Sunday 14 October 2012
Freedom of Speech not a Good Excuse to "Offend Religions"
Friday 21 September 2012
Violent Protest in Pakistan
Thursday 19 January 2012
Right of vote to Overseas Pakistanis
The grant of right of vote to Overseas Pakistanis recently gained prominence in media, when the Prime Minister of Pakistan during his visit to Saudi Arabia, assured Pakistanis living there that they will be given right to vote. Considering the importance and complexity of the issue the Hon’ble Chief Election Commissioner constituted a Committee in February, 2009, comprising officers of the ECP with the mandate to conduct an in-depth study and examination of the issues involved therein with a view to exploring some viable solution. In order to assess the viability of the exercise of right to vote by overseas Pakistanis, the Committee, as an initial step, requested Ministry of Overseas Pakistanis to supply details of expatriate Pakistanis showing their number (male/female) alongwith complete addresses and telephone numbers, if any. In the meanwhile, the aforesaid Ministry sought comments of the ECP on the proposal regarding moving of a Bill seeking amendments in the Constitution providing for creation of additional four seats in the National Assembly and one each in Provincial Assemblies for Overseas Pakistanis giving them representation therein.
2. On receipt of above Reference, the Committee deliberated upon the issue at length with particular reference to its legal, financial and operational aspects and an interim report was sent to the Government with the approval of the Hon’ble CEC, who was pleased to direct that before finalizing the report, consultation be made on the issue with all relevant Ministries/Divisions. In response to our request in this regard, Ministries / Divisions nominated their representatives who have been included in Committee as its Members. The agenda was circulated to all the members of the Committee well before time with a view to have maximum input from all Ministries/Divisions representing in this Meeting. As has been mentioned in the Agenda, we have two main areas for discussion, which are:
1. Whether the representation should be given to overseas Pakistanis in the National and Provincial Assemblies by granting them right of vote and declaring “abroad” as a constituency and if so what legal, financial and operational issues may be involved therein as also its feasibility in view of these issues;
2. Whether the proposed Representation in the National and Provincial Assemblies to Overseas Pakistanis should be given through proportional representation system of party lists being currently used for filling the reserved seats for women and minority communities;
3. It is pertinent to mention that presently the following five methods of voting are being used in the world for out-of-country voting. Since first two methods are in use in Pakistan for General Elections in the country, preference
may be given to these tow methods while considering these options for exercise
-2-
of right to vote by overseas Pakistanis. This will, in a way, facilities the Legislature to amend the existing laws available for internal voting so as to provide for the external voting. Though it is open for the participants to comment on the remaining three methods as well but it may be pointed out that the ECP is of the view that last three options may not be appropriate in the Pakistani context at the moment:
• Personal voting at diplomatic missions or other designated places
• Postal voting
• Voting by proxy
• E-voting; and
• Voting by fax
It may be explained that in 54 countries conventional method of personal voting at a polling station is being used. These polling stations are set up at a diplomatic mission or other designated places. This is by far the most common procedure for external voting. In 25 countries, postal voting is being used. There are 27 countries which use mix voting methods including the exceptional use of voting by fax and e-voting.
EXTERNAL VOTING-THE POSITION IN INDIA, IRAN, AFGHANISTAN AND OTHER NEIGHBOURING COUNTRIES.
1. A comparative overview of external voting practices worldwide shows that out of 214 countries, 115 states and territories allow their electors to cast a vote from abroad. These countries include Afghanistan, Bangladesh, India, Indonesia, Iran and Iraq. However, in countries, where external voting is allowed, there are certain limitations for individuals to be eligible for such external voting. In most of these countries, voting right has been extended only:
• Government officers on official duty abroad;
• The armed forces personnel, diplomats and diplomatic staff; or
• Those persons who have been employed by the government on fixed on fixed contracts
Needless to mention, however, that a restriction that has been imposed by most of the countries on overseas voters is the length of their stay abroad. It means that a voter needs to be away from his or her country for a certain period of time in order to be able to vote from abroad. This limit ranges from 6 months to 19 years.
5. Members of the Committee may not confine themselves to the points given under each aspect i.e legal, operational and financial, rather they are expected to put forward any suggestion that contributes towards value addition and help in finalizing a comprehensive report on the subject.
-3-
ISSUES REQUIRING CONSIDERATION
BY THE COMMITTEE
(A) LEGAL ISSUES
6. The issue would involve legislation. Needless to say that any action for registration of potential voters; conduct of an election to fill the seats reserved for overseas Pakistanis or any other allied matter would be taken in accordance with law and procedures laid down for the purpose, therefore, inter alia, the following areas would require legislation prior in point of time.
• Grant of right of vote to overseas Pakistanis;
• Eligibility criteria for the prospective voters;
• Eligibility criteria for the prospective candidate:
• Appointment of Registration Officers for preparation of Electoral Roll and its updation on day to day basis as well as through annual revision process.
• How the constituency or constituencies will be determined.
• Methodology for election of candidates i.e. whether it will be based upon single member constituency system or some kind of proportional representation;
• Mechanism for decision/resolution of electoral disputes, including appointment of Election Tribunals and their place of holding courts etc.
• Procedure for trial and penalty of electoral offences, which will also provide for the forum in which such prosecutions shall be file;
• Minimum limit of stay abroad of an overseas Pakistani to become eligible for enrolment as voter may also be provided;
• Linking of passport database with Computerized Electoral Rolls System (CERS) for verification antecedents of voters through passports.
• Any other point that is considered appropriate during discussion;
• After the requisite legislation is made, the necessary rules/Standards Operating Procedures (SOPs) may be prepared in the light of such legislation by the Ministry of Overseas Pakistanis.
(B) OPERATIONAL PROBLEMS
7. The most critical part of an election process is the operational problems faced by the ECP while making preparations for the conduct of actual elections, such as availability of updated electoral rolls, establishment of polling stations, appointment of Returning Officers and polling personnel, procurement of election materials, their transportation to the polling sites, printing of requisite Forms, etc., and their distribution, matters concerning election campaign, disposal of complaints/election disputes, trial and disposal of electoral offences, etc. For the aforesaid purpose purpose, it is recommended that the following
-4-
Points may also be kept in view while deliberating upon the issue in the context of operational problems:
Pakistani Diaspora is fairly large (4.733 million), living in 105 countries of the world as per list provided by the M/o Overseas Pakistanis
In view of above, where will Returning Officer be based for the purpose of receiving nomination papers, their scrutiny, etc?
Where the appellate tribunal constituted to hear the appeals arising out of acceptance or rejection of nomination, will be having his seat of office?
If abroad is to be declared constituency, whether the Returning Officer for a single constituency can be more than one Officer, facility Pakistani Diaspora living in countries of different continents?
And if there will be only one Returning Officer, what will be the mode to be adopted by him for receiving nominations form all around the world?
How the electorate for a candidate to a seat in the Provincial Assembly shall be divided into various constituencies, if according to the proposal, a seat is reserved for Overseas Pakistanis in each Provincial Assembly?
Establishment of Polling Stations in Pakistan’s own Embassies and/or consulates; the operational complexities involved in it because of limited number of locations for voting process; considering the draw back of this methodology as it would effectively exclude those voters who are living far away for the embassy and may not reach it without incurring high cost and time involved in travelling to the embassy and the capacity of the embassy building to deal with a large number of voters coming there to cast vote will have to be taken into consideration.
In certain countries political activities are not allowed, what steps can be taken to overcome this problem facilitating candidates to launch their political campaigns?
The issue needs to be seen from another angle as well that if a person stands for a seat in the National Assembly from Australia, how he will run his campaign in Saudi Arabia;
Further, even in countries where political activities may otherwise be allowed, the permission with respect to establishment of polling stations, holding meetings for canvassing and launching political campaigns may have to be obtained from the government of that country.
How the result will be compiled and transmitted to the Election Commission of Pakistan for its final publication? This issue needs to be seen from this particular angle as well that whether the result of seats reserved for overseas Pakistanis will be announced along with the result of general seats in the NA and Pas or it may be done separately? Deliberation on this doubly required in that slightest delay in the announcement of results is resented by the candidates and integrity of the election is challenged.
-5-
8. It is recommended to see the issue from the following perspectives as well as it would help understand the complexity of the issue in a befitting manner:
The grant of right of vote to expatriates is not generally considered to be a democratic standard but is rather an option every democracy has to consider carefully before such citizens are allowed to participate in the electoral process.
It would be appropriate, in the first instance to consider the cost that may incur on the registration of a person; the operational complexities involved in out-of-country voting and the risks attached to over all election process that such voting may present.
Out of country voting operations are more expensive than in-country voting. Experience shows that election conducted inside the country cost in the range of $ 1-2 per register voter, whereas out-of-country voting operations may cost at least between $ 10-30 per voter.
If the right to vote is extended to overseas Pakistanis so as to allow them to cast their votes alongwith voters of the constituency concerned, then while considering the other complexities involved therein, political implications of such right are given due consideration, particularly with reference to the fact that it may be unacceptable to the people that a population that is no longer residing in the country, should have the light to influence the election results, when these people do not have to live with the results of the election on a daily basis.
If the right to vote is eventually granted and an electoral roll containing the names of all expatriate Pakistanis, who are eligible to become voters, is prepared, the next step would be that the Election Commission will have to ensure that materials are delivered in all the countries where expatriate Pakistanis have been extended right to vote; polling stations are established , polling staff is appointed; necessary training for conduct of poll is given to them and the results are returned from all these locations within the time frame given for the purpose in the Election Schedule.
Another aspect is the availability of “equal access” for Pakistani Diasporas which are spread across the world and geographically dispersed within these countries. Providing equal access to the voters from these countries can be incredibly challenging task. If an in-person voting is the methodology to be used, the accusation of bias may be leveled by the politicians claiming that the decisions by the election administration concerning the level of service provided in difficult locations were an attempt to disenfranchise certain groups of voters. Though “equal access” is achievable through absentee voting (postal or internet) methodologies, but these approaches carry other risks and challenges.
Whether all the Overseas Pakistanis are eligible for participation in the out-of-country voting is yet another question? There may be expatriates holding a Pakistani Passport including those who have dual nationality and those who were born there and have obtained the nationality of the country of their birth.
As against in-country voting, the out-of-country voting operations are more susceptible to fraud and perceptions of fraud. Even if in-person voting methodologies are adopted the election process will remain vulnerable to fraud in that the Election Commission of Pakistan will not be in a position to supervise and control the polling process at all locations throughout the world.
-6-
It will also be highly un-likely that the process of out-of-country voting will be observed by independent observers of party agents.
Another approach is the establishment of polling stations in locations where the Diaspora populations are concentrated. However, this approach requires that the polling stations be established out-side of embassy and consulate premises, which allows a much greater level of voting services and a higher level of enfranchisement. The operational complexities involved in setting-up such polling stations, is however, a huge logistic burden.
Further it may be very unusual for a host country to allow another nation to hold its elections on its territory and in most cases such voting may not be allowed by a host country. In any case, this methodology is likely to be the most expensive option for out-of-country voting.
(C) FINANCIAL IMPLICATIONS
9. Out-of-country voting operations are comparatively much more expensive than in-country voting. International experience shows that nationally conducted elections typically cost in the range of $ 1-2 per registered voter. Out of country voting operations often cost at least between 5 to 10 times more than in-country voting, depending on the methodology being used, making cost of %10-30 per voter. This can make the cost of out-of-country voting prohibitively expensive for many nations.
10. The cost of external voting varies with the prevailing conditions. Since grant of right to vote to overseas Pakistanis is a new initiative of the Government of Pakistan, therefore, the external voting programme will have to be set-up from scratch. It is also noteworthy, that at present neither staff has been appointed for this purpose nor requisite structures are in please. Thus visualized, the costs for the proposed external voting programme, might include:
* Security-- of persons, locations, materials, events. Special security arrangements may be needed if there is a perceived risk for the voters and/or ballot papers during the process;
* Staffing-- including recruitment, salaries, training;
* Office Space (it may be necessary to administer the external voting from an office outside the country if there are communications or other infrastructure problems internally);
* Travel-- for oversight and administrative staff:
* Training-- Special training materials and programmes will be needed for both external registration and the external voting itself:
* Registration-- The electoral registration programme;
* Election materials-- the printing of ballot papers, the installation of voting booths and so on;
* Trasnportation of materials-- This can be major expensive, despending on the number of countries involved. It will often be necessary to use couriers in order to meet timeslines (e.g. for returning
2. On receipt of above Reference, the Committee deliberated upon the issue at length with particular reference to its legal, financial and operational aspects and an interim report was sent to the Government with the approval of the Hon’ble CEC, who was pleased to direct that before finalizing the report, consultation be made on the issue with all relevant Ministries/Divisions. In response to our request in this regard, Ministries / Divisions nominated their representatives who have been included in Committee as its Members. The agenda was circulated to all the members of the Committee well before time with a view to have maximum input from all Ministries/Divisions representing in this Meeting. As has been mentioned in the Agenda, we have two main areas for discussion, which are:
1. Whether the representation should be given to overseas Pakistanis in the National and Provincial Assemblies by granting them right of vote and declaring “abroad” as a constituency and if so what legal, financial and operational issues may be involved therein as also its feasibility in view of these issues;
2. Whether the proposed Representation in the National and Provincial Assemblies to Overseas Pakistanis should be given through proportional representation system of party lists being currently used for filling the reserved seats for women and minority communities;
3. It is pertinent to mention that presently the following five methods of voting are being used in the world for out-of-country voting. Since first two methods are in use in Pakistan for General Elections in the country, preference
may be given to these tow methods while considering these options for exercise
-2-
of right to vote by overseas Pakistanis. This will, in a way, facilities the Legislature to amend the existing laws available for internal voting so as to provide for the external voting. Though it is open for the participants to comment on the remaining three methods as well but it may be pointed out that the ECP is of the view that last three options may not be appropriate in the Pakistani context at the moment:
• Personal voting at diplomatic missions or other designated places
• Postal voting
• Voting by proxy
• E-voting; and
• Voting by fax
It may be explained that in 54 countries conventional method of personal voting at a polling station is being used. These polling stations are set up at a diplomatic mission or other designated places. This is by far the most common procedure for external voting. In 25 countries, postal voting is being used. There are 27 countries which use mix voting methods including the exceptional use of voting by fax and e-voting.
EXTERNAL VOTING-THE POSITION IN INDIA, IRAN, AFGHANISTAN AND OTHER NEIGHBOURING COUNTRIES.
1. A comparative overview of external voting practices worldwide shows that out of 214 countries, 115 states and territories allow their electors to cast a vote from abroad. These countries include Afghanistan, Bangladesh, India, Indonesia, Iran and Iraq. However, in countries, where external voting is allowed, there are certain limitations for individuals to be eligible for such external voting. In most of these countries, voting right has been extended only:
• Government officers on official duty abroad;
• The armed forces personnel, diplomats and diplomatic staff; or
• Those persons who have been employed by the government on fixed on fixed contracts
Needless to mention, however, that a restriction that has been imposed by most of the countries on overseas voters is the length of their stay abroad. It means that a voter needs to be away from his or her country for a certain period of time in order to be able to vote from abroad. This limit ranges from 6 months to 19 years.
5. Members of the Committee may not confine themselves to the points given under each aspect i.e legal, operational and financial, rather they are expected to put forward any suggestion that contributes towards value addition and help in finalizing a comprehensive report on the subject.
-3-
ISSUES REQUIRING CONSIDERATION
BY THE COMMITTEE
(A) LEGAL ISSUES
6. The issue would involve legislation. Needless to say that any action for registration of potential voters; conduct of an election to fill the seats reserved for overseas Pakistanis or any other allied matter would be taken in accordance with law and procedures laid down for the purpose, therefore, inter alia, the following areas would require legislation prior in point of time.
• Grant of right of vote to overseas Pakistanis;
• Eligibility criteria for the prospective voters;
• Eligibility criteria for the prospective candidate:
• Appointment of Registration Officers for preparation of Electoral Roll and its updation on day to day basis as well as through annual revision process.
• How the constituency or constituencies will be determined.
• Methodology for election of candidates i.e. whether it will be based upon single member constituency system or some kind of proportional representation;
• Mechanism for decision/resolution of electoral disputes, including appointment of Election Tribunals and their place of holding courts etc.
• Procedure for trial and penalty of electoral offences, which will also provide for the forum in which such prosecutions shall be file;
• Minimum limit of stay abroad of an overseas Pakistani to become eligible for enrolment as voter may also be provided;
• Linking of passport database with Computerized Electoral Rolls System (CERS) for verification antecedents of voters through passports.
• Any other point that is considered appropriate during discussion;
• After the requisite legislation is made, the necessary rules/Standards Operating Procedures (SOPs) may be prepared in the light of such legislation by the Ministry of Overseas Pakistanis.
(B) OPERATIONAL PROBLEMS
7. The most critical part of an election process is the operational problems faced by the ECP while making preparations for the conduct of actual elections, such as availability of updated electoral rolls, establishment of polling stations, appointment of Returning Officers and polling personnel, procurement of election materials, their transportation to the polling sites, printing of requisite Forms, etc., and their distribution, matters concerning election campaign, disposal of complaints/election disputes, trial and disposal of electoral offences, etc. For the aforesaid purpose purpose, it is recommended that the following
-4-
Points may also be kept in view while deliberating upon the issue in the context of operational problems:
Pakistani Diaspora is fairly large (4.733 million), living in 105 countries of the world as per list provided by the M/o Overseas Pakistanis
In view of above, where will Returning Officer be based for the purpose of receiving nomination papers, their scrutiny, etc?
Where the appellate tribunal constituted to hear the appeals arising out of acceptance or rejection of nomination, will be having his seat of office?
If abroad is to be declared constituency, whether the Returning Officer for a single constituency can be more than one Officer, facility Pakistani Diaspora living in countries of different continents?
And if there will be only one Returning Officer, what will be the mode to be adopted by him for receiving nominations form all around the world?
How the electorate for a candidate to a seat in the Provincial Assembly shall be divided into various constituencies, if according to the proposal, a seat is reserved for Overseas Pakistanis in each Provincial Assembly?
Establishment of Polling Stations in Pakistan’s own Embassies and/or consulates; the operational complexities involved in it because of limited number of locations for voting process; considering the draw back of this methodology as it would effectively exclude those voters who are living far away for the embassy and may not reach it without incurring high cost and time involved in travelling to the embassy and the capacity of the embassy building to deal with a large number of voters coming there to cast vote will have to be taken into consideration.
In certain countries political activities are not allowed, what steps can be taken to overcome this problem facilitating candidates to launch their political campaigns?
The issue needs to be seen from another angle as well that if a person stands for a seat in the National Assembly from Australia, how he will run his campaign in Saudi Arabia;
Further, even in countries where political activities may otherwise be allowed, the permission with respect to establishment of polling stations, holding meetings for canvassing and launching political campaigns may have to be obtained from the government of that country.
How the result will be compiled and transmitted to the Election Commission of Pakistan for its final publication? This issue needs to be seen from this particular angle as well that whether the result of seats reserved for overseas Pakistanis will be announced along with the result of general seats in the NA and Pas or it may be done separately? Deliberation on this doubly required in that slightest delay in the announcement of results is resented by the candidates and integrity of the election is challenged.
-5-
8. It is recommended to see the issue from the following perspectives as well as it would help understand the complexity of the issue in a befitting manner:
The grant of right of vote to expatriates is not generally considered to be a democratic standard but is rather an option every democracy has to consider carefully before such citizens are allowed to participate in the electoral process.
It would be appropriate, in the first instance to consider the cost that may incur on the registration of a person; the operational complexities involved in out-of-country voting and the risks attached to over all election process that such voting may present.
Out of country voting operations are more expensive than in-country voting. Experience shows that election conducted inside the country cost in the range of $ 1-2 per register voter, whereas out-of-country voting operations may cost at least between $ 10-30 per voter.
If the right to vote is extended to overseas Pakistanis so as to allow them to cast their votes alongwith voters of the constituency concerned, then while considering the other complexities involved therein, political implications of such right are given due consideration, particularly with reference to the fact that it may be unacceptable to the people that a population that is no longer residing in the country, should have the light to influence the election results, when these people do not have to live with the results of the election on a daily basis.
If the right to vote is eventually granted and an electoral roll containing the names of all expatriate Pakistanis, who are eligible to become voters, is prepared, the next step would be that the Election Commission will have to ensure that materials are delivered in all the countries where expatriate Pakistanis have been extended right to vote; polling stations are established , polling staff is appointed; necessary training for conduct of poll is given to them and the results are returned from all these locations within the time frame given for the purpose in the Election Schedule.
Another aspect is the availability of “equal access” for Pakistani Diasporas which are spread across the world and geographically dispersed within these countries. Providing equal access to the voters from these countries can be incredibly challenging task. If an in-person voting is the methodology to be used, the accusation of bias may be leveled by the politicians claiming that the decisions by the election administration concerning the level of service provided in difficult locations were an attempt to disenfranchise certain groups of voters. Though “equal access” is achievable through absentee voting (postal or internet) methodologies, but these approaches carry other risks and challenges.
Whether all the Overseas Pakistanis are eligible for participation in the out-of-country voting is yet another question? There may be expatriates holding a Pakistani Passport including those who have dual nationality and those who were born there and have obtained the nationality of the country of their birth.
As against in-country voting, the out-of-country voting operations are more susceptible to fraud and perceptions of fraud. Even if in-person voting methodologies are adopted the election process will remain vulnerable to fraud in that the Election Commission of Pakistan will not be in a position to supervise and control the polling process at all locations throughout the world.
-6-
It will also be highly un-likely that the process of out-of-country voting will be observed by independent observers of party agents.
Another approach is the establishment of polling stations in locations where the Diaspora populations are concentrated. However, this approach requires that the polling stations be established out-side of embassy and consulate premises, which allows a much greater level of voting services and a higher level of enfranchisement. The operational complexities involved in setting-up such polling stations, is however, a huge logistic burden.
Further it may be very unusual for a host country to allow another nation to hold its elections on its territory and in most cases such voting may not be allowed by a host country. In any case, this methodology is likely to be the most expensive option for out-of-country voting.
(C) FINANCIAL IMPLICATIONS
9. Out-of-country voting operations are comparatively much more expensive than in-country voting. International experience shows that nationally conducted elections typically cost in the range of $ 1-2 per registered voter. Out of country voting operations often cost at least between 5 to 10 times more than in-country voting, depending on the methodology being used, making cost of %10-30 per voter. This can make the cost of out-of-country voting prohibitively expensive for many nations.
10. The cost of external voting varies with the prevailing conditions. Since grant of right to vote to overseas Pakistanis is a new initiative of the Government of Pakistan, therefore, the external voting programme will have to be set-up from scratch. It is also noteworthy, that at present neither staff has been appointed for this purpose nor requisite structures are in please. Thus visualized, the costs for the proposed external voting programme, might include:
* Security-- of persons, locations, materials, events. Special security arrangements may be needed if there is a perceived risk for the voters and/or ballot papers during the process;
* Staffing-- including recruitment, salaries, training;
* Office Space (it may be necessary to administer the external voting from an office outside the country if there are communications or other infrastructure problems internally);
* Travel-- for oversight and administrative staff:
* Training-- Special training materials and programmes will be needed for both external registration and the external voting itself:
* Registration-- The electoral registration programme;
* Election materials-- the printing of ballot papers, the installation of voting booths and so on;
* Trasnportation of materials-- This can be major expensive, despending on the number of countries involved. It will often be necessary to use couriers in order to meet timeslines (e.g. for returning
Saturday 31 December 2011
Dr Baqir Shah and Aarifa Karim Randhwa
Asghar Mayo
Some days are shocking and some people are unfortunate. Today, I am feeling myself unfortunate, not for any personal reason rather for unfortunate happenings in my surroundings. In fact, I picked my Newspaper to have a glance over headlines but I stopped after two stories on a same page. It was enough to make me gloom. First, story was captioned “Tattling Police Surgeon Silenced” and second read as “Lights dim on a beautiful mind”. These two noblest souls, ever breathed on this land, suffered a terrible ordeal last day; one is killed in day light for telling bitter truths and second suffered at the cruel hands of nature. For me these two persons were miracles, one was exceptionally brave and second was exceptionally intelligent. They were indeed flames of hopes in the dark times.
Dr Baqir Shah came to limelight in context of May 17 Kharotabad Incident as he conducted the post mortem of five foreigners who were killed by security forces. He rejected the assertions of Forces that the foreigners had attacked the police with hand grenades. He wrote what was the truth to the inconvenience of many in power. “Foreigner were not only unarmed but also one woman was pregnant with four months.” Dr Shah conduct autopsy in professional manner despite many pressures. Every truth has price in this society and Dr shah was likely to pay. He was assaulted in a restaurant by uniformed men but nothing from Government came out to punish the assailants. This time he was not fortunate enough to save his life and succumbed to injuries inflicted by unknown assailants. Balochistan is known for unknown killers. Every day bullet ridden bodies are found and go down without satisfactory probe. But this murder should not be treated as ordinary one. His elimination is aimed to win the cause of fear and violence in Balochistan and sanity at the part of Government claims that this cause should not win at any cost.
Moreover this unfortunate incident exposes the vulnerabilities of our society. Acquittal rate is relatively higher and Criminals escape their ultimate fate with much ease due to lack of evidence. People have their reasons for their reluctance to appear as witness. One reason is that Eye witnesses are not safe here and nobody risk his life like Dr Shah for speaking truth.
Second news story is related Aarfia Karim Randhawa who is youngest Microsoft certified Professional. She is proud of this nation and brought good name to Pakistan by securing awards and honor in such a tender age. She is in critical condition and her brain has damaged due to epileptic and cardiac attacks. May Allah save her life by some miracle. Loss of such people should never be individual. Indeed, They are our real assets
Some days are shocking and some people are unfortunate. Today, I am feeling myself unfortunate, not for any personal reason rather for unfortunate happenings in my surroundings. In fact, I picked my Newspaper to have a glance over headlines but I stopped after two stories on a same page. It was enough to make me gloom. First, story was captioned “Tattling Police Surgeon Silenced” and second read as “Lights dim on a beautiful mind”. These two noblest souls, ever breathed on this land, suffered a terrible ordeal last day; one is killed in day light for telling bitter truths and second suffered at the cruel hands of nature. For me these two persons were miracles, one was exceptionally brave and second was exceptionally intelligent. They were indeed flames of hopes in the dark times.
Dr Baqir Shah came to limelight in context of May 17 Kharotabad Incident as he conducted the post mortem of five foreigners who were killed by security forces. He rejected the assertions of Forces that the foreigners had attacked the police with hand grenades. He wrote what was the truth to the inconvenience of many in power. “Foreigner were not only unarmed but also one woman was pregnant with four months.” Dr Shah conduct autopsy in professional manner despite many pressures. Every truth has price in this society and Dr shah was likely to pay. He was assaulted in a restaurant by uniformed men but nothing from Government came out to punish the assailants. This time he was not fortunate enough to save his life and succumbed to injuries inflicted by unknown assailants. Balochistan is known for unknown killers. Every day bullet ridden bodies are found and go down without satisfactory probe. But this murder should not be treated as ordinary one. His elimination is aimed to win the cause of fear and violence in Balochistan and sanity at the part of Government claims that this cause should not win at any cost.
Moreover this unfortunate incident exposes the vulnerabilities of our society. Acquittal rate is relatively higher and Criminals escape their ultimate fate with much ease due to lack of evidence. People have their reasons for their reluctance to appear as witness. One reason is that Eye witnesses are not safe here and nobody risk his life like Dr Shah for speaking truth.
Second news story is related Aarfia Karim Randhawa who is youngest Microsoft certified Professional. She is proud of this nation and brought good name to Pakistan by securing awards and honor in such a tender age. She is in critical condition and her brain has damaged due to epileptic and cardiac attacks. May Allah save her life by some miracle. Loss of such people should never be individual. Indeed, They are our real assets
Thursday 6 October 2011
Detail Judgement Of Supreme Court In Karachi Violence Case
IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
Mr. Justice Iftikhar Muhammad Chaudhry, CJ
Mr. Justice Anwar Zaheer Jamali
Mr. Justice Sarmad Jalal Osmany
Mr. Justice Amir Hani Muslim
Mr. Justice Ghulam Rabbani
SUO MOTU CASE NO. 16 OF 2011
[Suo Motu Action regarding law and order
situation in Karachi]
AND
CONSTITUTION PETITION NO. 61 OF 2011
Watan Party & another
VERSUS
Federation of Pakistan & others
…
…
PETITIONERS
RESPONDENTS
Petitioner: Barrister Zafarullah Khan, ASC
(Const. P. 61/2011)
On Court notice:
Maulvi Anwar-ul-Haq, Attorney General for Pakistan
Syed Ashiq Raza, DAG
Mr. M. Shoaib Shaheen, DAG
Raja Aleem Abbasi, DAG
Ms. Asma Jehangir, ASC/President SCBA
Mr. Anwar Mansoor Khan, Sr. ASC/President, SHCBA
Mr. Abdul Fattah Malik, AG Sindh
Mr. Shahadat Awan, P.G. Sindh
Mr. Wajid Ali Durrani, I.G.P, Sindh
Mr. Saud Ahmad Mirza, Addl. I.G. Sindh
Mr. Anwar Subhani, Legal Consultant
For Province of Sindh:
Mr. Abdul Hafeez Pirzada, Sr. ASC
[assisted by Mr. Abdul Sattar Pirzada, Adv.]
For the Federation:
Dr. Babar Awan, Sr. ASC
Mr. A.S.K. Ghouri, AOR
SMC 16/2011 ETC. 2
For M/o Interior: Mr. Arif Chaudhry, ASC
Mr. A.S.K. Ghouri, AOR
For the applicant: Syed Iftikhar Hussain Gillani, Sr. ASC
(CMA 4108/2011)
For the applicant: Mr. Abdul Mujeeb Pirzada, Sr. ASC
(CMA 531-K/2011) Mr. Mazhar Ali B. Chohan, AOR
Applicants: Mr. Muhammad Aqil, Advocate, President KBA
(CMA 532-K/2011) Syed Haider Imam Rizvi, Advocate, Gen. Secy.
Mr. Iftikhar Javed Qazi, ASC, Vice Chairman
Sindh Bar Council
For the applicant: Mr. Ghulam Qadir Jatoi, ASC/AOR
(CMA 533-K/2011)
For the applicant: Khawaja Naveed Ahmad, ASC
(CMA 535-K/2011) Mr. Mazhar Ali B. Chohan, AOR
For the applicant: Mr. Irfanullah Marwat in person
(in CMA 541-K/2011)
For the applicant: Syed Iqbal Haider, Sr. ASC
(in CMA 544-K/2011) Mr. K.A. Wahab, AOR
For the applicant: Mr. Faisal Kamal Aalam, ASC
(in CMA 546-K/2011) Mr. Ghulam Qadir Jatoi, AOR
For the applicant: Mr. Rasool Bux Palijo, ASC
(in CMA 552-K/2011) Mr. Ghulam Qadir Jatoi, AOR
For the applicant: Mr. Jamil Ahmad Virk, ASC
(in CMA 555-K/2011) Mr. Mazhar Ali B. Chohan, AOR
For the applicant: Mr. Javed Ahmad Chhattari, Adv. In person
(in CMA 558-K/2011)
For the applicant: Mr. Ashraf Samoo, Advocate/ President
(in CMA 560-K/2011) Malir Bar Association
For the applicant: Mst. Surriya in person
(in CMA 561-K/2011)
For the applicant: Dr. Farogh Naseem, ASC
(in CMA 565-K/2011) Dr. Kazi Khalid Ali, ASC
Mr. Izhar Alam Farooqi, AOR
For the applicant: Afaq Ahmed (through Jail)
(in CMA 569-K/2011)
Dates of hearing: 26 & 29-30 August, 5-9 & 13-16 September, 2011
…
SMC 16/2011 ETC. 3
JUDGMENT
IFTIKHAR MUHAMMAD CHAUDHRY, CJ. – Islam
is a religion of peace and tolerance and it stands for safety, security
and sanctity of human life. Islam abhors unlawful killing of innocent
people and strictly prohibits it in a number of Quranic verses and
Ahadith. In Surah Al-Maidah verse 32, Allah says:-
“Because of that, We ordained for the Children of Israel
that if anyone killed a person not in retaliation of murder,
or to spread mischief in the land – it would be as if he
killed all mankind, and if anyone saved a life, it would be
as if he saved the life of all mankind. And indeed, there
came to them Our Messengers with clear proofs,
evidences, and signs, even then after that many of them
continued to exceed the limits (e.g. by doing oppression
unjustly and exceeding beyond the limits set by Allah by
committing the major sins) in the land.”
Some of the other verses of the Holy Quran are as under:-
“And (remember) when We took your covenant (saying):
Shed not the blood of your (people), nor turn out your own
people from their dwellings. Then, (this) you ratified and
(to this) you bear witness.” [Sura Al-Baqarah verse 84]
“And whoever kills a believer intentionally, his recompense
is Hell to abide therein; and the Wrath and the Curse of
Allah are upon him, and a great punishment is prepared
for him.” [Sura An-Nisa verse 93]
The Holy Prophet [SAW] said –
“O People, just as you regard this month, this day, this city
as Sacred, so regard the life and property of every Muslim
as a sacred trust. Return the goods entrusted to you to
their rightful owners. Hurt no one so that no one may hurt
you. Remember that you will indeed meet your Lord, and
SMC 16/2011 ETC. 4
that He will indeed reckon your deeds. … …” [The Farewell
Sermon (Khu.batul-Wada)]
“The biggest sins are: To join others in worship with Allah;
to be undutiful to one’s parents; to kill somebody
unlawfully; and to take an oath Al-Ghamus.” [Sahih
Bukhari, Vol VIII, P.434, Number 667]
“Narrated Abdullah bin Umar: One of the evil deeds with
bad consequence from which there is no escape for the
one who is involved in it is to kill someone unlawfully.”
[Sahih Bukhari, Vol IX, P.2, Number 3]
2. This aspect of the Islamic teachings, as well finds its
reflection in the Constitution of the Islamic Republic of Pakistan 1973.
The Constitution, in its very Preamble, postulates that the principles of
democracy, freedom, equality, tolerance and social justice, as
enunciated by Islam, shall be fully observed and the fundamental
rights, including equality of status, of opportunity and before the law,
social, economic and political justice, and freedom of thought,
expression, belief, faith, worship and association, subject to law and
public morality; shall be fully guaranteed. These very principles have
been made a substantive part of the Constitution under Article 2A.
Thus, it is the duty of the State to protect and safeguard all these
Fundamental Rights including the right to life and liberty as envisaged
by Article 9 of the Constitution, which has been interpreted by this
Court in Shehla Zia’s case (PLD 1994 SC 693) as under: -
“Article 9 of the Constitution provides that no person shall
be deprived of life or liberty save in accordance with law.
The word "life" is very significant as it covers all facts of
human existence. The word "life" has not been defined in
the Constitution but it does not mean nor can it be
restricted only to the vegetative or animal life or mere
SMC 16/2011 ETC. 5
existence from conception to death. Life includes all such
amenities and facilities which a person born in a free
country is entitled to enjoy with dignity, legally and
constitutionally. For the purposes of present controversy
suffice to say that a person is entitled to protection of law
from being exposed to hazards of electromagnetic fields or
any other such hazards which may be due to installation
and construction of any grid station, any factory, power
station or such like installations. Under the common law a
person whose right of easement, property or health is
adversely affected by any act of omission or commission of
a third person in the neighbourhood or at a far off place,
he is entitled to seek an injunction and also claim
damages, but the Constitutional rights are higher than the
legal rights conferred by law be it municipal law or the
common law. Such a danger as depicted, the possibility of
which cannot be excluded, is bound to affect a large
number of people who may suffer from it unknowingly
because of lack of awareness, information and education
and also because such sufferance is silent and fatal and
most of the people who would be residing near, under or
at a dangerous distance of the grid station or such
installation do not know that they are facing any risk or
are likely to suffer by such risk. Therefore, Article 184 can
be invoked because a large number of citizens throughout
the country cannot make such representation and may not
like to make it due to ignorance, poverty and disability.
Only some conscientious citizens aware of their rights and
the possibility of danger come forward.”
3. In case of Arshad Mehmood v. Government of Punjab (PLD
2005 SC 193) also, the Court observed that the word ‘life’ used in
Article 9 of the Constitution includes all such amenities and facilities
which a person born in a free country is entitled to enjoy with dignity,
legally and constitutionally. The word ‘life’ in the Constitution has not
been used in a limited manner; a wide meaning should be given to
SMC 16/2011 ETC. 6
enable a man not only to sustain life but to enjoy it. The State is duty
bound to protect the life and property of its citizens in accordance with
law against all the atrocities, target killings, homicide, etc. The basic
human rights of life, liberty and enjoyment of one’s property have
been recognized nationally as well as internationally. Article 3 of the
Universal Declaration of Human Rights provides that ‘everyone has the
right to life, liberty and security of person’, no one shall be subjected
to torture or to cruel, inhuman or degrading treatment or punishment;
everyone has the right to recognition everywhere as a person before
the law; and all are equal before the law and are entitled without any
discrimination to equal protection of the law. Article 17 ibid lays down
that ‘every one has the right to own property alone as well as in
association with others. It is worth mentioning here that no society can
make any progress in a state of chaos and disorder. It is manifest to
hypothesize that the law and order condition prevailing in a country
has a direct and significant bearing on the pace and pattern of
economic development of that country. The existence of basic socioeconomic
framework of the country and the continuation of economic
growth without any hindrance or interruption depends upon
subsistence of better law and order situation. In case of break-down of
peace on account of any factors negative effect is exerted on the
economic growth. Better law and order as a determinant of economic
development was spelled out in explicit terms in the theories of growth
advanced by economists such as J.J Spangler and W. W. Rostow. In
his Theories of Socio-economic Growth, Problems in the Study of
Economic Growth, 1949, J.J. Spangler has mentioned that the
structure of the prevalent value system of a community can
reasonably be considered as an important condition of law and order,
SMC 16/2011 ETC. 7
because the value system defines the basic norms and ethos of human
conduct. For example, if the value system of a society is predominated
by sectarian or ethnic dispensations, then such a society would be
continuously ridden by law and order problems, thus putting frequent
twists and turns to the process of economic growth. W.W. Rostow, in
Politics and the Stages of Growth, 1971, has extended the theme of
stage, ‘propensities’ and their linkages to the role of political factors,
institutions and the law and order framework in determining the
pattern of economic growth. The primary tasks of any legal
government are defined as the provision of security, welfare and
growth, and constitutional order. Thus there is a clear cut
interconnection between law and order and economic development.
4. Article 14 of the Constitution of Pakistan ensures dignity of
every individual. In the case of ‘Commissioner of Income Tax v. Eli
Lilly Pakistan’ reported as 2009 SCMR 1279, this Court observed that:
“It is the duty and obligation of the State on account of the
various provisions of the Constitution to provide the
atmosphere based on honesty by providing equal
protection of law. Every citizen must be treated equally,
dignity of human being life should be maintained, and
liberty of life and honour must be guaranteed as envisaged
in the Articles 9, 14 and 25 of the Constitution.”
5. Articles 15 and 18 of the Constitution, respectively relate
to freedom of movement etc. and freedom of trade, business or
profession and have been interpreted by this Court in the case titled
“Government of Pakistan v. Zamir Ahmad” reported as PLD 1975 SC
667, in the following words: -
“Article 18 of the Constitution of Pakistan, which relates to
the freedom of trade, business or profession, which
corresponds to Article 15 of the interim Constitution, and
SMC 16/2011 ETC. 8
which incidentally held the field at the relevant time,
assures the citizens the right to enter upon any “lawful
profession of occupation” and “to conduct any lawful trade
or business”. It is important to point out that the word
“lawful” qualifies the right of the citizen in the relevant
field. This clearly envisages that the State can by law ban
a profession, occupation, trade or business by declaring it
to be unlawful which in common parlance means anything
forbidden by law. Prostitution, trafficking in women,
gambling, trade in narcotics or dangerous drugs are
common place instances of unlawful profession or trade.
These are inherently dangerous to public health or welfare.
Therefore, on the wording of Article 18 of the Constitution,
the right to enter upon a profession or occupation or to
conduct trade or business can hardly be described to be a
Constitutional or Fundamental Right when such right may
be denied by law. In this respect our Constitution stands in
sharp contrast with the corresponding provision of the
Indian Constitution which omits the use of word “lawful” in
the relevant Provision.”
The same principle was enunciated by this Court in the case of Arshad
Mehmood (supra). This Court observed that the Government has the
authority to regulate a lawful business or trade. Reasonable restriction,
however, does not mean prohibition or prevention completely. Article
24(1) of the Constitution envisages that no person shall be deprived of
his property save in accordance with law.
6. Any democratic set up consisting of citizens and
functionaries in the country under the Constitution is bound to show its
loyalty to the State, for to be loyal and faithful to the State is the basic
duty of every citizen under Article 5 of the Constitution. This Court in
the case of Shahid Orakzai v. Pakistan through Secretary Law (PLD
2011 SC 365) held that Article 5(2) of the Constitution has mandated
that obedience to the Constitution and law is the inviolable obligation
SMC 16/2011 ETC. 9
of every citizen wherever he may be and for every other person for the
time being within Pakistan. The chosen representatives, who have
acquired authority on behalf of their electors as members of the
National Assembly, Senate or Provincial Assemblies as per mandate of
their oath, which they take before entering upon office, are bound to
bear true faith and allegiance to Pakistan. The oath of the office of
members of the National Assembly and Senate as set out in the Third
Schedule provides that the members will perform their functions
honestly, to the best of their ability, faithfully and in accordance with
the Constitution and law; that they will act in the interest of the
sovereignty, integrity, solidarity, well-being and prosperity of Pakistan
and they will preserve, protect and defend the Constitution. Therefore,
while holding a constitutional office, the chosen representatives of the
people have to remain true to their oath and to observe constitutional
limits in all circumstances.
7. As per the scheme of the Constitution, all the federating
units, namely, Balochistan, Khyber Pakhtunkhwa, Punjab and Sindh
are the essential components of the Federation by virtue of the
parliamentary system of government prevalent in the country. The
Federal Government is being run through Prime Minister and Federal
Ministers and their executive authority extends to the matters with
respect to which Parliament has power to make laws, etc. Similarly
the Provincial set-up is being run through Chief Minister and the
Provincial Ministers. The Governor of a Province is to be appointed as
per Article 101 by the President on the advice of the Prime Minister. It
is to be noted that the Governor who is holder of a constitutional post
and acts as the agent of the President, has to keep the Federation
SMC 16/2011 ETC. 10
informed of the affairs of the Province, although as per Article 105, the
Governor shall act on the advice of the Cabinet or the Chief Minister.
8. Under Article 130 of the Constitution the Chief Minister of
the Province has to be elected by the votes of the majority of the total
membership of the Provincial Assembly. The member who gets
majority votes of the total membership shall be called upon by the
Governor to assume the office of the Chief Minister and holds office
during the pleasure of the Governor, however, at any time, if the
Governor is of the opinion that the Chief Minister is not commanding
majority in the House, he shall summon the Provincial Assembly and
require the Chief Minister to obtain a vote of confidence from the
Assembly. The Chief Minister shall cease to hold office if a resolution
for vote of no-confidence is passed by a majority of the total
membership of the Provincial Assembly as per Article 136. The
President can suspend the functions of the Provincial Assembly subject
to availability of the circumstances under Article 234. The Governor
shall not exercise his powers under this clause unless he is satisfied
that the Chief Minister does not command the confidence of the
majority of the members of the Provincial Assembly. In case the
Governor intends to act against the Chief Minister, then it is incumbent
upon him to summon the Provincial Assembly and require the Chief
Minister to obtain a vote of confidence from the Assembly as referred
to above. Reference may also be made to the case of Muhammad
Anwar Durrani v. Province of Baluchistan reported as PLD 1989 Quetta
25 wherein the Court while interpreting Articles 107 and 112 of the
Constitution observed as under: -
“Under Article 107 of the Constitution, duration of Provincial
Assembly is five years. Therefore, dissolution of Provincial
Assembly before its constitutional period must be justified
SMC 16/2011 ETC. 11
on the definite reasons provided by the Constitution…...
extraordinary powers of dissolution of Assembly, must be
exercised carefully, faithfully and in accordance with the
provisions of the Constitution. According to their admissions,
the Chief Minister had no clear majority except with the
casting vote of the Speaker. In such circumstances,
Constitution properly demanded that advice of such Chief
Minister should have been weighed with caution and sanctity
of basic charter should have been maintained. An Assembly
is an important organ of the State and every effort should
have been explored which is possible under the law to save
the Assembly from dissolution. … … Governor, before taking
extreme action of dissolution of Assembly under the advice
of Chief Minister, ought to have advised him to seek vote of
confidence before his advice was accepted. We have come
to the conclusion that a Chief Minister who had not obtained
vote of confidence from majority members of an Assembly
could not advise the Governor to dissolve the Assembly
under Art. 112(1) of the Constitution.”
However, a Provincial Assembly cannot be dissolved by the Governor
except under circumstances warranting such dissolution as per Article
112.
9. A Proclamation of Emergency may be issued by the
President of Pakistan providing for imposition of emergency due to
internal disturbance beyond the power of Provincial Government to
control, a resolution from Provincial Assembly of the Province shall be
required, however, if the President acts on his own, the Proclamation
shall be placed before both houses of parliament for approval of each
house within 10 days. As per Article 232(7), a Proclamation of
Emergency is to be laid before a joint sitting and shall cease to be in
force at the expiration of two months, unless before the expiration of
that period it has been approved by resolution of the joint sitting. A
SMC 16/2011 ETC. 12
proclamation issued under Article 234 may, by like resolution, be
extended for a further period not exceeding two months at a time, but
no such Proclamation shall in any case remain in force for more than
six months. It is competent for the Majlis-e-Shoora (Parliament), in
terms of Article 234(5) of the Constitution, in joint sitting to, inter alia,
confer on the President the power to make laws with respect to any
matter within the legislative competence of the Provincial Assembly.
Under Article 245 of the Constitution, the Federal Government also
intervenes in the affairs of the Provinces and may call upon the
military to act in aid of civil administration.
10. The Federation and Provinces are equally responsible to
adhere to the provisions of the Constitution, particularly for ensuring
the enforcement of Fundamental Rights as guaranteed by the
Constitution. The Federal and the Provincial Governments, though not
directly, but indirectly share their responsibility in running the affairs
of the Province in accordance with the relevant provisions of the
Constitution.
11. The National as well as Provincial Assemblies have to
uphold constitutional norms but unfortunately, in the past, the political
parties were blamed for having failed to assert their role in bringing
true democratic rule based on the norms of social justice, peace and
tranquility and on account of non-adherence to the constitutional
provisions, which, resulted in dissolution of these bodies. In the years
1958, 1977 and 1999, when the Army Generals, in their wisdom,
dismissed the Governments, dissolved the Assemblies and imposed
martial law in the country. Each time, the matter came up before this
Court, but legality was accorded to the acts of the Generals. It was,
however, for the first time in November, 2007 when like action taken
SMC 16/2011 ETC. 13
by the then Chief of Army Staff was not accepted by the Superior
Judiciary, which ultimately led to the ouster of the retired General and
restoration of the democratic set up in the country.
12. Primarily, it is the responsibility of the Provincial
Government to maintain law and order in the territories of the
respective Provinces for the purpose of smooth running of economic
and social life and without disturbance in the daily affairs because if
the life and liberty of the citizens is, in any part of a Province at stake,
highhandedness continues to remain unabated; atrocious acts like
target killings, torture, extortion, etc., become the order of the day
and then neither the Provincial Government can discharge its duties
nor the people consider themselves safe and protected. Virtually, in
that case, discomfort painfully envelops the whole Province and decay
soon creeps in breaking the very fabric of human life of the citizens.
13. The city of Karachi is the Capital of the Province of Sindh,
and undoubtedly the hub of great economic and financial activities.
Karachi continues to be an important financial and industrial centre for
Sindh and the whole country and handles most of the overseas trade
of Pakistan and the Central Asian countries. It accounts for a large
portion of the GDP of Pakistan. Karachi’s population has continued to
grow and is estimated to have exceeded 18 million people. According
to a legend, this city started as a fishing settlement, where a
fisherwoman, Mai Kolachi, settled and started a family. The village that
grew out of this settlement was known as Kolachi-jo-Goth (The Village
of Kolachi in Sindhi). When Sindh started trading across the sea with
Muscat and the Persian Gulf in the late 18th century, Karachi gained in
importance; a small fort was constructed for its protection with a few
cannons imported from Muscat. The fort had two main gateways: one
SMC 16/2011 ETC. 14
facing the sea, known as Khara Dar (Brackish Gate) and the other
facing the adjoining Lyari river, known as the Meetha Dar (Sweet
Gate). The location of these gates corresponds to the present-day city
localities of Khaaradar (Khara Dar) and Meethadar (Mi.ha Dar)
respectively. By passage of time, it grew into a bigger city. The
foundations of a city municipal government were laid down and
infrastructure development was undertaken. New businesses started
opening up and the population of the town began growing rapidly. In
1878, the city was connected to the rest of British India by rail. Public
building projects such as Frere Hall (1865) and the Empress Market
(1890) were undertaken. In 1876, Muhammad Ali Jinnah, the
founder of Pakistan, was born in the city, which by now had become
a bustling city with mosques, churches, courthouses, markets, paved
streets and a magnificent harbour. By 1899 Karachi had become the
largest wheat exporting port in the east. The population of the city was
about 105,000 inhabitants by the end of the 19th century, with a
cosmopolitan mix of Muslims, Hindus, Europeans, Jews, Parsis,
Iranians, Lebanese, and Goans. By the turn of the century, the city
faced street congestion, which led to South Asia's first tramway
system being laid down in 1900. In later years, so Karachi prospered
as a major centre of commerce and industry during the Raj, attracting
communities of: Africans, Arabs, Armenians, Catholics from Goa,
Jewish, Lebanese, Malays, and Zoroastrians (also known as Parsees) in
addition to a large number of businessmen. As the movement for
independence almost reached its conclusion, the city suffered
widespread outbreaks of communal violence between the majority
Muslims and the minority Hindus, who were often targeted by the
incoming Muslim refugees. In response to the perceived threat of
SMC 16/2011 ETC. 15
Hindu domination, self preservation of identity, language and culture
in combination with Sindhi Muslim resentment towards wealthy Sindhi
Hindus, the province of Sindh became the first province of India
to pass the Pakistan Resolution, in favour of the creation of the
Pakistani state. The ensuing turmoil of independence led to the
expulsion of most of Karachi's Hindu community. While many poor low
caste Hindus, Christians, and wealthy Zoroastrians (Parsees) remained
in the city, Karachi's native Sindhi Hindu community fled to India and
was replaced by Muslim refugees who, in turn, had been uprooted
from regions belonging to India. District Karachi was chosen as the
capital city of Pakistan and it accommodated a huge influx of migrants
and refugees from India to the newly formed country. As a
consequence, the demographics of the city changed drastically.
However, it still maintained a great cultural diversity as its new
inhabitants arrived from different parts of India. In 1958, the capital of
Pakistan was shifted from Karachi to Islamabad and Karachi thus
became the capital of Sindh. During the 1960s, Karachi was seen as
an economic role model around the world. Many countries sought to
emulate Pakistan's economic planning strategy and one of them, South
Korea, copied the city's second "Five-Year Plan" and World Financial
Centre in Seoul is designed and modeled after Karachi. With economic
growth and prosperity, peace and tranquility reigned in the city,
business places were full of activity till late night with a lot of hustle
and bustle seen all around and it came to be known as the city of
lights. Being a big port city, it contributed, roughly stating, about 60–
70 per cent of the total revenue of the country.
14. The 1980s and 90’s saw an influx of illegal Afghan
refugees from the Afghan war into Karachi. Political tensions erupted
SMC 16/2011 ETC. 16
and the city was wracked, at different points of time, with violence
among groups widely speculated to be aligned with various political
parties. In this behalf, a reference is made to the report of the
Commission of Enquiry into Karachi Affairs filed by Syed Iqbal Haider,
ASC, which reflects, inter alia, the figures relating to population,
geographical area, roads, vehicles, housing, police, number of riot
cases of the years from 1985 to 1989, number of persons
killed/injured, number of police officers/men martyred/injured,
damage to private and public property including vehicles, petrol
pumps, houses, shops, factories, cinemas, offices, schools, banks,
police stations, railway stations, telephone exchanges, hospitals,
imposition of curfews on account of clashes between religious groups
(Shias & Sunnis), clashes between police and residents, ethnic riots,
drug mafia, firing and looting, etc.
15. The law and order worsened during the period from 1992
to 1994 when Operation Clean up was, allegedly, launched against
Mohajir Qaumi Movement (MQM). Constitution Petition No.46 of 1994
was filed before this Court by MQM (Mohajir Qaumi Movement)
through Senator Ishtiaq Azhar, Convener Central Coordination
Committee. It was submitted in the said petition, inter alia, that the
law and order situation in Karachi was deteriorating day by day, the
workers of MQM were abducted, arrested and murdered and their dead
bodies were not handed over to their relatives. It was further
submitted that thousands of members of MQM were denied protection
from illegal arrest without any warrant, extra-judicial detention, death
in custody, etc. It was asserted that Fundamental Rights of the
petitioner contained in Articles 9, 10, 14, 15, 16, 17, 18, 19, 22, 25
and 25 were violated, therefore, a declaration was sought that the
SMC 16/2011 ETC. 17
petitioner be allowed to function in accordance with the scheme of the
Constitution. A voluminous reply was filed on behalf of the Federation
and the Province denying the allegations attempting to present,
allegedly, their side of the case citing horrifying instances holding MQM
responsible for the worsening situation. The case was fixed on various
dates, but ultimately it was not pursued and vide order dated
26.10.1999, the above petition was dismissed for non-prosecution.
16. It appears that on account of the worsening law and order
situation, another operation was conducted during the year 1996 and
similar action continued thereafter also. In this context, Constitution
Petitions Nos. 6 & 13 of 1999 were filed by the MQM wherein
complaints of physical torture of the MQM workers and activists by the
law enforcement agencies were agitated and directions to the law
enforcement agencies for pre-and post-interrogation medical
examination of all persons taken into custody by them by an
independent medical practitioner of their choice to enable them to
obtain certificate about their physical condition, were sought. It was
pleaded that no suspect be subjected to any kind of interrogation until
such a certificate is handed over to the next of his kin and in the event
of evidence of physical torture, the respondent Governments be
directed to register appropriate criminal cases against the members of
the law enforcement agencies in whose custody the suspect was
entrusted for interrogation. Protection was also sought against arrest
of elected representatives of MQM unless any incriminating material
was available to justify such an action. The case came up for hearing
on 14.01.1999, but the representative of the petitioner stated that the
case was to be argued by another counsel, therefore, request for
SMC 16/2011 ETC. 18
adjournment was made. Thereafter, the petitioners never approached
this Court for fixation of the petitions.
17. Critical/serious and dismal condition of law and order, once
again emerged on account of various factors for the past few months,
particularly in the months of July and August 2011 as widely reported
in the print and electronic media, e.g. Al-Akhbar, The Daily Express,
The News, The Daily Nawa-e-Waqt, The Daily Jang, The Daily Times,
The Frontier Post, The Daily Nation, The Daily Sahafat, Aaj Ki Awaz
and various News Channels, e.g., Express, GEO, SANA, PTV, AAJ,
Dunya, Dawn, etc., that the lives and properties of the people of
Karachi are not safe, frequent killings of innocent citizens have made
their lives miserable; citizens are being abducted for ransom;
beheaded dead bodies of innocent people with arms and legs tied and
wrapped in sacs, are being recovered in large numbers; street crimes
are in abundance and different groups are involved in target killings.
Recovery of a large number of dead bodies almost everyday; brutality
and heinousness of the offences; passivity of the Government
functionaries; involvement of gangs in money extortion, nefarious and
bloody activities of land mafia and drug mafia; damage to valuable
properties of the citizens; shifting of capital from Pakistan to Malaysia
and Bangladesh (as reported in some clippings) and transfer of dead
bodies from Karachi to the places of their origins in different parts of
the country causing discomforting stir, harassment and fear in the
minds of people, provide substantial evidence that Karachi has reached
the verge of destruction posing a threat to the very stability of
Pakistan. Recently, on this issue, different views were being expressed
by the observers, analysts and anchor persons about causes of the
catastrophe.
SMC 16/2011 ETC. 19
18. In that scenario, on a note put up by the Registrar of this
Court, based on press clippings, CDs and DVDs provided by private TV
Channels showing a dismal situation within the jurisdiction of several
police stations of Karachi, the instant proceedings were initiated under
Article 184 (3) of the Constitution vide order passed on 24.08.2011 in
the following terms: -
“I have gone through above noted facts reported in the
print/flashed in the electronic media, perusal whereof
presents a bleak/dismal picture of bloodshed, arson,
kidnapping/abduction for ransom, widespread violence,
illegal collection of money (Bhatta) from traders, which
prima facie are violative of Articles 9, 14, 15, 18 and 24 of
the Constitution. Prima facie, the Executive has failed to
protect the life, liberty, dignity, property and freedom of
the general public as is manifested in the above
note/reported. Therefore, let this note be converted into
petition under Article 184(3) of the Constitution. Notice be
issued to learned Attorney General for Pakistan to appear
and submit a comprehensive report about the above
incident, which have been taking place in Karachi for the
last more than one month. The report should be based on
the material to substantiate the same, which should be
collected from the Federal and Provincial law enforcement
and intelligence agencies.
The Chief Secretary and PPO of the Province of Sindh
are directed through Advocate general to submit details of
the incidents in view of the fact noted herein above in the
office note. They should also provide the number of
persons who have been killed/injured in these incidents for
the last one month. They should also place on record
copies of the daily situation reports duly prepared by the
concerned police officers for the perusal of PPO and the
Chief Secretary.
The FIRs and other material be also filed in order to
assess violation of the fundamental rights of the citizens
SMC 16/2011 ETC. 20
noted herein above. Notices be also issued to President,
Supreme Court Bar Association as well as President, Sindh
High Court Bar Association to appear and assist the Court.
Put up in Court on 26th August, 2011.”
19. On 26.08.2011, this Court, after a preliminary hearing, in
view of ongoing bloodshed, killing, arson, collection of bhatta, etc.,
being committed in Karachi, passed the following order: -
“2. Learned Attorney General for Pakistan has stated
that due to paucity of time he could not prepare a report
as per the directions of the Court, therefore, he needs
some time. It has been explained to him that on account
of non-adherence to the constitutional provisions,
reference to which has been made herein-above, incidents
of brutal murders and commission of heinous crimes have
occurred in which, according to the information laid before
the Court by the media, gangs are involved in extortion of
money, nefarious/bloody activities of land mafia and drugs
mafia and damage to the valuable properties of the
citizens have taken place, therefore, relevant material
need to be collected for ascertaining the extent of the
violation of the constitutional provisions as such he may
convey to all the law enforcing agencies at Federal and
Provincial level that they should provide all the necessary
material highlighting the incidents with reference to the
jurisdiction of various police stations, involvement of the
accused persons, their identity, if possible, and failure of
the police functionaries to proceed with them in
accordance with law. To achieve this object, he should
convene a meeting with the concerned functionaries and
place a report on the next date of hearing, as is directed in
order dated 24.08.2011.
