecting the bona fides of the petitioner not realizing that the JIT had unequivocally concluded that it was a case of 'enforced disappearance". The Secretary, Ministry of Interior and a Sr. Joint Secretary of Ministry of Defence appeared on 14-04-2017 and had sought time to make efforts in tracing the whereabouts of the Detenue. They also appear to have got involved with matters which they felt were more important because they did not submit any report nor informed the Attorney General office so as to explain to this Court as to what efforts were made by their respective Ministries. From perusal of the affidavits filed by the Chief Commissioner and the District Magistrate, it is obvious that they felt that they had no responsibility other than giving directions to the police officials. The Chief Commissioner Islamabad Capital Territory is the Executive head who exercises powers vested in a Provincial Government. Likewise, the District Magistrate has powers and responsibilities regarding efficient working of the criminal justice system under the law which he did not refer to in his affidavit. Departmental proceedings were initiated against the Incharge Police Station who had not fulfilled his duty and obligations by promptly registering a First Information Report after this Court had enquired in this regard. The concerned Incharge Police Station was found guilty of misconduct but the authorized officer and the authority considered the lapse so trivial that a mino r penalty was considered sufficient to hold him accountable. The criminal justice system was only responding and reacting to directions given and enquiries made by this Court and otherwise appears to have been unresponsive. Was this response justified when everyone at the helm of affairs had concluded that it was a case of 'enforced disappearance'. Is an 'enforced disappearance' such a trivial matter not important enough to be dealt with as a heinous crime. Should the petitioner and her three young daughters have been made to suffer or was it the responsibility of the former to have vigorously pursued her case so that the
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criminal justice could respond, as has been suggested in some of the reports and affidavits filed by the respondents. Would the Chief Commissioner, Inspector General, District Magistrate, Secretary, Defence, heads of the three intelligence agencies, Secretary, Interior and other concerned functionaries have responded in the same manner had one of their loved ones disappeared under similar circumstances instead of the Detenu? The answer is definitely an emphatic 'no'. The frequency of such constitutional petitions indicates that either public functionaries are, directly or indirectly, complicit or they do not consider such complaints important enough to satisfy the aggrieved persons through prompt and effective response and action so that there is no need for them to invoke the jurisdiction of this Court. Are the public functionaries who are entrusted with the obligations and duties by and on behalf of the State accountable to the citizens when there is an obvious breach thereof? Should the public functionaries respond to a crime against an ordinary citizen and one belonging to the privileged classes differently? Is a citizen entitled to be compensated when the violation of fundamental rights and breach of obligations and duties of the State and its public functionaries stands…
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