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Petitioner: Mst. ROHAIFA through her sons and another VS Respondent: FEDERATION OF PAKISTAN JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Iftikhar Muhammad Chaudhry, Gulzar Ahmed, Sh. Azmat Saeed Title:Mst. ROHAIFA through her sons and another vs FEDERATION OF PAKISTAN
JUDGMENT
Reported As: PLD 2014 Supreme Court 174 Result: Order accordingly Judgment JUDGMENT Constitution Petition No,1 of 2012 ' GULZAR AHMED, J.---Under Article 9 of the Constitution of the Islamic Republic of. Pakistan, 1973, it is a Fundamental Right of every citizen of Pakistan that he shall not be deprived of life and liberty save in accordance with law. State of Pakistan being guardian of its citizen is bound to implement the Constitution provisions in letter and spirit particularly the Fundamental Rights, which are guaranteed by the Constitution. It is also inalienable right of all the citizens that they should be dealt with in accordance with law following the mandate of due process of law as enshrined in Article 10(A) of the Constitution. It may further be elucidated that Article 4 provides "to enjoy the protection of law and to be treated in accordance with law is the. Inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. No person shall be prevented from or be hindered in doing that which is not prohibited by law; and no person shall be compelled to do that which the law does not require him to do". In respect of the safeguard as to arrest and detention Article 10 of the Constitution makes the provision that "no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult and be defended by a legal practitioner of his choice and every person, who is arrested and detained in custody shall be produced before a Magistrate within a period of
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twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the nearest Magistrate, and no such person shall be detained in custody beyond the said period without the authority of a Magistrate". Further in the case of preventive detention this Article provided complete guideline as to the manner and how a detainee is to be dealt with by the authority detaining him. While Article 13 provides that no person shall be prosecuted or punished for the same offence more than once. 2. In the light of the above constitutional guarantees and mandate of the law, we proceed to examine the case in hand. 3. Mst. Rohaifa a widow of Syed Zain ul Abideen, a resident of Lahore has filed this Constitution Petition under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 with the following prayers:-- "It is, therefore, humbly prayed that in the circumstances given herein above this Hon. Court may very graciously be pleased to call for the whole record of the proceedings conducted so far and: (a) direct the respondents to file a complete report before this Hon. Court about the deaths of the three detenues, namely Muhammad Aamir, Tehsin Ullah and Said Arab and the proceedings of trial so far conducted against them and the other surviving detainees; (b) call for the whole record of proceedings and determine, in view of the laws of the land whether the detenues, namely Syed Abdus Saboor, Syed Abdul Basit, Syed Abdul Majid and all the deceased and the surviving detenues were/are subject to Army Act; (c) if the detenues are subject to Army Act, declare that the arrest and detention and the proceedings of trial are not in a lawful manner and direct the Respondents to set the detenues at liberty in the interest of justice and fair play, in case, after probe, it is found that the arrest and proceedings have not been conducted in accordance with law; (d) declare that the derenues were in illegal confinement and subjected to torture; (e) Any other relief this Hon. Court deems proper may also be granted." 4. During the pendency of this petition Mst. Rohaifa expired and in her place the detainees were impleaded as petitioners and the petitioners also sought to be added another prayer, which is as follows: "(e) declare 'Section 2(1)(d)' of Army Act, 1952' and 'Action in Aid of Civil Power Regulations, 2011' ultra vires of the Constitution; 5. The petitioner has alleged that her three sons, namely Syed Abdus Saboor, Syed Abdul Basit and Syed Abdul Majid were picked up on 25-11-2007 by Hasnain Haider, S.H.O., Police Station Shafiqabad, whereafter they became missing and on filing of habeas corpus petition, it was informed that the petitioner's said sons are implicated in the F.I.R. Bearing Nos.670/07, 786/07 and 384/08 and they are being proceeded under the Anti-Terrorist Act. Vide judgments dated 26-11- 2009 and 8-4-2010, the petitioner's sons were acquitted by the Anti-Terrorist Court with direction that they be released forthwith if not required in any other case. It however; transpired that the petitioner's sons before their release were detained under the West Pakistan Maintenance of Public Order Ordinance, (MPO) 1960 for a period of 30 days vide order dated 8-4-2010 and again on 6-5- 2010 by the order of the Secretary. Home Department, Govt. Of