3. Mr. Abdul Fattah Malik, learned Advocate General
Sindh, has submitted copies of DSRs for the period
commencing from 24.07.2001 to 23.08.2011 and has also
filed brief of more than 232 FIRs which, according to him,
could be collected by him so far, therefore, he is required
SMC 16/2011 ETC. 21
to do the needful before the next date of hearing. Orally,
he has pointed out that during the past one month 306
people have been killed and their particulars shall also be
furnished. He is required to furnish the same indicating the
police stations where people were killed; FIRs, if any, were
registered; how many dead bodies of the killed person
were found; how many of them were found beheaded
and/or their arms and limbs were chopped and whether
the investigation commenced and evidence collected or not
against the accused involved. We have pointed out to him
that he should convey to the Chief Secretary and IGP
Sindh who are primarily responsible to ensure law and
order in the Province that they should proceed against all
types of accused persons across the board and on the next
date of hearing he would arrange a presentation in the
Court room with reference to details of the police stations
where the incidents have taken place and the manner in
which the victims were killed, the FIRs registered and the
names of persons posted in the police station who are
responsible etc. so we may understand that the police is
serious in conducting the investigation and to report
to/challan the accused; so also in prosecuting them in
Courts on solid material so that they may not go scot free
on the basis of said information. He is also directed to
submit in the same manner the details of the injured
persons and the properties destroyed in rowdyism by the
culprits and whether in respect of such occurrences
evidence has so far been collected or not. The report must
be comprehensive one and there should be a presentation
on the Power Point by the police. It is to be noted that
further proceedings shall, as well, take pace in respect of
violation of the constitutional position.
4. Mr. Abdul Hafeez Pirzada, learned Sr. ASC, has
stated that he would appear on behalf of the Province of
Sindh through Chief Executive and shall place important
documents on record on or before the next date of
hearing.
SMC 16/2011 ETC. 22
5. Syed Iftikhar Hussain Gillani, learned Sr. ASC, stated
that he intends to file an application on behalf of Awami
National Party (ANP) to become a party in the instant case.
He may do so and even otherwise being a Senior Counsel
of this Court he can address the argument on the basis of
material if he has in his possession to assist the Court.
6. Mr. Babar Awan, learned Sr. ASC, has stated that he
will represent the Federation and he has filed nomination
on behalf of Secretary, Ministry of Law and Justice,
Islamabad.
7. Ms. Asma Jehangir, President Supreme Court Bar
Association of Pakistan, has stated that there are certain
preliminaries which need to be completed by the executive
in respect of registration of cases, investigation and arrest
of nominated accused persons. According to her, the
names of all the accused persons have not been disclosed;
no action has been taken against those accused persons
whose names have appeared in the FIRs and they have not
been arrested. On this, learned Advocate General Sindh
has replied that few arrests have taken place. Be that as it
may, he is required to submit on the next date of hearing,
the details of the same because, unless sufficient evidence
is collected, no useful purpose will be served by sending
them to face trial.
8. Mr. Anwar Mansoor Khan, President Sindh High Court
Bar Association, has filed copies of resolutions of the Bar
Association as well as press clippings and has pointed out
that during recent incidents starting from January, 2011,
nineteen Advocates have been murdered. He has also
pointed out that even yesterday i.e. 25.08.2011, one of
brilliant Advocates of Sindh High Court namely Mr.
Muhammad Murtaza Chinnoy has been brutally yet
according to his information the investigation has not been
conducted property. The IGP Sindh is directed to look into
the matter personally and communicate the report in this
behalf through Advocate General Sindh on the next date of
hearing. Learned Advocate General Sindh is also required
SMC 16/2011 ETC.
23
to submit report mentioning the names of the culprits
involved in the killings of the Advocates and showing
whether they have been arrested or not.
9. The Chief Secretary and the IGP Sindh have
submitted reports which may be kept on record. Let the
case be adjourned to 29.08.2011 to be fixed at Branch
Registry of this Court at Karachi.”
20. It is important to note that in response to order dated
24.08.2011, the Chief Secretary in his report on the affairs of Karachi,
stated as under: -
.
After 9/11, the Phenomenon of international terrorism
emerged in which bomb blasts and beheading of foreigners
attracted world attention. The terrorist groups targeted US
diplomats and carried out suicide attacks at US consulate
thrice. The French engineers were killed outside the
Sheraton Hotel, even Muharram processions and shrines
were not spared, besides suicide attack at CID building.
.
During the briefing sessions, it was pointed out to me that
army operation in the north and insurgency in Balochistan
had caused internal displacement, in the garb of which
certain criminal/hostile elements have moved into Karachi
and have also smuggled arms. The hostile foreign agencies
are backing up to cause chaos in the economic capital of
Pakistan under a clandestine was against the state. Citing
various reasons the emerging situation, I was told that
Karachi population is approaching 18 million with diverse
ethnic communities competing for resources. This mega
city has been allowed to expand and grown in an
unplanned way by the city managers in the past.
Resultantly, the city lacks basic infrastructure to support
such a large human settlement and provide basic civic
amenities to all the growing urban jungle of Katchi
Abadies.
.
The Police have its own short coming and weaknesses both
in terms of man-power and other resources, and have
SMC 16/2011 ETC. 24
further drained due to security challenged in the post 9/11
scenario.
.
In early July, 2011 violent incidents took place in which 16
people were killed in Karachi. This was followed by an
armed clash on 22nd July, 2011 between militant of two
groups in the area of District East (Malir and Landhi),
resultantly, 14 people lost their lives. The fragile peace in
Orangi Town was disturbed again due to clash between
two ethnic communities in the last week of July, 2011
taking a death toll of 37 lives.
.
On 17th August, 2011, Five (05) dead bodies were found in
PS Garden area. On the same day, Ex-MNA was shot dead.
These incidents triggered violence in other area i.e.
Kharadar, Lyari, Sher Shah, Baldia and Chakra Goth.
Resultantly, 62 persons were killed and 95 got injured
from 17 to 20 August, 2011, which include 03 policemen,
who embraced Shahadat in line of duty.
.
During the past one month there has been incidents of
killing.
Cases Registered Persons Killed
Murder Killing 232 306
Gun shot injury 98 159
STEPS TAKEN BY THE CHIEF SECRETARY, SINDH
.
On 8th July, 2011, the government of Sindh entrusted
powers u/s 5 of ATA, 1997 to Pakistan Rangers (Sindh)
enabling and making Rangers responsible to apprehend
the criminal elements involved in firing and killing of
innocent citizens.
.
The Government of Sindh further authorized Rangers to
cordon, search and use force to control the situation in the
effected areas of Karachi. Copy of the Notification bearing
No.SO(LE-I)/HD/6-66/11, dated 8th July, 2011 (copy
submitted as Annex A).
.
On 25th July, 2011, the President of Pakistan, while
reviewing the Karachi situation, directed to enhance the
operational capability of Police (Annex-B). Accordingly, the
SMC 16/2011 ETC.
25
Government of Sindh immediately made available and
released Rs.450 million for procurement of APCs from HIT.
These 15 APCs will be delivered by end of August, 2011 to
Sindh Police.
.
The policy directive on the subject was issued by the Home
Department vide No.SO(LE-II)/HD/3-1/2011 dated 23
August, 2011, wherein the lead implementing agency i.e.
Police was reminded of legal responsibility to ensure safety
of people’s life and establish public order as per law,
irrespective of any consideration of political linkage of
anyone involved in this cycle of violence. Copy of the letter
spelling out the policy of the subject is attached as Annex
‘C’.
21. The IGP Sindh also filed a report to the following effect: -
.
Karachi is the 7th largest city of the world having
peculiar/ethnic nature comprising of Punjab,
Pakhtoon, Balochi, Sindhi and Urdu speaking
communities. It has a population of approximately
18th million and spread over area on 3527 sq. kms.
.
The ethnic divide became pronounced during last few
years as a result of influx of people from other parts
of the country. With this change in demography,
there are over 150 areas where two or more
communities are facing each other.
.
It has long history of terrorism/violence as is
indicated of the cases mentioned below:
HIGH PROFILE CASES
(2004-2007)
S# Police Station Incidents No. of
Deceased
No. of
Injured
1. Mithadar
2004
Bomb Blast in Haidery
Masjid situated inside
the compound of
Sindh Madrasat-ul-
Islam
23 98
2. Brigade 2004 Bomb Blast in Imam
Bargah Ali Raza
22 29
3. Boat Basin
2004
Corps Commander
Motor Cade Firing
incident at Clifton
Bridge
10 13
4. Site 2004 Bomb Blast at Binoria 10 44
SMC 16/2011 ETC. 26
restaurant
5. Soldier Bazar
2006
Bomb Blast at Nishtar
Park
55 125
6. Various PSs
2007
12 May, 2007, arrival
of Chief Justice in
Karachi
40 127
7. Bahadurabad
2007
Bomb Blast in the
welcome procession
of Ms Benazir Bhutto
at Karsaz, Main
Shahrah-e-Faisal
119 353
8. Preedy 2009 IED explosion in
Ashoora Procession
near Light House
Traffic Signal, M.A.
Jinnah Road, Karachi
17 39
9. Saddar 2010 IED explosion Parking
Area in front of
emergency JPMC
Karachi
16 19
10. Ferozabad
2010
IED explosion Ramp
Shahrah-e-Quaideen
Nursery Bridge
11 24
.
During past one month there has been incidents of killing:
Cases Registered Persons Killed
Murder/Killing 232 306
Gun shot injury 98 159
.
In response Karachi Police has arrested 26 accused in
target killings in the last month. To date 117 target killings
have been arrested and 179 cases have been deterred and
challenged.
.
In the last one month 3075 raids have been conducted
wherein 495 Pos/absconders and 1162 criminals have been
arrested. 03 K.Koves, 508 Pistols/Revolvers, 02 Rifles, 13
Repeaters and 03 Hand grenades have been recovered
from criminals.
.
The prolonged power and water shortage in Karachi city
have also resulted in frequent public disorder on daily
basis, which engages the police in fire fighting duties. In
the previous months police has arrested 1142 miscreants
involves in arson and breach of peace.
.
Action is also being taken against extortionists/Bhatta
collectors. 70 Bhatta collectors have been arrested and 43
cases have been detected. In the previous month 13
extortionists were arrested.
SMC 16/2011 ETC.
27
.
In spite of the limited resources the Police and Law
Enforcing Agencies have made hectic efforts to combat the
terrorist activities in the city and have been able to control
the terrorism and target killing. The law enforcing agencies
are now in full control of the situation and are prepared to
met any challenging situation for ensuring the safety of life
and property of the citizens.
22. On 29.08.2011, the IGP gave a power point presentation
in the Courtroom, relevant excerpts whereof are as under: -
Causes of Violence
•
Recent demographic changes
•
Ethnicity, Sectarianism and factional in-fighting
•
Clashes between land and bhatta mafias
•
Deep mistrust among the ethnic groups
•
Easy access to illicit weapons and misuse of Arms
Licenses
Types of Killings
•
Killings due to personal enmity
•
Political motivated killings
•
Sectarian killings
•
Ethnic killings
•
Gang war killings
•
Target killing of Police Officials
•
Victims of stray/cross fire
ETHNIC INTERFACES/FLASH POINTS IN KARACHI
Katti Pahari Urdu speaking vs. Pathan
Qasba Colony Urdu speaking vs Pathan
Sharafi Goth Urdu speaking vs Baloch
Banaras Chowk Urdu speaking vs Pathan
Quaidabad Urdu speaking vs Sunni Tehreek
New Karachi Sunni Tehreek vs Sipah-e-Sahaba
Sachal Urdu speaking vs Afghanis
Surjani Town Pathan vs Seraiki speaking
Malir City Urdu speaking vs Baloch
Landhi Urdu speaking vs Pathan
Al-Falah Urdu speaking vs Baloch
Korangi 2 ½ Urdu speaking vs Sindhi
(Chakra Goth)
Khokharpar/ Urdu Speaking vs. Sindhi
Saudabad
DEAD BODIES FOUND BEHEADED/TORTURED
SMC 16/2011 ETC. 28
FROM 24-07-2011 TO 24-08-2011
POLICE STATION NO. OF DEAD BODIES
N.K.I Area 4
Kalri 2
SITE-B 1
Docks 1
Total 8
DEAD BODIES FOUND IN GUNNY BAGS
FROM 24-07-2011 TO 24-08-2011
S.No. POLICE STATION NO. OF DEAD BODIES
1 Baghdadi 6
2 Nazimabad 2
3 Darakhshan 1
4 Risala 1
5 Nabi Bux 1
6 Kharadar 1
7 Bin 1
8 Sharafi Goth 1
9 Rizvia 1
10 Iqbal Market 1
11 Mominabad 1
Total 17
PATTERN OF VIOLENCE
FROM 24.07-2011 TO 24-08-2011
s. DATE AREAS OF DISPURTED PERSONS PERSONS
# VIOLENCE PARTIES KILLED INJURED
1 24 July
to 31
July
Baldia
Taimoria
Kalakot
i. Urdu
Speaking v/s
Pashtoon
ii. Urdu
91 47
Speaking v/s
Baloch
2 1st to
3rd Aug
2011
Surjani Town Urdu
Speaking &
Seraiki v/s
Pashtoon
38 53
3 6th Peerabad Urdu 13 16
August SITE, Orangi Speaking v/s
2011 Pashtoon
4 17th to
24th
August
2011
Kharadar,
Mithadar,
Lyari, Chakra
Goth
Gang war
converting
into ethnic
violence
111 146
(Urdu
Speaking v/s
Baloch &
Sindhi)
New Phenomena of abduction and killings
Starting from 17th August 2011
SMC 16/2011 ETC.
29
•
Triggered by the kidnapping and killing of five Baloch
residents of Singo Lane, Lyari (4 of them footballers)
Date Death Toll Injured
17.08.2011 17 30
18.08.2011 29 23
19.08.2011 22 39
20.08.2011 07 15
21.08.2011 13 09
22.08.2011 13 10
23.08.2011 08 09
24.08.2011 02 11
25.08.2011 04 02
26.08.2011 02 03
27.08.2011 01 06
28.08.2011 02 04
POLICE SHAHEE/INJURED
From 24-07-2011 to 24-08-2011
S# Police Station No of Police
Shaheed
No of Police Injured
1 SITE-B 1
2 Zaman Town 4 29
3 Rizvia 1
4 Sharafi Goth 1
5 Awami Colony 1
6 Pak Colony 1
TOTAL 9 29
23. It has been pointed hereinabove that the peace of Karachi
city had been disturbed by criminals by committing both heinous as
well as petty crimes. Some of the major killings have been highlighted
in the presentation given by the IGP, which has been reproduced
hereinabove, including 232 incidents of murder wherein 306 persons
were killed and 98 incidents of gunshots causing injuries to 159
persons also took place. According to available figures, approximately,
more than 50 dead bodies in gunny bags have been recovered from
several localities including areas where dominant majority of people
speaking Urdu, Pashto, Balochi etc. are living. In this behalf, the IGP
Sindh furnished details along with FIR numbers and the areas where
such dead bodies were found, brief of which is as under:-
SMC 16/2011 ETC. 30
Sl.No. Police Station Number of Dead
bodies
1. Baghdadi 06
2. Nazimabad 02
3. Darakshan 01
4. Risala 01
5. Nabi Bux 01
6. Kharadar 01
7. Bin Qasim 01
8. Sharafi Goth 01
9. Rizvia 01
10. Iqbal Market 01
11. Mominabad 01
24. Some torsos i.e. human bodies without heads and limbs,
rendering it difficult to identify the same, have also been found.
Besides, buses with passengers have been set on fire as a result
whereof several passengers were burnt alive while others died inside
the bus due to fear and shock. In this behalf, reference is made to FIR
No. 460/2011 Police Station Jackson, West Karachi. Similarly, perusal
of FIR No. 314/2011 under sections 302/324 PPC r/w section 7 ATA,
dated 05.09.2011 registered at Police Station Pakistan Bazar, reveals
how brutally people were killed by the criminals. Besides, so many
persons were abducted and later their dead bodies were thrown in the
streets. During the months of July and August 2011 the streets of
Karachi, sorrowfully, saw a large number of such like dead bodies.
Some of abducted persons were, however, recovered by the
intervention of the law enforcing agencies and on our direction, their
statements were recorded. Out of them, only four persons, namely,
Muhammad Junaid s/o Muhammad Hussain, Muhammad Rafiq s/o
Muhammad Hussain, Mehtab s/o Shakeel and Sarfaraz s/o M. Ahmed
agreed to lodge the FIR whereas rest of them, on account of fear,
were not agreeable to do it. Reference may be made to the following
two statements: -
SMC 16/2011 ETC. 31
25. When the hearing of this case was in progress, about four
dead bodies were recovered and on our direction, the IGP submitted a
report on 09.09.2011 to the following effect: -
“(1) An unknown dead body was found (on 5.9.2011) in
Red Color gunny Bag at Katchara Kundi, Grahaib Nawaz
Dispensary, previous UC-8, Office Sector-14, B Orangi
Town without head, hands and legs inquest u/s 174 Cr.P.C.
SMC 16/2011 ETC. 32
has been conducted. The dead body is still un-identified.
The dead body is kept in the Edhi Center. A case vide FIR
No: 314/2011 u/s 302/324 PPC r/w 7-ATA has been
registered through state at Pakistan Bazar Police Station
against unknown accused persons, on 5.9.2011. The
investigation is under way. The detail report is enclosed at
Annex “A”
(2) Another dead body was found in a Bag (Bori) on road
between Country Heights & Yasir view Gulzar-e-Hijri
Scheme No: 33, Karachi. A case vide FIR No. 580/2011
u/s 302/365/34 PPC, at Police Station Sachal on the
complaint of one Zabih Khan s/o Haji Sardar Muhammad
was registered against the nominated accused namely
Sikandar Javed (APMSO), (2) Ahmed Shah, (3) Umair
Siddiki, (4) Zohaib, (5) Liaquat Ali Qureshi s/o Ghazi
Uddin, (6) Khurram, (7) Zeeshan. The incident was
witnessed by one Muhammad Hassan Saleem s/o
Muhammad Saleem Hussain, (2) Syed Obaid-ur-Rehman,
along with other PWS Naseeb Ullah s/o badshah Gul. The
I.O arrested one accused person namely Ahmed Khan s/o
Khan Muhammad on the pointation of the complainant.
Later on, after the satisfaction of the complainant he was
released being not involved in this offence. Hectic efforts
are underway to arrest the nominated accused person,
copy of the compressive report is enclosed at Annex-“B”.
(3) The third dead body was found in Garage behind Car
Parking of JPMC Hospital, Karachi. Proceeding u/s 174
Cr.P.C. was conducted by police. (7.9.2011). No mark of
torture was found on the dead body. Postmortem was
held at Jinnah Hospital Karachi by MLO vide TM No:
741/2011, dated: 07.09.2011, in which MLO opined that
his death was occurred due to asphyxia/strangulation. In
this connection FIR No: 281/2011 u/s 302 PPC was lodged
on behalf of state at Saddar Police Station. During
investigation no any eye witness has appeared/traced as
yet. Efforts are underway and NADRA head office was
contacted to provide assistance, who cooperated and
SMC 16/2011 ETC. 33
identify the deceased as Muhammad Farukh Nawaz having
CNIC No: 56302-2990221-9, his temporary address was
provided as CB-58/4, Kakool road Abbottabad. The family
of the deceased was traced out by the District Police
Officer Abbottabad Mr. Muhammad Kareem Khan. The
brother of the deceased namely Javed (Cell #. 03348963217)
was contacted who disclosed that his brother
deceased was a chartered accountant and was doing his
internship in some organization in Karachi and leaving in
Defence Garden. He also disclosed that his brother
returned to Karachi on 07.09.2011, after celebrating Eid
with his family in Abbottabad. Further investigation is
underway. The copy of the report as enclosed herewith at
Annex-“C”.
(4) On 7.9.2011, Police Constable No.18609 namely
Javed Iqbal s/0 Abdul Ghafoor was going on his Motor
Cycle. Two unknown Motor Cyclist stopped him at Bakra
Peri Road, near Evergreen School, Malir City Karachi and
opened fire upon him who sustained bullet injures and
expired on the spot. A case FIR No.248/2011 u/s 302/34
PPC on 07.09.2011 at Police Station Malir City on behalf of
state is registered. During investigation two persons from
the locality disclosed involvement of two criminals namely
Kaloo Baloch s/o Mawali Baloch & Akbar Punjabi s/o Baloch
Khan in this offence. Hectic efforts are underway to arrest
them. Copy of the report is attached herewith at Annex“
D”.
The forth death body was found of one Faheem-ul-
Kareem Advocate alongwith two other persons namely
Wajid & Mst. Quratul ain from a Flat No.7/C, 14th
Commercial Street, DHA, Ph-II, Karachi. A case vide FIR
No: 340/2011 u/s 302/34 PPC at Police Station Defence is
registered. A detailed report of Mr. Tariq Razzaq Dharejo,
SP Saddar Division Sought, Karachi regarding efforts made
to trace and arrest the accused is attached herewith at
Annex-“E”. (It has been taken back)
SMC 16/2011 ETC. 34
(6) One young man namely Sahreef s/o Muhammad
Anwar Baloch has been kidnapped from near NADRA
Office, near Bahadurabad Police Station. In this regard
FIR No.114/2011 u/s 365 PPC has been registered at
Police Station Kalakot by one Muhammad Akram s/o
Muhammad Anwar. Detail progress report is attached
herewith as Annex-“F”.
The list of 17 kidnappees supplied by Advocate
Mr. Jameel Ahmed Virk on behalf of the applicants in CMA
No.555/2011 who have returned to their homes in injured
condition. In this regard the concerned quarters have
submitted their report and in all 16 cases the FIRs have
been registered the same is enclosed herewith as Annex
“G”. The investigation is under way.
Further 34 dead bodies have found in Bags. In this
regard a comprehensive report has already been submitted
before this Honorable Court on 26.8.2011. ……
26. It is noteworthy that the law enforcing agencies have
detected a torture cell during hearing of the case at Karachi and
succeeded in getting video clips of the most heinous, gruesome,
brutal, horrible and inhuman acts of the criminals, who are found
cutting throats of men and drilling their bodies. But, now it is informed
that more such cells have been detected in different parts of Karachi.
27. As far as the injured or wounded persons are concerned,
they are countless in number in all the disturbed areas of Karachi
where different political parties have got dominant population on the
basis of the language being spoken by them. It may be noted that the
objective of above-noted brutal and gruesome incidents is to terrorize
the citizens of Karachi and keep the entire society a hostage.
28. An impression has been created that on account of
demographical reasons, the above issue has its origin on ethnic
divides, but Mr. Abdul Hafeez Pirzada, Sr. ASC appearing for the
SMC 16/2011 ETC. 35
Province of Sindh, and Syed Iftikhar Hussain Gillani, Sr. ASC for ANP
vehemently dispelled such an impression and we also tend to agree
with them because we feel that it is a turf war between various groups
on account of their financial and economic interests in the huge
economic, industrial and commercial activities, etc. of the city of
Karachi highlighted in the presentation given by the IGP, relevant
aspects whereof have been noted herein above. However, there is, and
has for some time in the past, been a visible element of ethnic strife in
Karachi and some elements and parties benefited from keeping the
tension alive. There are not only Urdu Speaking, (When the Court uses
the term ‘Urdu Speaking’ it is for a specific purpose. As it is the
language common to all and even those who proudly speak Pashto,
Punjabi, Sindhi or Baluchi, can and do speak Urdu), Pashtun, Sindhis,
and Balochis, Punjabis, Saraikis, but foreigners and others also live in
Karachi and all of them are the victims of violence, crime, fear and
insecurity, as is evident from FIRs, reports, etc. submitted from time
to time by the police department. Some of the hardened criminals,
who associate themselves with the political parties do take support of
the powerful groups/political parties as is evident from the reports of
the joint investigation team of various intelligence agencies
including ISI and others. These reports have been filed by Syed
Iftikhar Hussain Gillani, throwing sufficient light on the criminal
activities of these heartless criminals such as Ajmal Pahari, Kamran
Madhuri and many others. It is to be noted that the aforementioned
JIT reports were prepared after causing arrests of various accused
persons involved in the commission of offences this year in the month
of March.
SMC 16/2011 ETC. 36
29. It goes without saying that if the involvement of above
accused persons allegedly aligned with a political party is established,
it may entail serious consequences for said political party as well,
because a political party cannot be formed or cannot operate in a
manner prejudicial to the sovereignty or integrity of Pakistan.
30. It is important to note that the learned counsel
representing various political parties have though not categorically
denied affiliation of above noted persons with their parties, but have
taken exception to the JIT report; on the ground that the same are not
admissible in evidence. It is also important to note that during the
discussion, it has been informed that two notorious accused persons,
namely, Kamran Madhuri and Sohail Commander involved in criminal
activities were not nominated in the FIRs, yet on arrest of one of them
he has been found in injured condition. Investigation is being
conducted to collect relevant material against them. It is also
astonishing that most of the accused persons nominated in crimes
have got their acquittal on the plea of alibi and false involvement. We
are surprised to know that the law enforcement agencies, who are
supposed to conduct investigation honestly, had allegedly involved
persons falsely or half-heartedly in the commission of offences in
which their fellow policemen were murdered. Indeed, they have not
shown any professionalism and have failed to bring the real culprits to
book.
31. It seems that the police primarily being responsible to
enforce law and order has no intention to deliver. Either they are
scared or they are dishonest or absolutely lack the requisite skills. It
could be that in the year 1992 operation clean up was launched
against MQM wherein statedly, the police had played an active role,
SMC 16/2011 ETC.
37
but subsequently, 92 police officers/officials disappeared and up till
now there is no clue of their whereabouts nor is it known that by
whom, and under whose patronage, such persons were abducted
and/or killed. Another reason appears to be that police force has been
highly politicized, recruitments have been made on political
considerations. It came to light during hearing of the case that in
police force many police officers have been recruited on political
considerations who have managed to occupy such posts for extraneous
considerations and senior officers in the rank of SSP, SP and DSP etc.
have been inducted into the force from other organizations without
following any rules and even they have not undergone training for the
purpose of policing. To highlight this aspect, following information has
been obtained from the Advocate General, Sindh: -
1.
Mr. Dost Ali Baloch from Intelligence Bureau, absorbed
in Sindh Police with effect from 14.10.1998, presently
working as Director General Finance, CPO Sindh Karachi
(BS-20).
2.
Mr. Muhammad Malik from FIA, absorbed in Sindh
Police with effect from 31.10.2007, presently working
as Director General Traffic, Planning & Regulation,
Sindh Karachi (BS-20).
3.
Mr. Muhammad Riaz Soomro from Anti-Narcotic Force,
absorbed in Sindh Police with effect from 26.2.2008,
presently working as SSP, District Mirpurkhas (BS-19).
4.
Mr. Muhammad Ali Baloch appointed as Assistant
Director (Computer) in Sindh Police on 6.4.1999,
presently working as SSP, District Tando Muhammad
Khan (BS-19).
5.
Mr. Abdul Hadi Bullo from OMG, absorbed in Sindh
Police with effect from 16.7.2003, presently working as
SSP District Matiari (BS-19).
6.
Mr. Attaullah K. Chandio, from Solicitor Department,
absorbed in Sindh Police with effect from 1.6.1995,
presently working as SP, Special Branch, Mirpurkhas
(BS-18).
7.
Mr. Shahid Hussain Mahesar on deputation from
Intelligence Bureau, with effect from 26.7.2009,
presently working as SSP Political (SB) Karachi (BS-18).
SMC 16/2011 ETC.
38
8.
Mr. Zameer Ahmed Abbasi on deputation from National
Accountability Bureau with effect from 31.12.2008,
presently working as SDPO/Frere, District South,
Karachi Range (BS-17).
9.
Mr. Shiraz Asghar Shaikh, on deputation from PEMRA
with effect from 23.8.2008, presently working as
SDPO/Darakhshan, District South, Karachi Range (BS17).
10.
Mr. Faisal Mukhtar Vakaasi on deputation from National
Accountability Bureau with effect from 31.3.2009,
presently working as Principal, Training & Recruitment,
Karachi Range (BS-17).
11.
Mr. I. D. Mangi, on deputation from ACE, Sindh with
effect from 10.4.2009, presently working as DSP/ACLC,
Karachi Range (BS-17).
12.
Major (R) Khurram Gulzar, re-employed on contract
basis as DIGP (BS-20) for a period of one year with
effect from 27.12.2010.
13.
Col.(R) M. A. Wahid Khan, re-employed as Principal,
S.B.B. EPT Razzakabad, Karachi (BS-19) for a period of
one year with effect from 1.9.2008. Extension granted
for two years with effect from 1.9.2009.
14.
Major Col. (R) Muhammad Ahsan Umar, re-employed as
SSP, District East, Karachi Range (BS-19) for a period
of two years with effect from 24.9.2010.
32. The IGP stated that presently, the total strength of police
force is 32524, out of which approximately 12000 are performing
security duties, including 8000 deployed with VIPs and only 20000
personnel of police force were left for the purpose of policing of 18
million people in Karachi. He stated that by means of the Sindh
(Repeal of the Police Order, 2002 and Revival of the Police Act, 1861)
Act, 2011 passed by the Provincial Assembly, the Police Order, 2002
has been repealed in the Sindh Province, as a result of which the
Police Act, 1861 has been revived and the IGP is helpless in
transferring even a DSP from one place to another.
33. The majority of the police force performing duty in Karachi
comprises brave and devoted officers and men. They risk their lives
SMC 16/2011 ETC. 39
often targeted by unidentifiable enemies enjoying mobility in action.
They deserve the respect of the nation. However, as The IGP conceded
that 30-40 percent of police force are non-cooperative either for the
reasons that they have secured their appointments on political
considerations or they have associated themselves with different
groups including political parties, having vested interests in the affairs
of Karachi, therefore, at times it becomes very difficult for him to
effectively take action against the real culprits. When called upon to
explain as to how two accused persons involved in case FIR No.
434/2011, Police Station Zaman Town, have been released by the
Administrative Judge, ATC, accepting their plea of alibi, where a
concerted attack was launched upon police officers/officials who were
being transported in a private bus towards the disturbed areas for
controlling riots and bringing peace, resulting in death of 6-7
policemen, causing injuries to others, the IGP disclosed that the
investigating officer has been suspended and the then SHO of the
relevant Police Station has already been moved out and disciplinary
proceedings are in hand against him. This categorical statement in
respect of only one incident is sufficient to infer that the
statement so made by the IPG carries sufficient weight. If the police
official/officers are not sincere with the victims belonging to their own
rank and file, what expectation could one have from such force, which,
admittedly, stands politicized, for initiating forceful action against the
culprits involved in causing target killing, brutal murders, cutting limbs
of human bodies and putting the dead bodies and torsos into bags with
a view to terrorizing the society as a whole in general and the
inhabitants of Karachi city in particular. During the period of one
month, i.e. from 24 July to 24 August, 2011, as per information
SMC 16/2011 ETC. 40
submitted before the Court about the killing of people of 306 persons
232 FIRs have been registered mostly against unknown persons and
on completion of investigation in many cases, reports have been
submitted declaring the cases for disposal under A class, which
according to the relevant Police Rules means that the crime is
untraceable. Summary of the said cases is as under:-
S.No. Police
Station
FIR No. and date Status of
Investigation
1. Aram Bagh 189/2011 dt. 31.7.2011
u/s 302/34 PPC
A-Class
2. Darakshan 265/2011 dt.
03.08.2011 u/s 302 PPC
A-Class
3. Eidgah 197/2011 dt.
27.07.2011 u/s
302/324/34 PPC
A-Class
4. Eidgah 200/2011 dt. 30.7.2011
u/s 302/34 PPC
A-Class
5. Eidgah 202/2011 dt.
01.08.2011 u/s
302/324/34 PPC
A-Class
6. Eidgah 203/2011 dt.05.08.2011
u/s 302/34 PPC
A-Class
7. Eidgah 206/2011 dt.09.08.2011
u/s 324/302/34 PPC
A-Class
8. Frere 150/2011 dt.09.08.2011
u/s 302 PPC
A-Class
9. Garden 144/2011 dt.25.07.2011
u/s 302 PPC
A-Class
10. Garden 151/2011 dt.02.08.2011
u/s 364/302
A-Class
11. Garden 154/2011 dt.05.08.2011
u/s 364/302 PPC
A-Class
12. Garden 146/2011 dt.27.07.2011
u/s 302/34 PPC
A-Class
13. Kalakot 99/2011 dt.24.07.2011
u/s 302/324/34 PPC
A-Class
14. Kalakot 100/2011 dt.25.07.2011
u/s 302/34 PPC
A-Class
15. Kalakot 102/2011 dt.29.07.2011
u/s 302/34 PPC
A-Class
16. Nabi Bux 137/2011 dt.24.07.2011
u/s 302 PPC
A-Class
17. Napier 119/2011 dt.24.07.2011
u/s 302/324/34 PPC
A-Class
18. Napier 124/2011 dt.03.08.2011
u/s 302/34 PPC
A-Class
19. Napier 127/2011 dt.09.08.2011
u/s 302/34 PPC
A-Class
20. Preedy 473/2011 dt.09.08.2011 A-Class
SMC 16/2011 ETC. 41
u/s 302 PPC
21. Risala 127/2011 dt.10.08.2011
u/s 302/34 PPC
A-Class
22. Boat Basin 319/2011 dt.01.08.2011
u/s 324/34 PPC
A-Class
23. Boat Basin 323/2011 dt.04.08.2011
u/s 324/34 PPC
A-Class
24. Boat Basin 324/2011 dt.05.08.2011
u/s 324/34 PPC
A-Class
25. Defence 276/2011 dt.28.07.2011
u/s 324/34 PPC
A-Class
26. Garden 149/2011 dt.31.07.2011
u/s 324/34
A-Class
27. Eidgah 193/2011 dt.23.07.2011
u/s 302/34 PPC
A-Class
28. Kalri 176/2011 dt.08.08.2011
u/s 147/148/149/435
PPC
A-Class
29. Preedy 474/2011 dt.09.08.2011
u/s 384 PPC
A-Class
34. The IGP has also made before this Court another
admission while giving his presentation, summary of which has been
reproduced hereinabove, that there are no go areas within the
jurisdiction of different police stations. In this view of the matter, we
are of the opinion that the police without having any
commitment/dedication and other reasons highlighted hereinabove, is
not in a position to make any break through unless the whole force is
de-politicized and their morale is boosted by the senior officers,
having credible service/ training, commitment, dedication always
ready to discharge their functions willingly and to the best of their
ability. In the briefing, it has also been pointed out that so many
members of the police lost their lives in encounters with the criminals.
It is a matter of great concern that the perpetrators do not feel any
hesitation in killing the police personnel for the purpose of creating
atmosphere of fear, harassment to terrorize the whole society. The
number of such police officers has been noted herein above. In
addition to it, in recent incidents on 5th or 6th September, 2011, a dead
SMC 16/2011 ETC. 42
body of a policeman, namely, Javed Iqbal was found in the area of
Bakra Peri Road, near Evergreen School, Malir City Karachi, regarding
which FIR No.248/2011 was registered at Police Station Malir City. The
killing of the innocent persons has also not stopped even now, as has
been pointed out that a dead body of an unknown person, who was
badly tortured, was found lying in the car parking of a hospital,
reference of which has already been made herein above. There are
series of such incidents, which are taking place, one after the other.
Statedly, one policeman succeeded in causing arrest of one alleged
accused person, namely, Shah Zore on stated allegation that he was
responsible for killing innocent persons and after his arrest, on his
pointation, a dead body packed in a carton was recovered, reference of
which has been made in the order dated 09.09.2011. In the case,
where Rangers had succeeded in identifying a torture cell in Liyari area
and a DVD was prepared in respect of an incident, reference of which
has been made hereinabove, on watching it, one cannot explain in
words the degree of shamelessness, cruelty, barbarity and brutality
except summarizing that the heinous acts of committing sodomy upon
the victims and butchering them with blunt knives/churris were
committed brazenly. This is just one instance of the brutality and
barbarity, taking place in a torture cell which has been pointed out to
us, and it is not known that how many other such like torture cells are
being maintained by the criminals in their dens here and there in the
vastness of the city to satisfy their self as a vengeance. As a matter of
tit for tat, gruesome and cruel methodologies have been adopted for
the purpose.
35. On 07.09.2011, Director General Rangers Sindh, Major
General Aijaz Ahmed Chaudhry appeared in Court and stated that the
SMC 16/2011 ETC. 43
problem in Karachi is very serious, rather more serious than that of
South Waziristan. However, he submitted that if there was a will to
do it and once the State decides to bring peace to the city of Karachi,
no criminal could stand before the State and escape prosecution. He
further stated that the factors which contributed to the problem of the
city of Karachi happened to be that it is a huge city, it is based on
community system, a lot of development work has been done, but
there is unjust development of infrastructure on the basis of
communities residing in various parts of the city. There is
polarization to an unprecedented level on the political, ethnic, and/or
religious divides. According to him one day ethnic problem occurs and
next day religious problem starts. The situation has reached such a
stage where even the health sector is divided on ethnic and parochial
basis. A patient or injured person of one community is refused
admission or medical treatment by a hospital under influence of
another community. The problem can only be solved through
application of special means as well as requesting political
leadership to eliminate militancy from their wings. The political
face of the city has been taken hostage by militant groups of political
parties. Political parties are penetrated by the criminals under the garb
of political groups who use party flags. The militants and criminals are
taking refuge in the lap of political and ethnic parties which use the
flags of these parties to commit illegal activities with impunity. The
paramilitary force is, otherwise, fully capable of controlling the law and
order situation, the deployment of Rangers be further extended to
allow them to bring permanent peace in the city. There are religious
gatherings, problems like KESC issue, ethnic violence, protests/riots
over issues like Watan card distribution, Namoos-e-Risalat, as a result
SMC 16/2011 ETC. 44
whereof law enforcement agencies are over stretched. The
Government machinery has realized the seriousness of the situation
and assured that Rangers would bring the city back to normalcy and
ensure that people feel safe. He also suggested the constitution of a
high-level body comprising the Chief Minister and other stakeholders
to monitor progress in maintaining law and order as well as ensuring
good governance and social justice. The committee may be bound to
send progress reports to the Chief Justices of the High Court and
Supreme Court for perusal.
36. The DG Rangers further stated that he had requested in
security conferences that there should be no bar for the Rangers to
operate anywhere in the city, inasmuch as to go to the offices of
political parties, which housed ammunition, weapons and criminals,
and now by this notification this power has been given. According to
him, in a recent briefing on the law and order situation, restrictions on
the operations of the Rangers, were relaxed, directing that the police,
Rangers and other law enforcement agencies should not be stopped
from conducting raids in any area, including on the offices of political
parties, if the criminals take refuge there. He said that Rangers had
conducted successful raids and arrested culprits involved in target
killings whose details would be shared with the Court. He said that
Karachi is a mega city but unfortunately an unjust infrastructure had
divided it on ethnic and political basis.
37. In conclusion, the DG stated that no amount of application
of kinetic means, be it Rangers, or Army can fix the problem on long
term, rather it is the political process, which finally prevails and
provides hope to the nation. Suggesting the way forward, the DG
Rangers submitted that there is a need to train prosecutors, improve
SMC 16/2011 ETC. 45
forensic evidence, etc. According to him, the recent issuance of the
notification indicates that there is a realization at the political and
Government level, forcing them to come up with solution. He
expressed the desire that the notification should continue until peace
returns and so should the drive to round up the criminals and
terrorists.
38. Besides, the DG Rangers candidly conceded that bhatta
[extortion money] is a normal practice and criminals are collecting
bhatta, which, every day, runs into at least 10 million rupees and it is
being charged from an ordinary shopkeeper, rehriwala (push-cart
peddler) up to the top businessman by criminals who have got the
backing of the political parties who are the stakeholders. In this
behalf, Special Branch of the Police Department had filed a report
confidentiality of the same has not been claimed. In this report, a list
of chanda/bhatta collectors is available, a perusal whereof indicates
that bhatta is being collected invariably by the persons who claim their
association with ANP, MQM, PPP, Jamat-e-Islami, Sunni Tehrik, etc.
Besides, activists of the organizations banned under the Anti-Terrorism
Act, 1997 are also indulging in these activities. It is an admitted fact
that street crime like snatching cell phones, purses, etc. from the
citizens is rampant in the city and there cannot be two opinions that
the citizens, by and large, are suffering filled with fear and confusion.
They are so frightened that none of them comes forward even to lodge
the report, rather they prefer to pay bhatta or unhesitatingly agree to
hand over their valuables during the commission of street crimes. The
whole city seems to be in the grip of fear.
39. The learned Attorney General has also submitted a report
of Intelligence Bureau without claiming confidentiality and also
SMC 16/2011 ETC. 46
arranged briefing of ISI only for the Members of the Bench. The
Provincial Government also produced on record report of CID and it
too has not claimed confidentiality in respect of the same. Here it will
be pertinent to note that although, a notice was issued to the learned
Attorney General but the Federation chose to be represented through
a private counsel Dr. Babar Awan, learned Sr. ASC, who remained
associated with the case throughout the proceedings. As far as
Province of Sindh through Chief Minister is concerned, it is represented
by Mr. Abdul Hafeez Pirzada, learned Sr. ASC and the learned
Advocate General who represented the Chief Secretary and IGP. The
names of the interveners are available in the title of the case, which
includes MQM through Dr. Farogh Naseem, ANP through Syed Iftikhar
Hussain Gillani, Sindh Bachayo Committee through Mr. Abdul Mujeeb
Pirzada Sr.ASC, PML (N) through Faisal Kamal Alam ASC, Awami
Tehrik Party through its President Mr. Rasool Bux Palijo ASC, etc. They
have also put forward their respective pleas containing allegations and
counter allegations. Except the learned counsel appearing for the
official respondents i.e. Federation and the Province of Sindh, all
others including the interveners, unequivocally affirmed violation
of fundamental rights of the public enshrined in Articles 9, 14, 15,
18 and 24 of the Constitution.
40. How important has been the Suo Moto intervention of this
court and how vital is the “depoliticization of the administration”,
particularly police, is indicated in the instant case itself. Although the
notification ostensibly empowering the Rangers was issued on July 8,
2011, but the killing spree did not stop because, obviously, a
depoliticized administration was not available. Thus, in July alone as
many as 306 people were murdered as mentioned above, and a
SMC 16/2011 ETC. 47
greater number were injured. A number of dead bodies were
discovered in gunny bags, many mutilated and disfigured. The killing
spree continued at this pace and in just one week before this Court, on
24.08.2011, took Suo Moto notice of the situation as many as 109
citizens had been killed as per the power point presentation given by
the IGP on 29.08.2011. Out of 25 dead bodies found in gunny bags, 9
were found beheaded and tortured. These, and other related figures,
mentioned in para 22 above eminently justified interference by the
Court under Article 184(3). In fact the situation was so grave that the
Court decided immediately to shift the venue of the hearings to
Karachi. All concerned were put on notice. Although a few more tragic
incidents did take place during the hearing of the case and these have
been mentioned in detail herein, but there was a dramatic drop in the
number of crimes of the variety presently under consideration after the
court had intervened.
The lesson to be learned from this is simple. Initiation of
Suo Moto proceedings by the Court sent one straight and simple
message to an administration working under political pressures: “Take
no political pressure from any quarter whatsoever”. This was an
unstated message, but it was loud and clear. The administration
remained, and remains, under the political Government of the Province
of Sindh but the administrators immediately understood that they
would not be called upon to obey any illegal orders nor to discriminate
between adversaries. They would be fair and impartial and the results
have been dramatic so far. A depoliticized administration suddenly
came to life in fighting crimes, criminals and Mafias, political and
otherwise. That is what the intervention of the Court achieved. We the
Judges have no guns to fight the terrorists, but we have the authority
SMC 16/2011 ETC. 48
to ensure and strengthen the hands of those who actually apply the
law. In many cases the Suo Moto intervention of the Court has
produced such results, stopping corruption and mal-administration,
and Karachi demonstrates this. All over the democratic world judicial
review only strengthens democracy and should be welcomed by
democratic governments, not resented and resisted. It is now only
hoped that this restraint on political and partisan interference will also
continue after the Court winds up these proceedings so as to enable
the Police, the administration, and the Rangers to do their jobs in
accordance with the law.
41. Too often representatives of the Government are seen
castigating the Courts for the release of alleged terrorists and
criminals. This Court itself is often subjected to blistering criticism,
especially by members or allies of the ruling party on talk shows and
television programmes. The Court has shown restraint and has no ill-
will. Even otherwise the Judges cannot enter upon a public or private
debate about their performance or judgments even though the
criticism is highly politicized and unjustified as it often is these days.
But the burden that rests upon the executive and the legislature
cannot be passed on to the Courts. Courts can only act upon evidence
and material presented before them. This has to be collected by the
executive. The Courts cannot be blamed if the executive/police fail in
their duty. Moreover the evidence thus collected must be evaluated
according to the laws and rules prescribed by the legislature. In these
especial circumstances it is for the Government to ensure that cogent
evidence to support prosecution is collected and presented in the
Court. It is for the legislature to provide processes for the protection of
witnesses, Policemen and Judges and for the executive/government to
SMC 16/2011 ETC. 49
fully implement these reforms. Intelligence sharing and action on
intelligence that is uncorrupted by political or extraneous influence
must also be ensured by the executive. The Court expects that a new
culture of independent, depoliticized, and non-partisan prosecution
comprising efficient, capable prosecutors will be established by the
government to aid and assist the Courts. The Government must also
depoliticize the administration/prosecution. This will be for its own
good and for that of the nation. The Courts will keep a watchful eye
and strike down all illegal pressures and orders that are brought to
their notice.
42. Adversarial proceedings are defined as proceedings
relating to, or characteristic of an adversary or adversary procedures.
The term “adversarial” has been defined in the Concise Oxford English
Dictionary, Eleventh Edition, Revised, as under: -
“1. Involving or characterized by conflict or opposition. 2.
Law (of legal proceedings) in which the parties involved
have the responsibilities for finding and presenting
evidence.”
In “Advanced Law Lexicon” the term “Adversarial Process” has been
defined as under: -
“A process in which each party to a dispute puts forward
its case to the other and before a neutral judge, soliciting
to prove the fairness of their cases.”
In the American Heritage Dictionary of the English Language, Fourth
Edition: Published by Houghton Mifflin Company, the term is defined
as under:-
“Relating to or characteristic of an adversary; involving
antagonistic elements: "the chasm between management
and labor in this country, an often needlessly adversarial
…… atmosphere" (Steve Lohr).”
SMC 16/2011 ETC.
50
In Collins English Dictionary – Complete and Unabridged, it is defined
as under: -
“1. Pertaining to or characterized by antagonism and
conflict
2.
(Law) Brit having or involving opposing parties or
interests in a legal contest US term adversary”
The adversarial system (or adversary system) is a legal system where
two advocates represent their parties’ positions before an impartial
person or group of people, usually a jury or judge, who attempt to
determine the truth of the case, whereas, the inquisitorial system has
a judge (or a group of judges who work together) whose task is to
investigate the case.
43. The adversarial system is a two-sided structure under
which criminal trial courts operate that pits the prosecution against the
defense. Justice is done when the most effective and rightful adversary
is able to convince the judge or jury that his or her perspective on the
case is the correct one.
44. As against the above, the term “inquisitorial” is defined in
“Concise Oxford English Dictionary, Eleventh Edition, Revised as
under: -
“1.
Of or like an inquisitor.
2.
Law (of performing an examining role)”
In “Advanced Law Lexicon” 3rd Edition, 2005, it is defined in the
following words:-
“The system of criminal justice in most civil law nations,
where judges serve as prosecutors and have broad powers
of discovery.”
Webster's New World College Dictionary Copyright 2010, by Wiley
Publishing, Inc., Cleveland, Ohio defines it as under:-
“1.
of or like an inquisitor or inquisition
2. inquisitive; prying”
Collins World English Dictionary defines it as under:-
SMC 16/2011 ETC.
51
“1. of or pertaining to an inquisitor or inquisition.
2.
exercising the office of an inquisitor.
3.
law.
a. pertaining to a trial with one person or group
inquiring into the facts and acting as both
prosecutor and judge.
b. pertaining to secret criminal prosecutions.
4.
resembling an inquisitor in harshness or
intrusiveness.
5.
inquisitive; prying.
45. The Free Dictionary describes it in part, as “a method of
legal practice in which the judge endeavours to discover facts whilst
simultaneously representing the interests of the state in a trial”. Under
the inquisitorial model, the obligations of a Judge are far greater and
he is no longer a passive arbiter of proceedings but an active member
of the fact finding process.
46. An inquisitorial system is a legal system where the court or
a part of the court is actively involved in investigating the facts of the
case, as opposed to an adversarial system where the role of the court
is primarily that of an impartial referee between the prosecution and
the defense. Inquisitorial systems are used in some countries with civil
legal systems as opposed to common law systems. Also countries
using common law, including the United States, may use an
inquisitorial system for summary hearings in the case of
misdemeanors such as minor traffic violations. In fact, the distinction
between an adversarial and inquisitorial system is theoretically
unrelated to the distinction between a civil legal and common law
system. Some legal scholars consider the term “inquisitorial”
misleading, and prefer the word “non-adversarial”.
47. The inquisitorial system applies to questions of criminal
procedure as opposed to questions of substantive law; that is, it
determines how criminal enquiries and trials are conducted, not the
kind of crimes for which one can be prosecuted, nor the sentences that
SMC 16/2011 ETC. 52
they carry. It is most readily used in some civil legal systems.
However, some jurists do not recognize this dichotomy and see
procedure and substantive legal relationships as being interconnected
and part of a theory of justice as applied differently in various legal
cultures.
48. In some jurisdictions, the trial judge may participate in the
fact-finding inquiry by questioning witnesses even in adversarial
proceedings. The rules of admissibility of evidence may also allow the
judge to act more like an inquisitor than an arbiter of justice.
49. The proceedings, which are initiated as public interest
litigation in civil or criminal matters cannot be treated as adversarial
because of the definition of nature of the proceedings where without
contest between the parties a final finding has to be recorded, as it has
so been held in the case of Tobacco Board v. Tahir Raza
(2007 SCMR 97). In this judgment, matter relating to maintainability
of writ of quo warranto was considered and it was held that such writ
is to inquire from a person the authority of law under which he
purports to hold public office and it is primarily inquisitorial and not
adversarial, for the reason that a relater need not be a person
aggrieved; such exercise can be done suo motu, even if attention of
High Court is not drawn by the parties concerned. The same principle
has been followed by the Court in Ch. Muneer Ahmad v. Malik Nawab
Sher (PLD 2010 Lahore 625).
50. In the case of Philips Electrical Industries of Pakistan Ltd.
v. Pakistan (2000 YLR 2724) it has been observed that public interest
litigation is inquisitorial in nature where the Court may even delve into
fact finding so as to promote public interest.
SMC 16/2011 ETC. 53
51. In the case of Muhammad Munawar v. Deputy Settlement
Commissioner (2001 YLR 2350) the Lahore High Court has observed
that concept of adversarial proceedings under which it is the duty of
the parties to produce all relevant evidence, has been departed from
inasmuch as the Courts have also been called upon to share this
burden either on the application of the parties or suo motu to summon
and record all the relevant evidence in order to decide the case
effectively and finally; such rule is one of wisdom, for if a party to the
litigation fails in its duty, the Court is not denuded of its power to
summon the relevant evidence so that the dispute between the parties
is decided fairly and finally.
52. The Indian Supreme Court had the occasion to define
these expressions in various cases, including the cases of Peoples'
Union for Democratic Rights v, Union of India [AIR 1982 SC 1473] =
[(1982)3 SCC 235], Bandhua Mukti Morcha v. Union Of India [AIR
1984 SC 802], Peoples' Union for Liberties v. Union Of India [AIR 1996
Cal 89] and State of Uttaranchal v. Balwant Singh Chaufal [(2010) 3
SCC 402]. In Peoples' Union for Democratic Rights’ case (supra) the
Indian Supreme Court has observed as follows:-
“2. ……… We wish to point out with all the emphasis at
our command that public interest litigation which is a
strategic arm of the legal aid movement and which is
intended to bring justice within the reach of the poor
masses, who constitute the low visibility area of humanity,
is a totally different kind of litigation from the ordinary
traditional litigation which is essentially of an adversary
character where there is a dispute between two litigating
parties, one making claim or seeking relief against the
other and that other opposing such claim or resisting such
relief. Public interest litigation is brought before the court
SMC 16/2011 ETC. 54
not for the purpose of enforcing the right of one individual
against another as happens in the case of ordinary
litigation, but it is intended to promote and vindicate public
interest which demands that violations of constitutional or
legal rights of large numbers of people who are poor,
ignorant or in a socially or economically disadvantaged
position should not go unnoticed and unredressed. That
would be destructive of the Rule of Law which forms one of
the essential elements of public interest in any democratic
form of government. The Rule of Law does not mean that
the protection of the law must be available only to a
fortunate few or that the law should be allowed to be
prostituted by the vested interests for protecting and
upholding the status quo under the guise of enforcement
of their civil and political rights. The poor too have civil and
political rights and the Rule of Law is meant for them also,
though today it exists only on paper and not in reality. If
the sugar barons and the alcohol kings have the
Fundamental Right to carry on their business and to fatten
their purses by exploiting the consuming public, have the
'chamars' belonging to the lowest strata of society no
Fundamental Right to earn an honest living through their
sweat and toil ? The former can approach the courts with a
formidable army of distinguished lawyers paid in four or
five figures per day and if their right to exploit is upheld
against the government under the label of Fundamental
Right, the courts are praised for their boldness and
courage and their independence and fearlessness are
applauded and acclaimed. But, if the Fundamental Right of
the poor and helpless victims of injustice is sought to be
enforced by public interest litigation, the so called
champions of human rights frown upon it as waste of time
of the highest court in the land, which, according to them,
should not engage itself in such small and trifling matters.
Moreover, these self-styled human rights activists forget
that civil and political rights, priceless and invaluable as
they are for freedom and democracy simply do not exist
SMC 16/2011 ETC. 55
for the vast masses of our people. Large numbers of men,
women and children who constitute the bulk of our
population are today living a sub-human existence in
conditions of abject poverty, utter grinding poverty has
broken their back and sapped their moral fibre. They have
no faith in the existing social and economic system. What
civil and political rights are these poor and deprived
sections of humanity going to enforce? This was brought
out forcibly by W. Paul Gormseley at the Silver Jubilee
Celebrations of the Universal Declaration of Human Rights
at the Banaras Hindu University: “Since India is one of
those countries which has given a pride of place to the
basic human rights and freedoms in its Constitution in its
chapter on Fundamental Rights and on the Directive
Principles of State Policy and has already completed
twenty-five years of independence, the question may be
raised whether or not the Fundamental Rights enshrined in
our Constitution have any meaning to the millions of our
people to whom food, drinking water, timely medical
facilities and relief from disease and disaster, education
and job opportunities still remain unavoidable. We, in
India, should on this occasion study the Human Rights
declared and defined by the United Nations and compare
them with the rights available in practice and secured by
the law of our country.”
The only solution for making civil and political rights
meaningful to these large sections of society would be to
remake the material conditions and restructure the social
and economic order so that they may be able to realise the
economic, social and cultural rights. There is indeed close
relationship between civil and political rights on the one
hand and economic, social and cultural rights on the other
and this relationship is so obvious that the International
Human Rights Conference in Tehran called by the General
Assembly in 1968 declared in a final proclamation:
SMC 16/2011 ETC. 56
“Since human rights and fundamental freedoms are
indivisible, the full realisation of civil and political
rights without the enjoyment of economic, social and
cultural rights is impossible.”
Of course, the task of restructuring the social and
economic order so that the social and economic rights
become a meaningful reality for the poor and lowly
sections of the community is one which legitimately
belongs to the legislature and the executive, but mere
initiation of social and economic rescue programmes by
the executive and the legislature would not be enough and
it is only through multidimensional strategies including
public interest litigation that these social and economic
rescue programmes can be made effective. Public interest
litigation, as we conceive it, is essentially a co-operative or
collaborative effort on the part of the petitioner, the State
or public authority and the court to secure observance of
the constitutional or legal rights, benefits and privileges
conferred upon the vulnerable sections of the community
and to reach social justice to them. The State or public
authority against whom public interest litigation is brought
should be as much interested in ensuring basic human
rights, constitutional as well as legal, to those who are in a
socially and economically disadvantaged position, as the
petitioner who brings the public interest litigation before
the Court. The state or public authority which is arrayed as
a respondent in public interest litigation should, in fact,
welcome it, as it would give it an opportunity to right a
wrong or to redress an injustice done to the poor and
weaker sections of the community whose welfare is and
must be the prime concern of the State or the public
authority.
3. There is a misconception in the minds of some
lawyers, journalists and men in public life that public
interest litigation is unnecessarily cluttering up the files of
the court and adding to the already staggering arrears of
cases which are pending for long years and it should not
therefore be encouraged by the court. This is, to our mind,
SMC 16/2011 ETC. 57
a totally perverse view smacking of elitist and status quoist
approach. Those who are decrying public interest litigation
do not seem to realise that courts are not meant only for
the rich and the well-to-do, for the landlord and the
gentry, for the business magnate and the industrial
tycoon, but they exist also for the poor and the downtrodden
the have-nots and the handicapped and the half-
hungry millions of our countrymen. So far the courts have
been used only for the purpose of vindicating the rights of
the wealthy and the affluent. It is only these privileged
classes which have been able to approach the courts for
protecting their vested interests. It is only the moneyed
who have so far had the golden key to unlock the doors of
justice. But, now for the first time the portals of the court
are being thrown open to the poor and the down- trodden,
the ignorant and the illiterate, and their cases are coming
before the courts through public interest litigation which
has been made possible by the recent judgment delivered
by this Court in Judges Appointment and Transfer cases.”
In Bandhua Mukti Morcha’s case (supra) after referring to the cases of
Peoples' Union for Democratic Rights, the Court has observed as
under: -
“9. ……………… We have on more occasions than one said
that public interest litigation is not in the nature of
adversary litigation but it is a challenge and an opportunity
to the Government and its officers to make basic human
rights meaningful to the deprived and vulnerable sections
of the community and to assure them social and economic
justice which is the signature tune of our Constitution. The
Government and its officers must welcome public interest
litigation, because it would provide them an occasion to
examine whether the poor and the down-trodden are
getting their social and economic entitlements or whether
they are continuing to remain victims of deception and
exploitation at the hands of strong and powerful sections
of the community and whether social and economic justice
SMC 16/2011 ETC. 58
has become a meaningful reality for them or it has
remained merely a teasing illusion and a promise of
unreality, so that in case the complaint in the public
interest litigation is found to be true, they can in discharge
of their constitutional obligation root out exploitation and
injustice and ensure to the weaker sections their rights and
entitlements. When the Court entertains public interest
litigation, it does not do so in a caviling spirit or in a
confrontational mood or with a view to tilting at executive
authority or seeking to usurp it, but its attempt is only to
ensure observance of social and economic rescue
programmes, legislative as well as executive, framed for
the benefit of the have-nots and the handicapped and to
protect them against violation of their basic human rights,
which is also the constitutional obligation of the executive.
The Court is thus merely assisting in the realisation of the
constitutional objectives."
In Peoples' Union for Liberties’s case (supra) after referring to the
cases of Peoples' Union for Democratic Rights and Bandhua Mukti
Morcha’s case (supra), the Calcutta High Court has observed as
under:
“122. It is quite obvious that in a public interest litigation
the petitioner and the State are not supposed to he pitted
against each other, there is no question of one party
claiming or asking for relief against the other and the
Court deciding between them. Public interest litigation is a
co-operative litigation in which the petitioner, the State or
public authority and the Court arc to co-operate with one
another in ensuring that the constitutional obligation
towards those who cannot resort to the Courts to protect
their constitu-tional or legal rights is fulfilled. In such a
situation the concept of cause of action evolved in the
background of private law and adversary procedure is out
of place. The only question that can arise is whether the
prayers in the petition, if granted, will ensure such
constitutional or legal rights.”
SMC 16/2011 ETC. 59
53. We have observed during the hearing that instant
proceedings are not adversarial, but inquisitorial. The information/
material laid/produced before this Court by the State functionaries in
pursuance of the order dated 24.08.2011, followed by the order of the
Full Bench dated 26.08.2011 and the material produced by the
interveners, reference of which has been made in the order referred
hereinabove is sufficient for making right conclusions. We were
informed that besides figures of crimes committed during one month
commencing from 24th July to 24th August, 2011 noted hereinabove;
about 1300 persons were killed during this year, whereas about 1800
persons similarly lost their lives in the year 2010. Thus, having gone
through the material, we have no hesitation in our mind that at large
scale the residents of Karachi have been subjected to bloodshed,
arson, kidnapping/abduction for ransom, widespread violence, illegal
collection of money (bhatta) from traders, etc. and that their
inalienable Fundamental Rights, such as, security of person;
inviolability of dignity of man; freedom of movement; freedom of
trade, business or profession and protection of property have been
violated.
54. The fact that deadliest criminals having affiliation with
various groups are responsible for bloodshed, arson, looting, recovery
of money (bhatta) from common citizens and traders causing terror in
the city of Karachi is not denied. Fearful as they are, the people of
Karachi have been spending sleepless nights particularly during the
past months of July and August is also not denied. The accused
persons belonging to any political or specific group are so powerful
that the police for the reason stated have failed to arrest or collect
evidence for proving the guilt against them before a Court of Law as
SMC 16/2011 ETC. 60
we have noted hereinabove and according to summary of disposal of
cases, most of the cases have already been disposed of as “A” Class,
details of which have been mentioned hereinabove. M/S Syed Iftikhar
Hussain Gillani, Abdul Mujeeb Pirzada, Ghulam Qadir Jatoi, Rasool
Bakhsh Palijo and Syed Iqbal Haider representing various
applicants/interveners have blamed MQM to have let their activists
loose who, according to them, are largely responsible for creating
dismal situation of law and order perpetrating the alleged wrongful
acts and causing terrorism in the city. Whereas, Dr. Farogh Naseem,
learned ASC, appearing on behalf of MQM voiced in his submissions
that in actual fact the Urdu speaking inhabitants of Karachi are the
victims of atrocious acts of criminals aligned with various other groups,
particularly having influence in Baloch area of Lyari and Kati
Pahari/Qasba Colony area largely inhabited by Pashtuns. According to
him, hundreds of MQM workers have been tortured and killed at the
hands of such groups. Thus, it is quite evident that uncontrollable law
and order situation prevails, which has wrapped the city of Karachi in
terror to the utmost discomfort of common citizens including traders,
remains undisputed, the details of which are stated more specifically in
the foregoing paragraphs. The DG Rangers, in his submissions, has
been so vocal to say that the law and order situation in Karachi is
worse than it happens to be in Waziristan. The IG Police has also not
lagged behind in admitting the brazen facts. This situation has not only
heavily affected the common citizens of Karachi, it has virtually
paralyzed the industrial and commercial activities ultimately affecting
the whole country as Karachi being a port city and commercial hub of
country, it contributes 60 – 70 % of revenue. Thus, there cannot be
two opinions that the worsening law and order situation in Karachi
SMC 16/2011 ETC. 61
badly affecting the inviolable dignity, life and liberty of multitudes of
people; so also their property, movable and immovable involve
violation of Fundamental Rights constituting it a matter of public
importance.
55. It is to be noted that, primarily it is the duty of the
Province through its executive authorities to control the law and order
situation and ensure implementation of Fundamental Rights of citizens.
But prima-facie it seems that the Provincial Authorities have not
fulfilled their constitutional duty. Under the Constitution, equally it is
the obligation of the Federation to protect every Province against
internal disturbances as well as external aggression and to ensure that
the Government of every Province is carried on in accordance with the
provisions of the Constitution.
56. It has been pointed out by learned counsel for the
interveners representing different parties and groups including MQM,
ANP, Baloch Ittehad Tehrik and others that their supporters/party men
have been butchered and are kidnapped and their whereabouts as yet
are not known.
57. According to the opinion expressed before us, the
Provincial as well as Federal Government cannot be considered to have
been oblivious of their duties when right under their nose, a large
number of persons were being brutally butchered everyday on the
streets of Karachi, which are littered with dead bodies and torsos
(human bodies without head and limbs); sometimes also found in
abandoned places and the injured writhing in pain; so also when
innocent citizens were being burnt inside vehicles and torture cells
were being detected by the law enforcing agencies. The state of
helplessness prevailed, throughout, in the city of Karachi – the face
SMC 16/2011 ETC. 62
of Pakistan being its economic hub – accommodating persons
belonging to different communities, including Urdu speaking, Pashtuns,
Saraiki’is, and others. The dead bodies of the persons belonging to all
walks of life i.e. Urdu speaking (word used for the purpose of
identifying in this case), Pashtuns, Balochis and Punjabis are being
sent to their homes, within Karachi and outside Karachi i.e. to Khyber
Pakhtunkhwa, Baluchistan and Punjab, which is causing
insurmountable fear and harassment throughout the country badly
affecting economic activities on account of disturbances taking place in
Karachi. Many people have wound up their business and have shifted
from Karachi to other places inside the country and outside causing
colossal loss not only to the residents of Karachi individually, but to
overall economy of the country. The whole nation is crying hoarse,
media highlighting the tragic incidents day and night in such a state
also cannot be considered to have not come to the knowledge of
Provincial and Federal functionaries. Unfortunately, no appropriate and
timely action has been taken by the Provincial as well as Federal
Governments to stop these atrocious acts. Material has been brought
on record, such as, reports of JIT, CID, IB, etc. (copies of which have
been provided to us) bearing horrifying stories of heinous crimes
committed by dangerous criminals aligned with various political parties
and groups; besides very critical situation of law and order reflected in
the classified briefing of ISI cannot be considered that the same are
not within the knowledge of the Provincial and the Federal
Governments. This sensitive material is, prima-facie, sufficient to hold
that the Provincial Government has failed to perform its constitutional
obligations and duties. Therefore, for the purpose of enforcement of
Fundamental Rights denied to the people as highlighted hereinabove,
SMC 16/2011 ETC. 63
this Court in exercise of its jurisdiction under Article 184(3), which is in
the nature of inquisitorial proceedings, has the same powers as are
available to the High Court under Article 199 of the Constitution in
view of the judgments passed in the cases of Muhammad Nawaz Sharif
v. President of Pakistan (PLD 1993 SC 473), Syed Wasey Zafar v.
Government of Pakistan (PLD 1994 SC 621), Bank of Punjab v. Haris
Steel Industries (pvt.) Ltd. (PLD 2010 SC 1109) and Federation of
Pakistan v. Munir Hussain Bhatti (PLD 2011 SC 752).
58. There is no denial of the fact that ensuring good
governance, maintaining law and order situation and providing security
to the persons is a primary duty of the Government. Our religion has
also emphasized upon the significance and sanctity of ‘life’ as it has
been noted in the opening Para of the judgment, according to which, if
anyone killed a person, it would be as if he killed the whole humanity,
and similarly if anyone saved a life, it would be as if he saved the
whole humanity. Similarly, it is the responsibility of the ruler
(government) to ensure security of all its citizens, high or low, without
any discrimination. It would be appropriate to refer here to the saying
of the Second Caliph Umar ibn al-Khattab (R.A) that if a dog dies of
hunger on the banks of the River Euphrates, Umar will be held
responsible for dereliction of duty. [Mohtsham, Saeed M., Vision and
Visionary Leadership – An Islamic Perspective]. Mr. Abdul Hafeez
Pirzada, Sr. ASC appearing on behalf of the Chief Executive of the
Province suggested in his arguments that a wake up call should be
given to the Provincial Government by this Court, so that it may
enforce the constitutional provisions. The suggestion of the learned
counsel, however, does not sound well as this is the duty of the ruler
to maintain the law and order without any interference of the Court. It
SMC 16/2011 ETC.
64
is the history of this country that on account of law and order
situation, disturbance, absence of peace, etc., many governments
were dismissed in the past. In this behalf, reference may be made to
the instruments of dissolution of Parliaments issued by civilian
constitutionally elected Presidents which were upheld by the Supreme
Court from time to time:
.
Order dated 29.5.1988 whereby the President of Pakistan
dissolved the National Assembly under Article 58(2)(b):
“And whereas the law and order in the country have
broken down to an alarming extent resulting in tragic loss
of innumerable valuable lives as well as loss of property:
And whereas the life, property, honour and security
of the citizens of Pakistan have been rendered totally
unsafe and the integrity and ideology of Pakistan have
been seriously endangered. [Federation of Pakistan v.
Haji Muhammad Saifullah Khan (PLD 1989 SC 166)]
.
Order under Article 58(2)(b) of the Constitution on 6th of
August, 1990 dissolved the National Assembly
(d) The Federal Government has failed in its duty under
Article 148(3) of the Constitution to protect the Province of
Sindh against internal disturbances and to ensure that the
Government of that Province is carried on in accordance
with the provisions of Constitution, despite the heavy loss
of life and property, the rule of terror in urban and rural
areas, riots, arson, dacoities, kidnapping for ransom,
politics of violence among citizens and widely condemned
failure of the Provincial Government and its law enforcing
agencies, and also, in this behalf, failed to act under
appropriate provisions of the Constitution. [Khawaja
Ahmad Tariq Rahim v. the Federation of Pakistan (PLD
1992 SC 646)]
.
Order dated 5.11.1996 whereby the President dissolved
the National Assembly under Article 58(2)(b)
SMC 16/2011 ETC. 65
"Whereas during the last three years thousands of
persons in Karachi and other parts of Pakistan have been
deprived of their right to life in violation of Article 9 of the
Constitution. They have been killed in Police encounters
and Police custody.
59. In Ahmad Tariq Rahim’s case (supra), the dismissal of
government was maintained by this Court because of failure of the
Federal Government to protect the Provincial Government of Sindh
from internal disturbances, relevant Para therefrom is reproduced
herein below: -
“28. Ground (d) in the order of dissolution is that the
Federal Government had failed in its duty under Article
148(3) of the Constitution to protect Province of Sindh
against internal disturbances despite heavy loss of life and
property. In this respect, stand taken on behalf of the
petitioner is that matter relating to law and order situation
in the Province was responsibility of the Province as
enshrined in the Constitution. It is stated in the rejoinder
riled in the High Court that Government of PPP entered
into accord with MOM accommodating its members in the
Sindh Cabinet. Due to certain reasons there was unilateral
break-up of the accord by MQM which had withdrawn
support from the Government. The Provincial Government
was doing its level best to deal with law and order situation
as required under the Constitution and provisions of
relevant laws. On this subject, there were several
meetings between the Federal Government and the
Provincial Government of Sindh and exchange of letters.
took place between President, Prime Minister and the
Governor of Sindh. In fact joint efforts were made
sincerely to deal with the situation of law and order in
Sindh to find a permanent solution. It is submitted on
behalf of the petitioner that Federal Government and
Government of Sindh wanted assistance of the army to the
limited extent of aiding the civilian government as
SMC 16/2011 ETC. 66
contemplated under the provisions of Criminal Procedure
Code but for some reason could not succeed in carrying
out amendment in section 138-A of Criminal Procedure
Code. One suggestion from the Provincial Government was
that unlicensed arms should be recovered from people
without any discrimination. Then unpleasant incident took
place in Hyderabad on 26th and 27th May, 1990 in Pacca
Qila. There were so many casualties in the firing. President
wrote a letter on 28th May, 1990 addressed to the Prime
Minister, asking hor to appoint judicial enquiry Commission
to fix the responsibility for the events that took place in
Hyderabad expressing his opinion in favour of use of
armed forces in aid of civil power as contemplated under
Article 245 of the Constitution.”
Relevant Para from the judgment of this Court in Benazir Bhutto v.
Federation of Pakistan (PLD 1988 SC 416) is also reproduced
hereinbelow: -
“54. The law and order situation in Karachi and other parts
of Sindh should not have been allowed to deteriorate and
get out of control. The custodial killings are to be explained
satisfactorily as is required under the law. The killings in
encounters with police are to be explained in proper
manner and the Court has to give finding whether they
were justified or not. There is absolutely no explanation
available or produced on the record as to how the persons
taken in custody and some of them in handcuffs while
leading the Police party/Law Enforcing Agencies for making
recoveries, were allowed to be killed by some unknown
persons who did not want recoveries to be made. If a
person is taken into custody then he is bound to be dealt
with strictly according to law and is to be punished only
when the case is proved against him. He cannot be allowed
to be killed by any person while he is in custody. If this is
done then it clearly shows that there is no writ of law but
law of jungle. This shows inefficiency which tantamounts to
total failure of the Constitutional machinery. If both the
Provincial Government and the Federal Government jointly
dealing with such situation fail then it can be said that the
ground is available to the President to come to the
conclusion that a situation has arisen in which the
Government of the Federation cannot be run in accordance
with the provisions of the Constitution and the
Constitutional machinery has failed.
SMC 16/2011 ETC.
67
60. It would not be out of context to note that Mr. Pirzada
learned ASC had submitted that the Chief Executive was ready to take
the following measures in future to maintain law and order situation in
Karachi. The statement so filed is reproduced hereinbelow in
verbatim:-
STATEMENT ON BEHALF OF COUNSEL FOR THE PROVINCE OF SINDH
In pursuance of the proceedings before, and the order of
this Hon’ble Court in the above matter dated 30.08.2011, the
undersigned counsel for the Province of Sindh has met the Chief
Minister, Sindh and as a result thereof, he has been instructed
and requested to make the following/submissions.
1.
The Chief Minister, Sindh has expressed his resolve and
determination to deal with and handle the present criminal
and crime situation in the city of Karachi (the subject
matter of the above proceedings) without any
discrimination whatsoever, irrespective of any party
affiliations, that the criminals may or claim to have and
that every effort will be made to deal with and control the
situation by all necessary action within the framework and
letter and spirit of the Constitution the law.
2.
The Chief Minister firmly believes that his Government and
the law enforcement agencies and instrumentalities
available to him are competent in this behalf and that
there shall be no lack of will to act on their part.
3.
Without prejudice to the generality of the above
submission, the Chief Minister, respectfully wants to
convey to this Hon’ble Court, the specific actions that he
proposes to take in this behalf:
a.
For the purpose of prevention and control of crime,
steps are underway to increase the strength of the
police force and supplement and buttress the same
by the Rangers. It may be pointed that deployment
of Rangers (which are absolutely necessary and vital
to work in coordination and cooperation with the
Police and are 10,000 in numbers in the city of
Karachi) impose a bearable burden of less than
Rs.400,000,000/- (Rupees Four Hundred Million) per
year, in juxtaposition to the benefits flowing from
their proper utilization. The burden of their salaries
and emoluments is and continues to be borne by the
Federal Government and not the Provincial
Government.
b.
1000 additional Police force has been transferred
from the interior of Sindh to perform duties in the
city of Karachi. The large number of the Police force
available in Karachi, which has not been allocated to
crime control will be reduced beginning immediately
so as to provide sufficient numbers to crime control.
It may be pointed that at least a half of the number
SMC 16/2011 ETC.
68
reserved for special duties as disclosed by the
Inspector General Police, Sindh, is either assigned to
traffic control or security to VIP’s and also nongovernmental
private parties and institutions. Notices
have already been issued to these non-governmental
and private organizations, that the force allocated to
them is to be withdrawn and they have been advised
to make private arrangements for their security. In
the next immediate step, the force assigned to VIP’s
will be reduced, wherever possible in consonance
with and without jeopardizing the requirement of
their security.
c.
Lastly, a 5000 strong contingent Police force, is being
recruited, which will be trained and fully capable of
performing their duties within the next 12 months.
These recruits will receive special and sophisticated
training at 9 Police training centers in the Province.
d.
Closed Circuit Televisions (CCTV’s) and cameras are
being installed at 900 different locations in the city,
which shall monitor, record and report commission of
crimes. As stated in the power point presentation
(from pages 48 onwards), new and effective APC’s
have been ordered, which will augment and enable
easier penetration by the law enforcement agencies
into the crime areas. As stated on page 48, a new
motorcycle force named ‘Eagle Force’ has already
been introduced and is functional.
e.
20 mobile forensic laboratories are being acquired,
which shall be manned by extensively trained
personnel, with the assistance of friendly countries
with advanced technology and expertise.
f.
The next important aspect in the maintenance of law
and order is an effective, meaningful and productive
investigation for the purpose of apprehension of real
culprits, sophisticated and proper collection of
evidence, l witnesses and compilation of record, so as
to enable the Prosecutors to go with confidence and
secure convictions of the guilty. The Police Act 1861
has already been brought into force and solid
investigation can be achieved through suitable
amendments in the law. In this behalf, desired
results can be achieved by strengthening the
prosecution agencies and institutions. It may be
necessary to bring suitable amendments in the
existing laws, which may inter alia, provide for safety
and security of witnesses and maintenance of full
record and date of habitual offenders, so as to make
it difficult for them to be release on bail as a matter
of course.
g.
As far as the question of aliens/noncitizens living in
Karachi and estimated to e 2,500,000, this matter
relates to a considerable extent to the Federal
Government and the Counsel representing it shall
have better locus standi to address this Hon’ble
Court.
SMC 16/2011 ETC.
69
4.
That these proceedings have been initiated Suo Motu by
this Hon’ble Court, pro bono publico and are not
adversarial and therefore, the submissions on behalf of
the Province of Sindh have been made in that context.
This Hon’ble Court has also made observation to the same
effect. Therefore, the right of rebuttal, of the Province of
Sindh, is not waived if others parties, who have brought in
their petitions or have joined these proceedings make any
submissions, which are required to be answered rebutted
and controverted.”
But subsequently, he waived his right of rebuttal.
61.
Some of the above commitments have already been
reiterated by the IGP Sindh in his presentation, summary whereof has
been reproduced hereinabove. Similarly, as it has been pointed out in
the report submitted by the Chief Secretary Sindh dated 26.08.2011
that after large scale bloodshed in Karachi, now the Administration has
realized the gravity of the situation and has conferred powers upon the
Pakistan Rangers vide notification dated 08.07.2011, which reads as
under:-
“No.SO(LE-I)/HD/6-66
GOVERNMENT OF SINDH
HOME DEPARTMENT
Karachi dated July 08, 2011
NOTIFICATION
SUBJECT:
PAKISTAN RANGERS (SINDH) EMPLOYMENT IN THE
MAINTENANCE OF LAW AND ORDER IN KARACHI
In the wake of recent incidents of terrorism/target killings
in certain parts of Karachi, Government of Sindh, in
exercise of the powers invested under section 10 of the
Pakistan Rangers Ordinance, 1959, read with section 5 of
the |Anti-Terrorism Act, 1997, hereby make responsible
Pakistan Rangers (Sindh) for the maintenance of law and
order and to apprehend the criminal elements involved in
firing and killing of innocent citizens in various areas and
zones of the city (where situation warrants employment of
Sindh Rangers). Pakistan Rangers (Sindh) are hereby
authorized by the Government of Sindh to cordon, search
and use force in controlling firing by the criminals in
effected areas.
CCPO Karachi will extend all possible support to Pakistan
Rangers (Sindh) in restoring law and order situation in any
part of the city.
SMC 16/2011 ETC. 70
ADDITIONAL CHIEF SECRETARY
HOME DEPARTMENT”
The contents of the report of the Chief Secretary, particularly Paras 7
& 8 thereof, being an eye-opener, have already been reproduced
hereinabove.
62. Similarly, IG Police in addition to other explanations,
referred to the demography of the city and admitted extortion of
money (bhatta) being collected from the traders.
63. Mr. Farogh Naseem, learned ASC appearing on behalf of
MQM in CMA 565-K/2011, pointed out that to prevent extortion of
money (bhatta) the Provincial Assembly had already promulgated the
Eradication and Curbing the Menace of Involuntary Donation or Forced
Chanda Act, 2004 [hereinafter referred to as “the Act, 2004”].
However, it seems that this legal instrument has not been applied
strictly whereas other learned counsel for interveners are of the
opinion that criminals involved in collection of bhatta are so desperate
that no one – be a trader or anyone else – being fearful is interested
to expose himself to the wrath of the criminals, rather they feel safety
in paying bhatta; besides they are equally hesitant to come forward
because of problems and difficulties in perusing cases and also have
no trust and faith in the police. As far as the law which has been
referred to by the learned counsel, cognizance of an offence under the
said Act is to be taken on submission of complaint in writing by a
donor within 30 days of the commission of the offence before the
Judicial Magistrate having territorial jurisdiction. The victims, instead
of going by the letter of the law whereunder they have to become
complainants and challenge the criminals, reportedly always armed
with lethal weapons, prefer to make payment of bhatta. This thing can
SMC 16/2011 ETC. 71
only be reversed if the trust of the citizens is restored, which of course
is not possible until and unless a neutral and a depoliticized
administration as well as honest and dedicated law enforcing agencies,
especially police are there to protect the victims of crimes. It seems
that this law was promulgated for eradication and curbing the menace
of extortion of money in the shape of forced donations (chanda). The
word “chanda” has not been defined, but the definition clause of
section 2 contains the word “Fund” which includes donation or
contribution in the shape of money or kind. Thus, taking advantage of
this provision, it was argued before us that there have been
complaints that in the name of payment of fitrana, which is to be paid
as sadqa by all the Muslims at the end of Ramadan on the eve of Eidul-
fitr, exorbitant amounts have been forcibly recovered instead of
allowing Muslims to pay the same voluntarily to the deserving people
as per Injunctions of Islam. The culprits in an organized manner
receive fitrana and in some of the cases ten times of the original
amount has been demanded. Although no documents are available on
record in this behalf, but these things have been pointed out during
the arguments by the learned counsel appearing for the interveners
who have spoken before the Court vocally. Similarly, it has been
informed that as far as the word ‘kind’ mentioned in the definition of
“fund” is concerned, it relates to recovery of hadia (donation), skins of
animals (khall) and other body parts of animals on the occasion of Eidul-
Azha, however, the representatives of so called welfare
organizations working under the flags of their respective political
parties used to bind down the people to hand over the same to them,
else to face the consequences, but according to the learned counsel for
the interveners, this law has also not worked effectively and the
SMC 16/2011 ETC. 72
practice of forcible recovery of the above items, i.e. skins, etc., has
been going on.
64. It may be noted that as far as offence of extortion of
money is concerned, which can also be considered as bhatta, it is
covered by sections 386 to 388 of the Pakistan Penal Code and also
falls within the definition of terrorism given in section 6(1)(k) of the
Anti-terrorism Act, 1997. Undoubtedly, sufficient legal framework as
discussed hereinabove is available on the statute book, but the same
is lying dormant because of its non-application as people do not have
trust in the law enforcing agencies to counter the deadly and
influential persons who happen to terrorize the innocent citizenry and
due to this reason no one comes forward. It is common knowledge
that mafias i.e. groups of criminals involved in the commission of
heinous crimes, such as recovery of bhatta, extortion of money,
business of illegal weapons, narcotics, drugs, land grabbing, etc., had
been working in other countries as well in a highly organized manner.
Reference in this behalf may be made to the Sicilian and American
Cosa Nostra, an Italian group also working in New York, but in those
countries the crime was controlled by promulgating and implementing
stringent laws, which we also have in our jurisdiction, namely, Antiterrorism
Act, 1997, therefore, we can also control the same by
applying such laws strictly. In USA, to control such underworld mafias,
the State authorized through the courts seizure of properties of such
like persons, if it was established that they had acquired such
properties out of income from the proceeds of heinous crimes. In this
behalf, reference may be made to the case of Bracy v. Gramley,
Warden, [520 U.S. 899 (1997)], wherein the Supreme Court of United
States did not show any concession to the culprits. There are so many
SMC 16/2011 ETC. 73
other judgments, reference of which may not be necessary at this
stage, where the Governments had succeeded to control the mafias
after applying stringent measures.
65. The history of Karachi, which has been narrated
hereinabove, indicates that from 1985 onwards, the rate of crime as
well as the situation of law and order have been increasing with the
passage of time. Syed Iqbal Haider, Sr. ASC in CMA No. 544-K/2011,
has pointed out that General Zia-ul-Haq, with an intension to further
divide and de-politicize the people, created three militant groups and
fully armed ethnic parties, i.e. Muhajir Qaumi Movement (Now
Mutahida Qaumi Movement), Punjabi Pukhtoon Itehad (PPI) and Jiye
Sindh (JS), and ethnic warfare started from the tragic road accident
death of a student named Bushra Zaidi in April, 1985, followed by
numerous incidents of bloody clashes between the three ethnic parties
resulting in innumerable deaths of innocent citizens, destruction of
public and private property and injuries to thousands of persons,
particularly in Karachi and Hyderabad. Curfews, hartaals (strikes) and
close downs of routine activities of the citizens became a norm in
Karachi. He further stated that from 1980 onwards, six Judicial
Commissions headed by Judges of High Court of Sindh were
constituted, but reports of none of those Commissions were made
public nor their recommendations were ever implemented, perhaps to
protect the real culprits responsible for such bloody incidents.
Inasmuch as, former Prime Minister Mohtarma Benazir Bhutto had
constituted a most powerful independent Judicial Commission headed
by the then Chief Justice of Pakistan, Mr. Justice Muhammad Afzal
Zullah and comprising the Chief Justices of all the four High Courts to
investigate into the unfortunate incident of Pakka Qila, Hyderabad on
SMC 16/2011 ETC. 74
or about 17.05.1990, but according to him, after unconstitutional
dissolution of the Government of Mohtarma Benazir Bhutto, during the
days of new Caretaker Government with heavy representation of MQM
both at Federal and Provincial levels, it decided to dissolve the said
Judicial Commission. He handed over the implementation report of one
of such Commissions headed by the Chief Secretary, Sindh constituted
in 1985-86 after the incident of Bushra Zaidi. We inquired from the
learned Advocate General as to whether any other Commission’s
report was available and whether the same had been made public or
not, he stated that as per instructions, no Commission report is
available in the relevant department. From the facts and
circumstances narrated by the learned counsel, it seems that in the
past as well, the city of Karachi had been facing the same problem
with which it is confronted today in more aggravated form, but
unfortunately, no plausible solution to maintain law and order and
restore peace in Karachi was adopted. Inasmuch as, sometimes, there
had been military operations followed by operations by the Task Forces
constituted by Mohtarma Benazir Bhutto during her regime
commencing from 1993 onwards, but without any final permanent
solution of the problem. We tried our level best to trace out the
reasons as to why democratic as well as non-democratic Governments
failed to bring normalcy in Karachi, but nobody came forward with a
convincing answer except that identical international solutions, which
other Governments like in Italy, America, India, etc., had adopted are
available to the State machinery in Pakistan, but no one had dared or
shown any will to resolve the issue of disturbances in Karachi.
Although, Karachi is a city presently accommodating about 18 million
people belonging to different communities, as per the history of
SMC 16/2011 ETC. 75
Karachi who had come from India, Afghanistan and all over Pakistan
and had settled permanently over there making it a cosmopolitan city,
which houses Pakistanis as well as a large number of foreigners, about
2.5 million in number, who are also there without any check and their
involvement in troublemaking can also not be overruled. But the
question remains as to why law enforcing agencies have not, to say
the least, checked these illegal immigrants and have not managed to
deport them to the countries of their origin. The DG Rangers, who
operates in the disturbed areas, appeared in person and pointed out in
his briefing to the Court that the political forces of the city had been
made hostage by the militant groups of political parties; Karachi was a
mega city, but unfortunately an unjust infrastructure divided it into
various parts on ethnic and political lines; the city was in the grip of
polarization on account of which even the health sector was divided on
ethnic/parochial basis, so much so that a patient or an injured person
belonging to one community is refused admission for medical
treatment in a hospital under the control of the rival group; and the
situation in Karachi was worse than that prevailing in North Waziristan.
The statement of DG Rangers has undoubtedly made important
evaluation during his briefing, besides, in the reports available on
record and from other credible sources, the situation in Karachi seems
to be terrible and needs urgent attention of the Federal and the
Provincial Government to handle the same through independent
Administration to save the economic, social and political future of
Pakistan, which, inter alia, depends upon peaceful life in Karachi.
66. Mr. Rasool Baksh Palijo, ASC appearing on behalf of Awami
Tehrik Party in CMA No. 552-K/2011, in loud and clear words, held
MQM responsible alone for the situation prevailing in the country. He
SMC 16/2011 ETC. 76
stated that over the last about 20 to 30 years thousands of criminals
were not challaned and not a single person was awarded punishment.
According to him, unless a ban is imposed upon the militant outfits of
the political parties, peace and normalcy would not be brought to
Karachi. Therefore, he emphasized that culprits should be brought to
book and severe punishments should be awarded to them, which may
serve deterrence for like minded persons. In this context, Syed Iqbal
Haider, Sr. ASC agreeing with him suggested that a powerful truth
finding commission is required to be constituted to decide, once for all,
as to who is responsible for destroying peace in Karachi, whereas,
Syed Iftikhar Hussain Gillani Sr. ASC was of the opinion that instant
matter may not be disposed of finally, and an affective interim order
may be passed, as this Court had done in the Petitions challenging the
validity of the 18th Constitutional Amendment, enabling this Court to
supervise the affairs relating to law and order situation in Karachi.
67. Mr. Abdul Mujeeb Pirzada, Sr. ASC appearing on behalf of
Sindh Bachayo Committee in CMA No. 531-K/2011, after having
narrated the facts and circumstances of the case also insisted for
directions to the Government of Sindh to initiate the process of deweaponization
and for the assistance of Administration the military be
also allowed to be called in terms of Article 245 of the Constitution
because in the past as well, the Administration has been calling in aid
the Armed Forces in critical situations like during the earthquake of
2005 and floods in different parts of the country in 2010, and also get
implemented the orders passed by this Court by invoking Article 190,
which according to Syed Iftikhar Hussain Gillani, Sr. ASC is an enabling
provision on the basis of which the Court can issue directions to all
executive authorities to come forward to provide aid to it in
SMC 16/2011 ETC. 77
implementation of its orders, and undue objections are being raised to
invoking of the provisions of Article 190. According to them, Article
190 is like all other provisions of the Constitution, e.g., Article 187,
etc., therefore, adhering to any provision of the Constitution will be
tantamount to strengthening the institutions for the purpose of
achieving good governance, welfare, peace and tranquility in the
society. They have emphasized that no provision of the Constitution
can be made ineffective, rather each provision has to be applied when
the need arises. It is to be noted that as per the scheme of the
Constitution, different institutions are required to fulfill their
commitment because our Constitution is based on the principle of
trichotomy of powers i.e. Legislature, which is responsible to legislate
the laws, Executive/Government headed by the Prime Minister in the
Federation and the Chief Ministers in the Provinces to fulfill their
duties, and the Judiciary, which has to interpret the Constitution and
the law. Violation of constitutional provisions by any of the
organs/functionaries of the State is not permitted by law as held in the
case of Sindh High Court Bar Association v. Federation of Pakistan
(PLD 2009 SC 876) wherein all the actions of the then Chief of Army
Staff General Parvez Musharraf dated 03.11.2007, viz., Proclamation
of Emergency, PCO No. 1 of 2007, Judges Oath Order, 2007, etc. were
declared to be unconstitutional, illegal, mala fide and void ab initio. As
a result, whatever was done extra-constitutionally was struck down. As
far as the present democratic Government is concerned, it too cannot
be allowed to go beyond the Constitutional provisions or allowed to fail
in its implementation, particularly with regard to enforcement of
Fundamental Rights. There are no two opinions that as far as
Fundamental Rights/civil rights of the citizens are concerned, those are
SMC 16/2011 ETC. 78
to be enforced by the Executive and if it fails to do so, they have to
face the consequences envisaged by the Constitution. The Executive
functionaries who have also taken oaths both in the Province and
Federation to protect and preserve the Constitution cannot be allowed
to defeat any provision of the Constitution, whatever the
circumstances may be. At this juncture, reference to Article 5 of the
Constitution is relevant and appropriate, which commands that loyalty
to State is the basic duty of every citizen and obedience to the
Constitution and law is the inviolable obligation of every citizen
wherever he may be, and of every other person for the time being
within Pakistan. Thus, the Executive/public functionaries are bound to
enforce the Constitution while protecting the Fundamental Rights of
the citizens without any fear or favour or compromise for subjective
purpose. Reference in this behalf may be made to the cases of Abdul
Majeed Zafar v. Governor of Punjab (2007 SCMR 330) and Ch. Zahur
Ilahi v. Zulfiqar Ali Bhutto (PLD 1975 SC 383). In the last mentioned
judgment, the question before the Court was with regard to initiating
proceedings of contempt of Court against the then Prime Minister,
Zulfiqar Ali Bhutto, vis-à-vis the position of such office holder as well
as the immunity under Article 248 of the Constitution, when this Court
held that even a Prime Minister is, under clause (2) of Article 5 of the
Constitution, bound to obey the Constitution and law as that is the
basic obligation of every citizen. Whereas, in the instant proceedings
without claiming any immunity whatsoever, the Prime Minister as well
as the Chief Minister both are bound to follow the Constitution under
Article 5(2) by ensuring security and safety of persons and property of
the citizens. An argument could be raised that since the responsibility
for incidents of violence, commission of crimes, bloodshed and looting
SMC 16/2011 ETC. 79
occurring in the society lies on criminals, who are to be held
responsible and punished by the Courts of law, as such, in the instant
case as well, the law enforcing agencies are performing their duties
causing arrests of the accused persons to be put on trial in accordance
with law. In our considered opinion, a line of distinction has to be
drawn in the cases where there is insurgency in any part of the
country and commission of crimes by the individuals for their personal
enmities and other motives, and commission of crimes in the shape of
a turf war by various groups allegedly having support of political
parties to secure their vested interests, vis-à-vis unlawful gains. Such
groups represent the organizations/gangs of criminals, drug mafias,
land grabbers, etc., who operate against each other to have control
over different areas of the city, considering themselves as warlords
and obstruct entry of rival groups in each other’s area.
68. At this stage, reference to the application of Mr. Javed
Ahmed Chhatari Advocate, appearing in person in CMA No. 558K/
2011 may be made with which he has appended a coloured copy of
the map to highlight the respective areas under the control of
Pashtuns and Urdu speaking communities, divided by a hill. Allegedly,
the Pashtuns are inhabitants on the upper side of the hill whereas the
Urdu speaking people and other communities are living across and in
the bottom of the same, and whenever a dispute arises, according to
Mr. Chhattari, the Pashtuns take benefit of their location on the high
side of the hill and manage to kill Muhajirs (Urdu speaking). He has
also submitted a list of police stations, 112 in number, along with
details of different communities living in their respective jurisdictions.
For convenience, the same is reproduced herein below: -
S.No. Name of Police Station Nature of Population
SMC 16/2011 ETC. 80
1. 1. Peerabad
2. Manghopir
3. Mochko
4. Mominabad
5. Site Section A
6. Site Section B
7. Baldia Town Pukhtoon Majority Police
8. Saeedabad Stations
9. Sohrab Goth
10. Gulzar-e-Hijri
11. Qaidabad
12. Sohrab Goth
13. Bilal Colony
2. 1. Bahadurabad
2. Nazimabad
3. Rizvia
4. Gulbahar
5. Super Market
6. Liaquatabad
7. Sharifabad
8. Gulberg
9. Yousuf Plaza
10. Azizabad
11. Joharabad
12. Samanabad
13. New Karachi
Mahajir Majority Police
Stations
14. Sir Syed Town
15. Preedy
16. Orangi Town
17. Pakistan Bazar
18. Landi
19. Korangi
20. Zaman Town
21. Saudabad
22. Orangi Ext.
23. Shah Faisal
3. 1. Chakiwara
2. Bagdadi
3. Kala Kot
4. Eid Gah
5. TPX
6. Gaddap Town
7. Ibrahim Haidry
8. Malir City Baloch and Sindhi
9. Memon Goth Majority Police Stations
10. Bin Qasim
11. Docks
12. Kalri
13. Malir Cantt:
14. Nepare
15. Sharafi Goth
4. 1. Mari Pur
2. Jackson
3. Surjani Town
4. Gulshan-e-Iqbal
5. Gulistan-e-Johar
6. Shar-e-Faisal
7. Shar-e-Noorjehan
8. Sher Shah
SMC 16/2011 ETC. 81
9. Sharfi Goth
10. Mehmoodabad
11. Baloch Colony
12. Ferozabad
13. Defence
14. Clifton
15. Gizri
16. Boat Basin
17. Artillery Maidan Mix Community
18. Sadar Populated Area Police
19. Air Port Stations
20. Civil Line
21. Darakshan
22. Frere
23. Gulzar-e-Hijri
24. Garden
25. Jamshed Quarter
26. Kharadar
27. Methdar
28. Korangi I. Area
29. Khokra Par
30. Khawaja A Nagri
31. Model Colony
32. Nabi Bux
33. New Town
34. New Karachi I Area
35. Risala
36. Soldier Bazar
37. Sukhan
38. Steel Town
39. Sachal
40. Tepu Sultan
41. Gulshan-e-Maymar
Thus, according to Mr. Chhattari, the dispute is not confined to
individuals, but mostly extends to three communities i.e. Muhajirs,
who normally speak Urdu, Pashtuns and Balochs, all of whom try to
achieve their nefarious objects by committing murders by way of
vengeance and as a matter of tit for tat. The Pakistan People’s Party
Parliamentarians (PPPP) being the majority party in the Provincial
Assembly of Sindh is the leading parliamentary party, whereas the
MQM is the next majority party in the said Assembly. According to the
learned counsel appearing on behalf of MQM, out of total 42 seats of
MQM in the Provincial Assembly of Sindh, it has 34 seats from Karachi,
and ANP has only 2 seats, whereas PPPP alone has 93 seats, which
even otherwise is sufficient to form government in the Province.
SMC 16/2011 ETC. 82
However, according to him, for the reasons best known to the political
groups or their leaders, a coalition government has been formed.
69. Dr. Farogh Naseem, ASC has filed an application on behalf
of MQM, contents whereof are reproduced hereinbelow: -
“14. The Applicant supports an action against all the
criminal elements across the board without any fear,
favour or affiliation. The Applicant shuns any form of
terrorism and intolerance and requests this Hon’ble Court
to pass corrective orders and some suggestions in this
regard are stated below in the prayer clause, while some
will be furnished at the time arguments.
17. The land, arms and drug mafia predominantly thrive
upon unrest in the city. The failure of law enforcement
agencies is a safe haven for such mafias, which encroach
upon state land and their whereabouts are not traceable,
and, therefore, it is imperative that proper survey and
investigation is carried out so as to discover the areas and
pockets of state land which are encroached and the law
enforcement agencies are employed to evict them from
such state land, whereafter the perpetrators are
prosecuted.”
When we inquired from him as to why precautionary measures were
not taken by the party being represented by him to control the law
and order situation, he invited our attention towards Para No.7 of his
CMA. It is important to note that one of the most important
statements of fact has been made on behalf of MQM in Para No.14
above, and at the same time he has orally stated that in view of the
circumstances prevailing in Karachi, he concedes that the
Government has failed to enforce Fundamental Rights of the
citizens. In respect of presence of land and drug mafia, an explicit
offer has been made in Para No. 17 reproduced above. As far as
jurisdiction of this Court under Article 184(3) is concerned, he has
conceded that because the instant proceedings are inquisitorial,
therefore, in view of the judgments in the cases of Benazir Bhutto v.
Federation of Pakistan (PLD 1988 SC 416), Darshan Masih v. the State
SMC 16/2011 ETC. 83
(PLD 1990 SC 513), S.P. Gupta v. President of India (AIR 1982 SC
149) and People's Union for Democratic Rights (AIR 1982 SC 1473),
this Court, in the interest of public, has jurisdiction to adjudicate upon
such a matter. He further argued that unless de-politicization of the
law enforcing agencies takes place and neutral investigation bodies are
constituted for the purpose of conducting transparent proceedings
following the due process of law as contemplated under Article 10A of
the Constitution and to supervise such independent bodies, unless a
Judge of the High Court is appointed to monitor the proceedings of
each case, it would neither be possible to bring the culprits to book
involved in the commission of crimes nor justice would be done. In this
very context, he has also relied upon Vineet Narain v. Union of India
[(1996) 2 SCC 199], State of Bihar v. Ranchi Zila Samta Party [(1996)
3 SCC 682], Anukul Chandra Pradhan v. Union of India [(1996) 6 SCC
354], Union of India v. Sushil Kumar Modi [(1996) 6 SCC 500], Union
of India v. Sushil Kumar Modi [(1997) 4 SCC 770], Dinesh Trivedi,
M.P. v. Union of India [(1997) 4 SCC 306], and Khan Asfand Yar Wali
v. Federation of Pakistan (PLD 2001 SC 607). Learned counsel, instead
of defending the situation prevailing in the city, has made two very
important admissions on behalf of MQM, which are evident from the
contents of the application reproduced hereinabove.
70. The third most important admission from the coalition
partner of the Government is that it has failed to enforce the
Fundamental Rights of the citizens and suggested that it be held that
under no political expediency or consideration, the Provincial or
Federal Government should allow bloodshed, arson,
kidnapping/abduction for ransom, widespread violence, illegal
collection of money (bhatta) from traders, etc., to continue in violation
SMC 16/2011 ETC. 84
of Articles 9, 14, 15, 18 and 24 of the Constitution or to encourage the
land grabbers, drug mafias and gangs of organized criminals who are
brutally committing murders by cutting necks and limbs of innocent
people and throwing their torsos in the streets. Even if there is any
expediency, it cannot be allowed to prevail at any cost, whatsoever the
consideration may be, is the most important admission. Besides, it has
been pointed out that except learned counsel appearing for the
Government i.e. M/s Abdul Hafeez Pirzada and Babar Awan, learned
Sr. ASCs, all the learned counsel for the applicants/interveners, loudly
and clearly, with logical reason based on facts, have conceded that the
Government has failed to combat and eradicate crimes and to protect
Fundamental Rights of the citizens. The nature of the crimes and the
horrible acts being shown on DVDs of a torture cell detected by the
Rangers in the area of Lyari, as per statement of IGP are hair-raising
wherein the criminals are shown cutting throats of persons with blunt
knives and committing sodomy. Obviously, this all shows that the
Executive/Provincial Government has not dealt with the criminals with
an iron hand. Had the Government done so, innocent persons would
not have been deprived of their lives, liberties and properties and their
dignity would have been saved. It has been mentioned time and again
that allowing such incidents without any resistance for the last so
many years, and more particularly in the recent months of July and
August, 2011, relevant details whereof have been obtained, is beyond
comprehension. We may observe here that it is not the question who
succeeds in forming the government both in the Centre and the
Province, but here the question is of defending the Fundamental Rights
of the citizens. The Executive Authorities cannot be allowed to be
negligent to an extent where ultimately the sovereignty and integrity
SMC 16/2011 ETC. 85
of the country is jeopardized. Availability of heavy and light arms and
ammunition, such as pistols, revolvers, rocket launchers, MG, LMGs,
etc., in fact, has turned Karachi into a volcano, which can erupt at any
moment, and then it would not be possible for the Executive to control
the same. There are voices from different quarters, including the
learned counsel appearing for the interveners that the Government
should have initiated action for de-weaponization. In this behalf, Mr.
Farogh Naseem, ASC has stated that a private Bill, namely, the Deweaponization
of Pakistan Bill, 2011 has been moved by the MQM in
the National Assembly, which is still pending with the Assembly.
71. Dr. Babar Awan, learned counsel for the Federation and
learned Advocate General, Sindh were called upon to explain as to how
many licenses of prohibited and non-prohibited weapons have been
issued by the Federal and the Provincial Government of Sindh during
the last five years. Both of them filed the reports indicating that
180956 licenses of non-prohibited bore were issued by the Home
Department, Government of Sindh whereas 46114 licenses of
prohibited bore and 1,202,470 licenses of non-prohibited bore were
issued by the Ministry of Interior, Government of Pakistan. It is to be
noted that usually crimes are not committed with licenced weapons as
the criminal perpetrators use un-licenced weapons for the same.
72. As it has been pointed out hereinabove that in the past in
an identical situation, the constitutionally elected President of Pakistan
had dismissed the Governments and such orders were maintained up
to the Supreme Court, reference of which has already been made
hereinabove. It is important to mention at this stage that whosoever is
ruling the country under the Constitution, he being the Leader of the
House, is bound to know the constitutional commitments and
SMC 16/2011 ETC. 86
provisions of law because of the fact that he or they have taken
oath(s) to preserve, protect and defend the Constitution, including
Fundamental Rights as well as to show obedience to the Constitution
and law under Article 5(2) notwithstanding their holding of any high
office, as held in Zuhor Ilahi’s case (ibid).
73. We may reiterate here that now it is not possible under the
Constitution and law for the Armed Forces to dismiss the Government
by adopting extra-constitutional measures, detailed reference in this
behalf, if required, can be made to the only judgment of this Court in
Sindh High Court Bar Association’s case (ibid), but at the same time
the chosen representatives also owe a duty to the Constitution and if
they feel that on account of any political expediency they can allow the
continuance of the present position of law and order in the Province, it
will be at their own risk and cost, otherwise under the Constitution
they are bound to secure lives and properties, ensuring the proprietary
rights, freedom of movement, etc., and failing which constitutionally
such government is likely to lose their right of ruling.
74. Ms. Asma Jehangir Advocate, in her statement, on the
basis of report of Special Branch of Sindh Police, wherein names of
persons belonging to different political parties including PPPP, MQM,
etc. involved in the collection of bhatta have been mentioned showed
her concern and stated that it is an eye opener for the Government
and despite such information, no action has been taken by the police.
We have no reason to differ with her, and we are constrained to hold
for this reason as well that unwillingness of the police force to combat
crime could be one of the reasons on account of which criminals are let
loose in the society and encouraged to commit crimes.
SMC 16/2011 ETC. 87
75. According to the assertion of Ms. Asma Jehangir Advocate,
the law enforcing agencies have shown slackness in initiating action for
extending powers to the Rangers and others, which, according to her,
is evident from the parawise comments filed by the Chief Secretary.
We have already discussed this aspect of the matter; however, we
would share the concerns expressed by her. Actually, as it has been
pointed out hereinabove, the situation could have been controlled
conveniently, if the police had taken prompt action with full
commitment, but in view of the statement of IGP that 30 to 40 percent
police officials are not cooperating for the reasons already noted
hereinabove, and no expectation could be made from them, unless the
whole police is de-politicized by transferring the police officers of the
rank of DSP and above to their parent departments, and by
discontinuing the practice of allowing retired officers to join police on
contract basis or bringing persons from other departments in the
police department is discarded. In fact, by way of passing remarks, it
may be observed that apart from the police department, the situation
perhaps is worse in other departments as well, because appointments
on the basis of unauthorized absorptions of different officers in the
provincial and district Administration were made by the Government
and a Division Bench of Sindh High Court in Constitution Petition
No.932-D/2009 set aside such appointments by way of cancelling the
orders of such appointments. The persons who were aggrieved by the
decision of the High Court preferred petitions for leave to appeal,
which were converted into Civil Appeals 404-406/2011 etc. But, in the
meanwhile, Sindh Assembly passed the Sindh Civil Servants
(Regularization of Absorption) Act, 2011 whereby the
transfers/absorptions on permanent basis of such officers against
SMC 16/2011 ETC. 88
regular posts were declared regular notwithstanding any judgment of
any Court, as a result whereof the appeals so filed were withdrawn and
stood disposed of vide order dated 16.06.2011.
76. Mr. Muhammad Aqil, President of Karachi Bar Association,
Mr. Iftikhar Javed Qazi, Vice Chairman, Sindh Bar Council and Syed
Haider Imam Rizvi, General Secretary, Karachi Bar Association
appeared in CMA No. 532-K/2011 and stated that about 19 Advocates
have also been brutally murdered by criminals and so far no action has
been taken by the law enforcing agencies. Their arguments were
augmented by Mr. Faisal Kamal, learned ASC who has filed an
application on behalf of the PML(N), and according to him, two
Advocates who were supporters of PML(N) were also murdered. It is to
be noted that as per information supplied, following Advocates so far
have been killed in different incidents, during the last few years: -
1. Mr. Sardar Zulfiqar
2. Mr. Muhammad Hanif Khan
3. Mr. Altaf Hussain
4. Mr. Liaqat Qureshi
5. Mr.Nazar Abbas
6. Mr. Muhammad Kamal
7. Mr. S. M. Zia Alam
8. Syed Mukhtar Abbas Bukhari
9. Mr. Muhammad Junaid
10. Mr. Fahim Riaz Siddiqui
11. Mr. Muhammad Saleem Bhatti
12. Mr. Muhammad Murtaza Chinnoy
13. Mr. Nazeer Ahmed Khuhawar
14. Mr. Ali Muhammad Dahiri
15. Mr. Muhamma Aslam Burioro
77. It is pertinent to mention here that in some of the cases,
FIRs have been registered, but the accused persons have remained
SMC 16/2011 ETC. 89
untraced. We agree with the learned counsel that if the lives of
Advocates are not safe at the hands of the culprits, a set back is likely
to be caused to the profession of law, which is an important tool in the
system of administration of justice. However, the learned Advocate
General assured that the matter will be looked into and all efforts will
be made to bring the culprits to justice. He has also stated that the
Government of Sindh has agreed to pay compensation of
Rs.5,00,000/- and one plot to the families/legal heirs of the deceased
Advocates. As far as the payment of compensation is concerned,
according to him, the claims have already been approved by the
Government of Sindh whereas the process of allotment of plots is in
progress. The learned representatives of the Advocates, however,
requested for enhancement of compensation as according to them,
such lawyers have also been killed in the course of performance of
their professional duties and according to the Government Policy, a
sum of Rs.20,00,000/-is paid to the families of the police
officers/officials who have sacrificed their lives while combating crimes.
We do agree with the learned counsel for enhancement of
compensation in view of the two judgments, which have been cited by
Mr. Farogh Naseem, ASC. This Court, in exercise of its jurisdiction
under Article 184(3) of the Constitution, has also ordered payment of
compensation in the case of Saad Mazhar v. Capital Development
Authority (2005 SCMR 1973) to the residents of Margalla Towers,
which collapsed in the earthquake of September, 2005. However, in
the instant case, this Court perhaps would not be in a position to issue
any direction except observing that the cases of the Advocates,
belonging to legal fraternity and being one of the important
components of the system of administration of justice, if they lay their
SMC 16/2011 ETC. 90
lives on account of prevailing law and order situation in the city,
without any fault on their part and also not on account of any personal
enmity, deserve to be dealt with at par with the police officials who
have sacrificed their lives in combating crime. The Government of
Sindh may consider change in the Policy for the payment of
compensation and grant of a plot of land to their families.
78. It may be pointed out that immediately after the
commencement of hearing of the case, one Barrister Murtaza Chinnoy,
Advocate was assassinated in his office. The office bearers of the Sindh
High Court Bar Association and Karachi Bar Association pointed out
this fact to the Bench, therefore, the IGP Sindh was directed to take
personal interest in the matter, and later it was informed that accused
persons have been arrested and prima facie their involvement in the
murder case is on account of dacoity, as allegedly he was robbed and
looted. Similarly, another Advocate, namely, Faheem-ul-Karim along
with a lady and another person was killed in a flat and police was
directed to expedite the investigation. Mr. Tariq Dharejo, SP Clifton
submitted a report to the effect that accused persons are likely to be
booked soon in this case as well. Mr. Faisal Kamal Alam, ASC who
appeared on behalf of PML(N) also expressed his grievance in respect
of killing of workers of the political party being represented by him,
including two Advocates and argued that the Government had failed to
enforce the Fundamental Rights of the citizens under Article 9 of the
Constitution, which has been elaborately interpreted by this Court in
the cases of Shehla Zia and Benazir Bhutto (ibid). His grievance is that
although the FIRs have been registered, but so far accused persons
have not been arrested. As far as the enjoyment of the protection of
life and property enshrined in Article 9 of the Constitution is
SMC 16/2011 ETC. 91
concerned, there is no cavil with the proposition as this issue has been
discussed elaborately hereinabove with reference to the case of Shehla
Zia, but so far as judgment in the case of Benazir Bhutto, handed
down by a 7-Member Bench of this Court, a Bench larger than the
present Bench hearing the instant case, wherein dismissal of
Government of Mohtarama Benazir Bhutto and dissolution of
Assemblies was challenged is concerned, it is to be noted that the
President of Pakistan, in exercise of powers under Article 58(2)(b) of
the Constitution, dissolved her Government and in his speech to the
Parliament on 29.10.1995 warned that law enforcing agencies must
ensure that there would be no harassment of innocent people in the
fight against terrorism and human and legal rights of persons are to be
duly protected. This advice was not heeded to and killings continued
unabated. The Government’s fundamental duty to maintain law and
order situation has to be performed by proceeding in accordance with
law. In consequence of this judgment, the Dissolution Order was
maintained by a 7-Member Bench of this Court. If similar
circumstances prevail today, we would be bound by that ruling. We
may observe here at the cost of repetition that under Article 148(3) of
the Constitution, the Federal Government is bound to assist the
Provincial Government during the period of disturbances.
79. Ms. Asma Jehangir, President, Supreme Court Bar
Association argued that in view of the acute law and order situation
prevailing in Karachi, a change in the mindset for improving the
investigation and introducing the witness protection system is called
for. Her voice has been appreciated by the other representatives of the
Bar Associations, including Mr. Ashraf Samoo, President Malir Bar
Association who appeared in CMA No.560-K/2011 and pointed out that
SMC 16/2011 ETC. 92
the Government functionaries did not perform their duties due to fear
of death at the hands of the criminals, inasmuch as, such incidents
had already occurred and about 92 police officials who participated in
the Operation Clean up of 1992 had been murdered through target
killing. Therefore, under the circumstances, now the investigating
officers are not ready to conduct investigation independently nor the
witnesses dare to come forward because they do not get protection as
already stated by the President of the Supreme Court Bar Association.
In absence of any evidence, it is not possible to accept the statement
that 92 police officers, who participated in the 1992 Operation Clean
up have been murdered. It can only be considered a factor, but at the
same time we, during hearing of the cases, looking to the trend of
investigation of cases as well as the morale of the police, have no
reason except to agree with the learned President of the Supreme
Court Bar Association and other representatives of the lawyers coupled
with the statement of IGP Sindh that about 30 to 40 percent police
officers/officials are non-cooperative.
80. In all the civilized countries where hardened criminals are
brought before the Court, full protection is provided to the witnesses
so that they may not feel frightened while deposing the truth, but
unfortunately, no such programme is available throughout the country
despite the commission of offences, which seem to have taken place
and the criminals have gone Scot free because nobody dares to
depose against them and ultimately the blame is shifted to the Courts
for acquitting them. In the present incidents, we have noted with
concern that most of the FIRs have been registered against unknown
persons and the police officers in the garb of section 173 Cr.P.C.
wherein they are required to submit the challan within 14 days,
SMC 16/2011 ETC. 93
instead of filing interim challan, make request to the court to enlarge
the period of investigation and after seeking permission feel satisfied
in getting the FIR cancelled after declaring it as an “A” class case. As it
has been noted hereinabove, comparative table of the FIRs registered
during one month’s period indicates that most of the cases have
already been declared as “A” class. So far remaining cases are
concerned, no effective progress seems to have been made, may be
on account of non-commitment of the investigating officers, or for the
reasons that no witness is ready to come forward. The situation in the
city has gone from bad to worse to the extent that on our direction 18
persons, who were abducted, were recovered by the police. Prima
facie, such abductees were not recovered prior to the direction of this
Court because no police official was in a position to afford enmity with
the criminals. The statements of two of such persons are reproduced
hereinabove.
81. Thus, in view of such state of affairs, how could one
believe that, in presence of the overwhelming material, which has
been brought before this Court in daily situation reports, reports of
Special Branch, IB and other sources as well as material discussed
hereinabove, the criminals will be punished for the crimes, which they
have committed. Therefore, under the circumstances, change in the
investigation and improvement in the prosecution system is sine qua
non, and that too, through de-politicized, honest and competent
officers. In absence thereof the accused persons shall be encouraged if
they are arrested but not sentenced knowing fully well that they
though have brutally killed so many persons in violation of the
Fundamental Rights of the victims, nothing would come of this
barbarity.
SMC 16/2011 ETC. 94
82. Learned office bearers of both the Bar Associations noted
above also pointed out that six Special Courts under the Anti Terrorism
Act 1997 were lying vacant for the last several months despite the fact
that the Chief Justice of High Court of Sindh was continuously pressing
hard for the appointment of Presiding Officers in these Courts.