Punjab, they were detained for another period of 90 days under Section 11-EEE of the Anti Terrorist Act, 1997. The petitioner assailed both the orders of the detention by way of Writ Petition in the Rawalpindi Bench of the Lahore High Court, who vide order dated 28-5-2010 set aside both the detention orders and directed the detainees to be released forthwith from jail, if not required to be detained in any other offence. At this stage, the petitioner has alleged that on 29-5-2010, the Superintendent Jail, Rawalpindi handed over the custody of the petitioner's said sons along with 8 other persons to respondents Nos.2 and 3, who took them to an unknown place. However one Ateequr Rehman, brother of another detainees filed Writ Petitions Nos.2355, 2366, 2367, 2368 and 2376 of 2010 in the Lahore High Court,
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Rawalpindi Bench. All these Writ Petitions were disposed of with observation that the petitioners may approach the proper forum constituted by this Court for recovery of missing persons. Ateequr Rehman filed C.P. No,1973 of 2010 in this Court against the order of the Lahore High Court, Rawalpindi Bench, which came up for hearing on 6-1-2011 when this Court passed the following order:- "This petition has been filed against the order dated 9-8-2010 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi in Writ Petition No,2355 of 2010. (2) Raja Muhammad Irshad, learned counsel for respondents Nos.2 and 4 states that in response to the order dated 5-1-2011 concerned authorities have instructed him to make statement that arrangements shall be made for arranging meeting between father, mother, daughters and sons of the detainees namely Dr.Niaz Ahmad, Muhammad Aamir, Mazharul Haq, Shafiqur Rehman, Abdus Saboor. Abdul Majid, Abdul Basit, Muhammad Shafiq, Said Arab, Gulroze Khan and Tehseenullah as and when it is so required by them. Learned counsel for petitioner supplied a list of the relatives of the detainees which has been handed over to Raja Muhammad Irshad. However, at the request of Mr.Tariq Asad, learned Advocate Supreme Court who pleaded that in some of the cases, brothers and sisters may also be allowed to meet them. Raja Muhammad Irshad, learned counsel states that they would he accommodated accordingly. As per the background of this case, detailed order in respect whereof was passed on 9-12-2010 which is reproduced herein below for the sake of convenience. The persons named hereinbefore have been traced by the concerned authorities and they are in their custody for the purpose of holding their trials under the Army Act, 1952. "Mr. Raja Muhammad Irshad, learned Senior Advocate Supreme Court, has appeared on behalf of Federation of Pakistan and respondents Nos.2 and 4. He makes a loud and clear statement that impression given to this Court that the Pakistan Army or any one of its functionaries including I.S.I. Etc. Are not amenable to the jurisdiction of this Court, is absolutely wrong impression. According to him some elements who have vested interest, in order to create misunderstanding, have given the impression that Pakistan Army or I.S.I. And any other agency are above the law and have no respect for the courts. He explains that the Pakistan Army, I.S.I. And any other agency are subject to the Constitution and in pursuance whereof hold this Court in highest esteem and that the attempt to create wrong impression may not be adhered to at all as these functionaries always consider themselves bound to follow the orders and the judgments of this Court. 2. Learned counsel states that eleven persons detained in Adyala Jail, after release, were taken into custody by the persons who disguised themselves as officials of the agency and led them to the operational areas of terrorists to make use of their expertise/skill in order to further cause damage by involving them in the terrorist activities. Learned counsel further states that no sooner the notice was issued by this Court, all the responsible machinery of law was moved and a massive operation was carried out and ultimately more than twenty persons including these eleven persons were recovered and taken into custody from the operational areas. Now they are in the custody of Law Enforcing Agencies and are being interrogated as they have got close/deep links with the terrorists operating in different areas of the country. He avers that they are involved in serious terrorists activities like attack on ISI Hamza Camp, GHQ, Defence Installations, explosions and various sites, killing of 3 Star General, causing day in and day out, damage to state properties and that of common man beside killing many of common citizens as well as Army personnel. According to learned counsel they are no longer missing persons and are in custody of Administration/Law Enforcing Agencies and they shall be subjected to law and dealt with in accordance with Army Act. 3. Learned counsel is required to put up his statement in writing in this behalf, for which he requests for adjournment till tomorrow i,e,, 10th December, 2010. Order accordingly.To be taken up Sr. No, I.