Inasmuch as, Mr. Justice Javed Iqbal, former Judge of this Court, who
was nominated as Judge to monitor the cases of Anti-Terrorism Courts
for Karachi, in view of the observations made in the case of Liaqat
Hussain (supra), had taken up the matter with the concerned
authorities to ensure early appointment of the Presiding Officers, but
no progress was made. This judgment, however, also contains
directions which were incorporated in the judicial order to ensure
expeditious disposal of cases, but it seems that the concerned
authorities were not aware of the same. When we asked the learned
Advocate General, Mr. Abdul Fattah Malik to explain the position of the
Government, he candidly conceded that delay has been caused in not
making the appointment, but as there is no difference between the
Chief Minister and Chief Justice of the High Court on the appointment
of Judges already recommended, therefore, notification would be
issued within two days. Consequently, on 07.09.2011, all the six
Judges were appointed vide notification issued by the Government of
Sindh. It is to be noted that the Competent Authority of the Province
had to make the appointments on the basis of recommendations u/s
14 of the Anti-Terrorism Act, 1997. Admittedly, in the instant case
recommendations were lying with the Competent Authority since long,
but it failed to make the appointments and reasons of the same have
not been disclosed by the learned Advocate General except stating
that some delay has occurred. In the case of Liaqat Hussain (supra),
SMC 16/2011 ETC. 95
this Court had taken upon itself the exercise of monitoring the
functioning of Anti-Terrorism Courts through a nominee of the Chief
Justice, therefore, vacancies of such Presiding Officers cannot be left
un-filled for an indefinite period of time and the appointments have to
be made as early as possible instead of causing the delay for one or
the other reason. However, as now appointments have taken place
and reportedly these officers have joined duty, we are confident that in
future such appointments, subject to availability of the vacancies, will
be made promptly.
83. Mr. Ghulam Qadir Jatoi, ASC appeared in CMA No.533K/
2011 and highlighted his grievance that one deceased Junaid Zaidi
kidnapped in the month of April, 2011 by the terrorists/killers was
severely tortured and was killed and his dead body was thrown on
Katchra Kundi. Case has been registered u/s 302/34 PPC vide FIR No.
57 of 2011 in Malir Cantt. Police Station. Similarly, one Ayub Ali was
killed/murdered in the month of July, 2011 by the terrorists after
entering into his house when he was giving Dars-e-Quran, as such FIR
No.194/2011 was lodged at Brigade Police Station u/s 302/34 PPC.
This application was followed by another application wherein
documents were filed to establish allegations against the sovereignty
of Pakistan attributing to Altaf Hussain, leader of MQM along with two
CDs. Yet another application has been filed for summoning Dr. Zulfiqar
Mirza, former Home Minister, Government of Sindh, who according to
him, had deposed on Holy Quran against MQM. We have pointed out to
the learned counsel that he should have filed affidavit of Dr. Zulfiqar
Mirza and also brought to his notice that instant proceedings are not
adversarial but inquisitorial, which have been initiated in the public
interest. However, the issue being raised by him is of important nature
SMC 16/2011 ETC. 96
and if he too considers it so, he can adopt the proper course for the
redressal of his grievance in accordance with law. We have also
pointed out that by the time it is established that Dr. Zulfiqar Mirza’s
statement in the newspapers has not been controverted by anyone,
therefore, the same will be presumed to have been accepted as it is
held in the case of Dr. Mobashir Hussan v. Federation of Pakistan (PLD
2010 SC 265). He also emphasized that murder of a man in view of
the Islamic injunctions is tantamount to murder of the entire
humanity, therefore, murders of all those persons, who have been
killed in Karachi without any reasons being Masoom-ud-Dum clearly
indicate failure of the Provincial Government. As far as Islamic
injunctions with regard to killing of an innocent person is concerned,
there could not be any two opinions. This injunction of Islam has been
elaborately discussed in the case of Federation of Pakistan v. Gul
Hassan Khan (PLD 1989 SC 633). However, a criminal case in
adversarial proceedings is likely to be decided on merits after
recording of evidence.
84. Mr. Ghulam Qadir Jatoi, learned ASC referred to the case
of Sardar Farooq Ahmad Khan Leghari v. Federation of Pakistan (PLD
1999 SC 57) and contended that the Judges of the Superior Courts
who have taken oath to protect the Constitution are bound to enforce
Fundamental Rights conferred by the Constitution and ensure that the
provisions of the Constitution are fully alive and operative. It is to be
noted that in the aforesaid reported judgment the Proclamation of
Emergency dated 28.05.1998, promulgated under Article 233(1) of the
Constitution, was questioned and the Court concluded that it was
sufficient to hold that prima facie there was some material on the basis
of which the President could issue the impugned Proclamation of
SMC 16/2011 ETC. 97
Emergency on account of imminent danger of external aggression.
However, the same did not warrant passing of an order under clause
(2) of Article 233 of the Constitution suspending the enforcement of
the Fundamental Rights. To strengthen this argument one of the
reasons assigned in the later part of the judgment was that in spite of
suspension of enforcement of certain Fundamental Rights under clause
(2) of Article 233 of the Constitution, Article 4 thereof remained fully
operative, which laid down that 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 would be taken
except in accordance with law. Therefore, according to the learned
counsel, Fundamental Rights of the citizens of Karachi have to be
enforced by the Court in the discharge of judicial functions. We have
no cavil with the proposition and fully endorse the arguments of the
learned counsel. He has also relied upon the case of Syed Jalal
Mehmood Shah v. Federation of Pakistan (PLD 1999 SC 395). In this
case, the order dated 30.10.1998 issued by the Federal Government
under paragraph (c) of clause (2) of Article 232 of the Constitution,
pursuant to the declaration of Proclamation of Emergency dated
28.05.1998 under Article 232 of the Constitution was challenged. The
order referred hereinbefore was followed by another order dated
10.11.1998, issued by the Federal Government, in pursuance whereof
the operation of Article 54 read with Article 127 relating to summoning
and prorogation of the Provincial Assembly was suspended; however,
no question with regard to the enforcement of Fundamental Rights was
involved, therefore, the cited judgment in view of the facts and
SMC 16/2011 ETC. 98
circumstances of the present case is not applicable. He further
contended that Jamat-e-Islami had issued a White Paper according to
which sufferings of the citizens of Karachi were on account of
commission of heinous crimes in the city since 1985, which were being
committed by one party (MQM) and it was admitted and declared by
the Government, that serious lawful action was, therefore, taken
against them by the Government.
85. Similarly, Awami Tehrik Party, through its President Mr.
Rasool Bux Palijo, during the arguments stated that MQM was
responsible for target killing, attacks on the police, etc., and that MQM
was a challenge to the country, therefore, a ban be imposed on this
party as innocent people were suffering at their hands and people
were so overawed that due to fear created by them, no body was
ready to go before the police. He maintained that the people of Karachi
are absolutely insecure, as such, ways and means be found out to give
relief to them otherwise there was every likelihood that in the ultimate
result there could be uncontrollable anarchy as the people in the town
finding themselves without protection to their dignity, life, liberty and
property might, as a last resort, take the law in their hands.
86. Mr. Irfan Ullah Marwat, petitioner, who appeared in person
being the President of Pashtun Punjabi Ittehad too, raised similar voice
against MQM.
87. From the material so brought on record, namely, reports of
the JIT filed by Syed Iftikhar Hussain Gillani, learned ASC, report
submitted by the Provincial Government prepared by its Special
Branch, report of the IB and information collected from other credible
sources during in camera briefing by ISI does highlight the role of the
stakeholders and political parties, namely, ANP, PPP, MQM, Sunni
SMC 16/2011 ETC. 99
Tehrik, Jamat-e-Islami, etc. that in the ranks of these political parties,
criminals have succeeded in making their way, some of whom are now
involved in target killing, land grabbing, drug mafia, recovery of bhutta
as well as forcible recovery of skins of animals during Eid-ul-Azha and
due to their vested interests, there is a turf war. In this context the
following statement of Mr. Rehman Malik Federal Interior Minister
published in Daily Dawn dated 13.09.2011 is quite pertinent: -
“Interior Minister Rehman Malik said on Tuesday that
‘criminals’ arrested in Karachi during the current operation
belonged to all political parties.
The government has evidences (audio and video tapes)
against them which will be made public if permitted by the
Supreme Court.
“I will consult with the federation’s lawyer, Babar Awan,
about getting permission from the Supreme Court to make
the names of criminals public,” he told reporters at the
National Press Club.
Although, he said, the people arrested in Karachi belonged
to all political parties, he was of the view that they had not
been recruited by the parties, but they somehow managed
to get refuge in them after committing crimes.
He said that police and Rangers had arrested 48 target
killers, 90 criminals and 28 extortionists and seized 308
weapons.
The operation, he said, was being carried out without any
discrimination, with the sole objective being to restore
normality and peace in the city.
Expressing satisfaction over the way the operation was
being carried out, he said there were ‘no-go areas’ in the
city and police and Rangers were free to take action even
in such areas where they could not enter in the past.
Mr. Malik said flags of political parties had been removed in
various places and around 14,000 acres of land occupied
by the land mafia had been recovered.
Rebuffing allegations leveled by the Leader of Opposition in
the National Assembly, Mr. Malik said that he had no links
with any terrorist. He said he had good relations with the
Muttahida Qaumi Movement which was in parliament with
people’s mandate.
SMC 16/2011 ETC. 100
“It will be unjustified to declare any political party
‘terrorist’ without any evidence,” he said.
Commenting on an allegation leveled against him by PPP
leader Zulfikar Mirza, he said he had not released any
criminal in Karachi and if anyone had evidence he could
present in the court.
The minister claimed that no foreign security agency was
operating in the country, adding that he had advised
foreigners to visit only permitted areas because of security
concerns.
He said a committee had been formed to probe an incident
in which journalists of a private TV channel had been
tortured by some unidentified elements. Action will be
taken on the basis of findings of this committee.
“A judicial commission was formed on the demand of
journalists to probe into the killing of Saleem Shehzad and
the commission has submitted its report to the interior
ministry which I have handed over to NPC’s President Afzal
Butt,” he said.
The minister said that four people had been arrested in the
case about murder of journalist Wali Khan Babar.”
Inasmuch as, the Prime Minister also admitted more than once that
PPP men were also involved in violence in Karachi. Reference is made
to the news item published in The News International dated
25.08.2011:-
“Prime Minister Yusuf Raza Gilani on Wednesday ruled out
a military operation in Karachi unless all other options
were exhausted first but admitted before his cabinet
colleagues that PPP men were also involved in the Karachi
killings.
A cabinet minister confided to The News that the prime
minister told the cabinet meeting that the law enforcement
agencies in Karachi were confident to control the
deteriorating law and order situation in the city in just a
fortnight’s time provided they were given a free hand.
However, the minister did not explain if the much-
demanded free hand is being given to the law enforcers to
apprehend and punish the criminal elements there without
any fear and favour.
Prime Minister Gilani despite being chief executive is not
relevant on key policy and administrative matters including
Karachi politics as the Presidency is calling the shots and
takes decisions on such matters.
SMC 16/2011 ETC. 101
The prime minister, according to the source, said that the
law enforcement agencies are seeking a free hand and
demanding that there should be no political interference
from any side to ensure early peace and stop target
killings. Political interference and the backing of criminals
and killers by the political parties are seen as the major
hurdles in the way of durable peace in the city.
Briefing the cabinet about the Karachi situation, the prime
minister admitted that besides the MQM and ANP, the PPP
men whom Gilani described as “our men” are also involved
in the Karachi killings.
The cabinet ministers were almost unanimous to demand
that the law enforcement agencies should be given a free
hand to get hold of the criminals, target killers and
gangsters irrespective of their party affiliation.
Some of the ministers even demanded that the information
regarding such criminals, killers and gangsters should be
made public without any political considerations. The
cabinet was told that there are nine troubled areas in
Karachi which require focus of the law enforcers to check
crime and curb target killing.
The prime minister while referring to a demand for the
deployment of army in Karachi to launch operations
against the criminal elements said that the government
would not deploy the army in Karachi till the time all other
options were availed.
The cabinet source disclosed that the Sindh government is
also unhappy with the interference from the federal
government through interior minister into the Karachi
situation. The source said that Prime Minister Gilani
sounded the provincial government’s urge to let it settle
the problem that falls within the provincial domain.
Only recently provincial minister Dr Zulfikar Mirza is said to
have blasted the interior minister during a high-level
official meeting in Karachi for the latter’s uncalled for
interference into the Karachi affairs. Later, however, Mirza
was summoned to Islamabad by President Zardari and put
up a media show with Rehman Malik to show that there
was no ill will between them.”
Similarly, the President of Pakistan is fully aware of the situation as it
is evident from various news items appearing in different newspapers.
88. As all the stakeholders are desirous of maintaining their
hold on the economic resources of Karachi, therefore, it is imperative
for all concerned to take necessary steps and disband the militant
SMC 16/2011 ETC. 102
outfits voluntarily for the sake of Karachi as well as this country
because on account of their criminal activities a loss of about 2.5
billion is being caused daily to the Government and ultimately this
burden is passed on to the general public. All the circumstances which
are prevailing in Karachi based on credible information seem to be
very serious and if the situation of law and order is not
controlled/improved, happening of a major debacle in Karachi city
cannot be overruled, therefore, it is high time for the politicians in
particular to co-operate with each other for making Karachi a peaceful
city.
89. As for as banning of MQM is concerned on the basis of the
material and the other information placed before us as well as the
statement of Dr. Zulfiqar Mirza, former Home Minister, Government of
Sindh, which is sought to be produced by Mr. Ghulam Qadir Jatoi, it
may be observed, subject to all just exceptions, that the instant
probono publico proceedings, which are essentially inquisitorial in
nature, cannot be allowed to assume an adversarial character.
90. Moreover, under Article 17(2) it is the duty of the Federal
Government to declare that a political party has been formed or is
operating in a manner prejudicial to the sovereignty or integrity of
Pakistan and within fifteen days of such declaration, refer the matter
to the Supreme Court whose decision on such reference shall be final,
therefore, no further comment on this aspect of the case, lest it may
cause prejudice to any of the parties, is called for.
91. According to the available record, land grabbing is one of
the factors responsible for causing disturbances in Karachi and there is
no denial by anyone appearing before the Court. Same position is in
respect of drug trafficking, etc. Crimes are also being committed at
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103
large scale by foreign nationals – nearly 2.5 million in number –
belonging to different countries including Bangladesh, Burma, India,
etc. As far as the question of de-weaponization is concerned, no one
amongst the interveners has opposed it, therefore, a methodology has
to be devised by the Government by following the law on the subject
i.e. Surrender of Illicit Arms Act, 1991, and/or if need be, further laws
on the subject can be enacted/promulgated to achieve this object. In
this behalf, in Bangladesh following steps were taken.
(i)
Illegal arms collection programme carried out in
2002-2003 as part of Bangladesh’s crackdown on
criminals, operation Clean Heart.
(ii)
Bangladesh’s biggest illegal arms haul took place in
Chittagang on 02.04.2004.
92. An identical situation was prevailing in Malaysia and that
Government with full commitment and sincerity had also collected
illicit arms from the criminals. Similarly, this task can be completed in
our country as well; if there is honest commitment on the part of the
law enforcing agencies but in the instant case without depoliticizing the
police, positive result apparently seems to be an uphill task, however,
to ensure peace in Karachi, certain steps will have to be taken. The
law enforcing agencies will have to be de-politicized as well as for
recovery of illicit arms effective measures will have to be taken under
a proper programme to be launched by the Government. As far as the
question of presence of 2.5 million aliens in Karachi is concerned, it is
more alarming compared to the activities of the criminals involved in
heinous crimes, like target killing, etc. This aspect of the case would
reveal that the presence of such persons is not only a factor for
increase in crime, but at the same time without proper registration,
they are a burden on the national economy, inasmuch as their
presence can give rise to so many other administrative problems,
SMC 16/2011 ETC. 104
including obtaining of National Identity Cards by them. If they have
succeeded in this venture and claim themselves to be citizens of
Pakistan and have also succeeded in registering their names in the
electoral list, it would be tantamount to depriving the actual electorate
from choosing their representatives, inasmuch as due to their
presence, areas have expanded considerably, which directly affects the
delimitation of the constituencies meant for holding elections of the
Provincial Assembly and the National Assembly, therefore, the
Government should take immediate action against them in accordance
with law, namely, the Foreigners Act. NADRA and the Police must
undertake a careful cleansing process of such people and NADRA must
have separate records and computer files based on proper and cogent
evidence. NADRA and police should co-operate in Karachi through an
intensive drive to identify foreigners, block their NIC cards after due
process of law and special teams should be appointed and dedicated
for this job by DG NADRA and IGP so that this can be completed in the
course of next one year or so. Then the law must take it own course in
each case. This must be given high priority.
93. The learned Attorney General, in his submissions, also
referred to the Quranic verse, viz., killing of one person is killing the
entire humanity, therefore, there could not be two opinions that
killings in Karachi during the last few months are condemnable, but for
such reason, question for determination would be as to whether the
State can be held responsible for the actions of the criminals, who
have committed crimes, or the individuals are to be held responsible
for their acts under the relevant laws independently. The learned
Attorney General, as per the directions of this Court contained in the
order dated 24.08.2011, has placed on record reports of the Special
SMC 16/2011 ETC. 105
Branch of Police, Government of Sindh and the IB, and he also
arranged a presentation by ISI (however, he was not present during
the presentation). As far as commission of crimes is concerned, it is
always done by the accused persons individually or collectively.
Ordinarily, when any crime is committed by an individual, he is
considered to be the accused of the State for violating its laws and
when crimes individually or collectively are committed by the
perpetrators challenging the authority of the Government creating
anarchy, the State is bound to control the crimes and at the same time
protect its citizens against the criminals. In the instant case, according
to the figures submitted by Mr. Abdul Fattah Malik, learned Advocate
General, Sindh, during the hearing, in the current year 2011, 1310
persons have been murdered, whereas, in one month, figures of which
have been obtained by the Court vide order dated 24.08.2011,
admittedly, 306 persons have been murdered and 159 persons have
been injured. When murders of innocent persons at the hands of
perpetrators who belong to different communities are being committed
as a matter for vengeance and as tit for tat without control of the
executive authorities of the Provincial Government, it clearly indicates
that lawlessness has reached a point where the State through the
Provincial Government in exercise of its executive authority is not in a
position to provide security to its citizens and on account of lack of
administrative authority of the Government, so many persons have
been deprived of their right to life and liberty enshrined in Article 9 of
the Constitution.
94. As far as the arguments of the learned Attorney General
that under the Constitution a procedure has been provided for the
removal of the Provincial and Federal Governments ruling the country
SMC 16/2011 ETC. 106
after the election, therefore, it could only be possible when the
procedure so laid down in the Constitution is followed. There is no cavil
with this proposition; however, in the instant proceedings, this
argument is not relevant. Learned Attorney General has also stated
that as far as the suggestions made before the Court for imposing
Emergency under Articles 233 and 234 of the Constitution, or calling
the Army in aid of civilian administration under Article 245 of the
Constitution, or the steps to be taken by the Provincial Government in
this behalf are the actions, which are purely for the Federal
Government or the Provincial Government to initiate and no direction
can be given by the Court in this respect. Suffice it to observe that the
Federal Government is duty bound under Article 148(3) of the
Constitution to protect every Province against internal disturbances
and to ensure that the Government of every Province is carried on in
accordance with the provisions of the Constitution, therefore, the
suggestion put forward during the arguments on behalf of some of the
parties does not mean that this Court has issued the directions. Only
attention of the Federal Government has been drawn towards the
Constitutional provisions which, according to their suggestions, should
also be invoked for maintaining law and order in the Province of Sindh
instead of paving way for any unconstitutional action by any
adventurer as it had been happening in the past. Reference may be
made to the cases of Haji Muhammad Saifullah Khan (supra),
Khawaja Ahmad Tariq Rahim (supra) and Benazir Bhutto (supra).
Similarly, exercise of the authority to call Army in aid of civil
administration to control disturbances under Article 245 of the
Constitution is only one of the options, which lies with the Federal
SMC 16/2011 ETC. 107
Government, as such its consequences are bound to follow strictly in
accordance with the provisions of the Constitution.
95. Learned Attorney has agreed that this Court has power to
pass appropriate orders as called for in view of the facts and
circumstances, but his opinion was that as now situation is
manageable and under control, therefore, in the instant proceedings
no order is required to be passed. For the reasons which we have
already mentioned hereinabove, we are not in a position to subscribe
to his viewpoint because overwhelming material is available on record,
reference of which has already been made hereinabove repeatedly, to
persuade us to form an opinion that bloodshed, arson,
kidnapping/abduction for ransom, widespread violence, illegal
collection of money (bhatta) from traders, etc., were being committed
within the knowledge of the State through Provincial
Government/Executive but it remained a silent spectator and prima-
facie failed to take appropriate action, may be for some political
reasons, but the Constitution does not allow the Executive to
compromise its position at the cost of innocent citizens who lost their
lives, property, liberty and dignity because of the expediency of the
Provincial or Federal Government. It may not be out of context to
mention here that despite hearing of this case, during course whereof
law enforcing agencies have been asked time and again to bring the
criminals to book without any discrimination, the criminals continued
to harass the general public/innocent citizens continuously, as in the
recent past a trader has been kidnapped for ransom from Sher Shah
Kabari Market. We have been informed during the hearing that there is
a strike in the market and accused persons have demanded ransom,
but so far the matter has not been finalized/resolved. On our direction,
SMC 16/2011 ETC. 108
concerned SSP of the area appeared in Court and stated that
pickets/police check posts have been established at different places,
but despite that, there is no control over the crimes. We have pointed
out to the learned Attorney General that this is high time when the
Executive of the Provincial Government, instead of compromising the
position, on account of any reasons known to them, should come
forward with iron hands to control the crimes. We may point out here
that the material so brought on record and the presentation which has
been given by the Intelligence Agency, must also have been brought
to the notice of the Executive of the Province and by the time it has
become known to everyone about the persons involved in causing
disturbances because on such a large scale internal disturbances
cannot take place without the support or passivity of the persons who
are themselves at the helm of affairs and the Provincial Executive
Authorities in such a state of lawlessness ought to have felt no
hesitation to bring them to book, but here it appears that there are
certain expediencies which are preventing them to do so. In such an
abnormal situation the Federal Government also cannot be considered
to be oblivious of the happenings, which presumably knows all these
facts obviously prevailing in the economic hub of country, as the
reports which we have gone through must have been brought to the
notice of the Chief Executive of the Federal Government and other
authorities as well, therefore, they should have swiftly moved in to
take action in order to ensure that the Provincial Government is
allowed to work smoothly in accordance with the Constitution. Leaned
Advocate General who has also pointed out in his arguments that in
the police department, 1100 appointments have been made illegally.
At the same time, the IGP Sindh who was present in the Court during
SMC 16/2011 ETC. 109
the hearing, also conceded that for the last about 10 to 15 years, five
hundred thousands arms licenses have been issued by the Home
Department for arms and ammunition of prohibited bore, however,
according to him, with the assistance of NADRA, an exercise is about
to commence to verify the status of the licences. He added that in the
past, trucks of arms and ammunitions used to be unloaded before the
police stations but police did not dare to check them. Mr. Abdul Fattah
Malik, learned Advocate General made before the Court many
revelations, but did not disclose the names of the groups who were
challenging the writ of the Government and undermining its authority
through target killings, bhatta collection, etc., which are committed,
not for any ethnic reason, but for settling of accounts by groups
among themselves in an attempt to establish their authority in the city
of Karachi otherwise anyone or all of them would come forward to
point out the names of militant outfits involved in the violation of
Fundamental Rights of the citizens.
96. From the material so placed on record by the Advocate
General it is evident that the disturbances in the Province are not
recent ones, but it has been going on for the last many years, in which
a large number of innocent persons have been killed by way of tit for
tat and the authorities, in the past as well have failed to secure their
lives, liberties, etc. According to learned Advocate General, the
Province of Sindh being the land of Shah Abdul Laif Bhitai and Sachal
Sarmast had been a peaceful place where, after Partition highly
educated people migrated to Pakistan. They were living peacefully with
original residents of Sindh, but the menace of lawlessness started from
the period shown in the charts reproduced hereinabove. He conceded
that 2.5 million aliens are also living in Karachi without any
SMC 16/2011 ETC.
110
registration, but so far the Government could not deport them.
However, we have pointed out to him that organized crimes are being
committed in Karachi and there is violation of the Fundamental Rights
of innocent people and the Government has failed to protect the rights
of the citizens, however, individual type of crime or killing of any
person on account of personal enmity is not unusual, and for that
matter the Executive Authorities cannot be held responsible, but it is
to be noted that in the instant case, as discussed hereinabove in
detail, the Executive Authority of the Province had prima-facie failed to
exercise its powers to protect the Fundamental Rights of the citizens.
97. Barrister Zafarullah appeared in Constitution Petition No.
61 of 2011 wherein following prayer has been made: -
(1)
It is therefore respectfully prayed that the judicial
Commission under the supervision of Supreme Court
of Pakistan may be appointed, any Hon. Judge sitting
or retired may be appointed as its Chairman.
(2)
It is further prayed that under in no circumstances
Pakistan Army may be summoned to meet the
situation in Karachi or to restore the law and order,
since it is trap desired by foreign forces and will be
breach of Articles 55 & 56 UNO and other resolutions
of General Assembly.”
The learned counsel has referred to the Charter of United Nations,
importance of human rights and also stated that had the Court not
taken cognizance of the matter, the crime rate would not have
declined and if target killings, etc. had continued unabated, it would
have provided a cause of interference to the United Nation Forces.
Except for the dramatic drop in crime rate, we do not entertain this
argument because we are of the opinion that in this country there is a
written Constitution, which if implemented through the Federal and the
SMC 16/2011 ETC. 111
Provincial Governments by strictly adhering to its provisions without
any political considerations, the situation of law and order can be
managed. He also opposed the intervention of the Army by calling it in
the aid of Civil Administration. This issue has already been discussed in
the preceding paragraphs, therefore, the same need not be further
dilated upon.
98. Mr. Anwar Masoor Khan, President of Sindh High Court Bar
Association, at the outset, contended that Karachi is faced with
complex issues of law and order, which had its origin in the politico-
ethnic violence in which different communities speaking different
languages like Urdu, Pashto, Balochi, Sindhi, Punjabi, etc. were
involved. However, he admitted that members of these communities
have been involved in such like activities mainly for the socioeconomic
reasons. As the residents of Karachi in different areas,
particularly where violence is at its peak, are even deprived of basic
amenities of life, therefore, these poor persons are being used by
different vested interests including political parties/groups to achieve
their ulterior objectives and to watch their economic interests. These
persons/groups having so called vested interests are themselves well
off having established businesses and are not suffering from any
economic problem. The police is so scared of them that they remain
under the influence of these groups who use poor persons to achieve
their illicit objectives. Inasmuch as, if an ordinary person approaches
the police, his FIR is not registered and if a victim succeeds in getting
the case registered, prosecution does not take interest, as a result
whereof their cases fail. Besides, according to him, mostly the
perpetrators belong to an organized group having blessings and
support of political parties, therefore, the witnesses are so scared that
SMC 16/2011 ETC. 112
they avoid to appear in court. Therefore, without addressing the afore-
noted problems of persons belonging to different communities who fall
within category of less resourceful persons, the law and order situation
prevailing in the city cannot be controlled. He referred to a number of
cases from the Indian Jurisdiction and the reports of the Indian Law
Commission. However, he conceded that no witness protection
program is available. When we invited his attention towards sections
21, 21A, 21B, 21C of the Anti-Terrorism Act, 1997 which provide
guidelines for the protection of Judges, he submitted that these
provisions of law have also not been made applicable fully, as a result
whereof even in Anti-Terrorism Courts, a large number of accused
have gone scot-free. Learned counsel stated that there are political
parties who apparently are acting against the interests of the country
and are involved in disturbing the law and order in Karachi, to achieve
their nefarious objects because the persons controlling such parties
have got no stake in Pakistan. Inasmuch as, there are persons who
enjoy dual nationality or who have vast unexplained and unaccounted
for assets outside Pakistan or who are not allied with any political
party and who are against the sovereignty of the country, all such
persons are required to be dealt with according to the Constitution. We
have pointed out to him that Article 17 of the Constitution read with
section 15 of the Political Parties Order, 2002 can be invoked if the
Government succeeds in establishing that any political party is
operating in a manner prejudicial to the sovereignty or integrity of
Pakistan. Learned counsel emphasized that Article 4 of the Constitution
is one of the most important Articles, under which a citizen is entitled
to enjoy the protection of law and to be treated in accordance with law
being his inalienable right, therefore, this Article confers the
SMC 16/2011 ETC. 113
Fundamental Rights upon a person to seek security of life or liberty
from the State and similarly, Articles 14, 18 and 24 in respect of
dignity of man, freedom of trade, business and profession and
protection of property. Whereas in Karachi for the last many years the
State/Provincial Government had failed to implement their
Fundamental Rights and citizens are not safe and secure. According to
him, too, there are target killings, murders, bhatta mafia, land mafia,
drug mafia, dead bodies in bags are found lying in the streets and the
accused persons on account of their influences or being desperate and
hardened criminals, could not be arrested. He stated that as per
reports, which have been placed on record by different agencies
without claiming confidentiality and other information which has been
received by this Court, furnish sufficient evidence to hold that the
Provincial Government has not been able to act in accordance with the
Constitution to protect the dignity, freedom of trade, business and
profession and property. He has referred to Islamic Republic of
Pakistan v. Abdul Wali Khan (PLD 1976 SC 57), PLD 2004 SC 363 to
emphasize that it is the duty of the Government to maintain law and
order. We have inquired from him as to whether in a situation where
criminals belonging to all political parties are involved in disturbing the
law and order, whether the Executive/Provincial Government can
maintain the law and order, he stated that, in fact, the prevailing
situation indicates that there is no will on the part of the Executive to
run the government according to the Constitution otherwise it would
not be difficult to remove such elements from their rank and file. In
this behalf, it is to be noted that in the Daily Dawn dated 14.09.2011,
the Federal Interior Minister made a statement that criminals arrested
in Karachi during the targeted operation belong to different political
SMC 16/2011 ETC. 114
parties and that the Government has evidence (audio and video)
against them, which will be used against them if permitted by this
Court. However, he stated that such criminals have not been deputed
by the political parties, but somehow such elements have managed to
get refuge behind them after committing crimes. During hearing of this
case, we have observed time and again that the political parties
represented before us asserted in categorical terms, that
criminals/militant outfits are not part of their political parties and
declared that whosoever claims association with any political party, is
incorrect. It is to be noted that in the situation as the Interior Minister
has himself explained, it has become admittedly a highly difficult task
for the Provincial Government to maintain law and order. Be that as it
may, this all depends upon the political considerations in respect
whereof we would not like to comment, but we have to confine
ourselves only to the extent of the question which has been raised in
the order dated 24.08.2011, namely, the situation of law and order
which has been disturbed on account of bloodshed, arson,
kidnapping/abduction for ransom, widespread violence, illegal
collection of money (bhatta) from traders, etc.
99. Mr. Abdul Fattah Malik, AG Sindh has submitted a synopsis
of his arguments on behalf of the Government of Sindh. It may be
noted that in fact he had to appear on the Court notice and the
Province of Sindh put up its appearance through Mr. Abdul Hafeez
Pirzada, leanred Sr. ASC who has also filed, under instructions,
suggestions which have been reproduced hereinabove. However, he
reserved his right to further argue the case after the arguments of
learned counsel appearing on behalf the interveners, particularly Syed
Iftikahr Hussain Gillani, Sr. ASC who placed on record reports of the
SMC 16/2011 ETC.
115
JIT. In the meanwhile, Intelligence Agencies also shared classified
information with the Bench. The DG Rangers also appeared in person
and made submissions which have been dealt with hereinabove,
including one that in Karachi the situation of law and order is worse
than that of North Waziristan, but surprisingly on 14.09.2011 the
learned Advocate General conveyed that Mr. Abdul Hafeez Pirzada,
learned Sr. ASC feels contented with the arguments made earlier and
does not want to make any further arguments before the Bench. The
points he has put up before the Court have been dealt with
hereinabove, particularly with regard to the statement of fact in which
he has suggested that this Court should give a wake up call to the
Provincial Government, which according to him means that in the past
violation of Fundamental Rights of the citizens particularly those whose
lives and properties have not been secured, was admitted and for the
future he was asking the Court to give a wake up call to the Provincial
Government.
100. The learned Advocate General in the written submissions
has stated as follows:-
(1)
That the government of Sindh has never failed to deal with
the law and order situation in the Province of Sindh and
Government of Sindh is fully determined to protect the life,
liberty, dignity, property and freedom of general public.
(2)
That the government of Sindh and law enforcement
agencies along with the relevant authorities are fully
competent to control, curb and deal with any internal
disturbance and the government of Sindh has proved it in
the matter of:-
(a)
Control of Law and Order situation in Katcha area
and other parts of internal Sindh.
(b)
To bring back normalcy in the Law and order
situation in Karachi.
SMC 16/2011 ETC.
116
(3)
That the Government of Sindh denounces all forms of
violence, terrorist activities, subversion and lawlessness in
the Province and in this regard the government of Sindh
seeks support from all the political parties.
(4)
That the Government of Sindh has unshaken, irreversible
commitment and determination to deal with the criminals
in city of Karachi in particular and on the province level at
large and no party affiliation would deter its will and
commitment.
(5)
That the government of Sindh has taken concrete steps
from prevention and control of crime including the
deployment of Rangers in the city of Karachi, as well as
deployment of additional forces by transfer from the
Interior of Sindh of |Karachi.
(6)
That the coalition Government of the Province of Sindh has
strong will of continuing action against criminals in Karachi
and in order to deal with any uprising in crime rate,
concrete steps have been taken by Government of Sindh
to enhance the capacity of the police, to raise the moral of
the police as well as to strengthen this institution at the
provincial level.
(7)
It is categorically made clear that at no stages of these
proceedings the Government of Sindh as conceded that it
failed to control this situation or has shown any slackness.
(8)
It is regrettable that on behalf of political groups appearing
before this Court, political insinuation and allegations were
leveled upon the ruling coalition Government of Sindh in
sheer violation and disregard of the observations made by
this Court that these proceedings are no-adversarial.
(9)
Present elected Government is mandated by the
constitution to serve the people of Sindh for 05 years,
therefore, the Government of Sindh has made short term,
midterm and long term strategies to eradicate the crime at
all costs.
SMC 16/2011 ETC.
117
(10)
It is worth mentioning that the province of Sindh
unfortunately is his very severely this year as well as it
was hit last year by the natural calamity. The Government
of Sindh successfully rehabilitated millions of affectees of
last year flood, however due to global changes in the
climate Government of Sindh is demonstrating full resolve,
utmost will and continuous efforts to enhance capacity for
dealing with such disaster. However, side by side full
attention is being given to other issues being faced by the
people of this province.
101. The reports of JIT, CID, Special Branch of Police and IB
and other material is available on record including presentation given
by the IG Police, the submissions made by Major General Aijaz Ahmad
Chaudhry, DG Rangers and admission of IG Police to the effect that 30
to 40 percent police officials are non-cooperative because of their
appointments on political considerations, coupled with the fact that it
is the basic duty of the police to maintain the law and order, the police
has been politicized/demoralized. The learned Advocate General has
also admitted that 1100 appointments made on political considerations
have already been set aside. The stand taken by him in his synopsis
seems to be inconsistent and not acceptable in view of the above
facts. It is to be noted that as per his own statement filed in Court,
following persons have been murdered during the last three years i.e.
2008 to 2011:-
2008: 1142
2009: 1083
2010: 1484
2011: 1311 (up to 31.08.2011)
He emphasized that the law enforcing agencies have succeeded in
causing arrest and in this behalf he has filed the statement for the
SMC 16/2011 ETC. 118
months of January to September, 2011 prepared by the Karachi police,
which reads as under:-
Y
e
Number
of
Gang
Busted
Dacoit
Killed
Dacoit/
criminals
Arrested
a
r
encounter
s
arrested P.Os Abs MDs
2
0
1
0
704 512 64 5286 354 6427 0
However, we have noted that about 80 percent FIRs, which have been
registered during the last one month, have been cancelled by declaring
them as “A” class and whatever progress has been made in causing
arrests of the accused, it is after instant proceedings by this Court.
We have also noted as mentioned hereinabove that the Chief
Secretary and the IGP Sindh have categorically stated that now
powers have been given to the Rangers, so the question arises as to
why the Rangers were not put into action earlier when this force was
already deployed in the Province of Sindh from 1994 onward; and why
the Provincial Government was not interested in securing the life,
property and dignity of the citizens. Admissions made by the IGP in
respect of no-go areas, drug mafia and the statement of the Interior
Minister referred to above are sufficient to hold that the Provincial
Government had no intention to secure the life and property of the
people in the true spirit of Article 4 of the Constitution, envisaging that
all citizens are entitled to enjoy the protection of law and are required
to be treated in accordance with law. What protection was given to
those persons who have lost their lives and property? While dealing
with the argument of the learned Attorney General, we have already
SMC 16/2011 ETC. 119
emphasized that the alleged crimes have not been committed
ordinarily, but these are organized crimes and it was the duty of the
Provincial Government to have controlled the same, but it is only after
the Court took suo motu notice that some improvement seems to have
been made in the law & order situation in Karachi.
102. Khawaja Naveed Ahmed, learned ASC stated that he
represents the Friends of Lyari International, a UK based organization.
According to his version, since 2009 till date, 65 Balochi speaking
people have been killed in target killings, but so far no appropriate
action has been taken to trace the accused persons, therefore, it is not
understandable as to whom they should blame for such atrocities. It
may be observed here that in respect of all the cases in which human
beings have been killed irrespective of their ethnic origins, it is the
duty of the State/Executive to ensure action and bring the accused
persons to book.
103. Dr. Babar Awan, Sr. ASC commenced his arguments by
reciting verses No.22 & 23 from Sura Almaida. Translation from Arabic
to English has been reproduced hereinbelow: -
“[5:22] ‘O my people, enter the Holy Land which Allah has
ordained for you and do not turn back, for then you will
turn losers’.
[5:23] They said, ‘O Moses, there is in that land a haughty
and powerful people, and we shall not enter it until they go
forth from it. But if they go forth from it, then we will enter
it’.”
In view of the above Injunction of Islam, as we have already noted in
the opening Para of the judgment that if anyone killed a person not in
retaliation of murder, or to spread mischief in the land, it would be as
if he killed all mankind, and if anyone saved a life, it would be as if he
SMC 16/2011 ETC. 120
saved all mankind, which is to be accepted by all the Muslims. It is
clear from the above verses that life of a human being is very
precious, therefore, Allah Almighty has condemned the killing of even
a single human being and has equated it with the killing of the whole
humanity, and vice versa, if a man is saved, the whole humanity will
be deemed to have been saved.
104. Leaned counsel candidly stated that he supports the suo
motu jurisdiction of this Court, as according to him, in terms of Article
29 of the Constitution, the judiciary being one of the organs of the
State can exercise such jurisdiction.
105. However, he complained that in respect of incident of
18.10.2007, which took place in Karachi wherein Mohtarama Benazir
Bhutto, former Prime Minister of Pakistan was attacked by the
terrorists and so many persons lost their lives, according to him,
despite request made by him on 27.10.2007 before a Bench
comprising one of us (Mr. Justice Iftikhar Muhammad Chaudhry) and
Mr. Justice (R) Javed Iqbal, no such action was taken by this Court. It
is to be noted that the statement so made by him was not based on
correct information, inasmuch as Suo Motu Case No. 25 of 2007 was
registered wherein, on 01.11.2007, he personally appeared voluntarily
and comments were called, however, subsequently on 07.01.2007
Justice (R) Abdul Hameed Dogar (so called Chief Justice) directed the
office to keep that file pending without any further proceeding.
106. According to the learned counsel, the executive authority
of the Federation includes the four Provinces, Federally Administered
Tribal Areas administered through the President, the Islamabad Capital
Territory, Gilgit and Baltistan, formerly known as FANA, whereas, in
respect of Province of Sindh, the authority of the Provincial
SMC 16/2011 ETC. 121
Government extends to 23 districts of the Province of Sindh. Out of
these areas, internal disturbance relating to law and order had
allegedly taken place only in the city of Karachi. So, his stance is that
the Executive Authority has failed neither at the federal nor at the
provincial level. He, however, admitted that in terms of Article 232(1)
read with Article 148(3) of the Constitution, there is internal
disturbance in Karachi.
107. Learned counsel further argued that neither the Federal
Government nor the Provincial Government has failed to maintain the
law and order in the Province of Sindh and any declaration, if made by
this Court, which is the most credible institution of the State of
Pakistan, being the final arbiter of all disputes and where all
interpretation ends, may invite some global trouble with very serious
repercussions, inasmuch as the country is in the middle of a war on
the western and eastern fronts and the latter front is more hostile and
sensitive, therefore, an attempt is being made by someone to obtain
such a declaration that the executive authority has failed to deliver.
According to him, such a declaration cannot be made as Pakistan is a
nuclear State, therefore, how can it fail in maintaining its affairs.
Argument so raised by the learned counsel has no substance. Perhaps
he has lost sight of two important legal expressions, namely, the State
and Executive or the Government. Dr. Babar Awan, learned counsel
has substituted the term “executive” with the “state”. Hence this
requires some elaboration.
108. The word “executive” has been defined in the American
Heritage Dictionary of the English Language, Fourth Edition as under:-
n. … The chief officer of a government, state, or political
division.
SMC 16/2011 ETC. 122
3. The branch of government charged with putting into
effect a country's laws and the administering of its
functions.
…
3. Of or relating to the branch of government charged with
the execution and administration of the nation's laws.
In Collins English Dictionary – Complete and Unabridged, the term has
been defined in the following terms:-
executive
n. … the branch of government responsible for carrying out
laws, decrees, etc.; administration
… having the function or purpose of carrying plans, orders,
laws, etc., into practical effect
executive branch
n. … the branch of government charged with the execution
and enforcement of laws and policies and the
administration of public affairs; the executive.”
Some of the other definitions are as follows: -
Cultural Dictionary
“The branch of federal and state government that is
broadly responsible for implementing, supporting, and
enforcing the laws made by the legislative branch and
interpreted by the judicial branch. At the state level, the
executive includes governors and their staffs. At the
federal level, the executive includes the president, the vice
president, staffs of appointed advisers (including the
cabinet), and a variety of departments and agencies, such
as the Central Intelligence Agency (CIA), the
Environmental Protection Agency (EPA), the Federal
Bureau of Investigation (FBI), and the Postal Service ( see
postmaster general). The executive branch also proposes a
great deal of legislation to Congress and appoints federal
judges, including justices of the Supreme Court. Although
the executive branch guides the nation's domestic and
foreign policies, the system of checks and balances works
to limit its power.”
Oxford Guide to the US Government:
“The departments and agencies that take political direction
from the President, including the 14 cabinet-level
departments, constitute the executive branch of the
federal government. “The executive branch” is not a
phrase found in the Constitution, but it is favored by
Presidents because it assumes that these departments are
under their sole direction. The Constitution, however,
SMC 16/2011 ETC. 123
provides that officials of the departments are to take
direction not only from the President but also from laws
passed by Congress.
Top officials in the executive branch, generally referred to
as “the administration,” are appointed by the President
with the advice and consent of the Senate, and they serve
at the pleasure of the President. The President uses his
Executive Office agencies to supervise their budgets, their
legislative requests to Congress, and the regulations they
make and enforce.
Independent regulatory agencies (such as the Federal
Trade Commission), units of government that are insulated
by Congress from political direction (such as the Federal
Reserve Board), as well as several agencies that perform
functions for Congress (such as the Congressional Budget
Office) are not part of the executive branch. Presidential
appointment and removal powers over officials in these
agencies may be limited by Congress, and the President
may not provide them with political direction.
In politics, a person or persons constituting the branch of
government charged with executing or carrying out the
laws and appointing officials, formulating and instituting
foreign policy, and providing diplomatic representation. In
the U.S., a system of checks and balances keeps the
power of the executive more or less equal to that of the
judiciary and the legislature.”
109. On the other hand, the word “state” is defined as under: -
Advanced Law Lexicon
A body politic, or society of men, united together for the
purpose of promoting their mutual safety and advantage,
by the joint efforts of their combined strength …
Organization of the body politic or one of the constituent
members of a federation or organized political community
with government recognized by the people …
The political system of a body of people who are politically
organized; the system of rules by which jurisdiction and
authority are exercised over such a body of people …
A state or political society is an association of human
beings established for the attainment of certain ends by
certain means. … …
A state is an institution, that is to say, it is a system of
relations which men establish among themselves as a
means of securing certain objects, of which the most
fundamental is a system of order within which their
activities can be carried on. Modern states are territorial;
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their governments exercise control over persons and
things within their frontiers…”
Corpus Juris Secondum
n. … it may signify a sovereign political unity as set forth in
International Law.
Collins English Dictionary – Complete and Unabridged
n. … (Government, Politics & Diplomacy) a sovereign
political power or community
… … the territory occupied by such a community
… … the sphere of power in such a community affairs of
state
… … (often capital) one of a number of areas or
communities having their own governments and forming a
federation under a sovereign government, as in the US
(Government, Politics & Diplomacy)
… … (often capital) the body politic of a particular
sovereign power, esp as contrasted with a rival authority
such as the Church
… … The supreme public power within a sovereign
political entity.
… … The sphere of supreme civil power within a given
polity: matters of state.
… … A body politic, especially one constituting a nation:
the states of Eastern Europe.
The concept of the state
A state is a form of political association or polity that is
distinguished by the fact that it is not itself incorporated
into any other political associations, though it may
incorporate other such associations. The state is thus a
supreme corporate entity because it is not incorporated
into any other entity, even though it might be subordinate
to other powers (such as another state or an empire). One
state is distinguished from another by its having its own
independent structure of political authority, and an
attachment to separate physical territories. The state is
itself a political community, though not all political
communities are states. A state is not a nation, or a
people, though it may contain a single nation, parts of
different nations, or a number of entire nations. A state
arises out of society, but it does not contain or subsume
society. A state will have a government, but the state is
not simply a government, for there exist many more
governments than there are states. The state is a modern
political construction that emerged in early modern
SMC 16/2011 ETC. 125
Europe, but has been replicated in all other parts of the
world. The most important aspect of the state that makes
it a distinctive and new form of political association is its
most abstract quality: it is a corporate entity.
A sovereign state is a state with a defined territory on
which it exercises internal and external sovereignty, a
permanent population, a government, and the capacity to
enter into relations with other sovereign states. It is also
normally understood to be a state which is neither
dependent on nor subject to any other power or state.
While in abstract terms a sovereign state can exist without
being recognised by other sovereign states, unrecognized
states will often find it hard to exercise full treaty-making
powers and engage in diplomatic relations with other
sovereign states.
The word "country" is often used to refer to sovereign
states, although it means, originally, a geographic region.
Sovereignty has taken on a different meaning with the
development of the principle of self-determination and the
prohibition against the threat or use of force as jus cogens
norms of modern international law. The UN Charter, the
Declaration on Rights and Duties of States, and the
charters of regional international organizations express the
view that all states are juridically equal and enjoy the
same rights and duties based upon the mere fact of their
existence as persons under international law. The right of
nations to determine their own political status and exercise
permanent sovereignty within the limits of their territorial
jurisdictions is widely recognised.
In political science, sovereignty is usually defined as the
most essential attribute of the state in the form of its
complete self-sufficiency in the frames of a certain
territory, that is its supremacy in the domestic policy and
independence in the foreign one.
In the social sciences, a state is a compulsory political
institution that maintains a monopoly of the legitimate use
of force within a certain territory.
Etymology and definition
Etymology
The word state and its cognates in other European
languages (stato in Italian, état in French, Staat in
German) ultimately derive from the Latin status, meaning
"condition" or "status."
With the revival of the Roman law in the 14th century in
Europe, this Latin term was used to refer to the legal
standing of persons (such as the various "estates of the
realm" - noble, common, and clerical), and in particular
SMC 16/2011 ETC. 126
the special status of the king. The word was also
associated with Roman ideas (dating back to Cicero) about
the "status rei publicae", the "condition of public matters".
In time, the word lost its reference to particular social
groups and became associated with the legal order of the
entire society and the apparatus of its enforcement.
In English, "state" is a contraction of the word "estate",
which is similar to the old French estat and the modern
French état, both of which signify that a person has status
and therefore estate. The highest estates, generally those
with the most wealth and social rank, were those that held
power.
According to the Oxford English Dictionary, a state is "a an
organized political community under one government; a
commonwealth; a nation. b such a community forming
part of a federal republic, esp the United States of
America". However, the most commonly used definition is
Max Weber's, which defines the state as a compulsory
political organization with a centralized government that
maintains a monopoly of the legitimate use of force within
a certain territory.
General categories of state institutions include
administrative bureaucracies, legal systems, and military
or religious organizations.
The concept of the state can be distinguished from the
concept of government. The government is the particular
group of people, the administrative bureaucracy, that
controls the state apparatus at a given time. That is,
governments are the means through which state power is
employed. States are served by a continuous succession of
different governments.
Each successive government is composed of a specialized
and privileged body of individuals, who monopolize political
decision-making, and are separated by status and
organization from the population as a whole. Their function
is to enforce existing laws, legislate new ones, and
arbitrate conflicts via their monopoly on violence. In some
societies, this group is often a self-perpetuating or
hereditary class. In other societies, such as democracies,
the political roles remain, but there is frequent turnover of
the people actually filling the positions.
110. As against the term “state”, a government is an institution
whose existence precedes that of the state. A government is a person
or group of persons who rule or administer (or govern) a political
community or a state. For government to come into being there must
SMC 16/2011 ETC. 127
be existence of public on the territory of a State. Ruling within a
household is not government. Government exists when people accept
(willingly or not) the authority of some person or persons to address
matters of public concern; the administration of justice, and defense
against external enemies being typical examples of such matters.
111. Article 90 of the Constitution defines “executive authority”
as “subject to the Constitution the executive authority of the
Federation shall be exercised in the name of the President by the
Federal Government which consists of Prime Minister and Federal
Ministers, who shall act through the Prime Minister who shall be the
chief executive of the Federation.” Whereas in relation to the Provincial
Government, Article 129 with the substitution of Governor with the
President defines the Executive Authority of the Province consisting of
the Chief Minister and Provincial Ministers, who shall act through the
Chief Minster. Both these executive authorities represent the Federal
and Provincial Governments whereas the institution of State is
distinguished from executive authorities as defined in Article 7 of the
Constitution as under: -
“7. Definition of the State
In this Part, unless the context otherwise requires, "the
State" means the Federal Government, Majlis-e-Shoora
(Parliament), a Provincial Government, a Provincial
Assembly, and such local or other authorities in Pakistan
as are by law empowered to impose any tax or cess.”
112. Here the object of instant proceedings is not to make any
declaration against the State of Pakistan, but one of the Governments,
namely, the Government of Sindh Province, which is represented
through its executive as defined under Article 129 referred to
hereinbefore. Although Article 7 of the Constitution defines the State
as the Federal Government, Majlis-e-Shoora (Parliament), a Provincial
SMC 16/2011 ETC. 128
Government, a Provincial Assembly and local or other authorities in
Pakistan empowered to impose any tax or cess, therefore, distinction
is abundantly clear as the act of the Executive of the Province is under
consideration in terms of Article 129 of the Constitution, which is
essentially a distinct and a different concept from the State as defined
in Article 7. The order dated 24.08.2011 reproduced supra also
explicitly makes it clear that the conduct of the Executive in enforcing
Fundamental Rights of the citizens guaranteed under Articles 9, 14,
15, 18 and 24 is under examination, and as far as the State is
concerned, its role has not been examined. The arguments so put
forward by the learned counsel appear to be irrelevant and are not in
the context of the proposition under consideration. This is not for the
first time that the conduct of the Provincial Executive is being
scrutinized. As such, its performance relating to enforcement of the
Fundamental Rights or its failure not to enforce these rights is under
examination. Admittedly, under Article 184(3), this Court exercises
same powers, which are available to a High Court under Article
199(1)(c). The Court can make an order giving such direction to any
person or authority including any government exercising power or
performing any function and, in or, in relation to, in any territory
within its jurisdiction as may be appropriate for the enforcement of
Fundamental Rights conferred by Chapter 1 of part II. Reference in
this behalf may be made to the cases of Muhammad Nawaz Sharif v.
President of Pakistan (PLD 1993 SC 473), Syed Wasey Zafar v.
Government of Pakistan (PLD 1994 SC 621), Bank of Punjab v. Haris
Steel Industries (pvt.) Ltd. (PLD 2010 SC 1109) and Federation of
Pakistan v. Munir Hussain Bhatti (PLD 2011 SC 752). Also see Zulfiqar
Mehdi v. Pakistan International Airlines Corporation (1998 SCMR 793),
SMC 16/2011 ETC. 129
Benazir Bhutto (supra), Asma Jilani v. Government of the Punjab (PLD
1972 SC 139), Fauji Foundation v. Shamimur Rehman (PLD 1983 SC
457), Jibendra Kishore v. Province of East Pakistan (PLD 1957 SC 9).
113. So, on the basis of distinction between the State and
Executive authority vis-à-vis the jurisdiction of this Court under Article
184(3), it is concluded that instant proceedings are not against the
State but to consider whether the Provincial Government of Sindh
allegedly had failed to enforce the Fundamental Rights of the citizens.
However, Pakistan as a sovereign country as well as a nuclear power
for all intents and purposes is a successful State because such a State,
in the words of Max Weber, maintains a monopoly on the legitimate
use of physical force within its borders. But, coming to the
fundamental question of exercise of jurisdiction keeping in view of the
facts and circumstances noted hereinabove in detail, it is held that this
Court is empowered under Article 184(3) to consider any question of
public importance with reference to enforcement of any of
Fundamental Rights, conferred by Chapter 1, Part 11 and can make an
order of the nature mentioned in Article 199. If the argument of the
learned counsel referred to above is accepted, it would be tantamount
to abdicating the powers and jurisdiction conferred by the Constitution,
thereby refusing to enforce Fundamental Rights conferred by Chapter
1 of Part II in a matter relating to public importance. The scope of the
jurisdiction of the Court with procedure, which is to be followed, has
been examined in the case of Pakistan Muslim League (Nawaz) v.
Federation of Pakistan (PLD 2007 SC 642), wherein it has been held
that this Court under Article 184(3) is not dependent only at the
instance of the "aggrieved party" in the context of adversarial
proceedings and while dealing with a case under Article 184(3) of the
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130
Constitution, this Court is neither bound by the procedural trappings of
Article 199 ibid nor by the limitations mentioned in that Article for
exercise of power by the High Court in any case. Relevant Para
therefrom is reproduced hereinbelow:-
“20. After having discussed the law laid down in the above
mentioned cases the judicial consensus seems to be as
follows: -
(i) That while interpreting Article 184(3) of the
Constitution the interpretative approach should not be
ceremonious observance the rules or usages of the
interpretation but regard should be had to the object and
purpose for which this Article is enacted i.e. the
interpretative approach must receive inspiration from the
triad of provisions which saturate and invigorate the entire
Constitution namely the Objectives Resolution (Article 2A),
'the fundamental rights and' the directive principles of
State policy so as to achieve democracy, tolerance, equity
and social justice according to Islam.
(ii) That the exercise of powers of Supreme Court under
Article 184(3) is not dependent only at the instance of the
"aggrieved party" in the context of adversary proceedings.
Traditional rule of locus standi can be dispensed with and
procedure available in public interest litigation can be
made use of, if it is brought to the Court by a person
acting bona fide.
(iii) That the provisions of Article 184(3), provide
abundant scope for the enforcement of the Fundamental
Rights of an individual or a group or class of persons in the
event of their infraction and it would be for the Supreme
Court to lay down the contours generally in order to
regulate the proceedings of group or class actions from
case to case.
(iv) That under Article 184(3) there is no requirement
that only an aggrieved party can press into service this
provision. Supreme Court can entertain a petition under
Article 184(3) at the behest of any person.
(v) That the Article 184(3) is remedial in character and
is conditioned by three prerequisites, namely -
*
There is a question of public importance.
*
Such a question involves enforcement of
fundamental right, and
*
The fundamental right sought to be enforced is
conferred by Chapter 1, Part II of the Constitution.
SMC 16/2011 ETC. 131
(vi) That it is not every question of public importance
which can be entertained by this Court, but such question
should relate to the enforcement of Fundamental Rights.
(vii) That even the disputed questions of facts which do
not require voluminous evidence can be looked into where
Fundamental Right has been breached. However, in case
where intricate disputed question of facts involving
voluminous evidence are involved the Court will desist
from entering into such controversies.
(viii) That the language of Article 184(3) does not admit of
the interpretation that provisions of Article 199 stood
incorporated in Article 184(3) of the Constitution.
Therefore, this Court I while dealing with a case under
Article 184(3) of the Constitution is neither bound by the
procedural trappings of Article 199 ibid, nor by the
limitations mentioned in that Article for exercise of power
by the High Court in a case.
(McCabe v. Atchison (1914) 285 US 151, S.P. Gupta and
others v. President of India and others AIR 1982 SC 149,
Standard Vacuum Oil Company v. Trustees of the Port of
Chittagong PLD 1961 Dacca 289, Sneed Khan v. Chairman,
District Council of Bannu PLD 1967 Pesh. 347, Asma Jilani
v. Government of the Punjab PLD 1972 SC 139,
Muhammad Boota and 77 others v. Commissioner,
Sargodha Division PLD 1973 Lah. 580, Hakim Muhammad
Anwar Babri v. Pakistan PLD 1973 Lah. 817, National Steel
Rolling Mills v. Province of West Pakistan 1968 SCMR 317,
Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457,
Abanindra Kumar Maity v. A.K. Majumdar AIR .1956 Cal.
273, Fazal Din v. Lahore Improvement Trust PLD 1969 SC
223, K.K. Kochumii v. State of Madras AIR 1959 SC 725,
Jibendra Kishore v. Province of East Pakistan PLD 1957 SC
9, Messrs East and West Steamship Company v. Pakistan
PLD 1958 SC (Palo.) 41 and Waris Meah v. The State PLD
1957 SC (Pak.) 157, PLD 1988 SC 413, PLD 1990 SC 513,
1990 PLC 61, PLD 1988 SC 416, KLR 1988 SC 423, 1988
PSC 809.”
114. Thus, in view of the principle laid down hereinabove, this
Court is empowered to examine as to whether the executive
authorities of the Province have failed to enforce Fundamental Rights
in terms of order dated 24.08.2011 and the objections raised by the
learned counsel that any declaration in this behalf would have serious
repercussions against the State of Pakistan being without any
substance for the above reasons are overruled.
SMC 16/2011 ETC. 132
115. Learned counsel has emphasized that in a system based
on trichotomy of powers being the basic feature of the Constitution,
the Armed Forces of Pakistan are also part of the executive or the
government as held in the case of Liaqat Hussain v. Federation of
Pakistan (PLD 1999 SC 504). There is no doubt about the fact that the
Armed Forces also fall within the definition of the executive, but in the
instant case, action of the Armed Forces is not under examination.
However, this Court has examined this aspect of the case in the light
of the judgment cited by the learned counsel wherein it was held that
Pakistan Armed Forces (Acting in aid of Civil Powers) Ordinance, 1998
as amended up-to-date in so far as it allowed the establishment of the
Military Courts for control of the civilians, charged with the offences
mentioned in section 6 and the Schedule to the said Ordinance is
unconstitutional, without lawful authority and of no legal effect.
Therefore, it can safely be held that this Court is not exercising such
jurisdiction for the first time. This Court has jurisdiction to examine an
instrument on the basis of which power to try the accused is conferred
upon the executive or the Armed Forces.
116. Learned counsel candidly conceded that although in the
18th Constitutional Amendment, more provincial autonomy has been
given to the Provinces, but in spite of it under sub-Article (3) of Article
148 of the Constitution it is the duty of the Federation to protect every
Province against external aggression and internal disturbance, and to
ensure that the Government of every Province is carried on in
accordance with provisions of the Constitution. On having so admitted,
he has cited following steps taken by the Federation to protect the
Government of Sindh from internal disturbances: -
SMC 16/2011 ETC.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
133
Placement of civil armed forces (Sindh Rangers and
Frontier Constabulary) at the disposal of the
Government of Sindh;
Monetary support of 2.5 billion specifically for
training and capacity building of the police
department during this financial year;
Sharing of real time intelligence with the Province,
which is actionable intelligence;
Data regarding family tree of criminals maintained in
NADRA and the database is shared with the Province
after an order by the Interior Minister;
Information helped by FIA regarding different crimes
and criminals shared with the Provincial
Government;
Blocking of over 20.1 million illegal mobile phone
SIMs, which are mostly used in commission of
crimes;
Grant of 5 billion rupees outside the regular budget
(besides 2.5 billion rupees) as a special initiative of
the President of Pakistan for enhancing the training
and capacity of provincial law enforcement
personnel, directing the Provincial Government to
equip the Police Department with 15 APCs [20 more
APCs are in the pipeline];
Coordination set up is created for Sindh and
Balochistan border posts – one of the infamous
routes of illicit arms to the city of Karachi;
Customs and FIA intelligence another outfit is
created to control gun running and drug trafficking
into Karachi;
Coastal border management also ordered through
the Coast Guards to control the incoming traffic of
guns and drug trafficking;
Aerial surveillance from SUPARCO for determination
of the factum of land grabbing and to control land
mafia;
Google imageries through NADRA;
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134
13.
Complaint cell is established against bhatta mafia in
Karachi on the complaint of Chamber of Commerce,
which is being monitored by the Interior Minister
directly through the police and all other intelligence
sources.
117. He has further stated that the President, Prime Minister,
Army Chief and Chief of every Intelligence Agency had visited Karachi
and held meetings on the law and order situation. He admitted that
the above steps were taken by the Federation from January, 2011
onwards; however, no documentary proof was brought on record. Be
that as it may, except the stand taken by the learned counsel in
respect of the steps taken by the Federal Government to protect the
Province of Sindh from its internal disturbances, although most of the
steps fall within the category of long term solutions for the purpose of
controlling the disturbances in Karachi but unfortunately neither the
executive of the federal government nor of the provincial government
succeeded in controlling the internal disturbance as it is evident from
the documentary evidence i.e. the report of JIT dated 31.03.201 and
the report of Special Branch of Police Department dated 18.08.2011
and the presentations of the IGP Sindh as well as the DG Rangers, and
in camera briefing by the ISI to the Members of the Bench, which have
already been discussed hereinabove.
118. There is no dispute with the fact that only in one month
from 24th July to 24 August, 2011, 306 persons lost their lives and in
this period body bags, drilled bodies of human beings as well as torsos
of persons who were tortured to death were recovered. Although the
Rangers, vide deployment notification dated 17.05.1995 was available
in the Province, but in the recent past despite internal disturbances
powers were conferred upon the Rangers only on 25.08.2011.
SMC 16/2011 ETC. 135
Although, admittedly the decision was taken in this behalf on
22.08.2011, yet negligence was shown in conferring the authority. In
this manner, a huge loss of life and property of the citizens had
occurred. It is to be noted that learned counsel, without realizing its
repercussions, himself conceded the obligation of the Federation in
providing assistance to the Provincial Government in controlling the
disturbances in terms of Article 148(3) of the Constitution. As it has
been pointed out hereinabove that at the time when in the year 1997
the Federal Government headed by Mohtarama Benazir Bhutto was
dismissed by the President, in exercise of powers under Article
58(2)(b) of the Constitution, one of the reasons for dismissal of the
Federal Government was that it had failed to discharge its
constitutional obligations under Article 148(3). The principle laid down
in the case wherein the order of dissolution of Assembly was
maintained by this Court, is undoubtedly applicable to the present
situation, as it has been explained by means of the documentary
evidence produced by the learned Attorney General and the learned
Advocate General before the Court. Therefore, the conclusion can
conveniently be drawn that despite the steps taken by the Federation,
the situation of law and order has not been controlled and the life and
property of citizens in Karachi have not been secured.
119. It is contended by the learned counsel that the Speaker of
the National Assembly has, with the consent of the political parties and
leaderships acting in furtherance of the national call and duty,
constituted a bipartisan Committee of the House to look into the issues
of Karachi and Quetta and to recommend desired measures for the
restoration of peace and tranquility and the Committee is holding its
meetings. He has further stated that the Federation and the Provincial
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136
Government of Sindh had the will to control internal disturbances and
to achieve this object following steps have been taken and the
documents produced before the Court: -
1.
JIT Report dated 31st March, 2011: report is being
acted upon to achieve the desired result of
controlling internal disturbances in Karachi
2.
Special Branch report dated 18th August, 2011,
which has also been produced before this Court.
Both these reports have already been referred to hereinabove,
particularly with reference to hardened and desperate criminals
including one Ajmal Pahari, who has shown his connection with MQM.
We inquired from the learned counsel that in spite of receiving credible
information through both the above reports, as to whether any action
has been taken while remaining within the Constitutional framework
against the political party/organization with whom allegedly some of
the accused have shown their linkage, he stated that as there is
democratic system; the people have chosen their representatives and
the Government of the day while performing its duty as per the will of
the voters will take into consideration all these reports in due course of
time. We have pointed out to him not only the above reports, but
there are also the reports of IB, Daily Situation reports, presentations
of IGP as well as other information which have been received through
ISI, which are sufficient to adjudge the position of law and order
prevailing presently in Karachi, which can confront not only Karachi
but the whole country with a greater disaster if curative measures in
accordance with the Constitution and law to control the situation are
not taken. Thus, we may note that internal violence in Karachi is also
being noted with concern. Reference to a write-up published in The
Economist of 27.08.2011, which is reproduced hereinbelow: -
SMC 16/2011 ETC. 137
“ETHNIC warfare in Pakistan’s most populous city has
reached such a level that Karachi’s ambulance service now
has to send out a driver matching the racial make-up of
the destination district to pick up the victims of gang
attacks. Otherwise, the district’s gunmen will not let the
ambulance through. Now ambulances themselves are
coming under fire, as gangsters try to stop them saving
the lives of their enemies. Karachi’s ethnic wars have
claimed some 1,000 lives this year, with more than 100 in
the past week alone. By contrast the Taliban and other
religious extremists kill tiny numbers in Karachi.
A grisly new feature of the carnage is that people are not
just being shot. They are being abducted and tortured;
then their bullet-ridden, mutilated bodies are dumped in
sacks and left in alleyways and gutters. Victims’ limbs,
genitals or heads are often severed. Torture cells operate
across Karachi. The butchery is filmed on mobile phones
and passed around, spreading the terror further. Most
victims are ordinary folk randomly targeted for their
ethnicity.
At the city’s Abbasi Shaheed Hospital, a public facility,
doctors treat only Mohajirs, who dominate the local district
and are the biggest ethnic group in Karachi. Mohajirs are
descendants of those who moved to Pakistan from India in
1947, when the subcontinent was partitioned. Ambulance
crews must determine the ethnicity of patients and take
them to the right hospital.
If this were just a turf war between criminal gangs, things
might be brought under control. But each gang has the
patronage of a mainstream political party, in a fight that
exploded in 2008 when an election was held to end
Pakistan’s latest period of military rule. Political support for
warring ethnic gangs means the police largely stay out of
the conflict: each gang will call on political muscle if its
henchmen are rounded up. The provincial authorities
launched a crackdown this week, but little is expected of it.
The Muttahida Qaumi Movement (MQM), a party
established in the 1980s that claims to represent the
Mohajirs, once had an iron grip over Karachi. That
monopoly is now being challenged by the Awami National
Party, which says it speaks for the ethnic Pushtun
population, who migrated from the north-west of the
country, and the Pakistan Peoples Party (PPP) of President
Asif Zardari, which heads the ruling coalition in the capital,
Islamabad. Its gang following is ethnic Baloch, from the
neighbouring province of Balochistan. It is the MQM versus
the rest.
The conflict’s ferocity may yet threaten Pakistan’s fragile
return to democracy. In recent days Karachi businesses
have called for the army to restore order. Violence in
Karachi was repeatedly used as part of the justification for
toppling four national governments in the 1990s. This city
of 18m people is Pakistan’s economic lifeline, and the port
SMC 16/2011 ETC. 138
through which most supplies reach NATO forces in
Afghanistan.
Away from the ritzy villas of Defence and Clifton districts,
the people of Karachi’s 3,500 square-kilometer (1,350
square-mile) sprawl live in decrepit homes and apartment
blocks set on narrow, filthy streets, where gangs rule with
near impunity. Trouble often flares when one ethnic ghetto
abuts another.
In Korangi, a ramshackle semi-industrial district in the east
of the city mainly inhabited by Mohajirs, Pervez has not
been to work for 20 days. He mends tyres on Tariq Road in
the city centre, a half-hour bus ride away. But since gangs
started pulling people off buses and killing them, he has
been too afraid to venture out. “The Pushtuns will cut your
throat,” Pervez says. “If I am killed, what will my children
do?”
Kashif Malik, a 32-year-old rickshaw driver and PPP
activist, was at home with a friend, Shoib, in Orangi Town,
in Karachi’s north-west, when gunmen came to the door.
Shoib was killed, while Mr Malik was lucky only to be shot
in the arm. He is sure the assailants were from the MQM.
Mr Malik insists that joining a political party offers the
safest protection these days. “A lone person cannot survive
in Karachi,” says Mr Malik from his bed at the Civil
Hospital. Most of those killed are not involved with any
political party. Language, clothes and even haircuts betray
a person’s ethnicity to the killing squads.
For more than two decades the MQM has collected
extortion money, known as bata, from businesses and
homes across the city. Now, using the political backing
they acquired in the 2008 election, gangsters associated
with the PPP and the Awami National Party, in a loose
alliance, also want their share of cash, at the heart of the
conflict. Businesses now have to pay off up to three rival
groups. In the past week Karachi’s markets selling marble,
bathroom tiles and medicines have separately staged
protests against bata.
As for the political parties, they seem to be able to turn the
violence off and on as it suits them. This suggests that
these are not mere criminals draping themselves in the
party flag, but rather integral parts of the parties’ political
machines. If the violence continues, more ordinary people
will be forced to seek the protection of a political party, to
which they will have to pay more dues. Perhaps this is
what the politicians are aiming for. “You can call this the
politicisation of crime, or the criminalisation of politics,”
says a security official in the city. “The state has lost its
writ in Karachi.”
120. It has to be noted that in the past the democratic
governments were dismissed either through the extra constitutional
SMC 16/2011 ETC. 139
instruments or in exercise of the powers available under the
constitutional provisions, inter alia, for the reason that both the
Federation and the Province had failed to control the disturbance in the
Province. Therefore, it is now the right and appropriate time when the
democratic set up must adhere to the constitutional provisions to
protect the Province as well as the country from internal disturbances.
However, in response to this, he has stated that a wake up call is not
needed, only a call to attention is sufficient because the Federal
Government is answerable to the Parliament and it is very much aware
of its duties. We wish that the Federal Government as well as the
Provincial Government could succeed in bringing normalcy in the
Province according to the Constitution before it is too late to overcome
the internal disturbances in view of the material brought before us.
121. The Federal Government could have provided assistance to
the Provincial Government to control the disturbances without any
delay, but we fail to understand the reasons prevailing with the
Federal Government in not acting promptly as the learned counsel has
himself by reciting verses from Holy Quran pointed out that killing of
one human being is tantamount to killing of whole mankind. During
the current year, more than 1300 persons were killed. The Chief
Secretary had admitted that the decision to extend powers to Rangers
to control law and order had taken place on 22.07.2011, but the
notification was issued on 25.07.2011, which has already been
reproduced hereinabove. Hence, the argument raised by the learned
counsel in this behalf does not advance the case of the Federation in
any manner. So far the remaining steps, which according to the
learned counsel had been taken by the Federation, they all seem to be
long term measures. The Federal Government has to protect the
SMC 16/2011 ETC. 140
Provinces against internal disturbances. Such protection, if required by
a Province in terms of Article 148(3) in view of the given facts and
circumstances and the scenario presupposes prompt protection and
failure to do so makes the Federal Government responsible as it has
been held in the cases of Ahmed Tariq Rahim and Mohtarama Benazir
Bhutto (supra).
122. The learned counsel emphasized that the executive
authorities in Pakistan had not failed in maintaining law and order
position and in that behalf he quoted the example of Swat. Precisely
stating, the situation in Swat was altogether different as in view of the
specific facts and circumstances pertaining to the said area and there
too, the civil administration had to call the military for ensuring the
writ of the Government, but in Karachi, which is the hub of economic
activity, breakdown of law and order for a single day allegedly causes
loss of 2.5 billion rupees everyday. The Provincial Government and the
Federal Government owe a duty to the citizens of Karachi to ensure
their Fundamental Rights without comparing the situation prevailing
over there with any other part of the country. Without prejudice to any
findings recorded herein, whether it is Swat or Karachi, equal
responsibility lies on the shoulders of the Provincial Government and
the Federal Government to ensure the implementation of the
Constitution and law.
123. Learned counsel claimed that except in Karachi in other
parts/districts of the Province of Sindh, the position of the law and
order is normal. We do not want to enter into this controversy because
the question relating to other districts of Sindh is not under
consideration, although Mr. Abdul Mujeeb Pirzada, learned ASC, who
appeared on behalf of Sindh Bachao Committee, had uttered a few
SMC 16/2011 ETC. 141
words to indicate that in the interior of Sindh as well, situation of law
and order was not satisfactory. However, it has been pointed out
hereinabove that all the limbs of the State, administrative units, etc.
have got equal importance as far as the duty of the Provincial
Government/Executive or the Federal Government or executive is
concerned, but when there is serious situation of law and order like in
Karachi and if there is non-adherence to the constitutional provisions,
the consequences are bound to reflect on the economic activity of the
whole of country as well as internationally. Therefore, the argument so
raised by the learned counsel needs no further discussion.
124. The learned counsel referred to the case of Jamat-e-Islami
Pakistan v. Federation of Pakistan (PLD 2000 SC 111) to contend that
internal disturbance cannot be equated with the failure of the
executive authority. In this behalf, it may be noted that in the cited
case, two petitions, bearing Petitions No. 22 & 25 of 1999 filed by
Jamat-e-Islami Pakistan and MQM were filed before this Court under
Article 184(3) of the Constitution, challenging the vires of Anti-
Terrorism Ordinance (No. IV of 1999) dated 27.04.1999 on the ground
of being repugnant to the Constitution and contrary to the guidelines
provided by this Court in the case of Mehram Ali v. Federation of
Pakistan (PLD 1998 SC 1445). This Court examined the expression
‘disturbances’ in the context of amendments made and provided its
definition. However, no observation/comparison vis-à-vis executive
authority of the government was under challenge, therefore, the
judgment being inept is not applicable.
125. He next contended that the will of the Government can be
judged from the fact that this Government has constituted JIT to dig
out the truth. He referred to p. 49 of JIT report to demonstrate that
SMC 16/2011 ETC. 142
the Special Branch, CID, IB, ISI, MI and Pakistan Rangers are Federal
agencies, have prepared the reports and all these reports relate to this
year, so this is ample proof of the will of the executive authority to
bring back normalcy in Karachi. It is important to note that this report
was neither filed by the Provincial/Federal Governments nor the
learned counsel called for the same. It was Syed Iftikhar Hussain
Gillani, learned Sr. ASC, who had filed this report, but in view of the
statement so made by the learned counsel, it is abundantly clear that
with effect from the date of its compilation, i.e. 31.03.2011, the
Government being aware of its contents remained silent. This report
contains horrifying facts. No one has claimed its confidentiality. To
ascertain the willingness of the Federal or the Provincial Governments
to act on this report, life history of one of the persons, namely, Ajmal
Pahari, without prejudice to him, is reproduced hereinbelow: -
TRAINING IN INDIAN TRAINING CAMP
I along with Zeeshan PIB Wala on the direction of Nadeem
Nusrat (London Secretariat) went to Singapore in 1996.
When we reached Singapore I informed Nadeem Nusrat
and told my location. Nadeem Nusrat told me that I must
wait and soon Jameel @ Jimmi will meet me with next
schedule. We stayed for one week in hotel (name not
remember) in Mustafa Market. Jameel @ Jimmy came to
us from South Africa. Also Zeeshan didn’t know about the
programme. Jameel @ Jimmy take ours passport and
photograph. Jameel @ arrange Indian Visa and send us via
Singapore Airline. Sunny who was escaped from Karachi
received us in India Delhi Airport, and took us to the house
where we stayed for 15 days. Then he took us to the
training center in a jungle near to the Delhi
OTHER TRAINING OF PARTY WORKERS IN INDIAN
TRAINING CAMP
When we reached at Indian Training Center we meet Noora
(Shah Faisal Colony Wala), Zafar Tension Duffer Zone
SMC 16/2011 ETC. 143
Wala), Raja (North Nazimabad Wala) Shakir Choota
(Orangi Town) of MQM A group.
MOTIVATION OF TRAINING IN INDIA
After completion of our training Sunny brought different
book on Revolution and every body had been motivated
that if we didn’t get our rights then we have to work under
the Leadership of Altaf Hussain and make our separate
state by unite Karachi and other major parts of Sindh.
WEAPON TRAININGG DURING THE SESSION
We wake up early in the morning for exercise and running.
After that we used weapons in which we used AK 47, G-3,
MP-5, LMG Rocket launcher, Grenade and other weapons.
Our teacher also trained original fire of rocket launcher last
day of our training.
RETURN FROM INDIA TO PAKISTAN
Sunny arrange Indian guide who took us to Indian Punjab
and one day at about 9’0 clock in evening we illegally
crossed the Indian border and entered into Pakistan area
Shakar Garh with our Indian Guide. Then that Indian Guide
took us to Lahore in Suzuki pick up and went back. Then
we came to Karachi in train (Rail).
MEETING WITH OTHER INDIAN TRAINEES IN KARACHI
I met Noora of Shah Faisal, Zafar Tension of Buffer Zone,
Shakir Choota of Orangi Town in Karachi but I never saw
Raju of North Nazimabad in Karachi.”
Above named person has given details of 53 persons murdered by him
from 1986 to 2000. Surprisingly, he also admitted murder of Iqbal
Raad Advocate, who was former Advocate General, Sindh. He has also
given the details of murder of 58 persons after his release from Jail in
2005. This document is full of information, which he has disclosed. The
question here is not the veracity or correctness of his statement. The
question is: what did the Federal Government or the Provincial
Government do on the basis of this information. Of course the truth of
the statement has yet to be determined but it was serious information
SMC 16/2011 ETC. 144
of grave crimes in an alleged confession. Inaction on the statement,
whatever its evidentiary value, means a certain backing and cooperation
with criminal activity. However, on the basis of this report,
no action has been taken against him as well as the organization with
which he showed his affiliation. According to him, he had been getting
training outside the country in India, etc. The remarks of the agencies
of the Federal Government and others, reference of which the learned
counsel for the Federation, are as follows: -
“The subject is a hard core and high profile trained target
killer affiliated with MQM (A) Group, who has been
involved in heinous crimes of murder, attempt to murder,
target killing, several activities of creating law and order
situation abduction, kidnapping, extortion.”
Without commenting on its evidentiary value, at least when the
Federal Government is relying upon it through its learned counsel,
some weightage is to be given to it. We posed a question to the
learned counsel that on the basis of above report, what action so far
was taken by the Government, however, no explanation came forward.
126. It is to be noted that all criminals, howsoever influential,
have to be dealt with across the board without any discrimination or
compromising the position of the law on the subject. As we have
already pointed out hereinabove that instant proceedings are not
adversarial, therefore, one cannot discuss the case of all those persons
whose names are mentioned in the report, but for the purpose of
meeting argument of the learned counsel, reference to one of the
same has been given with the observation that no prejudice will be
caused to concerned persons as perhaps he has to face trial in
different cases. But perusal of the report qua the argument raised by
the learned counsel showing the willingness of the Federal Government
SMC 16/2011 ETC. 145
to take action in Karachi to control the law and order does not appeal
to us. Thus, we are constrained to conclude that if an agency of the
Federal Government possesses such overwhelming evidence, what
could be the reasons for taking no action against concerned persons or
organizations.
127. Learned counsel stated that every crime committed
constituted violation of the Fundamental Rights one way or the other.
Bhatta, chanda, abduction, extra judicial killing, etc., whenever
committed, constitute violation of the Fundamental Rights qua the
individuals against whom such crimes are committed. According to
him, the Fundamental Rights of individuals have been violated due to
the rivalries between the individuals, there are clashes or crimes
committed by individuals against individuals and groups of individuals
are pitched against each other. Assuming argument of the learned
counsel is correct, then what is the function of the Executive in respect
of protecting Fundamental Rights when there is a violation. It is the
duty of the Provincial Government as well as the Federal Government
to protect and preserve the Constitution, which confers such rights
upon individuals. When violation of the Fundamental Rights is
admitted, ultimately blame lies with the executive authorities, both
Provincial and the Federal, for non-implementation of their rights. In
this behalf, detailed discussion has been made hereinabove. When the
learned counsel for the Provincial Government, Mr. Hafeez Pirzada,
ASC, calls upon this Court “give a wake up call” to his client, and the
learned counsel of the Federal Government concedes that a “Call
Attention Notice” can be issued, what more needs to be said: If they
themselves admit that the Court’s reprimand is need, how can the
Governments concerned be defended?
SMC 16/2011 ETC.
146
128. Dr. Babar Awan, learned counsel stated that the
Federation had no intention to invoke Articles 232 to 234 or Article 245
of the Constitution presently. Undoubtedly, it is for the Federation to
take a decision, but if any decision is taken, it would be strictly in
accordance with the Constitution. This Court has time and again
insisted that except adherence to the constitutional provisions in any
situation prevailing in the country, no extra-constitutional steps have
to be followed. In the neighbouring country, in case of failure of
constitutional machinery in the States, Article 356 is attracted to deal
with the situation. This Article is identical to Article 232 of our
Constitution, therefore, application of these provisions of the
Constitution is not alien to our system because on more than one
occasion the Executive resorted to the same. Reference may be made
to Farooq Ahmed Khan Leghari’s case (supra) wherein it was held as
under: -
“48. I am prompted to take above view inter alia for the
following reasons:
(i)
That the above view fits in with the above modern
jurisprudential theory of proportionality.
(ii)
That as a rule of interpretation, the Courts should
make efforts to preserve the Fundamental Rights of
the citizens while construing the Constitutional
provisions. This aspect, I intend to deal with
hereinafter while touching upon the aforesaid second
question in issue.
(iii)
That those who have taken oath to protect the
Constitution, particularly, the Judges of the Supreme
Court and the High Courts are bound by their oath
and duties to act so as to keep the provisions of the
Constitution fully alive and operative, to preserve it
in all respects, save from all defects or harm and to
stand firm in defence of its provisions against attack
of any kind as held by this Court in the case of
Fazalul Quader Chaudhry (supra), in which the view
taken is in line with the above Constitutional
mandate.
(iv)
That even in spite of suspension of the enforcement
of certain Fundamental Rights under clause (2) of
Article 233 of the Constitution, Article 4 thereof
remains fully operative which lays down that "To
SMC 16/2011 ETC.
147
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.
In particular -
(a)
no action detrimental to the life, liberty, body,
reputation or property of any person shall be taken
except in accordance with law;
(b)
no person shall be prevented from or be hindered in
doing that which is not prohibited by law; and
(c)
no person shall be compelled to do that which the
law does not require him to do."
as held by Salahuddin Ahmad, J. of this Court in the case
of Manzoor Ilahi (supra).”
In view of the peculiar circumstances prevailing in Karachi, issuance of
a large number of arms licences, both prohibited and non-prohibited,
also seems to be one of the reasons for not bringing normalcy in
Karachi and perhaps this is another reason that after every 2 to 4
weeks, some incident of torture, gang war, target killing, etc., takes
place, which comes to an end after taking heavy toll of life. The
Administration/Executive never realized the untold miseries of the
sufferers including widows and orphans; therefore, the executive is
bound to attend to this aspect of the case.
129. After the Court concluded the hearing on 16.9.2011
another very tragic incident took place in Karachi. A car bomb
exploded outside the house of Chaudhry Aslam, SSP CID, in the
Defence area of Karachi. Six Policemen and a mother along with her
young son were martyred. Although this crime is apparently, and
prima-facie of a different variety not related to the turf war or ethnic
strife in Karachi, there is something to be learnt from it by the citizens
of Karachi. The vehicle that exploded at the gate of the SP’s House
must have been loaded with explosives and prepared with a network
of wires, fuses, projectiles such as ball bearings or shrapnels, and
SMC 16/2011 ETC. 148
triggers. A sophisticated remote control device may also have been
needed although it is yet to be determined conclusively whether it was
a suicide attack or not. One thing is clear that the vehicle was loaded
with explosives and prepared for exploding in Karachi and nowhere
else. Surely it was not brought, fully equipped and loaded all the way
from the FATA area with explosives, projectiles, wires, fuses, triggers
and remote control or suicide oriented equipment. It was indeed
prepared in Karachi. All such vehicles and suicide bombers are finally
prepared and equipped in our cities, not in FATA. Houses are
previously rented for this purpose and rooms are taken in hotels.
Whether the vehicle was prepared in a workshop or a house, the
neighbours must have noticed some strange or at least dubious
movements around and/or inside the workshop or house. The same
applies to other terrorists and suicide attackers in Karachi, Lahore,
Rawalpindi, Peshawar, Quetta and other cities of Pakistan. The vehicles
and suicide bombers and assault teams are all assembled and
prepared in our own neighborhoods and Mohallas. These then go out
and attack Bazaars, shrines establishments, killing innocent men,
women and children. If the citizens were vigilant and responsive, such
incidents could be prevented. They must report suspicious activity.
That is the best, perhaps the only way to finish this menace.
No doubt the fear of reporting to some extent is due to a
lack of confidence in the administration and the Police but that
confidence will have to be revived for the mutual benefit of all. It is for
the Government to revive that confidence by not using the
administration and the police for political or private ends. That is the
responsibility of the Government of the Day. We have seen the
beneficial and positive effects of a depoliticized administration with the
SMC 16/2011 ETC. 149
intervention of the Court. It is now the bounden duty of the
government to continue with this status and not deflect the
administration to its own benefit in preference to the citizen. The
Police must also be cleansed of unmerited appointments. We intend to
keep an eye on this process and will respond to any genuine complaint.
130. The morale of the police is low. Even honest Policemen are
demoralized. They are caught between the devil and the deep blue sea.
On the one hand, they may be punished for doing their duty if it runs
counter to the political objectives of the party in power and on the
other, they are afraid of being shot by the persons they have
apprehended or their associates. They are conscious of the fact that so
many policemen who took part in the operations of 1992 and 1996
have disappeared or have been eliminated. It is necessary, therefore,
for the Police to fully and impartially investigate and find out the
circumstances of each such disappearance/elimination and provide a
detailed report to this Court in respect thereof.
131. Thus, from the material produced before the Court and the
information conveyed during hearing of the case by the ISI followed by
intensified arguments advanced by the learned counsel appearing for
the Provincial and Federal Governments, learned Attorney General,
learned Advocate General, learned counsel for the Province of Sindh
and learned counsel for the interveners, the Inspector General of
Police, the DG Rangers, the Presidents of the Sindh High Court Bar
Association and the Karachi Bar Association as well as all others, we –
Observe that violence in Karachi during the current year and in
the past is not ethnic alone but it is also a turf war between
different groups having economic, socio-politico interest to
strengthen their position/aggrandizement, based on the
phenomenon of tit for tat with political, moral and financial
SMC 16/2011 ETC. 150
support or endorsement of the political parties, who are claiming
their representation on behalf of public of Karachi including
components and non-components of Provincial Government/
Executive;
A N D
Declare that recent violence in Karachi represents unimaginable
brutalities, bloodshed, kidnapping and throwing away dead
bodies and torsos in bags; as illustration, indicating toll of 306
lives in one month; detection of torture cells video of which has
been produced; receiving bhatta to strengthen the ranks of one
group against the other; grabbing land; drug mafia etc.,
destroying moveable and immovable properties of the citizens,
establishes that the Fundamental Rights of the citizens enshrined
in Articles 9,14,15,18 and 24 of the Constitution have not been
protected/enforced by the Provincial Government/Executive
authority and this failure has made the lives and properties of
the citizens insecure, inasmuch as Federal Government/
Executive has also not protected Province of Sindh against
internal disturbance, thus the government of Province of Sindh,
on this account, too, failed to carry out functions in accordance
with the provisions of the Constitution [Article 148(3)];
A N D
Further observe that both the Provincial and Federal
Governments/Executives have to find out solutions of the
present scenario as per provisions of the Constitution;
A N D
Further observe that to come out of instant grave situation of
law and order in Karachi, police force being principal law
enforcing agency has to be de-politicized and strengthened so
that they could, with full commitment, dedication, zeal and zest,
perform its bounden duty, and unless there is a de-politicized
police, the situation of law and order is likely to become more
aggravated, no sooner the assistance of Rangers is withdrawn;
SMC 16/2011 ETC. 151
A N D
We apprehend that any further failure to protect the lives and
property of the citizens is likely to cause unprecedented disaster,
therefore, all efforts should be made to avoid the same in the
interest of the nation and country, which is supreme as per the
mandate of the Constitution and the law;
A N D
Further observe that in respect of banning any political party
including MQM, against whom all the interveners mostly had
voiced complaints is not within domain of the Court at this stage
as in terms of Article 17(2) of the Constitution every citizen, not
being in the service of Pakistan, shall have the right to form or
be a member of a political party, subject to any reasonable
restrictions imposed by law in the interest of the sovereignty or
integrity of Pakistan and it is the responsibility of the Federal
Government to act under Article 17 for action against any party
violating this Article. The Court will only review such issue at any
other appropriate stage or proceeding if then necessary to
determine whether the actions of any party are directly or
indirectly prejudicial to the sovereignty or integrity of Pakistan
within the meaning of the Article. The Court will remain, in
appropriate proceedings, the ultimate arbiter of this question but
will not allow any government to avoid its duty under the law
and the Constitution;
A N D
Further observe that as per material brought before the Court,
there are criminals who have succeeded in making their ways in
political parties notwithstanding whether they are components or
non-components of government, and are getting political and
financial support allegedly from such parties, therefore, the
political parties should denounce their affiliation with them in the
interest of the country and democratic set up and they should
not allow them to use their names as militant outfits of the
political parties. Failure to do so may entail consequences of a
SMC 16/2011 ETC. 152
penal nature against the party or person responsible, whether in
office or not;
A N D
Further observe that to avoid political polarization and to break
the cycle of ethnic strife and turf war, boundaries of
administrative units like police stations, revenue estates, etc.,
ought to be altered so that the members of different
communities may live together in peace and harmony, instead of
allowing various groups to claim that particular areas belong to
them and declaring certain areas as NO GO Areas under their
fearful influence. Subsequent thereto, on similar considerations,
in view of relevant laws, delimitation of different constituencies
has also to be undertaken with the same object and purpose,
particularly to make Karachi, which is the hub of economic and
commercial activities and also the face of Pakistan, a peaceful
city in the near future. The Election Commission of Pakistan may
also initiate the process on its own in this behalf;
A N D
Further observe that equal chances should be provided to
different communities of Karachi to participate in economic and
commercial activities instead of confining the same to different
political groups on the basis of parochial, racial, tribal, sectarian,
partisan and provincial prejudices;
A N D
Further observe that Karachi is full of arms and ammunition of
prohibited and non-prohibited bores including licensed and illicit,
therefore, Karachi has to be cleansed from all kinds of weapons
by adhering to the laws available on the subject, and if need be,
by promulgating new legislation. All licensed arms genuinely
required for security concerns and personal safety may be
retained but these must also be registered with NADRA. All other
licenses, where such need cannot be shown, or where multiple
licenses have been issued to the same individual (as distinct
from security firms) if not justified, or which are used for
SMC 16/2011 ETC. 153
unnecessary display at ceremonies or elsewhere for aerial firing
should be cancelled after summary and expeditious proceedings
in accordance with law;
A N D
Further observe that there is a need for a fresh comprehensive
law to eliminate and punish land grabbers and encroachers. This
is one of Karachi’s greatest problems. The Court has already
dealt with some cases Suo Motu and otherwise, and will continue
to do so whenever necessary or appropriate. Sometimes this
Court is the last hope of the citizens or a community which turns
to it for redress when all other avenues are denied to them. But
overall it is the duty of both Governments to formulate such law
and initiate it in the appropriate assembly; and thereafter to
implement it fully without showing any favour or immunity to
any person whether a political favourite, ally or for any other
personal or party consideration;
A N D
Further reiterate that monitoring of the criminal cases should
take place in view of the observations made in the case of
Sheikh Liaqat Hussain (supra). Besides, the appointments of the
Presiding Officers of the Anti-Terrorism Courts should also not be
delayed for any reason, as we experienced during the hearing of
the case that those appointments were delayed for a period of
nearly two years. However, under the direction issued by the
Court, the Presiding Officers were appointed and we expect that
such delays shall not be allowed to occur in future;
A N D
We observe that since innocent citizens have lost their lives,
number of which comes to 1310 during the current year.
Similarly, a good number of citizens have been injured and/or
lost their valuable property, both movable and immovable,
therefore, provincial government/executive shall constitute a
Commission to assess their losses and on its recommendation,
SMC 16/2011 ETC. 154
compensation must be paid to the sufferers without partisan
consideration, as early as possible;
A N D
We direct that there must be no ‘NO GO AREAS’ at all in Karachi.
If any is found or credibly reported to the Court the Police and, if
required by the Provincial Government, the Rangers shall take
strong and decisive action to eliminate it. Moreover, if such an
area is proved to exist to the satisfaction of the Court, we may
require the IGP himself, and if necessary the DG Rangers also, to
personally lead the operation into such areas. The Police and
Rangers are therefore, expected to conduct the on-going
operation across the board without showing any favour to any
one and without being influenced from any quarter, be it political
or otherwise. In case they are asked to obey any illegal orders,
or to show leniency to any criminal, it will be their duty to bring
it to the notice of the Court and appropriate orders will be
passed accordingly;
A N D
Further direct that an independent and a depoliticized
investigation agency be deputed to conduct investigation of
cases fairly, honestly and without being influenced in any
manner. Similarly, the prosecution agency comprising competent
prosecutors and the Provincial Government/Executive must
provide protection to the witnesses so that they may depose
against the perpetrators of crimes without any fear, enabling the
courts to decide cases against them in accordance with law. The
prosecutors, particularly for the Anti-Terrorism Courts should be
appointed in a highly transparent manner according to the
Constitution and the law. Appointments of prosecutors are
required to be undertaken without any political whims and
considerations;
A N D
Further direct that DG NADRA and the IGP will set up a special
joint cell with specialized officials and experts along with
SMC 16/2011 ETC. 155
sufficient manpower to establish several teams to visit on the
spot and identify illegal foreigners so that they may be dealt with
strictly in accordance with law after a proper hearing and
opportunity to present proof of their citizenship. They should
attempt to conclude this exercise preferably in one year;
A N D
Further direct that the IGP shall collect the record and facts
about the disappearance or elimination of all police and other
officials who took part in the Karachi operations of 1992 and
1996 or were witnesses in ethnic or related crimes and present a
report to the Court within the next one month also showing
whether their families were compensated or not;
A N D
Further direct that the Provincial Government shall place on
record of the Court copies of all judicial inquiries instituted in the
matter of law and order in Karachi since 1985. These shall be
retained for perusal and for any necessary action or appraisal of
the situation at any time in the future;
A N D
Further observe that the Provincial Government/Executive shall
ensure smooth running of economic and commercial activities
and shall take necessary steps that the protection is provided
against uncalled for and illegal shutter down and strikes to the
businessmen. During arguments, it was also brought to our
notice that due to illegal strikes and shutter down calls, the
normal life of citizens of Karachi is paralyzed, and allegedly it
causes loss of billions of rupees in a day, therefore, it is
observed that the Government and the political parties shall
evolve a respectable way out to avoid such a situation in future;
A N D
Finally, it is directed that a Committee be constituted by the
Provincial Government/Executive, headed by the Chief Justice of
SMC 16/2011 ETC. 156
Sindh High Court, who shall be assisted by the Chief Secretary,
the heads of the security agencies i.e. para-military
organizations and I.G. Police, to supervise and ensure that law
enforcement agencies take action indiscriminately, across the
board against the perpetrators involved in causing disturbances
in Karachi. The Chief Justice shall convene the meeting at least
once in a month to review the implementation of this judgment
and copy of the proceedings shall be transmitted to the Registrar
of this Court for our perusal and passing appropriate orders at a
later stage, if need be.
132. In view of above declarations/observations, instant Suo
Motu proceedings as well as Constitution Petition No. 61 of 2011 under
Article 184(3) stand disposed of while parting with the saying of James
Bryce that “Our country is not the only thing to which we owe our
allegiance. It is also owed to justice and to humanity. Patriotism
consists not in waving the flag, but in striving that our country shall be
righteous as well as strong.”
Iftikhar Muhammad Chaudhry, CJ
Anwar Zaheer Jamali, J. Sarmad Jalal Osmany, J.
Amir Hani Muslim, J. Ghulam Rabbani, J.
Announced in open Court on 06th October, 2011
CHIEF JUSTICE
APPROVED FOR REPORTING
(Original Jurisdiction)
PRESENT:
Mr. Justice Iftikhar Muhammad Chaudhry, CJ
Mr. Justice Anwar Zaheer Jamali
Mr. Justice Sarmad Jalal Osmany
Mr. Justice Amir Hani Muslim
Mr. Justice Ghulam Rabbani
SUO MOTU CASE NO. 16 OF 2011
[Suo Motu Action regarding law and order
situation in Karachi]
AND
CONSTITUTION PETITION NO. 61 OF 2011
Watan Party & another
VERSUS
Federation of Pakistan & others
…
…
PETITIONERS
RESPONDENTS
Petitioner: Barrister Zafarullah Khan, ASC
(Const. P. 61/2011)
On Court notice:
Maulvi Anwar-ul-Haq, Attorney General for Pakistan
Syed Ashiq Raza, DAG
Mr. M. Shoaib Shaheen, DAG
Raja Aleem Abbasi, DAG
Ms. Asma Jehangir, ASC/President SCBA
Mr. Anwar Mansoor Khan, Sr. ASC/President, SHCBA
Mr. Abdul Fattah Malik, AG Sindh
Mr. Shahadat Awan, P.G. Sindh
Mr. Wajid Ali Durrani, I.G.P, Sindh
Mr. Saud Ahmad Mirza, Addl. I.G. Sindh
Mr. Anwar Subhani, Legal Consultant
For Province of Sindh:
Mr. Abdul Hafeez Pirzada, Sr. ASC
[assisted by Mr. Abdul Sattar Pirzada, Adv.]
For the Federation:
Dr. Babar Awan, Sr. ASC
Mr. A.S.K. Ghouri, AOR
SMC 16/2011 ETC. 2
For M/o Interior: Mr. Arif Chaudhry, ASC
Mr. A.S.K. Ghouri, AOR
For the applicant: Syed Iftikhar Hussain Gillani, Sr. ASC
(CMA 4108/2011)
For the applicant: Mr. Abdul Mujeeb Pirzada, Sr. ASC
(CMA 531-K/2011) Mr. Mazhar Ali B. Chohan, AOR
Applicants: Mr. Muhammad Aqil, Advocate, President KBA
(CMA 532-K/2011) Syed Haider Imam Rizvi, Advocate, Gen. Secy.
Mr. Iftikhar Javed Qazi, ASC, Vice Chairman
Sindh Bar Council
For the applicant: Mr. Ghulam Qadir Jatoi, ASC/AOR
(CMA 533-K/2011)
For the applicant: Khawaja Naveed Ahmad, ASC
(CMA 535-K/2011) Mr. Mazhar Ali B. Chohan, AOR
For the applicant: Mr. Irfanullah Marwat in person
(in CMA 541-K/2011)
For the applicant: Syed Iqbal Haider, Sr. ASC
(in CMA 544-K/2011) Mr. K.A. Wahab, AOR
For the applicant: Mr. Faisal Kamal Aalam, ASC
(in CMA 546-K/2011) Mr. Ghulam Qadir Jatoi, AOR
For the applicant: Mr. Rasool Bux Palijo, ASC
(in CMA 552-K/2011) Mr. Ghulam Qadir Jatoi, AOR
For the applicant: Mr. Jamil Ahmad Virk, ASC
(in CMA 555-K/2011) Mr. Mazhar Ali B. Chohan, AOR
For the applicant: Mr. Javed Ahmad Chhattari, Adv. In person
(in CMA 558-K/2011)
For the applicant: Mr. Ashraf Samoo, Advocate/ President
(in CMA 560-K/2011) Malir Bar Association
For the applicant: Mst. Surriya in person
(in CMA 561-K/2011)
For the applicant: Dr. Farogh Naseem, ASC
(in CMA 565-K/2011) Dr. Kazi Khalid Ali, ASC
Mr. Izhar Alam Farooqi, AOR
For the applicant: Afaq Ahmed (through Jail)
(in CMA 569-K/2011)
Dates of hearing: 26 & 29-30 August, 5-9 & 13-16 September, 2011
…
SMC 16/2011 ETC. 3
JUDGMENT
IFTIKHAR MUHAMMAD CHAUDHRY, CJ. – Islam
is a religion of peace and tolerance and it stands for safety, security
and sanctity of human life. Islam abhors unlawful killing of innocent
people and strictly prohibits it in a number of Quranic verses and
Ahadith. In Surah Al-Maidah verse 32, Allah says:-
“Because of that, We ordained for the Children of Israel
that if anyone killed a person not in retaliation of murder,
or to spread mischief in the land – it would be as if he
killed all mankind, and if anyone saved a life, it would be
as if he saved the life of all mankind. And indeed, there
came to them Our Messengers with clear proofs,
evidences, and signs, even then after that many of them
continued to exceed the limits (e.g. by doing oppression
unjustly and exceeding beyond the limits set by Allah by
committing the major sins) in the land.”
Some of the other verses of the Holy Quran are as under:-
“And (remember) when We took your covenant (saying):
Shed not the blood of your (people), nor turn out your own
people from their dwellings. Then, (this) you ratified and
(to this) you bear witness.” [Sura Al-Baqarah verse 84]
“And whoever kills a believer intentionally, his recompense
is Hell to abide therein; and the Wrath and the Curse of
Allah are upon him, and a great punishment is prepared
for him.” [Sura An-Nisa verse 93]
The Holy Prophet [SAW] said –
“O People, just as you regard this month, this day, this city
as Sacred, so regard the life and property of every Muslim
as a sacred trust. Return the goods entrusted to you to
their rightful owners. Hurt no one so that no one may hurt
you. Remember that you will indeed meet your Lord, and
SMC 16/2011 ETC. 4
that He will indeed reckon your deeds. … …” [The Farewell
Sermon (Khu.batul-Wada)]
“The biggest sins are: To join others in worship with Allah;
to be undutiful to one’s parents; to kill somebody
unlawfully; and to take an oath Al-Ghamus.” [Sahih
Bukhari, Vol VIII, P.434, Number 667]
“Narrated Abdullah bin Umar: One of the evil deeds with
bad consequence from which there is no escape for the
one who is involved in it is to kill someone unlawfully.”
[Sahih Bukhari, Vol IX, P.2, Number 3]
2. This aspect of the Islamic teachings, as well finds its
reflection in the Constitution of the Islamic Republic of Pakistan 1973.
The Constitution, in its very Preamble, postulates that the principles of
democracy, freedom, equality, tolerance and social justice, as
enunciated by Islam, shall be fully observed and the fundamental
rights, including equality of status, of opportunity and before the law,
social, economic and political justice, and freedom of thought,
expression, belief, faith, worship and association, subject to law and
public morality; shall be fully guaranteed. These very principles have
been made a substantive part of the Constitution under Article 2A.
Thus, it is the duty of the State to protect and safeguard all these
Fundamental Rights including the right to life and liberty as envisaged
by Article 9 of the Constitution, which has been interpreted by this
Court in Shehla Zia’s case (PLD 1994 SC 693) as under: -
“Article 9 of the Constitution provides that no person shall
be deprived of life or liberty save in accordance with law.
The word "life" is very significant as it covers all facts of
human existence. The word "life" has not been defined in
the Constitution but it does not mean nor can it be
restricted only to the vegetative or animal life or mere
SMC 16/2011 ETC. 5
existence from conception to death. Life includes all such
amenities and facilities which a person born in a free
country is entitled to enjoy with dignity, legally and
constitutionally. For the purposes of present controversy
suffice to say that a person is entitled to protection of law
from being exposed to hazards of electromagnetic fields or
any other such hazards which may be due to installation
and construction of any grid station, any factory, power
station or such like installations. Under the common law a
person whose right of easement, property or health is
adversely affected by any act of omission or commission of
a third person in the neighbourhood or at a far off place,
he is entitled to seek an injunction and also claim
damages, but the Constitutional rights are higher than the
legal rights conferred by law be it municipal law or the
common law. Such a danger as depicted, the possibility of
which cannot be excluded, is bound to affect a large
number of people who may suffer from it unknowingly
because of lack of awareness, information and education
and also because such sufferance is silent and fatal and
most of the people who would be residing near, under or
at a dangerous distance of the grid station or such
installation do not know that they are facing any risk or
are likely to suffer by such risk. Therefore, Article 184 can
be invoked because a large number of citizens throughout
the country cannot make such representation and may not
like to make it due to ignorance, poverty and disability.
Only some conscientious citizens aware of their rights and
the possibility of danger come forward.”
3. In case of Arshad Mehmood v. Government of Punjab (PLD
2005 SC 193) also, the Court observed that the word ‘life’ used in
Article 9 of the Constitution includes all such amenities and facilities
which a person born in a free country is entitled to enjoy with dignity,
legally and constitutionally. The word ‘life’ in the Constitution has not
been used in a limited manner; a wide meaning should be given to
SMC 16/2011 ETC. 6
enable a man not only to sustain life but to enjoy it. The State is duty
bound to protect the life and property of its citizens in accordance with
law against all the atrocities, target killings, homicide, etc. The basic
human rights of life, liberty and enjoyment of one’s property have
been recognized nationally as well as internationally. Article 3 of the
Universal Declaration of Human Rights provides that ‘everyone has the
right to life, liberty and security of person’, no one shall be subjected
to torture or to cruel, inhuman or degrading treatment or punishment;
everyone has the right to recognition everywhere as a person before
the law; and all are equal before the law and are entitled without any
discrimination to equal protection of the law. Article 17 ibid lays down
that ‘every one has the right to own property alone as well as in
association with others. It is worth mentioning here that no society can
make any progress in a state of chaos and disorder. It is manifest to
hypothesize that the law and order condition prevailing in a country
has a direct and significant bearing on the pace and pattern of
economic development of that country. The existence of basic socioeconomic
framework of the country and the continuation of economic
growth without any hindrance or interruption depends upon
subsistence of better law and order situation. In case of break-down of
peace on account of any factors negative effect is exerted on the
economic growth. Better law and order as a determinant of economic
development was spelled out in explicit terms in the theories of growth
advanced by economists such as J.J Spangler and W. W. Rostow. In
his Theories of Socio-economic Growth, Problems in the Study of
Economic Growth, 1949, J.J. Spangler has mentioned that the
structure of the prevalent value system of a community can
reasonably be considered as an important condition of law and order,
SMC 16/2011 ETC. 7
because the value system defines the basic norms and ethos of human
conduct. For example, if the value system of a society is predominated
by sectarian or ethnic dispensations, then such a society would be
continuously ridden by law and order problems, thus putting frequent
twists and turns to the process of economic growth. W.W. Rostow, in
Politics and the Stages of Growth, 1971, has extended the theme of
stage, ‘propensities’ and their linkages to the role of political factors,
institutions and the law and order framework in determining the
pattern of economic growth. The primary tasks of any legal
government are defined as the provision of security, welfare and
growth, and constitutional order. Thus there is a clear cut
interconnection between law and order and economic development.
4. Article 14 of the Constitution of Pakistan ensures dignity of
every individual. In the case of ‘Commissioner of Income Tax v. Eli
Lilly Pakistan’ reported as 2009 SCMR 1279, this Court observed that:
“It is the duty and obligation of the State on account of the
various provisions of the Constitution to provide the
atmosphere based on honesty by providing equal
protection of law. Every citizen must be treated equally,
dignity of human being life should be maintained, and
liberty of life and honour must be guaranteed as envisaged
in the Articles 9, 14 and 25 of the Constitution.”
5. Articles 15 and 18 of the Constitution, respectively relate
to freedom of movement etc. and freedom of trade, business or
profession and have been interpreted by this Court in the case titled
“Government of Pakistan v. Zamir Ahmad” reported as PLD 1975 SC
667, in the following words: -
“Article 18 of the Constitution of Pakistan, which relates to
the freedom of trade, business or profession, which
corresponds to Article 15 of the interim Constitution, and
SMC 16/2011 ETC. 8
which incidentally held the field at the relevant time,
assures the citizens the right to enter upon any “lawful
profession of occupation” and “to conduct any lawful trade
or business”. It is important to point out that the word
“lawful” qualifies the right of the citizen in the relevant
field. This clearly envisages that the State can by law ban
a profession, occupation, trade or business by declaring it
to be unlawful which in common parlance means anything
forbidden by law. Prostitution, trafficking in women,
gambling, trade in narcotics or dangerous drugs are
common place instances of unlawful profession or trade.
These are inherently dangerous to public health or welfare.
Therefore, on the wording of Article 18 of the Constitution,
the right to enter upon a profession or occupation or to
conduct trade or business can hardly be described to be a
Constitutional or Fundamental Right when such right may
be denied by law. In this respect our Constitution stands in
sharp contrast with the corresponding provision of the
Indian Constitution which omits the use of word “lawful” in
the relevant Provision.”
The same principle was enunciated by this Court in the case of Arshad
Mehmood (supra). This Court observed that the Government has the
authority to regulate a lawful business or trade. Reasonable restriction,
however, does not mean prohibition or prevention completely. Article
24(1) of the Constitution envisages that no person shall be deprived of
his property save in accordance with law.
6. Any democratic set up consisting of citizens and
functionaries in the country under the Constitution is bound to show its
loyalty to the State, for to be loyal and faithful to the State is the basic
duty of every citizen under Article 5 of the Constitution. This Court in
the case of Shahid Orakzai v. Pakistan through Secretary Law (PLD
2011 SC 365) held that Article 5(2) of the Constitution has mandated
that obedience to the Constitution and law is the inviolable obligation
SMC 16/2011 ETC. 9
of every citizen wherever he may be and for every other person for the
time being within Pakistan. The chosen representatives, who have
acquired authority on behalf of their electors as members of the
National Assembly, Senate or Provincial Assemblies as per mandate of
their oath, which they take before entering upon office, are bound to
bear true faith and allegiance to Pakistan. The oath of the office of
members of the National Assembly and Senate as set out in the Third
Schedule provides that the members will perform their functions
honestly, to the best of their ability, faithfully and in accordance with
the Constitution and law; that they will act in the interest of the
sovereignty, integrity, solidarity, well-being and prosperity of Pakistan
and they will preserve, protect and defend the Constitution. Therefore,
while holding a constitutional office, the chosen representatives of the
people have to remain true to their oath and to observe constitutional
limits in all circumstances.
7. As per the scheme of the Constitution, all the federating
units, namely, Balochistan, Khyber Pakhtunkhwa, Punjab and Sindh
are the essential components of the Federation by virtue of the
parliamentary system of government prevalent in the country. The
Federal Government is being run through Prime Minister and Federal
Ministers and their executive authority extends to the matters with
respect to which Parliament has power to make laws, etc. Similarly
the Provincial set-up is being run through Chief Minister and the
Provincial Ministers. The Governor of a Province is to be appointed as
per Article 101 by the President on the advice of the Prime Minister. It
is to be noted that the Governor who is holder of a constitutional post
and acts as the agent of the President, has to keep the Federation
SMC 16/2011 ETC. 10
informed of the affairs of the Province, although as per Article 105, the
Governor shall act on the advice of the Cabinet or the Chief Minister.
8. Under Article 130 of the Constitution the Chief Minister of
the Province has to be elected by the votes of the majority of the total
membership of the Provincial Assembly. The member who gets
majority votes of the total membership shall be called upon by the
Governor to assume the office of the Chief Minister and holds office
during the pleasure of the Governor, however, at any time, if the
Governor is of the opinion that the Chief Minister is not commanding
majority in the House, he shall summon the Provincial Assembly and
require the Chief Minister to obtain a vote of confidence from the
Assembly. The Chief Minister shall cease to hold office if a resolution
for vote of no-confidence is passed by a majority of the total
membership of the Provincial Assembly as per Article 136. The
President can suspend the functions of the Provincial Assembly subject
to availability of the circumstances under Article 234. The Governor
shall not exercise his powers under this clause unless he is satisfied
that the Chief Minister does not command the confidence of the
majority of the members of the Provincial Assembly. In case the
Governor intends to act against the Chief Minister, then it is incumbent
upon him to summon the Provincial Assembly and require the Chief
Minister to obtain a vote of confidence from the Assembly as referred
to above. Reference may also be made to the case of Muhammad
Anwar Durrani v. Province of Baluchistan reported as PLD 1989 Quetta
25 wherein the Court while interpreting Articles 107 and 112 of the
Constitution observed as under: -
“Under Article 107 of the Constitution, duration of Provincial
Assembly is five years. Therefore, dissolution of Provincial
Assembly before its constitutional period must be justified
SMC 16/2011 ETC. 11
on the definite reasons provided by the Constitution…...
extraordinary powers of dissolution of Assembly, must be
exercised carefully, faithfully and in accordance with the
provisions of the Constitution. According to their admissions,
the Chief Minister had no clear majority except with the
casting vote of the Speaker. In such circumstances,
Constitution properly demanded that advice of such Chief
Minister should have been weighed with caution and sanctity
of basic charter should have been maintained. An Assembly
is an important organ of the State and every effort should
have been explored which is possible under the law to save
the Assembly from dissolution. … … Governor, before taking
extreme action of dissolution of Assembly under the advice
of Chief Minister, ought to have advised him to seek vote of
confidence before his advice was accepted. We have come
to the conclusion that a Chief Minister who had not obtained
vote of confidence from majority members of an Assembly
could not advise the Governor to dissolve the Assembly
under Art. 112(1) of the Constitution.”
However, a Provincial Assembly cannot be dissolved by the Governor
except under circumstances warranting such dissolution as per Article
112.
9. A Proclamation of Emergency may be issued by the
President of Pakistan providing for imposition of emergency due to
internal disturbance beyond the power of Provincial Government to
control, a resolution from Provincial Assembly of the Province shall be
required, however, if the President acts on his own, the Proclamation
shall be placed before both houses of parliament for approval of each
house within 10 days. As per Article 232(7), a Proclamation of
Emergency is to be laid before a joint sitting and shall cease to be in
force at the expiration of two months, unless before the expiration of
that period it has been approved by resolution of the joint sitting. A
SMC 16/2011 ETC. 12
proclamation issued under Article 234 may, by like resolution, be
extended for a further period not exceeding two months at a time, but
no such Proclamation shall in any case remain in force for more than
six months. It is competent for the Majlis-e-Shoora (Parliament), in
terms of Article 234(5) of the Constitution, in joint sitting to, inter alia,
confer on the President the power to make laws with respect to any
matter within the legislative competence of the Provincial Assembly.
Under Article 245 of the Constitution, the Federal Government also
intervenes in the affairs of the Provinces and may call upon the
military to act in aid of civil administration.
10. The Federation and Provinces are equally responsible to
adhere to the provisions of the Constitution, particularly for ensuring
the enforcement of Fundamental Rights as guaranteed by the
Constitution. The Federal and the Provincial Governments, though not
directly, but indirectly share their responsibility in running the affairs
of the Province in accordance with the relevant provisions of the
Constitution.
11. The National as well as Provincial Assemblies have to
uphold constitutional norms but unfortunately, in the past, the political
parties were blamed for having failed to assert their role in bringing
true democratic rule based on the norms of social justice, peace and
tranquility and on account of non-adherence to the constitutional
provisions, which, resulted in dissolution of these bodies. In the years
1958, 1977 and 1999, when the Army Generals, in their wisdom,
dismissed the Governments, dissolved the Assemblies and imposed
martial law in the country. Each time, the matter came up before this
Court, but legality was accorded to the acts of the Generals. It was,
however, for the first time in November, 2007 when like action taken
SMC 16/2011 ETC. 13
by the then Chief of Army Staff was not accepted by the Superior
Judiciary, which ultimately led to the ouster of the retired General and
restoration of the democratic set up in the country.
12. Primarily, it is the responsibility of the Provincial
Government to maintain law and order in the territories of the
respective Provinces for the purpose of smooth running of economic
and social life and without disturbance in the daily affairs because if
the life and liberty of the citizens is, in any part of a Province at stake,
highhandedness continues to remain unabated; atrocious acts like
target killings, torture, extortion, etc., become the order of the day
and then neither the Provincial Government can discharge its duties
nor the people consider themselves safe and protected. Virtually, in
that case, discomfort painfully envelops the whole Province and decay
soon creeps in breaking the very fabric of human life of the citizens.
13. The city of Karachi is the Capital of the Province of Sindh,
and undoubtedly the hub of great economic and financial activities.