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(3) There had been a controversy in respect of non-availability of persons, as such, the petition was filed before the High Court under Article 199 of the Constitution which was dismissed. Since the detainees named above were traced out and a statement to that effect was made by Raja Muhammad Irshad on 9-12-2010 as reproduced hereinabove, that the Pakistan Army or anyone of its functionaries including I.S.I., are amenable to the jurisdiction of this Court and the impression so created earlier to it was dispelled which according to him was made for certain vested interests, therefore, we are of the opinion that the actions of the Pakistan Army or any of their functionaries including are subject to Constitution and law. There was no need of creating such expression because these authorities had also been offering explanation before the various forums in respect of different cases. Be that as it may, as now the expression has been dispelled and all these authorities are subject to Constitution and law, the detainees have also been traced and according to the learned counsel they are subject to law, we are of the opinion that they are no longer in the illegal custody in as much as now their relatives shall also be having meeting with them which shows that law has taken its course, no further action is called for, for the time being. Therefore, petition stands disposed off. Before parting, however, we appreciate the efforts made by Raja Muhammad Irshad for providing assistance to this Court as being a lawyer it is the part of his professional commitment." 6. Further writ petitions were filed and also proceedings in this Court but ultimately in C.P.L.A. No,99 of 2010, on 2-6-2011 the following order was passed:-- "Pursuant to order dated 18-5-2011 learned Attorney General along with Brig. Naubahar, Judge Advocate General are present and pointed out that the detainees were formally arrested in the 1st week of April, 2011 and a case has been registered under section 2(1)(d) of the Pakistan Army Act, 1952 and presently summary evidence is being recorded. It has been assured that no action in deviation of law would be taken and they are fully aware about the provisions as enumerated in Articles 10-A and 13 of the Constitution of Islamic Republic of Pakistan. It is further submitted that if sufficient evidence is lacking they have a good chance of acquittal as well. In view of the categoric statement as made hereinabove at least one thing becomes clear that their detention is under Pakistan Military Act, 1952 as a case has been registered and all the proceedings made so far are in accordance with the provisions as enumerated in above mentioned statute. 2. At this juncture Mr. Tariq Asad, learned Advocate Supreme Court for petitioner has submitted that he intends to file a Constitution Petition for seeking appropriate remedy as the ground of Habeas Corpus is no more available because at the moment it cannot be declared that it is an unlawful detention. Be as it may, Mr. Tariq Asad, learned Advocate Supreme Court may file Constitution Petition in accordance with law for the redressal of his grievance before appropriate forum which would be decided in accordance with law and on its own merits expeditiously. In the light of what has been discussed hereinabove, this petition is disposed of in above terms." 7. A further Writ Petition No,2432 of 2011, filed by Mufti Abdul Baais another son of petitioner in the Islamabad High Court, Islamabad, wherein the Director General, Military Intelligence Detachment, Islamabad filed a short para-wise comments, which as follows: - "It is intimated that all the three detainees with reference to captioned writ petition are held at FATA and are being interned under "Acton in Aid of Civil Power Regulations, 2011 for FATA" ' Pursuant to this statement, the Writ Petition was dismissed so also the CPLA No,1795/2011 by this Court. 8. As no access was being provided to the petitioner's counsel and to the relatives to meet the petitioner's said sons on the order of the learned Islamabad High Court, a meeting was arranged, where the petitioner found that her sons were brutally tortured. It was further learnt that three of the alleged detainees i,e, Muhammad Aamir, Tehseenullah and Said Arab have died and such death
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have taken place on account of brutal torture and symptoms of acute renal failure. The petitioner again desired to meet her sons along with her counsel but it was not responded whereupon this constitution petition was filed with the prayer as already noted above. 9. The respondent No,1 that is Federation of Pakistan has not submitted any reply or concise statement. Respondents Nos.2 to 4 have filed their reply vide C.M.A. No,487 of 2012, while pursuant to the Court orders, the Chief Secretary, Khyber Pakhtunkhwa (KPK) has also submitted his replies/reports regarding the health condition of the detainees and the medical facility, which are being extended to them and the record pertaining to their detention in the Internment Centre under Actions (in Aid of Civil Powers) Regulation, 2011. 10. It may be noted that pursuant to the various orders passed by this Court the petitioner, her counsel and the relatives were allowed regular meetings with the detainees and the detainees were also admitted in the Lady Reading Hospital, where they were provided medical treatment, food and clothing on account of which as reported by the Chief Secretary, KPK and also admitted by the counsel for the petitioner their health and general conditions of their life has improved. Before we deal with the case as per submissions of the learned counsel for the parties, it is considered appropriate to reproduce in extenso the reply of respondents Nos.2-4 (C.M.A. No,487/12), which is as follows: - " 1. That on 6-1-2011, a statement submitted in writing before this Honourable Court in Civil Petition No, 1973 of 2010 is reproduced here under:-- (a) I have the instructions to make this statement on behalf of above respondents that they totally submit to the constitutional authority of the apex Court of the country. They have highest regard and respect for the Honourable Supreme Court of Pakistan. They highly appreciate the efforts being made by the Court to ensure constitutional governance in the Islamic Republic of Pakistan. Let this impression being created by the vested interests that the Army and the ISI have no respect for the orders of the Supreme Court, be dispelled once for all through this categorical statement that the Agencies are accountable and answerable to the Supreme Court of Pakistan. (b) That these eleven persons after their release from Adyala Jail, handed themselves over to the disguised persons as men from agencies, who took them to the terrorists, hideouts in the tribal area, where Army is conducting operations against internal and external militants and terrorists. (c) That entire governmental machinery was in full swing after the orders passed by this Honourable Court in respect of these eleven persons. The Agencies penetrated the entire operational area and carried out the arrests of more than twenty persons including these eleven missing persons from different places of the terrorists' hideouts. All of them are involved in high profile acts of terrorism and militancy. Arrests have been made with the help of local administration. These terrorists are subject to Army Act, 1952, who will be tried by FGCM after proper investigation. They are no longer missing persons and their custody is with the agencies in order to complete the investigation. ' The above noted statement stands reflected in the order dated 6-1-2011, passed by this honourable Court in Civil Petition No, 1973 of 2010. (2) That the said 11 terrorists joined the militants/terrorists in the operational area of FATA. On 25-11- 2010, a group of militants ambushed the convoy of law enforcement agencies and inflicted heavy loss in terms of human lives. The intelligence agencies with the support of law enforcement agencies carried out the arrests of more than 20 militants. The said 11 persons were found to be the same who had joined the militants in their hideouts after they were whisked away from Adyala Jail. (3) That the factum of the arrest of the said terrorists was brought to the notice of this honourable Court, which led to the passing of the order, dated 6-1-2011. The respondent No,4 in order to hold the trial under Army Act, 1952, ordered the investigation but the summary of evidence remained inconclusive due to militants' ferocious and deadly attacks on the Army and other law enforcement
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agencies in the operational area. These attacks resulted into the loss of thousands of lives that include innocent civilians as well as personnel from the law enforcement agencies. The record of casualties and destruction of properties maintained by the concerned law enforcement agencies for the year 2011 is attached herewith. (4) That after the promulgation of Actions (In Aid of Civil Power) Regulations, 2011, orders for the internment of many militants including the said 11 terrorists were passed by the Competent Authority under the relevant provisions of the said Regulation. Since the FATA administration had no infrastructure available in the form of Internment Centers, therefore, the custody of all the said internees remained with the law enforcement agencies. The entire operational area presents the picture of a war like situation. The living conditions afford no proper shelter or subsistence in such inhospitable and hostile atmosphere. Some of the said internees in view of their earlier poor health conditions fell sick