Karachi continues to be an important financial and industrial centre for
Sindh and the whole country and handles most of the overseas trade
of Pakistan and the Central Asian countries. It accounts for a large
portion of the GDP of Pakistan. Karachi’s population has continued to
grow and is estimated to have exceeded 18 million people. According
to a legend, this city started as a fishing settlement, where a
fisherwoman, Mai Kolachi, settled and started a family. The village that
grew out of this settlement was known as Kolachi-jo-Goth (The Village
of Kolachi in Sindhi). When Sindh started trading across the sea with
Muscat and the Persian Gulf in the late 18th century, Karachi gained in
importance; a small fort was constructed for its protection with a few
cannons imported from Muscat. The fort had two main gateways: one
SMC 16/2011 ETC. 14
facing the sea, known as Khara Dar (Brackish Gate) and the other
facing the adjoining Lyari river, known as the Meetha Dar (Sweet
Gate). The location of these gates corresponds to the present-day city
localities of Khaaradar (Khara Dar) and Meethadar (Mi.ha Dar)
respectively. By passage of time, it grew into a bigger city. The
foundations of a city municipal government were laid down and
infrastructure development was undertaken. New businesses started
opening up and the population of the town began growing rapidly. In
1878, the city was connected to the rest of British India by rail. Public
building projects such as Frere Hall (1865) and the Empress Market
(1890) were undertaken. In 1876, Muhammad Ali Jinnah, the
founder of Pakistan, was born in the city, which by now had become
a bustling city with mosques, churches, courthouses, markets, paved
streets and a magnificent harbour. By 1899 Karachi had become the
largest wheat exporting port in the east. The population of the city was
about 105,000 inhabitants by the end of the 19th century, with a
cosmopolitan mix of Muslims, Hindus, Europeans, Jews, Parsis,
Iranians, Lebanese, and Goans. By the turn of the century, the city
faced street congestion, which led to South Asia's first tramway
system being laid down in 1900. In later years, so Karachi prospered
as a major centre of commerce and industry during the Raj, attracting
communities of: Africans, Arabs, Armenians, Catholics from Goa,
Jewish, Lebanese, Malays, and Zoroastrians (also known as Parsees) in
addition to a large number of businessmen. As the movement for
independence almost reached its conclusion, the city suffered
widespread outbreaks of communal violence between the majority
Muslims and the minority Hindus, who were often targeted by the
incoming Muslim refugees. In response to the perceived threat of
SMC 16/2011 ETC. 15
Hindu domination, self preservation of identity, language and culture
in combination with Sindhi Muslim resentment towards wealthy Sindhi
Hindus, the province of Sindh became the first province of India
to pass the Pakistan Resolution, in favour of the creation of the
Pakistani state. The ensuing turmoil of independence led to the
expulsion of most of Karachi's Hindu community. While many poor low
caste Hindus, Christians, and wealthy Zoroastrians (Parsees) remained
in the city, Karachi's native Sindhi Hindu community fled to India and
was replaced by Muslim refugees who, in turn, had been uprooted
from regions belonging to India. District Karachi was chosen as the
capital city of Pakistan and it accommodated a huge influx of migrants
and refugees from India to the newly formed country. As a
consequence, the demographics of the city changed drastically.
However, it still maintained a great cultural diversity as its new
inhabitants arrived from different parts of India. In 1958, the capital of
Pakistan was shifted from Karachi to Islamabad and Karachi thus
became the capital of Sindh. During the 1960s, Karachi was seen as
an economic role model around the world. Many countries sought to
emulate Pakistan's economic planning strategy and one of them, South
Korea, copied the city's second "Five-Year Plan" and World Financial
Centre in Seoul is designed and modeled after Karachi. With economic
growth and prosperity, peace and tranquility reigned in the city,
business places were full of activity till late night with a lot of hustle
and bustle seen all around and it came to be known as the city of
lights. Being a big port city, it contributed, roughly stating, about 60–
70 per cent of the total revenue of the country.
14. The 1980s and 90’s saw an influx of illegal Afghan
refugees from the Afghan war into Karachi. Political tensions erupted
SMC 16/2011 ETC. 16
and the city was wracked, at different points of time, with violence
among groups widely speculated to be aligned with various political
parties. In this behalf, a reference is made to the report of the
Commission of Enquiry into Karachi Affairs filed by Syed Iqbal Haider,
ASC, which reflects, inter alia, the figures relating to population,
geographical area, roads, vehicles, housing, police, number of riot
cases of the years from 1985 to 1989, number of persons
killed/injured, number of police officers/men martyred/injured,
damage to private and public property including vehicles, petrol
pumps, houses, shops, factories, cinemas, offices, schools, banks,
police stations, railway stations, telephone exchanges, hospitals,
imposition of curfews on account of clashes between religious groups
(Shias & Sunnis), clashes between police and residents, ethnic riots,
drug mafia, firing and looting, etc.
15. The law and order worsened during the period from 1992
to 1994 when Operation Clean up was, allegedly, launched against
Mohajir Qaumi Movement (MQM). Constitution Petition No.46 of 1994
was filed before this Court by MQM (Mohajir Qaumi Movement)
through Senator Ishtiaq Azhar, Convener Central Coordination
Committee. It was submitted in the said petition, inter alia, that the
law and order situation in Karachi was deteriorating day by day, the
workers of MQM were abducted, arrested and murdered and their dead
bodies were not handed over to their relatives. It was further
submitted that thousands of members of MQM were denied protection
from illegal arrest without any warrant, extra-judicial detention, death
in custody, etc. It was asserted that Fundamental Rights of the
petitioner contained in Articles 9, 10, 14, 15, 16, 17, 18, 19, 22, 25
and 25 were violated, therefore, a declaration was sought that the
SMC 16/2011 ETC. 17
petitioner be allowed to function in accordance with the scheme of the
Constitution. A voluminous reply was filed on behalf of the Federation
and the Province denying the allegations attempting to present,
allegedly, their side of the case citing horrifying instances holding MQM
responsible for the worsening situation. The case was fixed on various
dates, but ultimately it was not pursued and vide order dated
26.10.1999, the above petition was dismissed for non-prosecution.
16. It appears that on account of the worsening law and order
situation, another operation was conducted during the year 1996 and
similar action continued thereafter also. In this context, Constitution
Petitions Nos. 6 & 13 of 1999 were filed by the MQM wherein
complaints of physical torture of the MQM workers and activists by the
law enforcement agencies were agitated and directions to the law
enforcement agencies for pre-and post-interrogation medical
examination of all persons taken into custody by them by an
independent medical practitioner of their choice to enable them to
obtain certificate about their physical condition, were sought. It was
pleaded that no suspect be subjected to any kind of interrogation until
such a certificate is handed over to the next of his kin and in the event
of evidence of physical torture, the respondent Governments be
directed to register appropriate criminal cases against the members of
the law enforcement agencies in whose custody the suspect was
entrusted for interrogation. Protection was also sought against arrest
of elected representatives of MQM unless any incriminating material
was available to justify such an action. The case came up for hearing
on 14.01.1999, but the representative of the petitioner stated that the
case was to be argued by another counsel, therefore, request for
SMC 16/2011 ETC. 18
adjournment was made. Thereafter, the petitioners never approached
this Court for fixation of the petitions.
17. Critical/serious and dismal condition of law and order, once
again emerged on account of various factors for the past few months,
particularly in the months of July and August 2011 as widely reported
in the print and electronic media, e.g. Al-Akhbar, The Daily Express,
The News, The Daily Nawa-e-Waqt, The Daily Jang, The Daily Times,
The Frontier Post, The Daily Nation, The Daily Sahafat, Aaj Ki Awaz
and various News Channels, e.g., Express, GEO, SANA, PTV, AAJ,
Dunya, Dawn, etc., that the lives and properties of the people of
Karachi are not safe, frequent killings of innocent citizens have made
their lives miserable; citizens are being abducted for ransom;
beheaded dead bodies of innocent people with arms and legs tied and
wrapped in sacs, are being recovered in large numbers; street crimes
are in abundance and different groups are involved in target killings.
Recovery of a large number of dead bodies almost everyday; brutality
and heinousness of the offences; passivity of the Government
functionaries; involvement of gangs in money extortion, nefarious and
bloody activities of land mafia and drug mafia; damage to valuable
properties of the citizens; shifting of capital from Pakistan to Malaysia
and Bangladesh (as reported in some clippings) and transfer of dead
bodies from Karachi to the places of their origins in different parts of
the country causing discomforting stir, harassment and fear in the
minds of people, provide substantial evidence that Karachi has reached
the verge of destruction posing a threat to the very stability of
Pakistan. Recently, on this issue, different views were being expressed
by the observers, analysts and anchor persons about causes of the
catastrophe.
SMC 16/2011 ETC. 19
18. In that scenario, on a note put up by the Registrar of this
Court, based on press clippings, CDs and DVDs provided by private TV
Channels showing a dismal situation within the jurisdiction of several
police stations of Karachi, the instant proceedings were initiated under
Article 184 (3) of the Constitution vide order passed on 24.08.2011 in
the following terms: -
“I have gone through above noted facts reported in the
print/flashed in the electronic media, perusal whereof
presents a bleak/dismal picture of bloodshed, arson,
kidnapping/abduction for ransom, widespread violence,
illegal collection of money (Bhatta) from traders, which
prima facie are violative of Articles 9, 14, 15, 18 and 24 of
the Constitution. Prima facie, the Executive has failed to
protect the life, liberty, dignity, property and freedom of
the general public as is manifested in the above
note/reported. Therefore, let this note be converted into
petition under Article 184(3) of the Constitution. Notice be
issued to learned Attorney General for Pakistan to appear
and submit a comprehensive report about the above
incident, which have been taking place in Karachi for the
last more than one month. The report should be based on
the material to substantiate the same, which should be
collected from the Federal and Provincial law enforcement
and intelligence agencies.
The Chief Secretary and PPO of the Province of Sindh
are directed through Advocate general to submit details of
the incidents in view of the fact noted herein above in the
office note. They should also provide the number of
persons who have been killed/injured in these incidents for
the last one month. They should also place on record
copies of the daily situation reports duly prepared by the
concerned police officers for the perusal of PPO and the
Chief Secretary.
The FIRs and other material be also filed in order to
assess violation of the fundamental rights of the citizens
SMC 16/2011 ETC. 20
noted herein above. Notices be also issued to President,
Supreme Court Bar Association as well as President, Sindh
High Court Bar Association to appear and assist the Court.
Put up in Court on 26th August, 2011.”
19. On 26.08.2011, this Court, after a preliminary hearing, in
view of ongoing bloodshed, killing, arson, collection of bhatta, etc.,
being committed in Karachi, passed the following order: -
“2. Learned Attorney General for Pakistan has stated
that due to paucity of time he could not prepare a report
as per the directions of the Court, therefore, he needs
some time. It has been explained to him that on account
of non-adherence to the constitutional provisions,
reference to which has been made herein-above, incidents
of brutal murders and commission of heinous crimes have
occurred in which, according to the information laid before
the Court by the media, gangs are involved in extortion of
money, nefarious/bloody activities of land mafia and drugs
mafia and damage to the valuable properties of the
citizens have taken place, therefore, relevant material
need to be collected for ascertaining the extent of the
violation of the constitutional provisions as such he may
convey to all the law enforcing agencies at Federal and
Provincial level that they should provide all the necessary
material highlighting the incidents with reference to the
jurisdiction of various police stations, involvement of the
accused persons, their identity, if possible, and failure of
the police functionaries to proceed with them in
accordance with law. To achieve this object, he should
convene a meeting with the concerned functionaries and
place a report on the next date of hearing, as is directed in
order dated 24.08.2011.
3. Mr. Abdul Fattah Malik, learned Advocate General
Sindh, has submitted copies of DSRs for the period
commencing from 24.07.2001 to 23.08.2011 and has also
filed brief of more than 232 FIRs which, according to him,
could be collected by him so far, therefore, he is required
SMC 16/2011 ETC. 21
to do the needful before the next date of hearing. Orally,
he has pointed out that during the past one month 306
people have been killed and their particulars shall also be
furnished. He is required to furnish the same indicating the
police stations where people were killed; FIRs, if any, were
registered; how many dead bodies of the killed person
were found; how many of them were found beheaded
and/or their arms and limbs were chopped and whether
the investigation commenced and evidence collected or not
against the accused involved. We have pointed out to him
that he should convey to the Chief Secretary and IGP
Sindh who are primarily responsible to ensure law and
order in the Province that they should proceed against all
types of accused persons across the board and on the next
date of hearing he would arrange a presentation in the
Court room with reference to details of the police stations
where the incidents have taken place and the manner in
which the victims were killed, the FIRs registered and the
names of persons posted in the police station who are
responsible etc. so we may understand that the police is
serious in conducting the investigation and to report
to/challan the accused; so also in prosecuting them in
Courts on solid material so that they may not go scot free
on the basis of said information. He is also directed to
submit in the same manner the details of the injured
persons and the properties destroyed in rowdyism by the
culprits and whether in respect of such occurrences
evidence has so far been collected or not. The report must
be comprehensive one and there should be a presentation
on the Power Point by the police. It is to be noted that
further proceedings shall, as well, take pace in respect of
violation of the constitutional position.
4. Mr. Abdul Hafeez Pirzada, learned Sr. ASC, has
stated that he would appear on behalf of the Province of
Sindh through Chief Executive and shall place important
documents on record on or before the next date of
hearing.
SMC 16/2011 ETC. 22
5. Syed Iftikhar Hussain Gillani, learned Sr. ASC, stated
that he intends to file an application on behalf of Awami
National Party (ANP) to become a party in the instant case.
He may do so and even otherwise being a Senior Counsel
of this Court he can address the argument on the basis of
material if he has in his possession to assist the Court.
6. Mr. Babar Awan, learned Sr. ASC, has stated that he
will represent the Federation and he has filed nomination
on behalf of Secretary, Ministry of Law and Justice,
Islamabad.
7. Ms. Asma Jehangir, President Supreme Court Bar
Association of Pakistan, has stated that there are certain
preliminaries which need to be completed by the executive
in respect of registration of cases, investigation and arrest
of nominated accused persons. According to her, the
names of all the accused persons have not been disclosed;
no action has been taken against those accused persons
whose names have appeared in the FIRs and they have not
been arrested. On this, learned Advocate General Sindh
has replied that few arrests have taken place. Be that as it
may, he is required to submit on the next date of hearing,
the details of the same because, unless sufficient evidence
is collected, no useful purpose will be served by sending
them to face trial.
8. Mr. Anwar Mansoor Khan, President Sindh High Court
Bar Association, has filed copies of resolutions of the Bar
Association as well as press clippings and has pointed out
that during recent incidents starting from January, 2011,
nineteen Advocates have been murdered. He has also
pointed out that even yesterday i.e. 25.08.2011, one of
brilliant Advocates of Sindh High Court namely Mr.
Muhammad Murtaza Chinnoy has been brutally yet
according to his information the investigation has not been
conducted property. The IGP Sindh is directed to look into
the matter personally and communicate the report in this
behalf through Advocate General Sindh on the next date of
hearing. Learned Advocate General Sindh is also required
SMC 16/2011 ETC.
23
to submit report mentioning the names of the culprits
involved in the killings of the Advocates and showing
whether they have been arrested or not.
9. The Chief Secretary and the IGP Sindh have
submitted reports which may be kept on record. Let the
case be adjourned to 29.08.2011 to be fixed at Branch
Registry of this Court at Karachi.”
20. It is important to note that in response to order dated
24.08.2011, the Chief Secretary in his report on the affairs of Karachi,
stated as under: -
.
After 9/11, the Phenomenon of international terrorism
emerged in which bomb blasts and beheading of foreigners
attracted world attention. The terrorist groups targeted US
diplomats and carried out suicide attacks at US consulate
thrice. The French engineers were killed outside the
Sheraton Hotel, even Muharram processions and shrines
were not spared, besides suicide attack at CID building.
.
During the briefing sessions, it was pointed out to me that
army operation in the north and insurgency in Balochistan
had caused internal displacement, in the garb of which
certain criminal/hostile elements have moved into Karachi
and have also smuggled arms. The hostile foreign agencies
are backing up to cause chaos in the economic capital of
Pakistan under a clandestine was against the state. Citing
various reasons the emerging situation, I was told that
Karachi population is approaching 18 million with diverse
ethnic communities competing for resources. This mega
city has been allowed to expand and grown in an
unplanned way by the city managers in the past.
Resultantly, the city lacks basic infrastructure to support
such a large human settlement and provide basic civic
amenities to all the growing urban jungle of Katchi
Abadies.
.
The Police have its own short coming and weaknesses both
in terms of man-power and other resources, and have
SMC 16/2011 ETC. 24
further drained due to security challenged in the post 9/11
scenario.
.
In early July, 2011 violent incidents took place in which 16
people were killed in Karachi. This was followed by an
armed clash on 22nd July, 2011 between militant of two
groups in the area of District East (Malir and Landhi),
resultantly, 14 people lost their lives. The fragile peace in
Orangi Town was disturbed again due to clash between
two ethnic communities in the last week of July, 2011
taking a death toll of 37 lives.
.
On 17th August, 2011, Five (05) dead bodies were found in
PS Garden area. On the same day, Ex-MNA was shot dead.
These incidents triggered violence in other area i.e.
Kharadar, Lyari, Sher Shah, Baldia and Chakra Goth.
Resultantly, 62 persons were killed and 95 got injured
from 17 to 20 August, 2011, which include 03 policemen,
who embraced Shahadat in line of duty.
.
During the past one month there has been incidents of
killing.
Cases Registered Persons Killed
Murder Killing 232 306
Gun shot injury 98 159
STEPS TAKEN BY THE CHIEF SECRETARY, SINDH
.
On 8th July, 2011, the government of Sindh entrusted
powers u/s 5 of ATA, 1997 to Pakistan Rangers (Sindh)
enabling and making Rangers responsible to apprehend
the criminal elements involved in firing and killing of
innocent citizens.
.
The Government of Sindh further authorized Rangers to
cordon, search and use force to control the situation in the
effected areas of Karachi. Copy of the Notification bearing
No.SO(LE-I)/HD/6-66/11, dated 8th July, 2011 (copy
submitted as Annex A).
.
On 25th July, 2011, the President of Pakistan, while
reviewing the Karachi situation, directed to enhance the
operational capability of Police (Annex-B). Accordingly, the
SMC 16/2011 ETC.
25
Government of Sindh immediately made available and
released Rs.450 million for procurement of APCs from HIT.
These 15 APCs will be delivered by end of August, 2011 to
Sindh Police.
.
The policy directive on the subject was issued by the Home
Department vide No.SO(LE-II)/HD/3-1/2011 dated 23
August, 2011, wherein the lead implementing agency i.e.
Police was reminded of legal responsibility to ensure safety
of people’s life and establish public order as per law,
irrespective of any consideration of political linkage of
anyone involved in this cycle of violence. Copy of the letter
spelling out the policy of the subject is attached as Annex
‘C’.
21. The IGP Sindh also filed a report to the following effect: -
.
Karachi is the 7th largest city of the world having
peculiar/ethnic nature comprising of Punjab,
Pakhtoon, Balochi, Sindhi and Urdu speaking
communities. It has a population of approximately
18th million and spread over area on 3527 sq. kms.
.
The ethnic divide became pronounced during last few
years as a result of influx of people from other parts
of the country. With this change in demography,
there are over 150 areas where two or more
communities are facing each other.
.
It has long history of terrorism/violence as is
indicated of the cases mentioned below:
HIGH PROFILE CASES
(2004-2007)
S# Police Station Incidents No. of
Deceased
No. of
Injured
1. Mithadar
2004
Bomb Blast in Haidery
Masjid situated inside
the compound of
Sindh Madrasat-ul-
Islam
23 98
2. Brigade 2004 Bomb Blast in Imam
Bargah Ali Raza
22 29
3. Boat Basin
2004
Corps Commander
Motor Cade Firing
incident at Clifton
Bridge
10 13
4. Site 2004 Bomb Blast at Binoria 10 44
SMC 16/2011 ETC. 26
restaurant
5. Soldier Bazar
2006
Bomb Blast at Nishtar
Park
55 125
6. Various PSs
2007
12 May, 2007, arrival
of Chief Justice in
Karachi
40 127
7. Bahadurabad
2007
Bomb Blast in the
welcome procession
of Ms Benazir Bhutto
at Karsaz, Main
Shahrah-e-Faisal
119 353
8. Preedy 2009 IED explosion in
Ashoora Procession
near Light House
Traffic Signal, M.A.
Jinnah Road, Karachi
17 39
9. Saddar 2010 IED explosion Parking
Area in front of
emergency JPMC
Karachi
16 19
10. Ferozabad
2010
IED explosion Ramp
Shahrah-e-Quaideen
Nursery Bridge
11 24
.
During past one month there has been incidents of killing:
Cases Registered Persons Killed
Murder/Killing 232 306
Gun shot injury 98 159
.
In response Karachi Police has arrested 26 accused in
target killings in the last month. To date 117 target killings
have been arrested and 179 cases have been deterred and
challenged.
.
In the last one month 3075 raids have been conducted
wherein 495 Pos/absconders and 1162 criminals have been
arrested. 03 K.Koves, 508 Pistols/Revolvers, 02 Rifles, 13
Repeaters and 03 Hand grenades have been recovered
from criminals.
.
The prolonged power and water shortage in Karachi city
have also resulted in frequent public disorder on daily
basis, which engages the police in fire fighting duties. In
the previous months police has arrested 1142 miscreants
involves in arson and breach of peace.
.
Action is also being taken against extortionists/Bhatta
collectors. 70 Bhatta collectors have been arrested and 43
cases have been detected. In the previous month 13
extortionists were arrested.
SMC 16/2011 ETC.
27
.
In spite of the limited resources the Police and Law
Enforcing Agencies have made hectic efforts to combat the
terrorist activities in the city and have been able to control
the terrorism and target killing. The law enforcing agencies
are now in full control of the situation and are prepared to
met any challenging situation for ensuring the safety of life
and property of the citizens.
22. On 29.08.2011, the IGP gave a power point presentation
in the Courtroom, relevant excerpts whereof are as under: -
Causes of Violence
•
Recent demographic changes
•
Ethnicity, Sectarianism and factional in-fighting
•
Clashes between land and bhatta mafias
•
Deep mistrust among the ethnic groups
•
Easy access to illicit weapons and misuse of Arms
Licenses
Types of Killings
•
Killings due to personal enmity
•
Political motivated killings
•
Sectarian killings
•
Ethnic killings
•
Gang war killings
•
Target killing of Police Officials
•
Victims of stray/cross fire
ETHNIC INTERFACES/FLASH POINTS IN KARACHI
Katti Pahari Urdu speaking vs. Pathan
Qasba Colony Urdu speaking vs Pathan
Sharafi Goth Urdu speaking vs Baloch
Banaras Chowk Urdu speaking vs Pathan
Quaidabad Urdu speaking vs Sunni Tehreek
New Karachi Sunni Tehreek vs Sipah-e-Sahaba
Sachal Urdu speaking vs Afghanis
Surjani Town Pathan vs Seraiki speaking
Malir City Urdu speaking vs Baloch
Landhi Urdu speaking vs Pathan
Al-Falah Urdu speaking vs Baloch
Korangi 2 ½ Urdu speaking vs Sindhi
(Chakra Goth)
Khokharpar/ Urdu Speaking vs. Sindhi
Saudabad
DEAD BODIES FOUND BEHEADED/TORTURED
SMC 16/2011 ETC. 28
FROM 24-07-2011 TO 24-08-2011
POLICE STATION NO. OF DEAD BODIES
N.K.I Area 4
Kalri 2
SITE-B 1
Docks 1
Total 8
DEAD BODIES FOUND IN GUNNY BAGS
FROM 24-07-2011 TO 24-08-2011
S.No. POLICE STATION NO. OF DEAD BODIES
1 Baghdadi 6
2 Nazimabad 2
3 Darakhshan 1
4 Risala 1
5 Nabi Bux 1
6 Kharadar 1
7 Bin 1
8 Sharafi Goth 1
9 Rizvia 1
10 Iqbal Market 1
11 Mominabad 1
Total 17
PATTERN OF VIOLENCE
FROM 24.07-2011 TO 24-08-2011
s. DATE AREAS OF DISPURTED PERSONS PERSONS
# VIOLENCE PARTIES KILLED INJURED
1 24 July
to 31
July
Baldia
Taimoria
Kalakot
i. Urdu
Speaking v/s
Pashtoon
ii. Urdu
91 47
Speaking v/s
Baloch
2 1st to
3rd Aug
2011
Surjani Town Urdu
Speaking &
Seraiki v/s
Pashtoon
38 53
3 6th Peerabad Urdu 13 16
August SITE, Orangi Speaking v/s
2011 Pashtoon
4 17th to
24th
August
2011
Kharadar,
Mithadar,
Lyari, Chakra
Goth
Gang war
converting
into ethnic
violence
111 146
(Urdu
Speaking v/s
Baloch &
Sindhi)
New Phenomena of abduction and killings
Starting from 17th August 2011
SMC 16/2011 ETC.
29
•
Triggered by the kidnapping and killing of five Baloch
residents of Singo Lane, Lyari (4 of them footballers)
Date Death Toll Injured
17.08.2011 17 30
18.08.2011 29 23
19.08.2011 22 39
20.08.2011 07 15
21.08.2011 13 09
22.08.2011 13 10
23.08.2011 08 09
24.08.2011 02 11
25.08.2011 04 02
26.08.2011 02 03
27.08.2011 01 06
28.08.2011 02 04
POLICE SHAHEE/INJURED
From 24-07-2011 to 24-08-2011
S# Police Station No of Police
Shaheed
No of Police Injured
1 SITE-B 1
2 Zaman Town 4 29
3 Rizvia 1
4 Sharafi Goth 1
5 Awami Colony 1
6 Pak Colony 1
TOTAL 9 29
23. It has been pointed hereinabove that the peace of Karachi
city had been disturbed by criminals by committing both heinous as
well as petty crimes. Some of the major killings have been highlighted
in the presentation given by the IGP, which has been reproduced
hereinabove, including 232 incidents of murder wherein 306 persons
were killed and 98 incidents of gunshots causing injuries to 159
persons also took place. According to available figures, approximately,
more than 50 dead bodies in gunny bags have been recovered from
several localities including areas where dominant majority of people
speaking Urdu, Pashto, Balochi etc. are living. In this behalf, the IGP
Sindh furnished details along with FIR numbers and the areas where
such dead bodies were found, brief of which is as under:-
SMC 16/2011 ETC. 30
Sl.No. Police Station Number of Dead
bodies
1. Baghdadi 06
2. Nazimabad 02
3. Darakshan 01
4. Risala 01
5. Nabi Bux 01
6. Kharadar 01
7. Bin Qasim 01
8. Sharafi Goth 01
9. Rizvia 01
10. Iqbal Market 01
11. Mominabad 01
24. Some torsos i.e. human bodies without heads and limbs,
rendering it difficult to identify the same, have also been found.
Besides, buses with passengers have been set on fire as a result
whereof several passengers were burnt alive while others died inside
the bus due to fear and shock. In this behalf, reference is made to FIR
No. 460/2011 Police Station Jackson, West Karachi. Similarly, perusal
of FIR No. 314/2011 under sections 302/324 PPC r/w section 7 ATA,
dated 05.09.2011 registered at Police Station Pakistan Bazar, reveals
how brutally people were killed by the criminals. Besides, so many
persons were abducted and later their dead bodies were thrown in the
streets. During the months of July and August 2011 the streets of
Karachi, sorrowfully, saw a large number of such like dead bodies.
Some of abducted persons were, however, recovered by the
intervention of the law enforcing agencies and on our direction, their
statements were recorded. Out of them, only four persons, namely,
Muhammad Junaid s/o Muhammad Hussain, Muhammad Rafiq s/o
Muhammad Hussain, Mehtab s/o Shakeel and Sarfaraz s/o M. Ahmed
agreed to lodge the FIR whereas rest of them, on account of fear,
were not agreeable to do it. Reference may be made to the following
two statements: -
SMC 16/2011 ETC. 31
25. When the hearing of this case was in progress, about four
dead bodies were recovered and on our direction, the IGP submitted a
report on 09.09.2011 to the following effect: -
“(1) An unknown dead body was found (on 5.9.2011) in
Red Color gunny Bag at Katchara Kundi, Grahaib Nawaz
Dispensary, previous UC-8, Office Sector-14, B Orangi
Town without head, hands and legs inquest u/s 174 Cr.P.C.
SMC 16/2011 ETC. 32
has been conducted. The dead body is still un-identified.
The dead body is kept in the Edhi Center. A case vide FIR
No: 314/2011 u/s 302/324 PPC r/w 7-ATA has been
registered through state at Pakistan Bazar Police Station
against unknown accused persons, on 5.9.2011. The
investigation is under way. The detail report is enclosed at
Annex “A”
(2) Another dead body was found in a Bag (Bori) on road
between Country Heights & Yasir view Gulzar-e-Hijri
Scheme No: 33, Karachi. A case vide FIR No. 580/2011
u/s 302/365/34 PPC, at Police Station Sachal on the
complaint of one Zabih Khan s/o Haji Sardar Muhammad
was registered against the nominated accused namely
Sikandar Javed (APMSO), (2) Ahmed Shah, (3) Umair
Siddiki, (4) Zohaib, (5) Liaquat Ali Qureshi s/o Ghazi
Uddin, (6) Khurram, (7) Zeeshan. The incident was
witnessed by one Muhammad Hassan Saleem s/o
Muhammad Saleem Hussain, (2) Syed Obaid-ur-Rehman,
along with other PWS Naseeb Ullah s/o badshah Gul. The
I.O arrested one accused person namely Ahmed Khan s/o
Khan Muhammad on the pointation of the complainant.
Later on, after the satisfaction of the complainant he was
released being not involved in this offence. Hectic efforts
are underway to arrest the nominated accused person,
copy of the compressive report is enclosed at Annex-“B”.
(3) The third dead body was found in Garage behind Car
Parking of JPMC Hospital, Karachi. Proceeding u/s 174
Cr.P.C. was conducted by police. (7.9.2011). No mark of
torture was found on the dead body. Postmortem was
held at Jinnah Hospital Karachi by MLO vide TM No:
741/2011, dated: 07.09.2011, in which MLO opined that
his death was occurred due to asphyxia/strangulation. In
this connection FIR No: 281/2011 u/s 302 PPC was lodged
on behalf of state at Saddar Police Station. During
investigation no any eye witness has appeared/traced as
yet. Efforts are underway and NADRA head office was
contacted to provide assistance, who cooperated and
SMC 16/2011 ETC. 33
identify the deceased as Muhammad Farukh Nawaz having
CNIC No: 56302-2990221-9, his temporary address was
provided as CB-58/4, Kakool road Abbottabad. The family
of the deceased was traced out by the District Police
Officer Abbottabad Mr. Muhammad Kareem Khan. The
brother of the deceased namely Javed (Cell #. 03348963217)
was contacted who disclosed that his brother
deceased was a chartered accountant and was doing his
internship in some organization in Karachi and leaving in
Defence Garden. He also disclosed that his brother
returned to Karachi on 07.09.2011, after celebrating Eid
with his family in Abbottabad. Further investigation is
underway. The copy of the report as enclosed herewith at
Annex-“C”.
(4) On 7.9.2011, Police Constable No.18609 namely
Javed Iqbal s/0 Abdul Ghafoor was going on his Motor
Cycle. Two unknown Motor Cyclist stopped him at Bakra
Peri Road, near Evergreen School, Malir City Karachi and
opened fire upon him who sustained bullet injures and
expired on the spot. A case FIR No.248/2011 u/s 302/34
PPC on 07.09.2011 at Police Station Malir City on behalf of
state is registered. During investigation two persons from
the locality disclosed involvement of two criminals namely
Kaloo Baloch s/o Mawali Baloch & Akbar Punjabi s/o Baloch
Khan in this offence. Hectic efforts are underway to arrest
them. Copy of the report is attached herewith at Annex“
D”.
The forth death body was found of one Faheem-ul-
Kareem Advocate alongwith two other persons namely
Wajid & Mst. Quratul ain from a Flat No.7/C, 14th
Commercial Street, DHA, Ph-II, Karachi. A case vide FIR
No: 340/2011 u/s 302/34 PPC at Police Station Defence is
registered. A detailed report of Mr. Tariq Razzaq Dharejo,
SP Saddar Division Sought, Karachi regarding efforts made
to trace and arrest the accused is attached herewith at
Annex-“E”. (It has been taken back)
SMC 16/2011 ETC. 34
(6) One young man namely Sahreef s/o Muhammad
Anwar Baloch has been kidnapped from near NADRA
Office, near Bahadurabad Police Station. In this regard
FIR No.114/2011 u/s 365 PPC has been registered at
Police Station Kalakot by one Muhammad Akram s/o
Muhammad Anwar. Detail progress report is attached
herewith as Annex-“F”.
The list of 17 kidnappees supplied by Advocate
Mr. Jameel Ahmed Virk on behalf of the applicants in CMA
No.555/2011 who have returned to their homes in injured
condition. In this regard the concerned quarters have
submitted their report and in all 16 cases the FIRs have
been registered the same is enclosed herewith as Annex
“G”. The investigation is under way.
Further 34 dead bodies have found in Bags. In this
regard a comprehensive report has already been submitted
before this Honorable Court on 26.8.2011. ……
26. It is noteworthy that the law enforcing agencies have
detected a torture cell during hearing of the case at Karachi and
succeeded in getting video clips of the most heinous, gruesome,
brutal, horrible and inhuman acts of the criminals, who are found
cutting throats of men and drilling their bodies. But, now it is informed
that more such cells have been detected in different parts of Karachi.
27. As far as the injured or wounded persons are concerned,
they are countless in number in all the disturbed areas of Karachi
where different political parties have got dominant population on the
basis of the language being spoken by them. It may be noted that the
objective of above-noted brutal and gruesome incidents is to terrorize
the citizens of Karachi and keep the entire society a hostage.
28. An impression has been created that on account of
demographical reasons, the above issue has its origin on ethnic
divides, but Mr. Abdul Hafeez Pirzada, Sr. ASC appearing for the
SMC 16/2011 ETC. 35
Province of Sindh, and Syed Iftikhar Hussain Gillani, Sr. ASC for ANP
vehemently dispelled such an impression and we also tend to agree
with them because we feel that it is a turf war between various groups
on account of their financial and economic interests in the huge
economic, industrial and commercial activities, etc. of the city of
Karachi highlighted in the presentation given by the IGP, relevant
aspects whereof have been noted herein above. However, there is, and
has for some time in the past, been a visible element of ethnic strife in
Karachi and some elements and parties benefited from keeping the
tension alive. There are not only Urdu Speaking, (When the Court uses
the term ‘Urdu Speaking’ it is for a specific purpose. As it is the
language common to all and even those who proudly speak Pashto,
Punjabi, Sindhi or Baluchi, can and do speak Urdu), Pashtun, Sindhis,
and Balochis, Punjabis, Saraikis, but foreigners and others also live in
Karachi and all of them are the victims of violence, crime, fear and
insecurity, as is evident from FIRs, reports, etc. submitted from time
to time by the police department. Some of the hardened criminals,
who associate themselves with the political parties do take support of
the powerful groups/political parties as is evident from the reports of
the joint investigation team of various intelligence agencies
including ISI and others. These reports have been filed by Syed
Iftikhar Hussain Gillani, throwing sufficient light on the criminal
activities of these heartless criminals such as Ajmal Pahari, Kamran
Madhuri and many others. It is to be noted that the aforementioned
JIT reports were prepared after causing arrests of various accused
persons involved in the commission of offences this year in the month
of March.
SMC 16/2011 ETC. 36
29. It goes without saying that if the involvement of above
accused persons allegedly aligned with a political party is established,
it may entail serious consequences for said political party as well,
because a political party cannot be formed or cannot operate in a
manner prejudicial to the sovereignty or integrity of Pakistan.
30. It is important to note that the learned counsel
representing various political parties have though not categorically
denied affiliation of above noted persons with their parties, but have
taken exception to the JIT report; on the ground that the same are not
admissible in evidence. It is also important to note that during the
discussion, it has been informed that two notorious accused persons,
namely, Kamran Madhuri and Sohail Commander involved in criminal
activities were not nominated in the FIRs, yet on arrest of one of them
he has been found in injured condition. Investigation is being
conducted to collect relevant material against them. It is also
astonishing that most of the accused persons nominated in crimes
have got their acquittal on the plea of alibi and false involvement. We
are surprised to know that the law enforcement agencies, who are
supposed to conduct investigation honestly, had allegedly involved
persons falsely or half-heartedly in the commission of offences in
which their fellow policemen were murdered. Indeed, they have not
shown any professionalism and have failed to bring the real culprits to
book.
31. It seems that the police primarily being responsible to
enforce law and order has no intention to deliver. Either they are
scared or they are dishonest or absolutely lack the requisite skills. It
could be that in the year 1992 operation clean up was launched
against MQM wherein statedly, the police had played an active role,
SMC 16/2011 ETC.
37
but subsequently, 92 police officers/officials disappeared and up till
now there is no clue of their whereabouts nor is it known that by
whom, and under whose patronage, such persons were abducted
and/or killed. Another reason appears to be that police force has been
highly politicized, recruitments have been made on political
considerations. It came to light during hearing of the case that in
police force many police officers have been recruited on political
considerations who have managed to occupy such posts for extraneous
considerations and senior officers in the rank of SSP, SP and DSP etc.
have been inducted into the force from other organizations without
following any rules and even they have not undergone training for the
purpose of policing. To highlight this aspect, following information has
been obtained from the Advocate General, Sindh: -
1.
Mr. Dost Ali Baloch from Intelligence Bureau, absorbed
in Sindh Police with effect from 14.10.1998, presently
working as Director General Finance, CPO Sindh Karachi
(BS-20).
2.
Mr. Muhammad Malik from FIA, absorbed in Sindh
Police with effect from 31.10.2007, presently working
as Director General Traffic, Planning & Regulation,
Sindh Karachi (BS-20).
3.
Mr. Muhammad Riaz Soomro from Anti-Narcotic Force,
absorbed in Sindh Police with effect from 26.2.2008,
presently working as SSP, District Mirpurkhas (BS-19).
4.
Mr. Muhammad Ali Baloch appointed as Assistant
Director (Computer) in Sindh Police on 6.4.1999,
presently working as SSP, District Tando Muhammad
Khan (BS-19).
5.
Mr. Abdul Hadi Bullo from OMG, absorbed in Sindh
Police with effect from 16.7.2003, presently working as
SSP District Matiari (BS-19).
6.
Mr. Attaullah K. Chandio, from Solicitor Department,
absorbed in Sindh Police with effect from 1.6.1995,
presently working as SP, Special Branch, Mirpurkhas
(BS-18).
7.
Mr. Shahid Hussain Mahesar on deputation from
Intelligence Bureau, with effect from 26.7.2009,
presently working as SSP Political (SB) Karachi (BS-18).
SMC 16/2011 ETC.
38
8.
Mr. Zameer Ahmed Abbasi on deputation from National
Accountability Bureau with effect from 31.12.2008,
presently working as SDPO/Frere, District South,
Karachi Range (BS-17).
9.
Mr. Shiraz Asghar Shaikh, on deputation from PEMRA
with effect from 23.8.2008, presently working as
SDPO/Darakhshan, District South, Karachi Range (BS17).
10.
Mr. Faisal Mukhtar Vakaasi on deputation from National
Accountability Bureau with effect from 31.3.2009,
presently working as Principal, Training & Recruitment,
Karachi Range (BS-17).
11.
Mr. I. D. Mangi, on deputation from ACE, Sindh with
effect from 10.4.2009, presently working as DSP/ACLC,
Karachi Range (BS-17).
12.
Major (R) Khurram Gulzar, re-employed on contract
basis as DIGP (BS-20) for a period of one year with
effect from 27.12.2010.
13.
Col.(R) M. A. Wahid Khan, re-employed as Principal,
S.B.B. EPT Razzakabad, Karachi (BS-19) for a period of
one year with effect from 1.9.2008. Extension granted
for two years with effect from 1.9.2009.
14.
Major Col. (R) Muhammad Ahsan Umar, re-employed as
SSP, District East, Karachi Range (BS-19) for a period
of two years with effect from 24.9.2010.
32. The IGP stated that presently, the total strength of police
force is 32524, out of which approximately 12000 are performing
security duties, including 8000 deployed with VIPs and only 20000
personnel of police force were left for the purpose of policing of 18
million people in Karachi. He stated that by means of the Sindh
(Repeal of the Police Order, 2002 and Revival of the Police Act, 1861)
Act, 2011 passed by the Provincial Assembly, the Police Order, 2002
has been repealed in the Sindh Province, as a result of which the
Police Act, 1861 has been revived and the IGP is helpless in
transferring even a DSP from one place to another.
33. The majority of the police force performing duty in Karachi
comprises brave and devoted officers and men. They risk their lives
SMC 16/2011 ETC. 39
often targeted by unidentifiable enemies enjoying mobility in action.
They deserve the respect of the nation. However, as The IGP conceded
that 30-40 percent of police force are non-cooperative either for the
reasons that they have secured their appointments on political
considerations or they have associated themselves with different
groups including political parties, having vested interests in the affairs
of Karachi, therefore, at times it becomes very difficult for him to
effectively take action against the real culprits. When called upon to
explain as to how two accused persons involved in case FIR No.
434/2011, Police Station Zaman Town, have been released by the
Administrative Judge, ATC, accepting their plea of alibi, where a
concerted attack was launched upon police officers/officials who were
being transported in a private bus towards the disturbed areas for
controlling riots and bringing peace, resulting in death of 6-7
policemen, causing injuries to others, the IGP disclosed that the
investigating officer has been suspended and the then SHO of the
relevant Police Station has already been moved out and disciplinary
proceedings are in hand against him. This categorical statement in
respect of only one incident is sufficient to infer that the
statement so made by the IPG carries sufficient weight. If the police
official/officers are not sincere with the victims belonging to their own
rank and file, what expectation could one have from such force, which,
admittedly, stands politicized, for initiating forceful action against the
culprits involved in causing target killing, brutal murders, cutting limbs
of human bodies and putting the dead bodies and torsos into bags with
a view to terrorizing the society as a whole in general and the
inhabitants of Karachi city in particular. During the period of one
month, i.e. from 24 July to 24 August, 2011, as per information
SMC 16/2011 ETC. 40
submitted before the Court about the killing of people of 306 persons
232 FIRs have been registered mostly against unknown persons and
on completion of investigation in many cases, reports have been
submitted declaring the cases for disposal under A class, which
according to the relevant Police Rules means that the crime is
untraceable. Summary of the said cases is as under:-
S.No. Police
Station
FIR No. and date Status of
Investigation
1. Aram Bagh 189/2011 dt. 31.7.2011
u/s 302/34 PPC
A-Class
2. Darakshan 265/2011 dt.
03.08.2011 u/s 302 PPC
A-Class
3. Eidgah 197/2011 dt.
27.07.2011 u/s
302/324/34 PPC
A-Class
4. Eidgah 200/2011 dt. 30.7.2011
u/s 302/34 PPC
A-Class
5. Eidgah 202/2011 dt.
01.08.2011 u/s
302/324/34 PPC
A-Class
6. Eidgah 203/2011 dt.05.08.2011
u/s 302/34 PPC
A-Class
7. Eidgah 206/2011 dt.09.08.2011
u/s 324/302/34 PPC
A-Class
8. Frere 150/2011 dt.09.08.2011
u/s 302 PPC
A-Class
9. Garden 144/2011 dt.25.07.2011
u/s 302 PPC
A-Class
10. Garden 151/2011 dt.02.08.2011
u/s 364/302
A-Class
11. Garden 154/2011 dt.05.08.2011
u/s 364/302 PPC
A-Class
12. Garden 146/2011 dt.27.07.2011
u/s 302/34 PPC
A-Class
13. Kalakot 99/2011 dt.24.07.2011
u/s 302/324/34 PPC
A-Class
14. Kalakot 100/2011 dt.25.07.2011
u/s 302/34 PPC
A-Class
15. Kalakot 102/2011 dt.29.07.2011
u/s 302/34 PPC
A-Class
16. Nabi Bux 137/2011 dt.24.07.2011
u/s 302 PPC
A-Class
17. Napier 119/2011 dt.24.07.2011
u/s 302/324/34 PPC
A-Class
18. Napier 124/2011 dt.03.08.2011
u/s 302/34 PPC
A-Class
19. Napier 127/2011 dt.09.08.2011
u/s 302/34 PPC
A-Class
20. Preedy 473/2011 dt.09.08.2011 A-Class
SMC 16/2011 ETC. 41
u/s 302 PPC
21. Risala 127/2011 dt.10.08.2011
u/s 302/34 PPC
A-Class
22. Boat Basin 319/2011 dt.01.08.2011
u/s 324/34 PPC
A-Class
23. Boat Basin 323/2011 dt.04.08.2011
u/s 324/34 PPC
A-Class
24. Boat Basin 324/2011 dt.05.08.2011
u/s 324/34 PPC
A-Class
25. Defence 276/2011 dt.28.07.2011
u/s 324/34 PPC
A-Class
26. Garden 149/2011 dt.31.07.2011
u/s 324/34
A-Class
27. Eidgah 193/2011 dt.23.07.2011
u/s 302/34 PPC
A-Class
28. Kalri 176/2011 dt.08.08.2011
u/s 147/148/149/435
PPC
A-Class
29. Preedy 474/2011 dt.09.08.2011
u/s 384 PPC
A-Class
34. The IGP has also made before this Court another
admission while giving his presentation, summary of which has been
reproduced hereinabove, that there are no go areas within the
jurisdiction of different police stations. In this view of the matter, we
are of the opinion that the police without having any
commitment/dedication and other reasons highlighted hereinabove, is
not in a position to make any break through unless the whole force is
de-politicized and their morale is boosted by the senior officers,
having credible service/ training, commitment, dedication always
ready to discharge their functions willingly and to the best of their
ability. In the briefing, it has also been pointed out that so many
members of the police lost their lives in encounters with the criminals.
It is a matter of great concern that the perpetrators do not feel any
hesitation in killing the police personnel for the purpose of creating
atmosphere of fear, harassment to terrorize the whole society. The
number of such police officers has been noted herein above. In
addition to it, in recent incidents on 5th or 6th September, 2011, a dead
SMC 16/2011 ETC. 42
body of a policeman, namely, Javed Iqbal was found in the area of
Bakra Peri Road, near Evergreen School, Malir City Karachi, regarding
which FIR No.248/2011 was registered at Police Station Malir City. The
killing of the innocent persons has also not stopped even now, as has
been pointed out that a dead body of an unknown person, who was
badly tortured, was found lying in the car parking of a hospital,
reference of which has already been made herein above. There are
series of such incidents, which are taking place, one after the other.
Statedly, one policeman succeeded in causing arrest of one alleged
accused person, namely, Shah Zore on stated allegation that he was
responsible for killing innocent persons and after his arrest, on his
pointation, a dead body packed in a carton was recovered, reference of
which has been made in the order dated 09.09.2011. In the case,
where Rangers had succeeded in identifying a torture cell in Liyari area
and a DVD was prepared in respect of an incident, reference of which
has been made hereinabove, on watching it, one cannot explain in
words the degree of shamelessness, cruelty, barbarity and brutality
except summarizing that the heinous acts of committing sodomy upon
the victims and butchering them with blunt knives/churris were
committed brazenly. This is just one instance of the brutality and
barbarity, taking place in a torture cell which has been pointed out to
us, and it is not known that how many other such like torture cells are
being maintained by the criminals in their dens here and there in the
vastness of the city to satisfy their self as a vengeance. As a matter of
tit for tat, gruesome and cruel methodologies have been adopted for
the purpose.
35. On 07.09.2011, Director General Rangers Sindh, Major
General Aijaz Ahmed Chaudhry appeared in Court and stated that the
SMC 16/2011 ETC. 43
problem in Karachi is very serious, rather more serious than that of
South Waziristan. However, he submitted that if there was a will to
do it and once the State decides to bring peace to the city of Karachi,
no criminal could stand before the State and escape prosecution. He
further stated that the factors which contributed to the problem of the
city of Karachi happened to be that it is a huge city, it is based on
community system, a lot of development work has been done, but
there is unjust development of infrastructure on the basis of
communities residing in various parts of the city. There is
polarization to an unprecedented level on the political, ethnic, and/or
religious divides. According to him one day ethnic problem occurs and
next day religious problem starts. The situation has reached such a
stage where even the health sector is divided on ethnic and parochial
basis. A patient or injured person of one community is refused
admission or medical treatment by a hospital under influence of
another community. The problem can only be solved through
application of special means as well as requesting political
leadership to eliminate militancy from their wings. The political
face of the city has been taken hostage by militant groups of political
parties. Political parties are penetrated by the criminals under the garb
of political groups who use party flags. The militants and criminals are
taking refuge in the lap of political and ethnic parties which use the
flags of these parties to commit illegal activities with impunity. The
paramilitary force is, otherwise, fully capable of controlling the law and
order situation, the deployment of Rangers be further extended to
allow them to bring permanent peace in the city. There are religious
gatherings, problems like KESC issue, ethnic violence, protests/riots
over issues like Watan card distribution, Namoos-e-Risalat, as a result
SMC 16/2011 ETC. 44
whereof law enforcement agencies are over stretched. The
Government machinery has realized the seriousness of the situation
and assured that Rangers would bring the city back to normalcy and
ensure that people feel safe. He also suggested the constitution of a
high-level body comprising the Chief Minister and other stakeholders
to monitor progress in maintaining law and order as well as ensuring
good governance and social justice. The committee may be bound to
send progress reports to the Chief Justices of the High Court and
Supreme Court for perusal.
36. The DG Rangers further stated that he had requested in
security conferences that there should be no bar for the Rangers to
operate anywhere in the city, inasmuch as to go to the offices of
political parties, which housed ammunition, weapons and criminals,
and now by this notification this power has been given. According to
him, in a recent briefing on the law and order situation, restrictions on
the operations of the Rangers, were relaxed, directing that the police,
Rangers and other law enforcement agencies should not be stopped
from conducting raids in any area, including on the offices of political
parties, if the criminals take refuge there. He said that Rangers had
conducted successful raids and arrested culprits involved in target
killings whose details would be shared with the Court. He said that
Karachi is a mega city but unfortunately an unjust infrastructure had
divided it on ethnic and political basis.
37. In conclusion, the DG stated that no amount of application
of kinetic means, be it Rangers, or Army can fix the problem on long
term, rather it is the political process, which finally prevails and
provides hope to the nation. Suggesting the way forward, the DG
Rangers submitted that there is a need to train prosecutors, improve
SMC 16/2011 ETC. 45
forensic evidence, etc. According to him, the recent issuance of the
notification indicates that there is a realization at the political and
Government level, forcing them to come up with solution. He
expressed the desire that the notification should continue until peace
returns and so should the drive to round up the criminals and
terrorists.
38. Besides, the DG Rangers candidly conceded that bhatta
[extortion money] is a normal practice and criminals are collecting
bhatta, which, every day, runs into at least 10 million rupees and it is
being charged from an ordinary shopkeeper, rehriwala (push-cart
peddler) up to the top businessman by criminals who have got the
backing of the political parties who are the stakeholders. In this
behalf, Special Branch of the Police Department had filed a report
confidentiality of the same has not been claimed. In this report, a list
of chanda/bhatta collectors is available, a perusal whereof indicates
that bhatta is being collected invariably by the persons who claim their
association with ANP, MQM, PPP, Jamat-e-Islami, Sunni Tehrik, etc.
Besides, activists of the organizations banned under the Anti-Terrorism
Act, 1997 are also indulging in these activities. It is an admitted fact
that street crime like snatching cell phones, purses, etc. from the
citizens is rampant in the city and there cannot be two opinions that
the citizens, by and large, are suffering filled with fear and confusion.
They are so frightened that none of them comes forward even to lodge
the report, rather they prefer to pay bhatta or unhesitatingly agree to
hand over their valuables during the commission of street crimes. The
whole city seems to be in the grip of fear.
39. The learned Attorney General has also submitted a report
of Intelligence Bureau without claiming confidentiality and also
SMC 16/2011 ETC. 46
arranged briefing of ISI only for the Members of the Bench. The
Provincial Government also produced on record report of CID and it
too has not claimed confidentiality in respect of the same. Here it will
be pertinent to note that although, a notice was issued to the learned
Attorney General but the Federation chose to be represented through
a private counsel Dr. Babar Awan, learned Sr. ASC, who remained
associated with the case throughout the proceedings. As far as
Province of Sindh through Chief Minister is concerned, it is represented
by Mr. Abdul Hafeez Pirzada, learned Sr. ASC and the learned
Advocate General who represented the Chief Secretary and IGP. The
names of the interveners are available in the title of the case, which
includes MQM through Dr. Farogh Naseem, ANP through Syed Iftikhar
Hussain Gillani, Sindh Bachayo Committee through Mr. Abdul Mujeeb
Pirzada Sr.ASC, PML (N) through Faisal Kamal Alam ASC, Awami
Tehrik Party through its President Mr. Rasool Bux Palijo ASC, etc. They
have also put forward their respective pleas containing allegations and
counter allegations. Except the learned counsel appearing for the
official respondents i.e. Federation and the Province of Sindh, all
others including the interveners, unequivocally affirmed violation
of fundamental rights of the public enshrined in Articles 9, 14, 15,
18 and 24 of the Constitution.
40. How important has been the Suo Moto intervention of this
court and how vital is the “depoliticization of the administration”,
particularly police, is indicated in the instant case itself. Although the
notification ostensibly empowering the Rangers was issued on July 8,
2011, but the killing spree did not stop because, obviously, a
depoliticized administration was not available. Thus, in July alone as
many as 306 people were murdered as mentioned above, and a
SMC 16/2011 ETC. 47
greater number were injured. A number of dead bodies were
discovered in gunny bags, many mutilated and disfigured. The killing
spree continued at this pace and in just one week before this Court, on
24.08.2011, took Suo Moto notice of the situation as many as 109
citizens had been killed as per the power point presentation given by
the IGP on 29.08.2011. Out of 25 dead bodies found in gunny bags, 9
were found beheaded and tortured. These, and other related figures,
mentioned in para 22 above eminently justified interference by the
Court under Article 184(3). In fact the situation was so grave that the
Court decided immediately to shift the venue of the hearings to
Karachi. All concerned were put on notice. Although a few more tragic
incidents did take place during the hearing of the case and these have
been mentioned in detail herein, but there was a dramatic drop in the
number of crimes of the variety presently under consideration after the
court had intervened.
The lesson to be learned from this is simple. Initiation of
Suo Moto proceedings by the Court sent one straight and simple
message to an administration working under political pressures: “Take
no political pressure from any quarter whatsoever”. This was an
unstated message, but it was loud and clear. The administration
remained, and remains, under the political Government of the Province
of Sindh but the administrators immediately understood that they
would not be called upon to obey any illegal orders nor to discriminate
between adversaries. They would be fair and impartial and the results
have been dramatic so far. A depoliticized administration suddenly
came to life in fighting crimes, criminals and Mafias, political and
otherwise. That is what the intervention of the Court achieved. We the
Judges have no guns to fight the terrorists, but we have the authority
SMC 16/2011 ETC. 48
to ensure and strengthen the hands of those who actually apply the
law. In many cases the Suo Moto intervention of the Court has
produced such results, stopping corruption and mal-administration,
and Karachi demonstrates this. All over the democratic world judicial
review only strengthens democracy and should be welcomed by
democratic governments, not resented and resisted. It is now only
hoped that this restraint on political and partisan interference will also
continue after the Court winds up these proceedings so as to enable
the Police, the administration, and the Rangers to do their jobs in
accordance with the law.
41. Too often representatives of the Government are seen
castigating the Courts for the release of alleged terrorists and
criminals. This Court itself is often subjected to blistering criticism,
especially by members or allies of the ruling party on talk shows and
television programmes. The Court has shown restraint and has no ill-
will. Even otherwise the Judges cannot enter upon a public or private
debate about their performance or judgments even though the
criticism is highly politicized and unjustified as it often is these days.
But the burden that rests upon the executive and the legislature
cannot be passed on to the Courts. Courts can only act upon evidence
and material presented before them. This has to be collected by the
executive. The Courts cannot be blamed if the executive/police fail in
their duty. Moreover the evidence thus collected must be evaluated
according to the laws and rules prescribed by the legislature. In these
especial circumstances it is for the Government to ensure that cogent
evidence to support prosecution is collected and presented in the
Court. It is for the legislature to provide processes for the protection of
witnesses, Policemen and Judges and for the executive/government to
SMC 16/2011 ETC. 49
fully implement these reforms. Intelligence sharing and action on
intelligence that is uncorrupted by political or extraneous influence
must also be ensured by the executive. The Court expects that a new
culture of independent, depoliticized, and non-partisan prosecution
comprising efficient, capable prosecutors will be established by the
government to aid and assist the Courts. The Government must also
depoliticize the administration/prosecution. This will be for its own
good and for that of the nation. The Courts will keep a watchful eye
and strike down all illegal pressures and orders that are brought to
their notice.
42. Adversarial proceedings are defined as proceedings
relating to, or characteristic of an adversary or adversary procedures.
The term “adversarial” has been defined in the Concise Oxford English
Dictionary, Eleventh Edition, Revised, as under: -
“1. Involving or characterized by conflict or opposition. 2.
Law (of legal proceedings) in which the parties involved
have the responsibilities for finding and presenting
evidence.”
In “Advanced Law Lexicon” the term “Adversarial Process” has been
defined as under: -
“A process in which each party to a dispute puts forward
its case to the other and before a neutral judge, soliciting
to prove the fairness of their cases.”
In the American Heritage Dictionary of the English Language, Fourth
Edition: Published by Houghton Mifflin Company, the term is defined
as under:-
“Relating to or characteristic of an adversary; involving
antagonistic elements: "the chasm between management
and labor in this country, an often needlessly adversarial
…… atmosphere" (Steve Lohr).”
SMC 16/2011 ETC.
50
In Collins English Dictionary – Complete and Unabridged, it is defined
as under: -
“1. Pertaining to or characterized by antagonism and
conflict
2.
(Law) Brit having or involving opposing parties or
interests in a legal contest US term adversary”
The adversarial system (or adversary system) is a legal system where
two advocates represent their parties’ positions before an impartial
person or group of people, usually a jury or judge, who attempt to
determine the truth of the case, whereas, the inquisitorial system has
a judge (or a group of judges who work together) whose task is to
investigate the case.
43. The adversarial system is a two-sided structure under
which criminal trial courts operate that pits the prosecution against the
defense. Justice is done when the most effective and rightful adversary
is able to convince the judge or jury that his or her perspective on the
case is the correct one.
44. As against the above, the term “inquisitorial” is defined in
“Concise Oxford English Dictionary, Eleventh Edition, Revised as
under: -
“1.
Of or like an inquisitor.
2.
Law (of performing an examining role)”
In “Advanced Law Lexicon” 3rd Edition, 2005, it is defined in the
following words:-
“The system of criminal justice in most civil law nations,
where judges serve as prosecutors and have broad powers
of discovery.”
Webster's New World College Dictionary Copyright 2010, by Wiley
Publishing, Inc., Cleveland, Ohio defines it as under:-
“1.
of or like an inquisitor or inquisition
2. inquisitive; prying”
Collins World English Dictionary defines it as under:-
SMC 16/2011 ETC.
51
“1. of or pertaining to an inquisitor or inquisition.
2.
exercising the office of an inquisitor.
3.
law.
a. pertaining to a trial with one person or group
inquiring into the facts and acting as both
prosecutor and judge.
b. pertaining to secret criminal prosecutions.
4.
resembling an inquisitor in harshness or
intrusiveness.
5.
inquisitive; prying.
45. The Free Dictionary describes it in part, as “a method of
legal practice in which the judge endeavours to discover facts whilst
simultaneously representing the interests of the state in a trial”. Under
the inquisitorial model, the obligations of a Judge are far greater and
he is no longer a passive arbiter of proceedings but an active member
of the fact finding process.