and were shifted to the Lady Reading hospital, Peshawar for their treatment. Despite best medical treatment and regular care by the doctors, four persons died in the hospital on different dates. The medical documents including death certificates issued by the hospital authorities show the treatment rendered to the sick cause of death of the deceased are being placed on the record of this Honourable Court. The relatives of the deceased were duly informed and choice was given to them to have the postmortem reports to determine the cause of death, but the offer was declined by the relatives. In two of the four death cases, the relatives, have given in writing, declining to have postmortem done. Other two blatantly refused to have any postmortem done or sign any documents. The allegation of poison and torture, contained in the petition is without any shred of evidence. These are wild, diabolic and vicious allegations against a superior Agency of this country whose members are on oath that they will uphold the Constitution of Islamic Republic of Pakistan. The oath contained in 3rd schedule of the Constitution is reproduced here under: - MEMBERS OF THE ARMED FORCES (Article 244) (In the name of Allah, the most Beneficent, the most Merciful) I, do solemnly swear that I will bear the true faith and allegiance to Pakistan and uphold the Constitution of the Islamic Republic of Pakistan which embodies 'the will of the people, that I will not engage myself in any political activities whatsoever and that I will honestly and faithfully serve Pakistan in the Pakistan Army (or Navy or Air Force) as required by and under the law. [(May Allah Almighty help and guide me (A'meen)]." ' The sacrifices made by the Superior Agency of our country in defending the geographical and ideological frontiers of this country are worth writing in golden words. 5. That regarding the production of the internees before this Honourable Court, the letter sent by the Superintendent Lady Reading Hospital, Peshawar, containing the reasons for non-production of admitted internees is attached herewith. The three internees who are interned at Parachinar in FATA will be produced after the contents of the letter forwarded by the interning authority have been gone through by this Honourable Court. The said letter being highly confidential will be produced before the Court at the time of hearing. 6. That terrorism, militancy and suicide attacks on defence installations have bled the country and the dead and the injured run into thousands. The widows and the orphans having been deprived of their husbands and fathers by acts of terrorism and suicide attacks, are leading their lives in heartrending conditions. There is no one to translate into words their mental agonies and bleeding hearts. The snow-clad mountains of Northern Areas and FATA and the sizzling deserts of Sindh can only find the valiant soldiers of our Army. 7. It will not be out of place to mention that a segment of the people in the media as well as in the "Civil Society" spit venom to damage the reputation and prestige of one of the best armies in the
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world. They are doing so to promote the agenda of the enemies of our country. ' In view of the above, this Honourable Court may be pleased to dispose of the petition with direction to the petitioner to approach the Competent Authority for appropriate legal remedies as provided under the provisions of said Regulation. 11. On 15-4-2013, Brig. Naubahar, Judge Advocate General filed a statement, which reads as follows:-- "The eleven high profile terrorists/militants amongst others were involved in an armed attack on Army convoy at Lawara Mela in Orakzai Agency, on 25th Nov. 2010. In the said attack a soldier had embraced Shahadat and five others were seriously injured. After their apprehension they were subjected to serious investigation for the purpose of establishing their linkages with other militant groups, fighting with the Army in the operational area as well as across the country. The discrete and in-depth investigation led to the startling revelations made by the said militants. On the basis of their statements, arrests of high profile terrorists were carried out. ' Their trial under the provision of PAA, 1952 could not take place due to lack of jurisdiction as relevant provisions relating to trial of civilians are contained in PAA section 2(1)(d), i,e, seducing and espionage. Further, after the passage of 18th Constitutional Amendment, the jurisdiction to try civilians, allegedly involved in attacking Armed Forces installations and assets as was enacted through an Ordinance to amend PAA section 2(1)(d)(iia) stood elapsed. ' Therefore, the militants were interned as per the law. The prosecuting agency had collected sufficient reliable evidence for…
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