46. An inquisitorial system is a legal system where the court or
a part of the court is actively involved in investigating the facts of the
case, as opposed to an adversarial system where the role of the court
is primarily that of an impartial referee between the prosecution and
the defense. Inquisitorial systems are used in some countries with civil
legal systems as opposed to common law systems. Also countries
using common law, including the United States, may use an
inquisitorial system for summary hearings in the case of
misdemeanors such as minor traffic violations. In fact, the distinction
between an adversarial and inquisitorial system is theoretically
unrelated to the distinction between a civil legal and common law
system. Some legal scholars consider the term “inquisitorial”
misleading, and prefer the word “non-adversarial”.
47. The inquisitorial system applies to questions of criminal
procedure as opposed to questions of substantive law; that is, it
determines how criminal enquiries and trials are conducted, not the
kind of crimes for which one can be prosecuted, nor the sentences that
SMC 16/2011 ETC. 52
they carry. It is most readily used in some civil legal systems.
However, some jurists do not recognize this dichotomy and see
procedure and substantive legal relationships as being interconnected
and part of a theory of justice as applied differently in various legal
cultures.
48. In some jurisdictions, the trial judge may participate in the
fact-finding inquiry by questioning witnesses even in adversarial
proceedings. The rules of admissibility of evidence may also allow the
judge to act more like an inquisitor than an arbiter of justice.
49. The proceedings, which are initiated as public interest
litigation in civil or criminal matters cannot be treated as adversarial
because of the definition of nature of the proceedings where without
contest between the parties a final finding has to be recorded, as it has
so been held in the case of Tobacco Board v. Tahir Raza
(2007 SCMR 97). In this judgment, matter relating to maintainability
of writ of quo warranto was considered and it was held that such writ
is to inquire from a person the authority of law under which he
purports to hold public office and it is primarily inquisitorial and not
adversarial, for the reason that a relater need not be a person
aggrieved; such exercise can be done suo motu, even if attention of
High Court is not drawn by the parties concerned. The same principle
has been followed by the Court in Ch. Muneer Ahmad v. Malik Nawab
Sher (PLD 2010 Lahore 625).
50. In the case of Philips Electrical Industries of Pakistan Ltd.
v. Pakistan (2000 YLR 2724) it has been observed that public interest
litigation is inquisitorial in nature where the Court may even delve into
fact finding so as to promote public interest.
SMC 16/2011 ETC. 53
51. In the case of Muhammad Munawar v. Deputy Settlement
Commissioner (2001 YLR 2350) the Lahore High Court has observed
that concept of adversarial proceedings under which it is the duty of
the parties to produce all relevant evidence, has been departed from
inasmuch as the Courts have also been called upon to share this
burden either on the application of the parties or suo motu to summon
and record all the relevant evidence in order to decide the case
effectively and finally; such rule is one of wisdom, for if a party to the
litigation fails in its duty, the Court is not denuded of its power to
summon the relevant evidence so that the dispute between the parties
is decided fairly and finally.
52. The Indian Supreme Court had the occasion to define
these expressions in various cases, including the cases of Peoples'
Union for Democratic Rights v, Union of India [AIR 1982 SC 1473] =
[(1982)3 SCC 235], Bandhua Mukti Morcha v. Union Of India [AIR
1984 SC 802], Peoples' Union for Liberties v. Union Of India [AIR 1996
Cal 89] and State of Uttaranchal v. Balwant Singh Chaufal [(2010) 3
SCC 402]. In Peoples' Union for Democratic Rights’ case (supra) the
Indian Supreme Court has observed as follows:-
“2. ……… We wish to point out with all the emphasis at
our command that public interest litigation which is a
strategic arm of the legal aid movement and which is
intended to bring justice within the reach of the poor
masses, who constitute the low visibility area of humanity,
is a totally different kind of litigation from the ordinary
traditional litigation which is essentially of an adversary
character where there is a dispute between two litigating
parties, one making claim or seeking relief against the
other and that other opposing such claim or resisting such
relief. Public interest litigation is brought before the court
SMC 16/2011 ETC. 54
not for the purpose of enforcing the right of one individual
against another as happens in the case of ordinary
litigation, but it is intended to promote and vindicate public
interest which demands that violations of constitutional or
legal rights of large numbers of people who are poor,
ignorant or in a socially or economically disadvantaged
position should not go unnoticed and unredressed. That
would be destructive of the Rule of Law which forms one of
the essential elements of public interest in any democratic
form of government. The Rule of Law does not mean that
the protection of the law must be available only to a
fortunate few or that the law should be allowed to be
prostituted by the vested interests for protecting and
upholding the status quo under the guise of enforcement
of their civil and political rights. The poor too have civil and
political rights and the Rule of Law is meant for them also,
though today it exists only on paper and not in reality. If
the sugar barons and the alcohol kings have the
Fundamental Right to carry on their business and to fatten
their purses by exploiting the consuming public, have the
'chamars' belonging to the lowest strata of society no
Fundamental Right to earn an honest living through their
sweat and toil ? The former can approach the courts with a
formidable army of distinguished lawyers paid in four or
five figures per day and if their right to exploit is upheld
against the government under the label of Fundamental
Right, the courts are praised for their boldness and
courage and their independence and fearlessness are
applauded and acclaimed. But, if the Fundamental Right of
the poor and helpless victims of injustice is sought to be
enforced by public interest litigation, the so called
champions of human rights frown upon it as waste of time
of the highest court in the land, which, according to them,
should not engage itself in such small and trifling matters.
Moreover, these self-styled human rights activists forget
that civil and political rights, priceless and invaluable as
they are for freedom and democracy simply do not exist
SMC 16/2011 ETC. 55
for the vast masses of our people. Large numbers of men,
women and children who constitute the bulk of our
population are today living a sub-human existence in
conditions of abject poverty, utter grinding poverty has
broken their back and sapped their moral fibre. They have
no faith in the existing social and economic system. What
civil and political rights are these poor and deprived
sections of humanity going to enforce? This was brought
out forcibly by W. Paul Gormseley at the Silver Jubilee
Celebrations of the Universal Declaration of Human Rights
at the Banaras Hindu University: “Since India is one of
those countries which has given a pride of place to the
basic human rights and freedoms in its Constitution in its
chapter on Fundamental Rights and on the Directive
Principles of State Policy and has already completed
twenty-five years of independence, the question may be
raised whether or not the Fundamental Rights enshrined in
our Constitution have any meaning to the millions of our
people to whom food, drinking water, timely medical
facilities and relief from disease and disaster, education
and job opportunities still remain unavoidable. We, in
India, should on this occasion study the Human Rights
declared and defined by the United Nations and compare
them with the rights available in practice and secured by
the law of our country.”
The only solution for making civil and political rights
meaningful to these large sections of society would be to
remake the material conditions and restructure the social
and economic order so that they may be able to realise the
economic, social and cultural rights. There is indeed close
relationship between civil and political rights on the one
hand and economic, social and cultural rights on the other
and this relationship is so obvious that the International
Human Rights Conference in Tehran called by the General
Assembly in 1968 declared in a final proclamation:
SMC 16/2011 ETC. 56
“Since human rights and fundamental freedoms are
indivisible, the full realisation of civil and political
rights without the enjoyment of economic, social and
cultural rights is impossible.”
Of course, the task of restructuring the social and
economic order so that the social and economic rights
become a meaningful reality for the poor and lowly
sections of the community is one which legitimately
belongs to the legislature and the executive, but mere
initiation of social and economic rescue programmes by
the executive and the legislature would not be enough and
it is only through multidimensional strategies including
public interest litigation that these social and economic
rescue programmes can be made effective. Public interest
litigation, as we conceive it, is essentially a co-operative or
collaborative effort on the part of the petitioner, the State
or public authority and the court to secure observance of
the constitutional or legal rights, benefits and privileges
conferred upon the vulnerable sections of the community
and to reach social justice to them. The State or public
authority against whom public interest litigation is brought
should be as much interested in ensuring basic human
rights, constitutional as well as legal, to those who are in a
socially and economically disadvantaged position, as the
petitioner who brings the public interest litigation before
the Court. The state or public authority which is arrayed as
a respondent in public interest litigation should, in fact,
welcome it, as it would give it an opportunity to right a
wrong or to redress an injustice done to the poor and
weaker sections of the community whose welfare is and
must be the prime concern of the State or the public
authority.
3. There is a misconception in the minds of some
lawyers, journalists and men in public life that public
interest litigation is unnecessarily cluttering up the files of
the court and adding to the already staggering arrears of
cases which are pending for long years and it should not
therefore be encouraged by the court. This is, to our mind,
SMC 16/2011 ETC. 57
a totally perverse view smacking of elitist and status quoist
approach. Those who are decrying public interest litigation
do not seem to realise that courts are not meant only for
the rich and the well-to-do, for the landlord and the
gentry, for the business magnate and the industrial
tycoon, but they exist also for the poor and the downtrodden
the have-nots and the handicapped and the half-
hungry millions of our countrymen. So far the courts have
been used only for the purpose of vindicating the rights of
the wealthy and the affluent. It is only these privileged
classes which have been able to approach the courts for
protecting their vested interests. It is only the moneyed
who have so far had the golden key to unlock the doors of
justice. But, now for the first time the portals of the court
are being thrown open to the poor and the down- trodden,
the ignorant and the illiterate, and their cases are coming
before the courts through public interest litigation which
has been made possible by the recent judgment delivered
by this Court in Judges Appointment and Transfer cases.”
In Bandhua Mukti Morcha’s case (supra) after referring to the cases of
Peoples' Union for Democratic Rights, the Court has observed as
under: -
“9. ……………… We have on more occasions than one said
that public interest litigation is not in the nature of
adversary litigation but it is a challenge and an opportunity
to the Government and its officers to make basic human
rights meaningful to the deprived and vulnerable sections
of the community and to assure them social and economic
justice which is the signature tune of our Constitution. The
Government and its officers must welcome public interest
litigation, because it would provide them an occasion to
examine whether the poor and the down-trodden are
getting their social and economic entitlements or whether
they are continuing to remain victims of deception and
exploitation at the hands of strong and powerful sections
of the community and whether social and economic justice
SMC 16/2011 ETC. 58
has become a meaningful reality for them or it has
remained merely a teasing illusion and a promise of
unreality, so that in case the complaint in the public
interest litigation is found to be true, they can in discharge
of their constitutional obligation root out exploitation and
injustice and ensure to the weaker sections their rights and
entitlements. When the Court entertains public interest
litigation, it does not do so in a caviling spirit or in a
confrontational mood or with a view to tilting at executive
authority or seeking to usurp it, but its attempt is only to
ensure observance of social and economic rescue
programmes, legislative as well as executive, framed for
the benefit of the have-nots and the handicapped and to
protect them against violation of their basic human rights,
which is also the constitutional obligation of the executive.
The Court is thus merely assisting in the realisation of the
constitutional objectives."
In Peoples' Union for Liberties’s case (supra) after referring to the
cases of Peoples' Union for Democratic Rights and Bandhua Mukti
Morcha’s case (supra), the Calcutta High Court has observed as
under:
“122. It is quite obvious that in a public interest litigation
the petitioner and the State are not supposed to he pitted
against each other, there is no question of one party
claiming or asking for relief against the other and the
Court deciding between them. Public interest litigation is a
co-operative litigation in which the petitioner, the State or
public authority and the Court arc to co-operate with one
another in ensuring that the constitutional obligation
towards those who cannot resort to the Courts to protect
their constitu-tional or legal rights is fulfilled. In such a
situation the concept of cause of action evolved in the
background of private law and adversary procedure is out
of place. The only question that can arise is whether the
prayers in the petition, if granted, will ensure such
constitutional or legal rights.”
SMC 16/2011 ETC. 59
53. We have observed during the hearing that instant
proceedings are not adversarial, but inquisitorial. The information/
material laid/produced before this Court by the State functionaries in
pursuance of the order dated 24.08.2011, followed by the order of the
Full Bench dated 26.08.2011 and the material produced by the
interveners, reference of which has been made in the order referred
hereinabove is sufficient for making right conclusions. We were
informed that besides figures of crimes committed during one month
commencing from 24th July to 24th August, 2011 noted hereinabove;
about 1300 persons were killed during this year, whereas about 1800
persons similarly lost their lives in the year 2010. Thus, having gone
through the material, we have no hesitation in our mind that at large
scale the residents of Karachi have been subjected to bloodshed,
arson, kidnapping/abduction for ransom, widespread violence, illegal
collection of money (bhatta) from traders, etc. and that their
inalienable Fundamental Rights, such as, security of person;
inviolability of dignity of man; freedom of movement; freedom of
trade, business or profession and protection of property have been
violated.
54. The fact that deadliest criminals having affiliation with
various groups are responsible for bloodshed, arson, looting, recovery
of money (bhatta) from common citizens and traders causing terror in
the city of Karachi is not denied. Fearful as they are, the people of
Karachi have been spending sleepless nights particularly during the
past months of July and August is also not denied. The accused
persons belonging to any political or specific group are so powerful
that the police for the reason stated have failed to arrest or collect
evidence for proving the guilt against them before a Court of Law as
SMC 16/2011 ETC. 60
we have noted hereinabove and according to summary of disposal of
cases, most of the cases have already been disposed of as “A” Class,
details of which have been mentioned hereinabove. M/S Syed Iftikhar
Hussain Gillani, Abdul Mujeeb Pirzada, Ghulam Qadir Jatoi, Rasool
Bakhsh Palijo and Syed Iqbal Haider representing various
applicants/interveners have blamed MQM to have let their activists
loose who, according to them, are largely responsible for creating
dismal situation of law and order perpetrating the alleged wrongful
acts and causing terrorism in the city. Whereas, Dr. Farogh Naseem,
learned ASC, appearing on behalf of MQM voiced in his submissions
that in actual fact the Urdu speaking inhabitants of Karachi are the
victims of atrocious acts of criminals aligned with various other groups,
particularly having influence in Baloch area of Lyari and Kati
Pahari/Qasba Colony area largely inhabited by Pashtuns. According to
him, hundreds of MQM workers have been tortured and killed at the
hands of such groups. Thus, it is quite evident that uncontrollable law
and order situation prevails, which has wrapped the city of Karachi in
terror to the utmost discomfort of common citizens including traders,
remains undisputed, the details of which are stated more specifically in
the foregoing paragraphs. The DG Rangers, in his submissions, has
been so vocal to say that the law and order situation in Karachi is
worse than it happens to be in Waziristan. The IG Police has also not
lagged behind in admitting the brazen facts. This situation has not only
heavily affected the common citizens of Karachi, it has virtually
paralyzed the industrial and commercial activities ultimately affecting
the whole country as Karachi being a port city and commercial hub of
country, it contributes 60 – 70 % of revenue. Thus, there cannot be
two opinions that the worsening law and order situation in Karachi
SMC 16/2011 ETC. 61
badly affecting the inviolable dignity, life and liberty of multitudes of
people; so also their property, movable and immovable involve
violation of Fundamental Rights constituting it a matter of public
importance.
55. It is to be noted that, primarily it is the duty of the
Province through its executive authorities to control the law and order
situation and ensure implementation of Fundamental Rights of citizens.
But prima-facie it seems that the Provincial Authorities have not
fulfilled their constitutional duty. Under the Constitution, equally it is
the obligation of the Federation to protect every Province against
internal disturbances as well as external aggression and to ensure that
the Government of every Province is carried on in accordance with the
provisions of the Constitution.
56. It has been pointed out by learned counsel for the
interveners representing different parties and groups including MQM,
ANP, Baloch Ittehad Tehrik and others that their supporters/party men
have been butchered and are kidnapped and their whereabouts as yet
are not known.
57. According to the opinion expressed before us, the
Provincial as well as Federal Government cannot be considered to have
been oblivious of their duties when right under their nose, a large
number of persons were being brutally butchered everyday on the
streets of Karachi, which are littered with dead bodies and torsos
(human bodies without head and limbs); sometimes also found in
abandoned places and the injured writhing in pain; so also when
innocent citizens were being burnt inside vehicles and torture cells
were being detected by the law enforcing agencies. The state of
helplessness prevailed, throughout, in the city of Karachi – the face
SMC 16/2011 ETC. 62
of Pakistan being its economic hub – accommodating persons
belonging to different communities, including Urdu speaking, Pashtuns,
Saraiki’is, and others. The dead bodies of the persons belonging to all
walks of life i.e. Urdu speaking (word used for the purpose of
identifying in this case), Pashtuns, Balochis and Punjabis are being
sent to their homes, within Karachi and outside Karachi i.e. to Khyber
Pakhtunkhwa, Baluchistan and Punjab, which is causing
insurmountable fear and harassment throughout the country badly
affecting economic activities on account of disturbances taking place in
Karachi. Many people have wound up their business and have shifted
from Karachi to other places inside the country and outside causing
colossal loss not only to the residents of Karachi individually, but to
overall economy of the country. The whole nation is crying hoarse,
media highlighting the tragic incidents day and night in such a state
also cannot be considered to have not come to the knowledge of
Provincial and Federal functionaries. Unfortunately, no appropriate and
timely action has been taken by the Provincial as well as Federal
Governments to stop these atrocious acts. Material has been brought
on record, such as, reports of JIT, CID, IB, etc. (copies of which have
been provided to us) bearing horrifying stories of heinous crimes
committed by dangerous criminals aligned with various political parties
and groups; besides very critical situation of law and order reflected in
the classified briefing of ISI cannot be considered that the same are
not within the knowledge of the Provincial and the Federal
Governments. This sensitive material is, prima-facie, sufficient to hold
that the Provincial Government has failed to perform its constitutional
obligations and duties. Therefore, for the purpose of enforcement of
Fundamental Rights denied to the people as highlighted hereinabove,
SMC 16/2011 ETC. 63
this Court in exercise of its jurisdiction under Article 184(3), which is in
the nature of inquisitorial proceedings, has the same powers as are
available to the High Court under Article 199 of the Constitution in
view of the judgments passed in the cases of Muhammad Nawaz Sharif
v. President of Pakistan (PLD 1993 SC 473), Syed Wasey Zafar v.
Government of Pakistan (PLD 1994 SC 621), Bank of Punjab v. Haris
Steel Industries (pvt.) Ltd. (PLD 2010 SC 1109) and Federation of
Pakistan v. Munir Hussain Bhatti (PLD 2011 SC 752).
58. There is no denial of the fact that ensuring good
governance, maintaining law and order situation and providing security
to the persons is a primary duty of the Government. Our religion has
also emphasized upon the significance and sanctity of ‘life’ as it has
been noted in the opening Para of the judgment, according to which, if
anyone killed a person, it would be as if he killed the whole humanity,
and similarly if anyone saved a life, it would be as if he saved the
whole humanity. Similarly, it is the responsibility of the ruler
(government) to ensure security of all its citizens, high or low, without
any discrimination. It would be appropriate to refer here to the saying
of the Second Caliph Umar ibn al-Khattab (R.A) that if a dog dies of
hunger on the banks of the River Euphrates, Umar will be held
responsible for dereliction of duty. [Mohtsham, Saeed M., Vision and
Visionary Leadership – An Islamic Perspective]. Mr. Abdul Hafeez
Pirzada, Sr. ASC appearing on behalf of the Chief Executive of the
Province suggested in his arguments that a wake up call should be
given to the Provincial Government by this Court, so that it may
enforce the constitutional provisions. The suggestion of the learned
counsel, however, does not sound well as this is the duty of the ruler
to maintain the law and order without any interference of the Court. It
SMC 16/2011 ETC.
64
is the history of this country that on account of law and order
situation, disturbance, absence of peace, etc., many governments
were dismissed in the past. In this behalf, reference may be made to
the instruments of dissolution of Parliaments issued by civilian
constitutionally elected Presidents which were upheld by the Supreme
Court from time to time:
.
Order dated 29.5.1988 whereby the President of Pakistan
dissolved the National Assembly under Article 58(2)(b):
“And whereas the law and order in the country have
broken down to an alarming extent resulting in tragic loss
of innumerable valuable lives as well as loss of property:
And whereas the life, property, honour and security
of the citizens of Pakistan have been rendered totally
unsafe and the integrity and ideology of Pakistan have
been seriously endangered. [Federation of Pakistan v.
Haji Muhammad Saifullah Khan (PLD 1989 SC 166)]
.
Order under Article 58(2)(b) of the Constitution on 6th of
August, 1990 dissolved the National Assembly
(d) The Federal Government has failed in its duty under
Article 148(3) of the Constitution to protect the Province of
Sindh against internal disturbances and to ensure that the
Government of that Province is carried on in accordance
with the provisions of Constitution, despite the heavy loss
of life and property, the rule of terror in urban and rural
areas, riots, arson, dacoities, kidnapping for ransom,
politics of violence among citizens and widely condemned
failure of the Provincial Government and its law enforcing
agencies, and also, in this behalf, failed to act under
appropriate provisions of the Constitution. [Khawaja
Ahmad Tariq Rahim v. the Federation of Pakistan (PLD
1992 SC 646)]
.
Order dated 5.11.1996 whereby the President dissolved
the National Assembly under Article 58(2)(b)
SMC 16/2011 ETC. 65
"Whereas during the last three years thousands of
persons in Karachi and other parts of Pakistan have been
deprived of their right to life in violation of Article 9 of the
Constitution. They have been killed in Police encounters
and Police custody.
59. In Ahmad Tariq Rahim’s case (supra), the dismissal of
government was maintained by this Court because of failure of the
Federal Government to protect the Provincial Government of Sindh
from internal disturbances, relevant Para therefrom is reproduced
herein below: -
“28. Ground (d) in the order of dissolution is that the
Federal Government had failed in its duty under Article
148(3) of the Constitution to protect Province of Sindh
against internal disturbances despite heavy loss of life and
property. In this respect, stand taken on behalf of the
petitioner is that matter relating to law and order situation
in the Province was responsibility of the Province as
enshrined in the Constitution. It is stated in the rejoinder
riled in the High Court that Government of PPP entered
into accord with MOM accommodating its members in the
Sindh Cabinet. Due to certain reasons there was unilateral
break-up of the accord by MQM which had withdrawn
support from the Government. The Provincial Government
was doing its level best to deal with law and order situation
as required under the Constitution and provisions of
relevant laws. On this subject, there were several
meetings between the Federal Government and the
Provincial Government of Sindh and exchange of letters.
took place between President, Prime Minister and the
Governor of Sindh. In fact joint efforts were made
sincerely to deal with the situation of law and order in
Sindh to find a permanent solution. It is submitted on
behalf of the petitioner that Federal Government and
Government of Sindh wanted assistance of the army to the
limited extent of aiding the civilian government as
SMC 16/2011 ETC. 66
contemplated under the provisions of Criminal Procedure
Code but for some reason could not succeed in carrying
out amendment in section 138-A of Criminal Procedure
Code. One suggestion from the Provincial Government was
that unlicensed arms should be recovered from people
without any discrimination. Then unpleasant incident took
place in Hyderabad on 26th and 27th May, 1990 in Pacca
Qila. There were so many casualties in the firing. President
wrote a letter on 28th May, 1990 addressed to the Prime
Minister, asking hor to appoint judicial enquiry Commission
to fix the responsibility for the events that took place in
Hyderabad expressing his opinion in favour of use of
armed forces in aid of civil power as contemplated under
Article 245 of the Constitution.”
Relevant Para from the judgment of this Court in Benazir Bhutto v.
Federation of Pakistan (PLD 1988 SC 416) is also reproduced
hereinbelow: -
“54. The law and order situation in Karachi and other parts
of Sindh should not have been allowed to deteriorate and
get out of control. The custodial killings are to be explained
satisfactorily as is required under the law. The killings in
encounters with police are to be explained in proper
manner and the Court has to give finding whether they
were justified or not. There is absolutely no explanation
available or produced on the record as to how the persons
taken in custody and some of them in handcuffs while
leading the Police party/Law Enforcing Agencies for making
recoveries, were allowed to be killed by some unknown
persons who did not want recoveries to be made. If a
person is taken into custody then he is bound to be dealt
with strictly according to law and is to be punished only
when the case is proved against him. He cannot be allowed
to be killed by any person while he is in custody. If this is
done then it clearly shows that there is no writ of law but
law of jungle. This shows inefficiency which tantamounts to
total failure of the Constitutional machinery. If both the
Provincial Government and the Federal Government jointly
dealing with such situation fail then it can be said that the
ground is available to the President to come to the
conclusion that a situation has arisen in which the
Government of the Federation cannot be run in accordance
with the provisions of the Constitution and the
Constitutional machinery has failed.
SMC 16/2011 ETC.
67
60. It would not be out of context to note that Mr. Pirzada
learned ASC had submitted that the Chief Executive was ready to take
the following measures in future to maintain law and order situation in
Karachi. The statement so filed is reproduced hereinbelow in
verbatim:-
STATEMENT ON BEHALF OF COUNSEL FOR THE PROVINCE OF SINDH
In pursuance of the proceedings before, and the order of
this Hon’ble Court in the above matter dated 30.08.2011, the
undersigned counsel for the Province of Sindh has met the Chief
Minister, Sindh and as a result thereof, he has been instructed
and requested to make the following/submissions.
1.
The Chief Minister, Sindh has expressed his resolve and
determination to deal with and handle the present criminal
and crime situation in the city of Karachi (the subject
matter of the above proceedings) without any
discrimination whatsoever, irrespective of any party
affiliations, that the criminals may or claim to have and
that every effort will be made to deal with and control the
situation by all necessary action within the framework and
letter and spirit of the Constitution the law.
2.
The Chief Minister firmly believes that his Government and
the law enforcement agencies and instrumentalities
available to him are competent in this behalf and that
there shall be no lack of will to act on their part.
3.
Without prejudice to the generality of the above
submission, the Chief Minister, respectfully wants to
convey to this Hon’ble Court, the specific actions that he
proposes to take in this behalf:
a.
For the purpose of prevention and control of crime,
steps are underway to increase the strength of the
police force and supplement and buttress the same
by the Rangers. It may be pointed that deployment
of Rangers (which are absolutely necessary and vital
to work in coordination and cooperation with the
Police and are 10,000 in numbers in the city of
Karachi) impose a bearable burden of less than
Rs.400,000,000/- (Rupees Four Hundred Million) per
year, in juxtaposition to the benefits flowing from
their proper utilization. The burden of their salaries
and emoluments is and continues to be borne by the
Federal Government and not the Provincial
Government.
b.
1000 additional Police force has been transferred
from the interior of Sindh to perform duties in the
city of Karachi. The large number of the Police force
available in Karachi, which has not been allocated to
crime control will be reduced beginning immediately
so as to provide sufficient numbers to crime control.
It may be pointed that at least a half of the number
SMC 16/2011 ETC.
68
reserved for special duties as disclosed by the
Inspector General Police, Sindh, is either assigned to
traffic control or security to VIP’s and also nongovernmental
private parties and institutions. Notices
have already been issued to these non-governmental
and private organizations, that the force allocated to
them is to be withdrawn and they have been advised
to make private arrangements for their security. In
the next immediate step, the force assigned to VIP’s
will be reduced, wherever possible in consonance
with and without jeopardizing the requirement of
their security.
c.
Lastly, a 5000 strong contingent Police force, is being
recruited, which will be trained and fully capable of
performing their duties within the next 12 months.
These recruits will receive special and sophisticated
training at 9 Police training centers in the Province.
d.
Closed Circuit Televisions (CCTV’s) and cameras are
being installed at 900 different locations in the city,
which shall monitor, record and report commission of
crimes. As stated in the power point presentation
(from pages 48 onwards), new and effective APC’s
have been ordered, which will augment and enable
easier penetration by the law enforcement agencies
into the crime areas. As stated on page 48, a new
motorcycle force named ‘Eagle Force’ has already
been introduced and is functional.
e.
20 mobile forensic laboratories are being acquired,
which shall be manned by extensively trained
personnel, with the assistance of friendly countries
with advanced technology and expertise.
f.
The next important aspect in the maintenance of law
and order is an effective, meaningful and productive
investigation for the purpose of apprehension of real
culprits, sophisticated and proper collection of
evidence, l witnesses and compilation of record, so as
to enable the Prosecutors to go with confidence and
secure convictions of the guilty. The Police Act 1861
has already been brought into force and solid
investigation can be achieved through suitable
amendments in the law. In this behalf, desired
results can be achieved by strengthening the
prosecution agencies and institutions. It may be
necessary to bring suitable amendments in the
existing laws, which may inter alia, provide for safety
and security of witnesses and maintenance of full
record and date of habitual offenders, so as to make
it difficult for them to be release on bail as a matter
of course.
g.
As far as the question of aliens/noncitizens living in
Karachi and estimated to e 2,500,000, this matter
relates to a considerable extent to the Federal
Government and the Counsel representing it shall
have better locus standi to address this Hon’ble
Court.
SMC 16/2011 ETC.
69
4.
That these proceedings have been initiated Suo Motu by
this Hon’ble Court, pro bono publico and are not
adversarial and therefore, the submissions on behalf of
the Province of Sindh have been made in that context.
This Hon’ble Court has also made observation to the same
effect. Therefore, the right of rebuttal, of the Province of
Sindh, is not waived if others parties, who have brought in
their petitions or have joined these proceedings make any
submissions, which are required to be answered rebutted
and controverted.”
But subsequently, he waived his right of rebuttal.
61.
Some of the above commitments have already been
reiterated by the IGP Sindh in his presentation, summary whereof has
been reproduced hereinabove. Similarly, as it has been pointed out in
the report submitted by the Chief Secretary Sindh dated 26.08.2011
that after large scale bloodshed in Karachi, now the Administration has
realized the gravity of the situation and has conferred powers upon the
Pakistan Rangers vide notification dated 08.07.2011, which reads as
under:-
“No.SO(LE-I)/HD/6-66
GOVERNMENT OF SINDH
HOME DEPARTMENT
Karachi dated July 08, 2011
NOTIFICATION
SUBJECT:
PAKISTAN RANGERS (SINDH) EMPLOYMENT IN THE
MAINTENANCE OF LAW AND ORDER IN KARACHI
In the wake of recent incidents of terrorism/target killings
in certain parts of Karachi, Government of Sindh, in
exercise of the powers invested under section 10 of the
Pakistan Rangers Ordinance, 1959, read with section 5 of
the |Anti-Terrorism Act, 1997, hereby make responsible
Pakistan Rangers (Sindh) for the maintenance of law and
order and to apprehend the criminal elements involved in
firing and killing of innocent citizens in various areas and
zones of the city (where situation warrants employment of
Sindh Rangers). Pakistan Rangers (Sindh) are hereby
authorized by the Government of Sindh to cordon, search
and use force in controlling firing by the criminals in
effected areas.
CCPO Karachi will extend all possible support to Pakistan
Rangers (Sindh) in restoring law and order situation in any
part of the city.
SMC 16/2011 ETC. 70
ADDITIONAL CHIEF SECRETARY
HOME DEPARTMENT”
The contents of the report of the Chief Secretary, particularly Paras 7
& 8 thereof, being an eye-opener, have already been reproduced
hereinabove.
62. Similarly, IG Police in addition to other explanations,
referred to the demography of the city and admitted extortion of
money (bhatta) being collected from the traders.
63. Mr. Farogh Naseem, learned ASC appearing on behalf of
MQM in CMA 565-K/2011, pointed out that to prevent extortion of
money (bhatta) the Provincial Assembly had already promulgated the
Eradication and Curbing the Menace of Involuntary Donation or Forced
Chanda Act, 2004 [hereinafter referred to as “the Act, 2004”].
However, it seems that this legal instrument has not been applied
strictly whereas other learned counsel for interveners are of the
opinion that criminals involved in collection of bhatta are so desperate
that no one – be a trader or anyone else – being fearful is interested
to expose himself to the wrath of the criminals, rather they feel safety
in paying bhatta; besides they are equally hesitant to come forward
because of problems and difficulties in perusing cases and also have
no trust and faith in the police. As far as the law which has been
referred to by the learned counsel, cognizance of an offence under the
said Act is to be taken on submission of complaint in writing by a
donor within 30 days of the commission of the offence before the
Judicial Magistrate having territorial jurisdiction. The victims, instead
of going by the letter of the law whereunder they have to become
complainants and challenge the criminals, reportedly always armed
with lethal weapons, prefer to make payment of bhatta. This thing can
SMC 16/2011 ETC. 71
only be reversed if the trust of the citizens is restored, which of course
is not possible until and unless a neutral and a depoliticized
administration as well as honest and dedicated law enforcing agencies,
especially police are there to protect the victims of crimes. It seems
that this law was promulgated for eradication and curbing the menace
of extortion of money in the shape of forced donations (chanda). The
word “chanda” has not been defined, but the definition clause of
section 2 contains the word “Fund” which includes donation or
contribution in the shape of money or kind. Thus, taking advantage of
this provision, it was argued before us that there have been
complaints that in the name of payment of fitrana, which is to be paid
as sadqa by all the Muslims at the end of Ramadan on the eve of Eidul-
fitr, exorbitant amounts have been forcibly recovered instead of
allowing Muslims to pay the same voluntarily to the deserving people
as per Injunctions of Islam. The culprits in an organized manner
receive fitrana and in some of the cases ten times of the original
amount has been demanded. Although no documents are available on
record in this behalf, but these things have been pointed out during
the arguments by the learned counsel appearing for the interveners
who have spoken before the Court vocally. Similarly, it has been
informed that as far as the word ‘kind’ mentioned in the definition of
“fund” is concerned, it relates to recovery of hadia (donation), skins of
animals (khall) and other body parts of animals on the occasion of Eidul-
Azha, however, the representatives of so called welfare
organizations working under the flags of their respective political
parties used to bind down the people to hand over the same to them,
else to face the consequences, but according to the learned counsel for
the interveners, this law has also not worked effectively and the
SMC 16/2011 ETC. 72
practice of forcible recovery of the above items, i.e. skins, etc., has
been going on.
64. It may be noted that as far as offence of extortion of
money is concerned, which can also be considered as bhatta, it is
covered by sections 386 to 388 of the Pakistan Penal Code and also
falls within the definition of terrorism given in section 6(1)(k) of the
Anti-terrorism Act, 1997. Undoubtedly, sufficient legal framework as
discussed hereinabove is available on the statute book, but the same
is lying dormant because of its non-application as people do not have
trust in the law enforcing agencies to counter the deadly and
influential persons who happen to terrorize the innocent citizenry and
due to this reason no one comes forward. It is common knowledge
that mafias i.e. groups of criminals involved in the commission of
heinous crimes, such as recovery of bhatta, extortion of money,
business of illegal weapons, narcotics, drugs, land grabbing, etc., had
been working in other countries as well in a highly organized manner.
Reference in this behalf may be made to the Sicilian and American
Cosa Nostra, an Italian group also working in New York, but in those
countries the crime was controlled by promulgating and implementing
stringent laws, which we also have in our jurisdiction, namely, Antiterrorism
Act, 1997, therefore, we can also control the same by
applying such laws strictly. In USA, to control such underworld mafias,
the State authorized through the courts seizure of properties of such
like persons, if it was established that they had acquired such
properties out of income from the proceeds of heinous crimes. In this
behalf, reference may be made to the case of Bracy v. Gramley,
Warden, [520 U.S. 899 (1997)], wherein the Supreme Court of United
States did not show any concession to the culprits. There are so many
SMC 16/2011 ETC. 73
other judgments, reference of which may not be necessary at this
stage, where the Governments had succeeded to control the mafias
after applying stringent measures.
65. The history of Karachi, which has been narrated
hereinabove, indicates that from 1985 onwards, the rate of crime as
well as the situation of law and order have been increasing with the
passage of time. Syed Iqbal Haider, Sr. ASC in CMA No. 544-K/2011,
has pointed out that General Zia-ul-Haq, with an intension to further
divide and de-politicize the people, created three militant groups and
fully armed ethnic parties, i.e. Muhajir Qaumi Movement (Now
Mutahida Qaumi Movement), Punjabi Pukhtoon Itehad (PPI) and Jiye
Sindh (JS), and ethnic warfare started from the tragic road accident
death of a student named Bushra Zaidi in April, 1985, followed by
numerous incidents of bloody clashes between the three ethnic parties
resulting in innumerable deaths of innocent citizens, destruction of
public and private property and injuries to thousands of persons,
particularly in Karachi and Hyderabad. Curfews, hartaals (strikes) and
close downs of routine activities of the citizens became a norm in
Karachi. He further stated that from 1980 onwards, six Judicial
Commissions headed by Judges of High Court of Sindh were
constituted, but reports of none of those Commissions were made
public nor their recommendations were ever implemented, perhaps to
protect the real culprits responsible for such bloody incidents.
Inasmuch as, former Prime Minister Mohtarma Benazir Bhutto had
constituted a most powerful independent Judicial Commission headed
by the then Chief Justice of Pakistan, Mr. Justice Muhammad Afzal
Zullah and comprising the Chief Justices of all the four High Courts to
investigate into the unfortunate incident of Pakka Qila, Hyderabad on
SMC 16/2011 ETC. 74
or about 17.05.1990, but according to him, after unconstitutional
dissolution of the Government of Mohtarma Benazir Bhutto, during the
days of new Caretaker Government with heavy representation of MQM
both at Federal and Provincial levels, it decided to dissolve the said
Judicial Commission. He handed over the implementation report of one
of such Commissions headed by the Chief Secretary, Sindh constituted
in 1985-86 after the incident of Bushra Zaidi. We inquired from the
learned Advocate General as to whether any other Commission’s
report was available and whether the same had been made public or
not, he stated that as per instructions, no Commission report is
available in the relevant department. From the facts and
circumstances narrated by the learned counsel, it seems that in the
past as well, the city of Karachi had been facing the same problem
with which it is confronted today in more aggravated form, but
unfortunately, no plausible solution to maintain law and order and
restore peace in Karachi was adopted. Inasmuch as, sometimes, there
had been military operations followed by operations by the Task Forces
constituted by Mohtarma Benazir Bhutto during her regime
commencing from 1993 onwards, but without any final permanent
solution of the problem. We tried our level best to trace out the
reasons as to why democratic as well as non-democratic Governments
failed to bring normalcy in Karachi, but nobody came forward with a
convincing answer except that identical international solutions, which
other Governments like in Italy, America, India, etc., had adopted are
available to the State machinery in Pakistan, but no one had dared or
shown any will to resolve the issue of disturbances in Karachi.
Although, Karachi is a city presently accommodating about 18 million
people belonging to different communities, as per the history of
SMC 16/2011 ETC. 75
Karachi who had come from India, Afghanistan and all over Pakistan
and had settled permanently over there making it a cosmopolitan city,
which houses Pakistanis as well as a large number of foreigners, about
2.5 million in number, who are also there without any check and their
involvement in troublemaking can also not be overruled. But the
question remains as to why law enforcing agencies have not, to say
the least, checked these illegal immigrants and have not managed to
deport them to the countries of their origin. The DG Rangers, who
operates in the disturbed areas, appeared in person and pointed out in
his briefing to the Court that the political forces of the city had been
made hostage by the militant groups of political parties; Karachi was a
mega city, but unfortunately an unjust infrastructure divided it into
various parts on ethnic and political lines; the city was in the grip of
polarization on account of which even the health sector was divided on
ethnic/parochial basis, so much so that a patient or an injured person
belonging to one community is refused admission for medical
treatment in a hospital under the control of the rival group; and the
situation in Karachi was worse than that prevailing in North Waziristan.
The statement of DG Rangers has undoubtedly made important
evaluation during his briefing, besides, in the reports available on
record and from other credible sources, the situation in Karachi seems
to be terrible and needs urgent attention of the Federal and the
Provincial Government to handle the same through independent
Administration to save the economic, social and political future of
Pakistan, which, inter alia, depends upon peaceful life in Karachi.
66. Mr. Rasool Baksh Palijo, ASC appearing on behalf of Awami
Tehrik Party in CMA No. 552-K/2011, in loud and clear words, held
MQM responsible alone for the situation prevailing in the country. He
SMC 16/2011 ETC. 76
stated that over the last about 20 to 30 years thousands of criminals
were not challaned and not a single person was awarded punishment.
According to him, unless a ban is imposed upon the militant outfits of
the political parties, peace and normalcy would not be brought to
Karachi. Therefore, he emphasized that culprits should be brought to
book and severe punishments should be awarded to them, which may
serve deterrence for like minded persons. In this context, Syed Iqbal
Haider, Sr. ASC agreeing with him suggested that a powerful truth
finding commission is required to be constituted to decide, once for all,
as to who is responsible for destroying peace in Karachi, whereas,
Syed Iftikhar Hussain Gillani Sr. ASC was of the opinion that instant
matter may not be disposed of finally, and an affective interim order
may be passed, as this Court had done in the Petitions challenging the
validity of the 18th Constitutional Amendment, enabling this Court to
supervise the affairs relating to law and order situation in Karachi.
67. Mr. Abdul Mujeeb Pirzada, Sr. ASC appearing on behalf of
Sindh Bachayo Committee in CMA No. 531-K/2011, after having
narrated the facts and circumstances of the case also insisted for
directions to the Government of Sindh to initiate the process of deweaponization
and for the assistance of Administration the military be
also allowed to be called in terms of Article 245 of the Constitution
because in the past as well, the Administration has been calling in aid
the Armed Forces in critical situations like during the earthquake of
2005 and floods in different parts of the country in 2010, and also get
implemented the orders passed by this Court by invoking Article 190,
which according to Syed Iftikhar Hussain Gillani, Sr. ASC is an enabling
provision on the basis of which the Court can issue directions to all
executive authorities to come forward to provide aid to it in
SMC 16/2011 ETC. 77
implementation of its orders, and undue objections are being raised to
invoking of the provisions of Article 190. According to them, Article
190 is like all other provisions of the Constitution, e.g., Article 187,
etc., therefore, adhering to any provision of the Constitution will be
tantamount to strengthening the institutions for the purpose of
achieving good governance, welfare, peace and tranquility in the
society. They have emphasized that no provision of the Constitution
can be made ineffective, rather each provision has to be applied when
the need arises. It is to be noted that as per the scheme of the
Constitution, different institutions are required to fulfill their
commitment because our Constitution is based on the principle of
trichotomy of powers i.e. Legislature, which is responsible to legislate
the laws, Executive/Government headed by the Prime Minister in the
Federation and the Chief Ministers in the Provinces to fulfill their
duties, and the Judiciary, which has to interpret the Constitution and
the law. Violation of constitutional provisions by any of the
organs/functionaries of the State is not permitted by law as held in the
case of Sindh High Court Bar Association v. Federation of Pakistan
(PLD 2009 SC 876) wherein all the actions of the then Chief of Army
Staff General Parvez Musharraf dated 03.11.2007, viz., Proclamation
of Emergency, PCO No. 1 of 2007, Judges Oath Order, 2007, etc. were
declared to be unconstitutional, illegal, mala fide and void ab initio. As
a result, whatever was done extra-constitutionally was struck down. As
far as the present democratic Government is concerned, it too cannot
be allowed to go beyond the Constitutional provisions or allowed to fail
in its implementation, particularly with regard to enforcement of
Fundamental Rights. There are no two opinions that as far as
Fundamental Rights/civil rights of the citizens are concerned, those are
SMC 16/2011 ETC. 78
to be enforced by the Executive and if it fails to do so, they have to
face the consequences envisaged by the Constitution. The Executive
functionaries who have also taken oaths both in the Province and
Federation to protect and preserve the Constitution cannot be allowed
to defeat any provision of the Constitution, whatever the
circumstances may be. At this juncture, reference to Article 5 of the
Constitution is relevant and appropriate, which commands that loyalty
to State is the basic duty of every citizen and obedience to the
Constitution and law is the inviolable obligation of every citizen
wherever he may be, and of every other person for the time being
within Pakistan. Thus, the Executive/public functionaries are bound to
enforce the Constitution while protecting the Fundamental Rights of
the citizens without any fear or favour or compromise for subjective
purpose. Reference in this behalf may be made to the cases of Abdul
Majeed Zafar v. Governor of Punjab (2007 SCMR 330) and Ch. Zahur
Ilahi v. Zulfiqar Ali Bhutto (PLD 1975 SC 383). In the last mentioned
judgment, the question before the Court was with regard to initiating
proceedings of contempt of Court against the then Prime Minister,
Zulfiqar Ali Bhutto, vis-à-vis the position of such office holder as well
as the immunity under Article 248 of the Constitution, when this Court
held that even a Prime Minister is, under clause (2) of Article 5 of the
Constitution, bound to obey the Constitution and law as that is the
basic obligation of every citizen. Whereas, in the instant proceedings
without claiming any immunity whatsoever, the Prime Minister as well
as the Chief Minister both are bound to follow the Constitution under
Article 5(2) by ensuring security and safety of persons and property of
the citizens. An argument could be raised that since the responsibility
for incidents of violence, commission of crimes, bloodshed and looting
SMC 16/2011 ETC. 79
occurring in the society lies on criminals, who are to be held
responsible and punished by the Courts of law, as such, in the instant
case as well, the law enforcing agencies are performing their duties
causing arrests of the accused persons to be put on trial in accordance
with law. In our considered opinion, a line of distinction has to be
drawn in the cases where there is insurgency in any part of the
country and commission of crimes by the individuals for their personal
enmities and other motives, and commission of crimes in the shape of
a turf war by various groups allegedly having support of political
parties to secure their vested interests, vis-à-vis unlawful gains. Such
groups represent the organizations/gangs of criminals, drug mafias,
land grabbers, etc., who operate against each other to have control
over different areas of the city, considering themselves as warlords
and obstruct entry of rival groups in each other’s area.
68. At this stage, reference to the application of Mr. Javed
Ahmed Chhatari Advocate, appearing in person in CMA No. 558K/
2011 may be made with which he has appended a coloured copy of
the map to highlight the respective areas under the control of
Pashtuns and Urdu speaking communities, divided by a hill. Allegedly,
the Pashtuns are inhabitants on the upper side of the hill whereas the
Urdu speaking people and other communities are living across and in
the bottom of the same, and whenever a dispute arises, according to
Mr. Chhattari, the Pashtuns take benefit of their location on the high
side of the hill and manage to kill Muhajirs (Urdu speaking). He has
also submitted a list of police stations, 112 in number, along with
details of different communities living in their respective jurisdictions.
For convenience, the same is reproduced herein below: -
S.No. Name of Police Station Nature of Population
SMC 16/2011 ETC. 80
1. 1. Peerabad
2. Manghopir
3. Mochko
4. Mominabad
5. Site Section A
6. Site Section B
7. Baldia Town Pukhtoon Majority Police
8. Saeedabad Stations
9. Sohrab Goth
10. Gulzar-e-Hijri
11. Qaidabad
12. Sohrab Goth
13. Bilal Colony
2. 1. Bahadurabad
2. Nazimabad
3. Rizvia
4. Gulbahar
5. Super Market
6. Liaquatabad
7. Sharifabad
8. Gulberg
9. Yousuf Plaza
10. Azizabad
11. Joharabad
12. Samanabad
13. New Karachi
Mahajir Majority Police
Stations
14. Sir Syed Town
15. Preedy
16. Orangi Town
17. Pakistan Bazar
18. Landi
19. Korangi
20. Zaman Town
21. Saudabad
22. Orangi Ext.
23. Shah Faisal
3. 1. Chakiwara
2. Bagdadi
3. Kala Kot
4. Eid Gah
5. TPX
6. Gaddap Town
7. Ibrahim Haidry
8. Malir City Baloch and Sindhi
9. Memon Goth Majority Police Stations
10. Bin Qasim
11. Docks
12. Kalri
13. Malir Cantt:
14. Nepare
15. Sharafi Goth
4. 1. Mari Pur
2. Jackson
3. Surjani Town
4. Gulshan-e-Iqbal
5. Gulistan-e-Johar
6. Shar-e-Faisal
7. Shar-e-Noorjehan
8. Sher Shah
SMC 16/2011 ETC. 81
9. Sharfi Goth
10. Mehmoodabad
11. Baloch Colony
12. Ferozabad
13. Defence
14. Clifton
15. Gizri
16. Boat Basin
17. Artillery Maidan Mix Community
18. Sadar Populated Area Police
19. Air Port Stations
20. Civil Line
21. Darakshan
22. Frere
23. Gulzar-e-Hijri
24. Garden
25. Jamshed Quarter
26. Kharadar
27. Methdar
28. Korangi I. Area
29. Khokra Par
30. Khawaja A Nagri
31. Model Colony
32. Nabi Bux
33. New Town
34. New Karachi I Area
35. Risala
36. Soldier Bazar
37. Sukhan
38. Steel Town
39. Sachal
40. Tepu Sultan
41. Gulshan-e-Maymar
Thus, according to Mr. Chhattari, the dispute is not confined to
individuals, but mostly extends to three communities i.e. Muhajirs,
who normally speak Urdu, Pashtuns and Balochs, all of whom try to
achieve their nefarious objects by committing murders by way of
vengeance and as a matter of tit for tat. The Pakistan People’s Party
Parliamentarians (PPPP) being the majority party in the Provincial
Assembly of Sindh is the leading parliamentary party, whereas the
MQM is the next majority party in the said Assembly. According to the
learned counsel appearing on behalf of MQM, out of total 42 seats of
MQM in the Provincial Assembly of Sindh, it has 34 seats from Karachi,
and ANP has only 2 seats, whereas PPPP alone has 93 seats, which
even otherwise is sufficient to form government in the Province.
SMC 16/2011 ETC. 82
However, according to him, for the reasons best known to the political
groups or their leaders, a coalition government has been formed.
69. Dr. Farogh Naseem, ASC has filed an application on behalf
of MQM, contents whereof are reproduced hereinbelow: -
“14. The Applicant supports an action against all the
criminal elements across the board without any fear,
favour or affiliation. The Applicant shuns any form of
terrorism and intolerance and requests this Hon’ble Court
to pass corrective orders and some suggestions in this
regard are stated below in the prayer clause, while some
will be furnished at the time arguments.
17. The land, arms and drug mafia predominantly thrive
upon unrest in the city. The failure of law enforcement
agencies is a safe haven for such mafias, which encroach
upon state land and their whereabouts are not traceable,
and, therefore, it is imperative that proper survey and
investigation is carried out so as to discover the areas and
pockets of state land which are encroached and the law
enforcement agencies are employed to evict them from
such state land, whereafter the perpetrators are
prosecuted.”
When we inquired from him as to why precautionary measures were
not taken by the party being represented by him to control the law
and order situation, he invited our attention towards Para No.7 of his
CMA. It is important to note that one of the most important
statements of fact has been made on behalf of MQM in Para No.14
above, and at the same time he has orally stated that in view of the
circumstances prevailing in Karachi, he concedes that the
Government has failed to enforce Fundamental Rights of the
citizens. In respect of presence of land and drug mafia, an explicit
offer has been made in Para No. 17 reproduced above. As far as
jurisdiction of this Court under Article 184(3) is concerned, he has
conceded that because the instant proceedings are inquisitorial,
therefore, in view of the judgments in the cases of Benazir Bhutto v.
Federation of Pakistan (PLD 1988 SC 416), Darshan Masih v. the State
SMC 16/2011 ETC. 83
(PLD 1990 SC 513), S.P. Gupta v. President of India (AIR 1982 SC
149) and People's Union for Democratic Rights (AIR 1982 SC 1473),
this Court, in the interest of public, has jurisdiction to adjudicate upon
such a matter. He further argued that unless de-politicization of the
law enforcing agencies takes place and neutral investigation bodies are
constituted for the purpose of conducting transparent proceedings
following the due process of law as contemplated under Article 10A of
the Constitution and to supervise such independent bodies, unless a
Judge of the High Court is appointed to monitor the proceedings of
each case, it would neither be possible to bring the culprits to book
involved in the commission of crimes nor justice would be done. In this
very context, he has also relied upon Vineet Narain v. Union of India
[(1996) 2 SCC 199], State of Bihar v. Ranchi Zila Samta Party [(1996)
3 SCC 682], Anukul Chandra Pradhan v. Union of India [(1996) 6 SCC
354], Union of India v. Sushil Kumar Modi [(1996) 6 SCC 500], Union
of India v. Sushil Kumar Modi [(1997) 4 SCC 770], Dinesh Trivedi,
M.P. v. Union of India [(1997) 4 SCC 306], and Khan Asfand Yar Wali
v. Federation of Pakistan (PLD 2001 SC 607). Learned counsel, instead
of defending the situation prevailing in the city, has made two very
important admissions on behalf of MQM, which are evident from the
contents of the application reproduced hereinabove.
70. The third most important admission from the coalition
partner of the Government is that it has failed to enforce the
Fundamental Rights of the citizens and suggested that it be held that
under no political expediency or consideration, the Provincial or
Federal Government should allow bloodshed, arson,
kidnapping/abduction for ransom, widespread violence, illegal
collection of money (bhatta) from traders, etc., to continue in violation
SMC 16/2011 ETC. 84
of Articles 9, 14, 15, 18 and 24 of the Constitution or to encourage the
land grabbers, drug mafias and gangs of organized criminals who are
brutally committing murders by cutting necks and limbs of innocent
people and throwing their torsos in the streets. Even if there is any
expediency, it cannot be allowed to prevail at any cost, whatsoever the
consideration may be, is the most important admission. Besides, it has
been pointed out that except learned counsel appearing for the
Government i.e. M/s Abdul Hafeez Pirzada and Babar Awan, learned
Sr. ASCs, all the learned counsel for the applicants/interveners, loudly
and clearly, with logical reason based on facts, have conceded that the
Government has failed to combat and eradicate crimes and to protect
Fundamental Rights of the citizens. The nature of the crimes and the
horrible acts being shown on DVDs of a torture cell detected by the
Rangers in the area of Lyari, as per statement of IGP are hair-raising
wherein the criminals are shown cutting throats of persons with blunt
knives and committing sodomy. Obviously, this all shows that the
Executive/Provincial Government has not dealt with the criminals with
an iron hand. Had the Government done so, innocent persons would
not have been deprived of their lives, liberties and properties and their
dignity would have been saved. It has been mentioned time and again
that allowing such incidents without any resistance for the last so
many years, and more particularly in the recent months of July and
August, 2011, relevant details whereof have been obtained, is beyond
comprehension. We may observe here that it is not the question who
succeeds in forming the government both in the Centre and the
Province, but here the question is of defending the Fundamental Rights
of the citizens. The Executive Authorities cannot be allowed to be
negligent to an extent where ultimately the sovereignty and integrity
SMC 16/2011 ETC. 85
of the country is jeopardized. Availability of heavy and light arms and
ammunition, such as pistols, revolvers, rocket launchers, MG, LMGs,
etc., in fact, has turned Karachi into a volcano, which can erupt at any
moment, and then it would not be possible for the Executive to control
the same. There are voices from different quarters, including the
learned counsel appearing for the interveners that the Government
should have initiated action for de-weaponization. In this behalf, Mr.
Farogh Naseem, ASC has stated that a private Bill, namely, the Deweaponization
of Pakistan Bill, 2011 has been moved by the MQM in
the National Assembly, which is still pending with the Assembly.
71. Dr. Babar Awan, learned counsel for the Federation and
learned Advocate General, Sindh were called upon to explain as to how
many licenses of prohibited and non-prohibited weapons have been
issued by the Federal and the Provincial Government of Sindh during
the last five years. Both of them filed the reports indicating that
180956 licenses of non-prohibited bore were issued by the Home
Department, Government of Sindh whereas 46114 licenses of
prohibited bore and 1,202,470 licenses of non-prohibited bore were
issued by the Ministry of Interior, Government of Pakistan. It is to be
noted that usually crimes are not committed with licenced weapons as
the criminal perpetrators use un-licenced weapons for the same.
72. As it has been pointed out hereinabove that in the past in
an identical situation, the constitutionally elected President of Pakistan
had dismissed the Governments and such orders were maintained up
to the Supreme Court, reference of which has already been made
hereinabove. It is important to mention at this stage that whosoever is
ruling the country under the Constitution, he being the Leader of the
House, is bound to know the constitutional commitments and
SMC 16/2011 ETC. 86
provisions of law because of the fact that he or they have taken
oath(s) to preserve, protect and defend the Constitution, including
Fundamental Rights as well as to show obedience to the Constitution
and law under Article 5(2) notwithstanding their holding of any high
office, as held in Zuhor Ilahi’s case (ibid).
73. We may reiterate here that now it is not possible under the
Constitution and law for the Armed Forces to dismiss the Government
by adopting extra-constitutional measures, detailed reference in this
behalf, if required, can be made to the only judgment of this Court in
Sindh High Court Bar Association’s case (ibid), but at the same time
the chosen representatives also owe a duty to the Constitution and if
they feel that on account of any political expediency they can allow the
continuance of the present position of law and order in the Province, it
will be at their own risk and cost, otherwise under the Constitution
they are bound to secure lives and properties, ensuring the proprietary
rights, freedom of movement, etc., and failing which constitutionally
such government is likely to lose their right of ruling.
74. Ms. Asma Jehangir Advocate, in her statement, on the
basis of report of Special Branch of Sindh Police, wherein names of
persons belonging to different political parties including PPPP, MQM,
etc. involved in the collection of bhatta have been mentioned showed
her concern and stated that it is an eye opener for the Government
and despite such information, no action has been taken by the police.
We have no reason to differ with her, and we are constrained to hold
for this reason as well that unwillingness of the police force to combat
crime could be one of the reasons on account of which criminals are let
loose in the society and encouraged to commit crimes.
SMC 16/2011 ETC. 87
75. According to the assertion of Ms. Asma Jehangir Advocate,
the law enforcing agencies have shown slackness in initiating action for
extending powers to the Rangers and others, which, according to her,
is evident from the parawise comments filed by the Chief Secretary.
We have already discussed this aspect of the matter; however, we
would share the concerns expressed by her. Actually, as it has been
pointed out hereinabove, the situation could have been controlled
conveniently, if the police had taken prompt action with full
commitment, but in view of the statement of IGP that 30 to 40 percent
police officials are not cooperating for the reasons already noted
hereinabove, and no expectation could be made from them, unless the
whole police is de-politicized by transferring the police officers of the
rank of DSP and above to their parent departments, and by
discontinuing the practice of allowing retired officers to join police on
contract basis or bringing persons from other departments in the
police department is discarded. In fact, by way of passing remarks, it
may be observed that apart from the police department, the situation
perhaps is worse in other departments as well, because appointments
on the basis of unauthorized absorptions of different officers in the
provincial and district Administration were made by the Government
and a Division Bench of Sindh High Court in Constitution Petition
No.932-D/2009 set aside such appointments by way of cancelling the
orders of such appointments. The persons who were aggrieved by the
decision of the High Court preferred petitions for leave to appeal,
which were converted into Civil Appeals 404-406/2011 etc. But, in the
meanwhile, Sindh Assembly passed the Sindh Civil Servants
(Regularization of Absorption) Act, 2011 whereby the
transfers/absorptions on permanent basis of such officers against
SMC 16/2011 ETC. 88
regular posts were declared regular notwithstanding any judgment of
any Court, as a result whereof the appeals so filed were withdrawn and
stood disposed of vide order dated 16.06.2011.
76. Mr. Muhammad Aqil, President of Karachi Bar Association,
Mr. Iftikhar Javed Qazi, Vice Chairman, Sindh Bar Council and Syed
Haider Imam Rizvi, General Secretary, Karachi Bar Association
appeared in CMA No. 532-K/2011 and stated that about 19 Advocates
have also been brutally murdered by criminals and so far no action has
been taken by the law enforcing agencies. Their arguments were
augmented by Mr. Faisal Kamal, learned ASC who has filed an
application on behalf of the PML(N), and according to him, two
Advocates who were supporters of PML(N) were also murdered. It is to
be noted that as per information supplied, following Advocates so far
have been killed in different incidents, during the last few years: -
1. Mr. Sardar Zulfiqar
2. Mr. Muhammad Hanif Khan
3. Mr. Altaf Hussain
4. Mr. Liaqat Qureshi
5. Mr.Nazar Abbas
6. Mr. Muhammad Kamal
7. Mr. S. M. Zia Alam
8. Syed Mukhtar Abbas Bukhari
9. Mr. Muhammad Junaid
10. Mr. Fahim Riaz Siddiqui
11. Mr. Muhammad Saleem Bhatti
12. Mr. Muhammad Murtaza Chinnoy
13. Mr. Nazeer Ahmed Khuhawar
14. Mr. Ali Muhammad Dahiri
15. Mr. Muhamma Aslam Burioro
77. It is pertinent to mention here that in some of the cases,
FIRs have been registered, but the accused persons have remained
SMC 16/2011 ETC. 89
untraced. We agree with the learned counsel that if the lives of
Advocates are not safe at the hands of the culprits, a set back is likely
to be caused to the profession of law, which is an important tool in the
system of administration of justice. However, the learned Advocate
General assured that the matter will be looked into and all efforts will
be made to bring the culprits to justice. He has also stated that the
Government of Sindh has agreed to pay compensation of
Rs.5,00,000/- and one plot to the families/legal heirs of the deceased
Advocates. As far as the payment of compensation is concerned,
according to him, the claims have already been approved by the
Government of Sindh whereas the process of allotment of plots is in
progress. The learned representatives of the Advocates, however,
requested for enhancement of compensation as according to them,
such lawyers have also been killed in the course of performance of
their professional duties and according to the Government Policy, a
sum of Rs.20,00,000/-is paid to the families of the police
officers/officials who have sacrificed their lives while combating crimes.
We do agree with the learned counsel for enhancement of
compensation in view of the two judgments, which have been cited by
Mr. Farogh Naseem, ASC. This Court, in exercise of its jurisdiction
under Article 184(3) of the Constitution, has also ordered payment of
compensation in the case of Saad Mazhar v. Capital Development
Authority (2005 SCMR 1973) to the residents of Margalla Towers,
which collapsed in the earthquake of September, 2005. However, in
the instant case, this Court perhaps would not be in a position to issue
any direction except observing that the cases of the Advocates,
belonging to legal fraternity and being one of the important
components of the system of administration of justice, if they lay their
SMC 16/2011 ETC. 90
lives on account of prevailing law and order situation in the city,
without any fault on their part and also not on account of any personal
enmity, deserve to be dealt with at par with the police officials who
have sacrificed their lives in combating crime. The Government of
Sindh may consider change in the Policy for the payment of
compensation and grant of a plot of land to their families.
78. It may be pointed out that immediately after the
commencement of hearing of the case, one Barrister Murtaza Chinnoy,
Advocate was assassinated in his office. The office bearers of the Sindh
High Court Bar Association and Karachi Bar Association pointed out
this fact to the Bench, therefore, the IGP Sindh was directed to take
personal interest in the matter, and later it was informed that accused
persons have been arrested and prima facie their involvement in the
murder case is on account of dacoity, as allegedly he was robbed and
looted. Similarly, another Advocate, namely, Faheem-ul-Karim along
with a lady and another person was killed in a flat and police was
directed to expedite the investigation. Mr. Tariq Dharejo, SP Clifton
submitted a report to the effect that accused persons are likely to be
booked soon in this case as well. Mr. Faisal Kamal Alam, ASC who
appeared on behalf of PML(N) also expressed his grievance in respect
of killing of workers of the political party being represented by him,
including two Advocates and argued that the Government had failed to
enforce the Fundamental Rights of the citizens under Article 9 of the
Constitution, which has been elaborately interpreted by this Court in
the cases of Shehla Zia and Benazir Bhutto (ibid). His grievance is that
although the FIRs have been registered, but so far accused persons
have not been arrested. As far as the enjoyment of the protection of
life and property enshrined in Article 9 of the Constitution is
SMC 16/2011 ETC. 91
concerned, there is no cavil with the proposition as this issue has been
discussed elaborately hereinabove with reference to the case of Shehla
Zia, but so far as judgment in the case of Benazir Bhutto, handed
down by a 7-Member Bench of this Court, a Bench larger than the
present Bench hearing the instant case, wherein dismissal of
Government of Mohtarama Benazir Bhutto and dissolution of
Assemblies was challenged is concerned, it is to be noted that the
President of Pakistan, in exercise of powers under Article 58(2)(b) of
the Constitution, dissolved her Government and in his speech to the
Parliament on 29.10.1995 warned that law enforcing agencies must
ensure that there would be no harassment of innocent people in the
fight against terrorism and human and legal rights of persons are to be
duly protected. This advice was not heeded to and killings continued
unabated. The Government’s fundamental duty to maintain law and
order situation has to be performed by proceeding in accordance with
law. In consequence of this judgment, the Dissolution Order was
maintained by a 7-Member Bench of this Court. If similar
circumstances prevail today, we would be bound by that ruling. We
may observe here at the cost of repetition that under Article 148(3) of
the Constitution, the Federal Government is bound to assist the
Provincial Government during the period of disturbances.
79. Ms. Asma Jehangir, President, Supreme Court Bar
Association argued that in view of the acute law and order situation
prevailing in Karachi, a change in the mindset for improving the
investigation and introducing the witness protection system is called
for. Her voice has been appreciated by the other representatives of the
Bar Associations, including Mr. Ashraf Samoo, President Malir Bar
Association who appeared in CMA No.560-K/2011 and pointed out that
SMC 16/2011 ETC. 92
the Government functionaries did not perform their duties due to fear
of death at the hands of the criminals, inasmuch as, such incidents
had already occurred and about 92 police officials who participated in
the Operation Clean up of 1992 had been murdered through target
killing. Therefore, under the circumstances, now the investigating
officers are not ready to conduct investigation independently nor the
witnesses dare to come forward because they do not get protection as
already stated by the President of the Supreme Court Bar Association.
In absence of any evidence, it is not possible to accept the statement
that 92 police officers, who participated in the 1992 Operation Clean
up have been murdered. It can only be considered a factor, but at the
same time we, during hearing of the cases, looking to the trend of
investigation of cases as well as the morale of the police, have no
reason except to agree with the learned President of the Supreme
Court Bar Association and other representatives of the lawyers coupled
with the statement of IGP Sindh that about 30 to 40 percent police
officers/officials are non-cooperative.
80. In all the civilized countries where hardened criminals are
brought before the Court, full protection is provided to the witnesses
so that they may not feel frightened while deposing the truth, but
unfortunately, no such programme is available throughout the country
despite the commission of offences, which seem to have taken place
and the criminals have gone Scot free because nobody dares to
depose against them and ultimately the blame is shifted to the Courts
for acquitting them. In the present incidents, we have noted with
concern that most of the FIRs have been registered against unknown
persons and the police officers in the garb of section 173 Cr.P.C.
wherein they are required to submit the challan within 14 days,
SMC 16/2011 ETC. 93
instead of filing interim challan, make request to the court to enlarge
the period of investigation and after seeking permission feel satisfied
in getting the FIR cancelled after declaring it as an “A” class case. As it
has been noted hereinabove, comparative table of the FIRs registered
during one month’s period indicates that most of the cases have
already been declared as “A” class. So far remaining cases are
concerned, no effective progress seems to have been made, may be
on account of non-commitment of the investigating officers, or for the
reasons that no witness is ready to come forward. The situation in the
city has gone from bad to worse to the extent that on our direction 18
persons, who were abducted, were recovered by the police. Prima
facie, such abductees were not recovered prior to the direction of this
Court because no police official was in a position to afford enmity with
the criminals. The statements of two of such persons are reproduced
hereinabove.
81. Thus, in view of such state of affairs, how could one
believe that, in presence of the overwhelming material, which has
been brought before this Court in daily situation reports, reports of
Special Branch, IB and other sources as well as material discussed
hereinabove, the criminals will be punished for the crimes, which they
have committed. Therefore, under the circumstances, change in the
investigation and improvement in the prosecution system is sine qua
non, and that too, through de-politicized, honest and competent
officers. In absence thereof the accused persons shall be encouraged if
they are arrested but not sentenced knowing fully well that they
though have brutally killed so many persons in violation of the
Fundamental Rights of the victims, nothing would come of this
barbarity.
SMC 16/2011 ETC. 94
82. Learned office bearers of both the Bar Associations noted
above also pointed out that six Special Courts under the Anti Terrorism
Act 1997 were lying vacant for the last several months despite the fact
that the Chief Justice of High Court of Sindh was continuously pressing
hard for the appointment of Presiding Officers in these Courts.
Inasmuch as, Mr. Justice Javed Iqbal, former Judge of this Court, who
was nominated as Judge to monitor the cases of Anti-Terrorism Courts
for Karachi, in view of the observations made in the case of Liaqat
Hussain (supra), had taken up the matter with the concerned
authorities to ensure early appointment of the Presiding Officers, but
no progress was made. This judgment, however, also contains
directions which were incorporated in the judicial order to ensure
expeditious disposal of cases, but it seems that the concerned
authorities were not aware of the same. When we asked the learned
Advocate General, Mr. Abdul Fattah Malik to explain the position of the
Government, he candidly conceded that delay has been caused in not
making the appointment, but as there is no difference between the
Chief Minister and Chief Justice of the High Court on the appointment
of Judges already recommended, therefore, notification would be
issued within two days. Consequently, on 07.09.2011, all the six
Judges were appointed vide notification issued by the Government of
Sindh. It is to be noted that the Competent Authority of the Province
had to make the appointments on the basis of recommendations u/s
14 of the Anti-Terrorism Act, 1997. Admittedly, in the instant case
recommendations were lying with the Competent Authority since long,
but it failed to make the appointments and reasons of the same have
not been disclosed by the learned Advocate General except stating
that some delay has occurred. In the case of Liaqat Hussain (supra),
SMC 16/2011 ETC. 95
this Court had taken upon itself the exercise of monitoring the
functioning of Anti-Terrorism Courts through a nominee of the Chief
Justice, therefore, vacancies of such Presiding Officers cannot be left
un-filled for an indefinite period of time and the appointments have to
be made as early as possible instead of causing the delay for one or
the other reason. However, as now appointments have taken place
and reportedly these officers have joined duty, we are confident that in
future such appointments, subject to availability of the vacancies, will
be made promptly.
83. Mr. Ghulam Qadir Jatoi, ASC appeared in CMA No.533K/
2011 and highlighted his grievance that one deceased Junaid Zaidi
kidnapped in the month of April, 2011 by the terrorists/killers was
severely tortured and was killed and his dead body was thrown on
Katchra Kundi. Case has been registered u/s 302/34 PPC vide FIR No.
57 of 2011 in Malir Cantt. Police Station. Similarly, one Ayub Ali was
killed/murdered in the month of July, 2011 by the terrorists after
entering into his house when he was giving Dars-e-Quran, as such FIR
No.194/2011 was lodged at Brigade Police Station u/s 302/34 PPC.
This application was followed by another application wherein
documents were filed to establish allegations against the sovereignty
of Pakistan attributing to Altaf Hussain, leader of MQM along with two
CDs. Yet another application has been filed for summoning Dr. Zulfiqar
Mirza, former Home Minister, Government of Sindh, who according to
him, had deposed on Holy Quran against MQM. We have pointed out to
the learned counsel that he should have filed affidavit of Dr. Zulfiqar
Mirza and also brought to his notice that instant proceedings are not
adversarial but inquisitorial, which have been initiated in the public
interest. However, the issue being raised by him is of important nature
SMC 16/2011 ETC. 96
and if he too considers it so, he can adopt the proper course for the
redressal of his grievance in accordance with law. We have also
pointed out that by the time it is established that Dr. Zulfiqar Mirza’s
statement in the newspapers has not been controverted by anyone,
therefore, the same will be presumed to have been accepted as it is
held in the case of Dr. Mobashir Hussan v. Federation of Pakistan (PLD
2010 SC 265). He also emphasized that murder of a man in view of
the Islamic injunctions is tantamount to murder of the entire
humanity, therefore, murders of all those persons, who have been
killed in Karachi without any reasons being Masoom-ud-Dum clearly
indicate failure of the Provincial Government. As far as Islamic
injunctions with regard to killing of an innocent person is concerned,
there could not be any two opinions. This injunction of Islam has been
elaborately discussed in the case of Federation of Pakistan v. Gul
Hassan Khan (PLD 1989 SC 633). However, a criminal case in
adversarial proceedings is likely to be decided on merits after
recording of evidence.
84. Mr. Ghulam Qadir Jatoi, learned ASC referred to the case
of Sardar Farooq Ahmad Khan Leghari v. Federation of Pakistan (PLD
1999 SC 57) and contended that the Judges of the Superior Courts
who have taken oath to protect the Constitution are bound to enforce
Fundamental Rights conferred by the Constitution and ensure that the
provisions of the Constitution are fully alive and operative. It is to be
noted that in the aforesaid reported judgment the Proclamation of
Emergency dated 28.05.1998, promulgated under Article 233(1) of the
Constitution, was questioned and the Court concluded that it was
sufficient to hold that prima facie there was some material on the basis
of which the President could issue the impugned Proclamation of
SMC 16/2011 ETC. 97
Emergency on account of imminent danger of external aggression.
However, the same did not warrant passing of an order under clause
(2) of Article 233 of the Constitution suspending the enforcement of
the Fundamental Rights. To strengthen this argument one of the
reasons assigned in the later part of the judgment was that in spite of
suspension of enforcement of certain Fundamental Rights under clause
(2) of Article 233 of the Constitution, Article 4 thereof remained fully
operative, which laid down that 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 would be taken
except in accordance with law. Therefore, according to the learned
counsel, Fundamental Rights of the citizens of Karachi have to be
enforced by the Court in the discharge of judicial functions. We have
no cavil with the proposition and fully endorse the arguments of the
learned counsel. He has also relied upon the case of Syed Jalal
Mehmood Shah v. Federation of Pakistan (PLD 1999 SC 395). In this
case, the order dated 30.10.1998 issued by the Federal Government
under paragraph (c) of clause (2) of Article 232 of the Constitution,
pursuant to the declaration of Proclamation of Emergency dated
28.05.1998 under Article 232 of the Constitution was challenged. The
order referred hereinbefore was followed by another order dated
10.11.1998, issued by the Federal Government, in pursuance whereof
the operation of Article 54 read with Article 127 relating to summoning
and prorogation of the Provincial Assembly was suspended; however,
no question with regard to the enforcement of Fundamental Rights was
involved, therefore, the cited judgment in view of the facts and
SMC 16/2011 ETC. 98
circumstances of the present case is not applicable. He further
contended that Jamat-e-Islami had issued a White Paper according to
which sufferings of the citizens of Karachi were on account of
commission of heinous crimes in the city since 1985, which were being
committed by one party (MQM) and it was admitted and declared by
the Government, that serious lawful action was, therefore, taken
against them by the Government.
85. Similarly, Awami Tehrik Party, through its President Mr.
Rasool Bux Palijo, during the arguments stated that MQM was
responsible for target killing, attacks on the police, etc., and that MQM
was a challenge to the country, therefore, a ban be imposed on this
party as innocent people were suffering at their hands and people
were so overawed that due to fear created by them, no body was
ready to go before the police. He maintained that the people of Karachi
are absolutely insecure, as such, ways and means be found out to give
relief to them otherwise there was every likelihood that in the ultimate
result there could be uncontrollable anarchy as the people in the town
finding themselves without protection to their dignity, life, liberty and
property might, as a last resort, take the law in their hands.
86. Mr. Irfan Ullah Marwat, petitioner, who appeared in person
being the President of Pashtun Punjabi Ittehad too, raised similar voice
against MQM.
87. From the material so brought on record, namely, reports of
the JIT filed by Syed Iftikhar Hussain Gillani, learned ASC, report
submitted by the Provincial Government prepared by its Special
Branch, report of the IB and information collected from other credible
sources during in camera briefing by ISI does highlight the role of the
stakeholders and political parties, namely, ANP, PPP, MQM, Sunni
SMC 16/2011 ETC. 99
Tehrik, Jamat-e-Islami, etc. that in the ranks of these political parties,
criminals have succeeded in making their way, some of whom are now
involved in target killing, land grabbing, drug mafia, recovery of bhutta
as well as forcible recovery of skins of animals during Eid-ul-Azha and
due to their vested interests, there is a turf war. In this context the
following statement of Mr. Rehman Malik Federal Interior Minister
published in Daily Dawn dated 13.09.2011 is quite pertinent: -
“Interior Minister Rehman Malik said on Tuesday that
‘criminals’ arrested in Karachi during the current operation
belonged to all political parties.
The government has evidences (audio and video tapes)
against them which will be made public if permitted by the
Supreme Court.
“I will consult with the federation’s lawyer, Babar Awan,
about getting permission from the Supreme Court to make
the names of criminals public,” he told reporters at the
National Press Club.
Although, he said, the people arrested in Karachi belonged
to all political parties, he was of the view that they had not
been recruited by the parties, but they somehow managed
to get refuge in them after committing crimes.
He said that police and Rangers had arrested 48 target
killers, 90 criminals and 28 extortionists and seized 308
weapons.
The operation, he said, was being carried out without any
discrimination, with the sole objective being to restore
normality and peace in the city.
Expressing satisfaction over the way the operation was
being carried out, he said there were ‘no-go areas’ in the
city and police and Rangers were free to take action even
in such areas where they could not enter in the past.
Mr. Malik said flags of political parties had been removed in
various places and around 14,000 acres of land occupied
by the land mafia had been recovered.
Rebuffing allegations leveled by the Leader of Opposition in
the National Assembly, Mr. Malik said that he had no links
with any terrorist. He said he had good relations with the
Muttahida Qaumi Movement which was in parliament with
people’s mandate.
SMC 16/2011 ETC. 100
“It will be unjustified to declare any political party
‘terrorist’ without any evidence,” he said.
Commenting on an allegation leveled against him by PPP
leader Zulfikar Mirza, he said he had not released any
criminal in Karachi and if anyone had evidence he could
present in the court.
The minister claimed that no foreign security agency was
operating in the country, adding that he had advised
foreigners to visit only permitted areas because of security
concerns.
He said a committee had been formed to probe an incident
in which journalists of a private TV channel had been
tortured by some unidentified elements. Action will be
taken on the basis of findings of this committee.
“A judicial commission was formed on the demand of
journalists to probe into the killing of Saleem Shehzad and
the commission has submitted its report to the interior
ministry which I have handed over to NPC’s President Afzal
Butt,” he said.
The minister said that four people had been arrested in the
case about murder of journalist Wali Khan Babar.”
Inasmuch as, the Prime Minister also admitted more than once that
PPP men were also involved in violence in Karachi. Reference is made
to the news item published in The News International dated
25.08.2011:-
“Prime Minister Yusuf Raza Gilani on Wednesday ruled out
a military operation in Karachi unless all other options
were exhausted first but admitted before his cabinet
colleagues that PPP men were also involved in the Karachi
killings.
A cabinet minister confided to The News that the prime
minister told the cabinet meeting that the law enforcement
agencies in Karachi were confident to control the
deteriorating law and order situation in the city in just a
fortnight’s time provided they were given a free hand.
However, the minister did not explain if the much-
demanded free hand is being given to the law enforcers to
apprehend and punish the criminal elements there without
any fear and favour.
Prime Minister Gilani despite being chief executive is not
relevant on key policy and administrative matters including
Karachi politics as the Presidency is calling the shots and
takes decisions on such matters.
SMC 16/2011 ETC. 101
The prime minister, according to the source, said that the
law enforcement agencies are seeking a free hand and
demanding that there should be no political interference
from any side to ensure early peace and stop target
killings. Political interference and the backing of criminals
and killers by the political parties are seen as the major
hurdles in the way of durable peace in the city.
Briefing the cabinet about the Karachi situation, the prime
minister admitted that besides the MQM and ANP, the PPP
men whom Gilani described as “our men” are also involved
in the Karachi killings.
The cabinet ministers were almost unanimous to demand
that the law enforcement agencies should be given a free
hand to get hold of the criminals, target killers and
gangsters irrespective of their party affiliation.
Some of the ministers even demanded that the information
regarding such criminals, killers and gangsters should be
made public without any political considerations. The
cabinet was told that there are nine troubled areas in
Karachi which require focus of the law enforcers to check
crime and curb target killing.
The prime minister while referring to a demand for the
deployment of army in Karachi to launch operations
against the criminal elements said that the government
would not deploy the army in Karachi till the time all other
options were availed.
The cabinet source disclosed that the Sindh government is
also unhappy with the interference from the federal
government through interior minister into the Karachi
situation. The source said that Prime Minister Gilani
sounded the provincial government’s urge to let it settle
the problem that falls within the provincial domain.
Only recently provincial minister Dr Zulfikar Mirza is said to
have blasted the interior minister during a high-level
official meeting in Karachi for the latter’s uncalled for
interference into the Karachi affairs. Later, however, Mirza
was summoned to Islamabad by President Zardari and put
up a media show with Rehman Malik to show that there
was no ill will between them.”
Similarly, the President of Pakistan is fully aware of the situation as it
is evident from various news items appearing in different newspapers.
88. As all the stakeholders are desirous of maintaining their
hold on the economic resources of Karachi, therefore, it is imperative
for all concerned to take necessary steps and disband the militant
SMC 16/2011 ETC. 102
outfits voluntarily for the sake of Karachi as well as this country
because on account of their criminal activities a loss of about 2.5
billion is being caused daily to the Government and ultimately this
burden is passed on to the general public. All the circumstances which
are prevailing in Karachi based on credible information seem to be
very serious and if the situation of law and order is not
controlled/improved, happening of a major debacle in Karachi city
cannot be overruled, therefore, it is high time for the politicians in
particular to co-operate with each other for making Karachi a peaceful
city.
89. As for as banning of MQM is concerned on the basis of the
material and the other information placed before us as well as the
statement of Dr. Zulfiqar Mirza, former Home Minister, Government of
Sindh, which is sought to be produced by Mr. Ghulam Qadir Jatoi, it
may be observed, subject to all just exceptions, that the instant
probono publico proceedings, which are essentially inquisitorial in
nature, cannot be allowed to assume an adversarial character.
90. Moreover, under Article 17(2) it is the duty of the Federal
Government to declare that a political party has been formed or is
operating in a manner prejudicial to the sovereignty or integrity of
Pakistan and within fifteen days of such declaration, refer the matter
to the Supreme Court whose decision on such reference shall be final,
therefore, no further comment on this aspect of the case, lest it may
cause prejudice to any of the parties, is called for.
91. According to the available record, land grabbing is one of
the factors responsible for causing disturbances in Karachi and there is
no denial by anyone appearing before the Court. Same position is in
respect of drug trafficking, etc. Crimes are also being committed at
SMC 16/2011 ETC.
103
large scale by foreign nationals – nearly 2.5 million in number –
belonging to different countries including Bangladesh, Burma, India,
etc. As far as the question of de-weaponization is concerned, no one
amongst the interveners has opposed it, therefore, a methodology has
to be devised by the Government by following the law on the subject
i.e. Surrender of Illicit Arms Act, 1991, and/or if need be, further laws
on the subject can be enacted/promulgated to achieve this object. In
this behalf, in Bangladesh following steps were taken.
(i)
Illegal arms collection programme carried out in
2002-2003 as part of Bangladesh’s crackdown on
criminals, operation Clean Heart.
(ii)
Bangladesh’s biggest illegal arms haul took place in
Chittagang on 02.04.2004.
92. An identical situation was prevailing in Malaysia and that
Government with full commitment and sincerity had also collected
illicit arms from the criminals. Similarly, this task can be completed in
our country as well; if there is honest commitment on the part of the
law enforcing agencies but in the instant case without depoliticizing the
police, positive result apparently seems to be an uphill task, however,
to ensure peace in Karachi, certain steps will have to be taken. The
law enforcing agencies will have to be de-politicized as well as for
recovery of illicit arms effective measures will have to be taken under
a proper programme to be launched by the Government. As far as the
question of presence of 2.5 million aliens in Karachi is concerned, it is
more alarming compared to the activities of the criminals involved in
heinous crimes, like target killing, etc. This aspect of the case would
reveal that the presence of such persons is not only a factor for
increase in crime, but at the same time without proper registration,
they are a burden on the national economy, inasmuch as their
presence can give rise to so many other administrative problems,
SMC 16/2011 ETC. 104
including obtaining of National Identity Cards by them. If they have
succeeded in this venture and claim themselves to be citizens of
Pakistan and have also succeeded in registering their names in the
electoral list, it would be tantamount to depriving the actual electorate
from choosing their representatives, inasmuch as due to their
presence, areas have expanded considerably, which directly affects the
delimitation of the constituencies meant for holding elections of the
Provincial Assembly and the National Assembly, therefore, the
Government should take immediate action against them in accordance
with law, namely, the Foreigners Act. NADRA and the Police must
undertake a careful cleansing process of such people and NADRA must
have separate records and computer files based on proper and cogent
evidence. NADRA and police should co-operate in Karachi through an
intensive drive to identify foreigners, block their NIC cards after due
process of law and special teams should be appointed and dedicated
for this job by DG NADRA and IGP so that this can be completed in the
course of next one year or so. Then the law must take it own course in
each case. This must be given high priority.
93. The learned Attorney General, in his submissions, also
referred to the Quranic verse, viz., killing of one person is killing the
entire humanity, therefore, there could not be two opinions that
killings in Karachi during the last few months are condemnable, but for
such reason, question for determination would be as to whether the
State can be held responsible for the actions of the criminals, who
have committed crimes, or the individuals are to be held responsible
for their acts under the relevant laws independently. The learned
Attorney General, as per the directions of this Court contained in the
order dated 24.08.2011, has placed on record reports of the Special
SMC 16/2011 ETC. 105
Branch of Police, Government of Sindh and the IB, and he also
arranged a presentation by ISI (however, he was not present during
the presentation). As far as commission of crimes is concerned, it is
always done by the accused persons individually or collectively.
Ordinarily, when any crime is committed by an individual, he is
considered to be the accused of the State for violating its laws and
when crimes individually or collectively are committed by the
perpetrators challenging the authority of the Government creating
anarchy, the State is bound to control the crimes and at the same time
protect its citizens against the criminals. In the instant case, according
to the figures submitted by Mr. Abdul Fattah Malik, learned Advocate
General, Sindh, during the hearing, in the current year 2011, 1310
persons have been murdered, whereas, in one month, figures of which
have been obtained by the Court vide order dated 24.08.2011,
admittedly, 306 persons have been murdered and 159 persons have
been injured. When murders of innocent persons at the hands of
perpetrators who belong to different communities are being committed
as a matter for vengeance and as tit for tat without control of the
executive authorities of the Provincial Government, it clearly indicates
that lawlessness has reached a point where the State through the
Provincial Government in exercise of its executive authority is not in a
position to provide security to its citizens and on account of lack of
administrative authority of the Government, so many persons have
been deprived of their right to life and liberty enshrined in Article 9 of
the Constitution.
94. As far as the arguments of the learned Attorney General
that under the Constitution a procedure has been provided for the
removal of the Provincial and Federal Governments ruling the country
SMC 16/2011 ETC. 106
after the election, therefore, it could only be possible when the
procedure so laid down in the Constitution is followed. There is no cavil
with this proposition; however, in the instant proceedings, this
argument is not relevant. Learned Attorney General has also stated
that as far as the suggestions made before the Court for imposing
Emergency under Articles 233 and 234 of the Constitution, or calling
the Army in aid of civilian administration under Article 245 of the
Constitution, or the steps to be taken by the Provincial Government in
this behalf are the actions, which are purely for the Federal
Government or the Provincial Government to initiate and no direction
can be given by the Court in this respect. Suffice it to observe that the
Federal Government is duty bound under Article 148(3) of the
Constitution to protect every Province against internal disturbances
and to ensure that the Government of every Province is carried on in
accordance with the provisions of the Constitution, therefore, the
suggestion put forward during the arguments on behalf of some of the
parties does not mean that this Court has issued the directions. Only
attention of the Federal Government has been drawn towards the
Constitutional provisions which, according to their suggestions, should
also be invoked for maintaining law and order in the Province of Sindh
instead of paving way for any unconstitutional action by any
adventurer as it had been happening in the past. Reference may be
made to the cases of Haji Muhammad Saifullah Khan (supra),
Khawaja Ahmad Tariq Rahim (supra) and Benazir Bhutto (supra).
Similarly, exercise of the authority to call Army in aid of civil
administration to control disturbances under Article 245 of the
Constitution is only one of the options, which lies with the Federal
SMC 16/2011 ETC. 107
Government, as such its consequences are bound to follow strictly in
accordance with the provisions of the Constitution.
95. Learned Attorney has agreed that this Court has power to
pass appropriate orders as called for in view of the facts and
circumstances, but his opinion was that as now situation is
manageable and under control, therefore, in the instant proceedings
no order is required to be passed. For the reasons which we have
already mentioned hereinabove, we are not in a position to subscribe
to his viewpoint because overwhelming material is available on record,
reference of which has already been made hereinabove repeatedly, to
persuade us to form an opinion that bloodshed, arson,
kidnapping/abduction for ransom, widespread violence, illegal
collection of money (bhatta) from traders, etc., were being committed
within the knowledge of the State through Provincial
Government/Executive but it remained a silent spectator and prima-
facie failed to take appropriate action, may be for some political
reasons, but the Constitution does not allow the Executive to
compromise its position at the cost of innocent citizens who lost their
lives, property, liberty and dignity because of the expediency of the
Provincial or Federal Government. It may not be out of context to
mention here that despite hearing of this case, during course whereof
law enforcing agencies have been asked time and again to bring the
criminals to book without any discrimination, the criminals continued
to harass the general public/innocent citizens continuously, as in the
recent past a trader has been kidnapped for ransom from Sher Shah
Kabari Market. We have been informed during the hearing that there is
a strike in the market and accused persons have demanded ransom,
but so far the matter has not been finalized/resolved. On our direction,
SMC 16/2011 ETC. 108
concerned SSP of the area appeared in Court and stated that
pickets/police check posts have been established at different places,
but despite that, there is no control over the crimes. We have pointed
out to the learned Attorney General that this is high time when the
Executive of the Provincial Government, instead of compromising the
position, on account of any reasons known to them, should come
forward with iron hands to control the crimes. We may point out here
that the material so brought on record and the presentation which has
been given by the Intelligence Agency, must also have been brought
to the notice of the Executive of the Province and by the time it has
become known to everyone about the persons involved in causing
disturbances because on such a large scale internal disturbances
cannot take place without the support or passivity of the persons who
are themselves at the helm of affairs and the Provincial Executive
Authorities in such a state of lawlessness ought to have felt no
hesitation to bring them to book, but here it appears that there are
certain expediencies which are preventing them to do so. In such an
abnormal situation the Federal Government also cannot be considered
to be oblivious of the happenings, which presumably knows all these
facts obviously prevailing in the economic hub of country, as the
reports which we have gone through must have been brought to the
notice of the Chief Executive of the Federal Government and other
authorities as well, therefore, they should have swiftly moved in to
take action in order to ensure that the Provincial Government is
allowed to work smoothly in accordance with the Constitution. Leaned
Advocate General who has also pointed out in his arguments that in
the police department, 1100 appointments have been made illegally.
At the same time, the IGP Sindh who was present in the Court during
SMC 16/2011 ETC. 109
the hearing, also conceded that for the last about 10 to 15 years, five
hundred thousands arms licenses have been issued by the Home
Department for arms and ammunition of prohibited bore, however,
according to him, with the assistance of NADRA, an exercise is about
to commence to verify the status of the licences. He added that in the
past, trucks of arms and ammunitions used to be unloaded before the
police stations but police did not dare to check them. Mr. Abdul Fattah
Malik, learned Advocate General made before the Court many
revelations, but did not disclose the names of the groups who were
challenging the writ of the Government and undermining its authority
through target killings, bhatta collection, etc., which are committed,
not for any ethnic reason, but for settling of accounts by groups
among themselves in an attempt to establish their authority in the city
of Karachi otherwise anyone or all of them would come forward to
point out the names of militant outfits involved in the violation of
Fundamental Rights of the citizens.
96. From the material so placed on record by the Advocate
General it is evident that the disturbances in the Province are not
recent ones, but it has been going on for the last many years, in which
a large number of innocent persons have been killed by way of tit for
tat and the authorities, in the past as well have failed to secure their
lives, liberties, etc. According to learned Advocate General, the
Province of Sindh being the land of Shah Abdul Laif Bhitai and Sachal
Sarmast had been a peaceful place where, after Partition highly
educated people migrated to Pakistan. They were living peacefully with
original residents of Sindh, but the menace of lawlessness started from
the period shown in the charts reproduced hereinabove. He conceded
that 2.5 million aliens are also living in Karachi without any
SMC 16/2011 ETC.
110
registration, but so far the Government could not deport them.
However, we have pointed out to him that organized crimes are being
committed in Karachi and there is violation of the Fundamental Rights
of innocent people and the Government has failed to protect the rights
of the citizens, however, individual type of crime or killing of any
person on account of personal enmity is not unusual, and for that
matter the Executive Authorities cannot be held responsible, but it is
to be noted that in the instant case, as discussed hereinabove in
detail, the Executive Authority of the Province had prima-facie failed to
exercise its powers to protect the Fundamental Rights of the citizens.
97. Barrister Zafarullah appeared in Constitution Petition No.
61 of 2011 wherein following prayer has been made: -
(1)
It is therefore respectfully prayed that the judicial
Commission under the supervision of Supreme Court
of Pakistan may be appointed, any Hon. Judge sitting
or retired may be appointed as its Chairman.
(2)
It is further prayed that under in no circumstances
Pakistan Army may be summoned to meet the
situation in Karachi or to restore the law and order,
since it is trap desired by foreign forces and will be
breach of Articles 55 & 56 UNO and other resolutions
of General Assembly.”
The learned counsel has referred to the Charter of United Nations,
importance of human rights and also stated that had the Court not
taken cognizance of the matter, the crime rate would not have
declined and if target killings, etc. had continued unabated, it would
have provided a cause of interference to the United Nation Forces.
Except for the dramatic drop in crime rate, we do not entertain this
argument because we are of the opinion that in this country there is a
written Constitution, which if implemented through the Federal and the
SMC 16/2011 ETC. 111
Provincial Governments by strictly adhering to its provisions without
any political considerations, the situation of law and order can be
managed. He also opposed the intervention of the Army by calling it in
the aid of Civil Administration. This issue has already been discussed in
the preceding paragraphs, therefore, the same need not be further
dilated upon.
98. Mr. Anwar Masoor Khan, President of Sindh High Court Bar
Association, at the outset, contended that Karachi is faced with
complex issues of law and order, which had its origin in the politico-
ethnic violence in which different communities speaking different
languages like Urdu, Pashto, Balochi, Sindhi, Punjabi, etc. were
involved. However, he admitted that members of these communities
have been involved in such like activities mainly for the socioeconomic
reasons. As the residents of Karachi in different areas,
particularly where violence is at its peak, are even deprived of basic
amenities of life, therefore, these poor persons are being used by
different vested interests including political parties/groups to achieve
their ulterior objectives and to watch their economic interests. These
persons/groups having so called vested interests are themselves well
off having established businesses and are not suffering from any
economic problem. The police is so scared of them that they remain
under the influence of these groups who use poor persons to achieve
their illicit objectives. Inasmuch as, if an ordinary person approaches
the police, his FIR is not registered and if a victim succeeds in getting
the case registered, prosecution does not take interest, as a result
whereof their cases fail. Besides, according to him, mostly the
perpetrators belong to an organized group having blessings and
support of political parties, therefore, the witnesses are so scared that
SMC 16/2011 ETC. 112
they avoid to appear in court. Therefore, without addressing the afore-
noted problems of persons belonging to different communities who fall
within category of less resourceful persons, the law and order situation
prevailing in the city cannot be controlled. He referred to a number of
cases from the Indian Jurisdiction and the reports of the Indian Law
Commission. However, he conceded that no witness protection
program is available. When we invited his attention towards sections
21, 21A, 21B, 21C of the Anti-Terrorism Act, 1997 which provide
guidelines for the protection of Judges, he submitted that these
provisions of law have also not been made applicable fully, as a result
whereof even in Anti-Terrorism Courts, a large number of accused
have gone scot-free. Learned counsel stated that there are political
parties who apparently are acting against the interests of the country
and are involved in disturbing the law and order in Karachi, to achieve
their nefarious objects because the persons controlling such parties
have got no stake in Pakistan. Inasmuch as, there are persons who
enjoy dual nationality or who have vast unexplained and unaccounted
for assets outside Pakistan or who are not allied with any political
party and who are against the sovereignty of the country, all such
persons are required to be dealt with according to the Constitution. We
have pointed out to him that Article 17 of the Constitution read with
section 15 of the Political Parties Order, 2002 can be invoked if the
Government succeeds in establishing that any political party is
operating in a manner prejudicial to the sovereignty or integrity of
Pakistan. Learned counsel emphasized that Article 4 of the Constitution
is one of the most important Articles, under which a citizen is entitled
to enjoy the protection of law and to be treated in accordance with law
being his inalienable right, therefore, this Article confers the
SMC 16/2011 ETC. 113
Fundamental Rights upon a person to seek security of life or liberty
from the State and similarly, Articles 14, 18 and 24 in respect of
dignity of man, freedom of trade, business and profession and
protection of property. Whereas in Karachi for the last many years the
State/Provincial Government had failed to implement their
Fundamental Rights and citizens are not safe and secure. According to
him, too, there are target killings, murders, bhatta mafia, land mafia,
drug mafia, dead bodies in bags are found lying in the streets and the
accused persons on account of their influences or being desperate and
hardened criminals, could not be arrested. He stated that as per
reports, which have been placed on record by different agencies
without claiming confidentiality and other information which has been
received by this Court, furnish sufficient evidence to hold that the
Provincial Government has not been able to act in accordance with the
Constitution to protect the dignity, freedom of trade, business and
profession and property. He has referred to Islamic Republic of
Pakistan v. Abdul Wali Khan (PLD 1976 SC 57), PLD 2004 SC 363 to
emphasize that it is the duty of the Government to maintain law and
order. We have inquired from him as to whether in a situation where
criminals belonging to all political parties are involved in disturbing the
law and order, whether the Executive/Provincial Government can
maintain the law and order, he stated that, in fact, the prevailing
situation indicates that there is no will on the part of the Executive to
run the government according to the Constitution otherwise it would
not be difficult to remove such elements from their rank and file. In
this behalf, it is to be noted that in the Daily Dawn dated 14.09.2011,
the Federal Interior Minister made a statement that criminals arrested
in Karachi during the targeted operation belong to different political
SMC 16/2011 ETC. 114
parties and that the Government has evidence (audio and video)
against them, which will be used against them if permitted by this
Court. However, he stated that such criminals have not been deputed
by the political parties, but somehow such elements have managed to
get refuge behind them after committing crimes. During hearing of this
case, we have observed time and again that the political parties
represented before us asserted in categorical terms, that
criminals/militant outfits are not part of their political parties and
declared that whosoever claims association with any political party, is
incorrect. It is to be noted that in the situation as the Interior Minister
has himself explained, it has become admittedly a highly difficult task
for the Provincial Government to maintain law and order. Be that as it
may, this all depends upon the political considerations in respect
whereof we would not like to comment, but we have to confine
ourselves only to the extent of the question which has been raised in
the order dated 24.08.2011, namely, the situation of law and order
which has been disturbed on account of bloodshed, arson,
kidnapping/abduction for ransom, widespread violence, illegal
collection of money (bhatta) from traders, etc.
99. Mr. Abdul Fattah Malik, AG Sindh has submitted a synopsis
of his arguments on behalf of the Government of Sindh. It may be
noted that in fact he had to appear on the Court notice and the
Province of Sindh put up its appearance through Mr. Abdul Hafeez
Pirzada, leanred Sr. ASC who has also filed, under instructions,
suggestions which have been reproduced hereinabove. However, he
reserved his right to further argue the case after the arguments of
learned counsel appearing on behalf the interveners, particularly Syed
Iftikahr Hussain Gillani, Sr. ASC who placed on record reports of the
SMC 16/2011 ETC.
115
JIT. In the meanwhile, Intelligence Agencies also shared classified
information with the Bench. The DG Rangers also appeared in person
and made submissions which have been dealt with hereinabove,
including one that in Karachi the situation of law and order is worse
than that of North Waziristan, but surprisingly on 14.09.2011 the
learned Advocate General conveyed that Mr. Abdul Hafeez Pirzada,
learned Sr. ASC feels contented with the arguments made earlier and
does not want to make any further arguments before the Bench. The
points he has put up before the Court have been dealt with
hereinabove, particularly with regard to the statement of fact in which
he has suggested that this Court should give a wake up call to the
Provincial Government, which according to him means that in the past
violation of Fundamental Rights of the citizens particularly those whose
lives and properties have not been secured, was admitted and for the
future he was asking the Court to give a wake up call to the Provincial
Government.
100. The learned Advocate General in the written submissions
has stated as follows:-
(1)
That the government of Sindh has never failed to deal with
the law and order situation in the Province of Sindh and
Government of Sindh is fully determined to protect the life,
liberty, dignity, property and freedom of general public.
(2)
That the government of Sindh and law enforcement
agencies along with the relevant authorities are fully
competent to control, curb and deal with any internal
disturbance and the government of Sindh has proved it in
the matter of:-
(a)
Control of Law and Order situation in Katcha area
and other parts of internal Sindh.
(b)
To bring back normalcy in the Law and order
situation in Karachi.
SMC 16/2011 ETC.
116
(3)
That the Government of Sindh denounces all forms of
violence, terrorist activities, subversion and lawlessness in
the Province and in this regard the government of Sindh
seeks support from all the political parties.
(4)
That the Government of Sindh has unshaken, irreversible
commitment and determination to deal with the criminals
in city of Karachi in particular and on the province level at
large and no party affiliation would deter its will and
commitment.
(5)
That the government of Sindh has taken concrete steps
from prevention and control of crime including the
deployment of Rangers in the city of Karachi, as well as
deployment of additional forces by transfer from the
Interior of Sindh of |Karachi.
(6)
That the coalition Government of the Province of Sindh has
strong will of continuing action against criminals in Karachi
and in order to deal with any uprising in crime rate,
concrete steps have been taken by Government of Sindh
to enhance the capacity of the police, to raise the moral of
the police as well as to strengthen this institution at the
provincial level.
(7)
It is categorically made clear that at no stages of these
proceedings the Government of Sindh as conceded that it
failed to control this situation or has shown any slackness.
(8)
It is regrettable that on behalf of political groups appearing
before this Court, political insinuation and allegations were
leveled upon the ruling coalition Government of Sindh in
sheer violation and disregard of the observations made by
this Court that these proceedings are no-adversarial.
(9)
Present elected Government is mandated by the
constitution to serve the people of Sindh for 05 years,
therefore, the Government of Sindh has made short term,
midterm and long term strategies to eradicate the crime at
all costs.
SMC 16/2011 ETC.
117
(10)
It is worth mentioning that the province of Sindh
unfortunately is his very severely this year as well as it
was hit last year by the natural calamity. The Government
of Sindh successfully rehabilitated millions of affectees of
last year flood, however due to global changes in the
climate Government of Sindh is demonstrating full resolve,
utmost will and continuous efforts to enhance capacity for
dealing with such disaster. However, side by side full
attention is being given to other issues being faced by the
people of this province.
101. The reports of JIT, CID, Special Branch of Police and IB
and other material is available on record including presentation given
by the IG Police, the submissions made by Major General Aijaz Ahmad
Chaudhry, DG Rangers and admission of IG Police to the effect that 30
to 40 percent police officials are non-cooperative because of their
appointments on political considerations, coupled with the fact that it
is the basic duty of the police to maintain the law and order, the police
has been politicized/demoralized. The learned Advocate General has
also admitted that 1100 appointments made on political considerations
have already been set aside. The stand taken by him in his synopsis
seems to be inconsistent and not acceptable in view of the above
facts. It is to be noted that as per his own statement filed in Court,
following persons have been murdered during the last three years i.e.
2008 to 2011:-
2008: 1142
2009: 1083
2010: 1484
2011: 1311 (up to 31.08.2011)
He emphasized that the law enforcing agencies have succeeded in
causing arrest and in this behalf he has filed the statement for the
SMC 16/2011 ETC. 118
months of January to September, 2011 prepared by the Karachi police,
which reads as under:-
Y
e
Number
of
Gang
Busted
Dacoit
Killed
Dacoit/
criminals
Arrested
a
r
encounter
s
arrested P.Os Abs MDs
2
0
1
0
704 512 64 5286 354 6427 0
However, we have noted that about 80 percent FIRs, which have been
registered during the last one month, have been cancelled by declaring
them as “A” class and whatever progress has been made in causing
arrests of the accused, it is after instant proceedings by this Court.
We have also noted as mentioned hereinabove that the Chief
Secretary and the IGP Sindh have categorically stated that now
powers have been given to the Rangers, so the question arises as to
why the Rangers were not put into action earlier when this force was
already deployed in the Province of Sindh from 1994 onward; and why
the Provincial Government was not interested in securing the life,
property and dignity of the citizens. Admissions made by the IGP in
respect of no-go areas, drug mafia and the statement of the Interior
Minister referred to above are sufficient to hold that the Provincial
Government had no intention to secure the life and property of the
people in the true spirit of Article 4 of the Constitution, envisaging that
all citizens are entitled to enjoy the protection of law and are required
to be treated in accordance with law. What protection was given to
those persons who have lost their lives and property? While dealing
with the argument of the learned Attorney General, we have already
SMC 16/2011 ETC. 119
emphasized that the alleged crimes have not been committed
ordinarily, but these are organized crimes and it was the duty of the
Provincial Government to have controlled the same, but it is only after
the Court took suo motu notice that some improvement seems to have
been made in the law & order situation in Karachi.
102. Khawaja Naveed Ahmed, learned ASC stated that he
represents the Friends of Lyari International, a UK based organization.
According to his version, since 2009 till date, 65 Balochi speaking
people have been killed in target killings, but so far no appropriate
action has been taken to trace the accused persons, therefore, it is not
understandable as to whom they should blame for such atrocities. It
may be observed here that in respect of all the cases in which human
beings have been killed irrespective of their ethnic origins, it is the
duty of the State/Executive to ensure action and bring the accused
persons to book.
103. Dr. Babar Awan, Sr. ASC commenced his arguments by
reciting verses No.22 & 23 from Sura Almaida. Translation from Arabic
to English has been reproduced hereinbelow: -
“[5:22] ‘O my people, enter the Holy Land which Allah has
ordained for you and do not turn back, for then you will
turn losers’.
[5:23] They said, ‘O Moses, there is in that land a haughty
and powerful people, and we shall not enter it until they go
forth from it. But if they go forth from it, then we will enter
it’.”
In view of the above Injunction of Islam, as we have already noted in
the opening Para of the judgment that if anyone killed a person not in
retaliation of murder, or to spread mischief in the land, it would be as
if he killed all mankind, and if anyone saved a life, it would be as if he
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saved all mankind, which is to be accepted by all the Muslims. It is
clear from the above verses that life of a human being is very
precious, therefore, Allah Almighty has condemned the killing of even
a single human being and has equated it with the killing of the whole
humanity, and vice versa, if a man is saved, the whole humanity will
be deemed to have been saved.
104. Leaned counsel candidly stated that he supports the suo
motu jurisdiction of this Court, as according to him, in terms of Article
29 of the Constitution, the judiciary being one of the organs of the
State can exercise such jurisdiction.
105. However, he complained that in respect of incident of
18.10.2007, which took place in Karachi wherein Mohtarama Benazir
Bhutto, former Prime Minister of Pakistan was attacked by the
terrorists and so many persons lost their lives, according to him,
despite request made by him on 27.10.2007 before a Bench
comprising one of us (Mr. Justice Iftikhar Muhammad Chaudhry) and
Mr. Justice (R) Javed Iqbal, no such action was taken by this Court. It
is to be noted that the statement so made by him was not based on
correct information, inasmuch as Suo Motu Case No. 25 of 2007 was
registered wherein, on 01.11.2007, he personally appeared voluntarily
and comments were called, however, subsequently on 07.01.2007
Justice (R) Abdul Hameed Dogar (so called Chief Justice) directed the
office to keep that file pending without any further proceeding.
106. According to the learned counsel, the executive authority
of the Federation includes the four Provinces, Federally Administered
Tribal Areas administered through the President, the Islamabad Capital
Territory, Gilgit and Baltistan, formerly known as FANA, whereas, in
respect of Province of Sindh, the authority of the Provincial
SMC 16/2011 ETC. 121
Government extends to 23 districts of the Province of Sindh. Out of
these areas, internal disturbance relating to law and order had
allegedly taken place only in the city of Karachi. So, his stance is that
the Executive Authority has failed neither at the federal nor at the
provincial level. He, however, admitted that in terms of Article 232(1)
read with Article 148(3) of the Constitution, there is internal
disturbance in Karachi.
107. Learned counsel further argued that neither the Federal
Government nor the Provincial Government has failed to maintain the
law and order in the Province of Sindh and any declaration, if made by
this Court, which is the most credible institution of the State of
Pakistan, being the final arbiter of all disputes and where all
interpretation ends, may invite some global trouble with very serious
repercussions, inasmuch as the country is in the middle of a war on
the western and eastern fronts and the latter front is more hostile and
sensitive, therefore, an attempt is being made by someone to obtain
such a declaration that the executive authority has failed to deliver.
According to him, such a declaration cannot be made as Pakistan is a
nuclear State, therefore, how can it fail in maintaining its affairs.
Argument so raised by the learned counsel has no substance. Perhaps
he has lost sight of two important legal expressions, namely, the State
and Executive or the Government. Dr. Babar Awan, learned counsel
has substituted the term “executive” with the “state”. Hence this
requires some elaboration.
108. The word “executive” has been defined in the American
Heritage Dictionary of the English Language, Fourth Edition as under:-
n. … The chief officer of a government, state, or political
division.
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3. The branch of government charged with putting into
effect a country's laws and the administering of its
functions.
…
3. Of or relating to the branch of government charged with
the execution and administration of the nation's laws.
In Collins English Dictionary – Complete and Unabridged, the term has
been defined in the following terms:-
executive
n. … the branch of government responsible for carrying out
laws, decrees, etc.; administration
… having the function or purpose of carrying plans, orders,
laws, etc., into practical effect
executive branch
n. … the branch of government charged with the execution
and enforcement of laws and policies and the
administration of public affairs; the executive.”
Some of the other definitions are as follows: -
Cultural Dictionary
“The branch of federal and state government that is
broadly responsible for implementing, supporting, and
enforcing the laws made by the legislative branch and
interpreted by the judicial branch. At the state level, the
executive includes governors and their staffs. At the
federal level, the executive includes the president, the vice
president, staffs of appointed advisers (including the
cabinet), and a variety of departments and agencies, such
as the Central Intelligence Agency (CIA), the
Environmental Protection Agency (EPA), the Federal
Bureau of Investigation (FBI), and the Postal Service ( see
postmaster general). The executive branch also proposes a
great deal of legislation to Congress and appoints federal
judges, including justices of the Supreme Court. Although
the executive branch guides the nation's domestic and
foreign policies, the system of checks and balances works
to limit its power.”
Oxford Guide to the US Government:
“The departments and agencies that take political direction
from the President, including the 14 cabinet-level
departments, constitute the executive branch of the
federal government. “The executive branch” is not a
phrase found in the Constitution, but it is favored by
Presidents because it assumes that these departments are
under their sole direction. The Constitution, however,
SMC 16/2011 ETC. 123
provides that officials of the departments are to take
direction not only from the President but also from laws
passed by Congress.
Top officials in the executive branch, generally referred to
as “the administration,” are appointed by the President
with the advice and consent of the Senate, and they serve
at the pleasure of the President. The President uses his
Executive Office agencies to supervise their budgets, their
legislative requests to Congress, and the regulations they
make and enforce.
Independent regulatory agencies (such as the Federal
Trade Commission), units of government that are insulated
by Congress from political direction (such as the Federal
Reserve Board), as well as several agencies that perform
functions for Congress (such as the Congressional Budget
Office) are not part of the executive branch. Presidential
appointment and removal powers over officials in these
agencies may be limited by Congress, and the President
may not provide them with political direction.
In politics, a person or persons constituting the branch of
government charged with executing or carrying out the
laws and appointing officials, formulating and instituting
foreign policy, and providing diplomatic representation. In
the U.S., a system of checks and balances keeps the
power of the executive more or less equal to that of the
judiciary and the legislature.”
109. On the other hand, the word “state” is defined as under: -
Advanced Law Lexicon
A body politic, or society of men, united together for the
purpose of promoting their mutual safety and advantage,
by the joint efforts of their combined strength …
Organization of the body politic or one of the constituent
members of a federation or organized political community
with government recognized by the people …
The political system of a body of people who are politically
organized; the system of rules by which jurisdiction and
authority are exercised over such a body of people …
A state or political society is an association of human
beings established for the attainment of certain ends by
certain means. … …
A state is an institution, that is to say, it is a system of
relations which men establish among themselves as a
means of securing certain objects, of which the most
fundamental is a system of order within which their
activities can be carried on. Modern states are territorial;
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their governments exercise control over persons and
things within their frontiers…”
Corpus Juris Secondum
n. … it may signify a sovereign political unity as set forth in
International Law.
Collins English Dictionary – Complete and Unabridged
n. … (Government, Politics & Diplomacy) a sovereign
political power or community
… … the territory occupied by such a community
… … the sphere of power in such a community affairs of
state
… … (often capital) one of a number of areas or
communities having their own governments and forming a
federation under a sovereign government, as in the US
(Government, Politics & Diplomacy)
… … (often capital) the body politic of a particular
sovereign power, esp as contrasted with a rival authority
such as the Church
… … The supreme public power within a sovereign
political entity.
… … The sphere of supreme civil power within a given
polity: matters of state.
… … A body politic, especially one constituting a nation:
the states of Eastern Europe.
The concept of the state
A state is a form of political association or polity that is
distinguished by the fact that it is not itself incorporated
into any other political associations, though it may
incorporate other such associations. The state is thus a
supreme corporate entity because it is not incorporated
into any other entity, even though it might be subordinate
to other powers (such as another state or an empire). One
state is distinguished from another by its having its own
independent structure of political authority, and an
attachment to separate physical territories. The state is
itself a political community, though not all political
communities are states. A state is not a nation, or a
people, though it may contain a single nation, parts of
different nations, or a number of entire nations. A state
arises out of society, but it does not contain or subsume
society. A state will have a government, but the state is
not simply a government, for there exist many more
governments than there are states. The state is a modern
political construction that emerged in early modern
SMC 16/2011 ETC. 125
Europe, but has been replicated in all other parts of the
world. The most important aspect of the state that makes
it a distinctive and new form of political association is its
most abstract quality: it is a corporate entity.
A sovereign state is a state with a defined territory on
which it exercises internal and external sovereignty, a
permanent population, a government, and the capacity to
enter into relations with other sovereign states. It is also
normally understood to be a state which is neither
dependent on nor subject to any other power or state.
While in abstract terms a sovereign state can exist without
being recognised by other sovereign states, unrecognized
states will often find it hard to exercise full treaty-making
powers and engage in diplomatic relations with other
sovereign states.
The word "country" is often used to refer to sovereign
states, although it means, originally, a geographic region.
Sovereignty has taken on a different meaning with the
development of the principle of self-determination and the
prohibition against the threat or use of force as jus cogens
norms of modern international law. The UN Charter, the
Declaration on Rights and Duties of States, and the
charters of regional international organizations express the
view that all states are juridically equal and enjoy the
same rights and duties based upon the mere fact of their
existence as persons under international law. The right of
nations to determine their own political status and exercise
permanent sovereignty within the limits of their territorial
jurisdictions is widely recognised.
In political science, sovereignty is usually defined as the
most essential attribute of the state in the form of its
complete self-sufficiency in the frames of a certain
territory, that is its supremacy in the domestic policy and
independence in the foreign one.
In the social sciences, a state is a compulsory political
institution that maintains a monopoly of the legitimate use
of force within a certain territory.
Etymology and definition
Etymology
The word state and its cognates in other European
languages (stato in Italian, état in French, Staat in
German) ultimately derive from the Latin status, meaning
"condition" or "status."
With the revival of the Roman law in the 14th century in
Europe, this Latin term was used to refer to the legal
standing of persons (such as the various "estates of the
realm" - noble, common, and clerical), and in particular
SMC 16/2011 ETC. 126
the special status of the king. The word was also
associated with Roman ideas (dating back to Cicero) about
the "status rei publicae", the "condition of public matters".
In time, the word lost its reference to particular social
groups and became associated with the legal order of the
entire society and the apparatus of its enforcement.
In English, "state" is a contraction of the word "estate",
which is similar to the old French estat and the modern
French état, both of which signify that a person has status
and therefore estate. The highest estates, generally those
with the most wealth and social rank, were those that held
power.
According to the Oxford English Dictionary, a state is "a an
organized political community under one government; a
commonwealth; a nation. b such a community forming
part of a federal republic, esp the United States of
America". However, the most commonly used definition is
Max Weber's, which defines the state as a compulsory
political organization with a centralized government that
maintains a monopoly of the legitimate use of force within
a certain territory.
General categories of state institutions include
administrative bureaucracies, legal systems, and military
or religious organizations.
The concept of the state can be distinguished from the
concept of government. The government is the particular
group of people, the administrative bureaucracy, that
controls the state apparatus at a given time. That is,
governments are the means through which state power is
employed. States are served by a continuous succession of
different governments.
Each successive government is composed of a specialized
and privileged body of individuals, who monopolize political
decision-making, and are separated by status and
organization from the population as a whole. Their function
is to enforce existing laws, legislate new ones, and
arbitrate conflicts via their monopoly on violence. In some
societies, this group is often a self-perpetuating or
hereditary class. In other societies, such as democracies,
the political roles remain, but there is frequent turnover of
the people actually filling the positions.
110. As against the term “state”, a government is an institution
whose existence precedes that of the state. A government is a person
or group of persons who rule or administer (or govern) a political
community or a state. For government to come into being there must
SMC 16/2011 ETC. 127
be existence of public on the territory of a State. Ruling within a
household is not government. Government exists when people accept
(willingly or not) the authority of some person or persons to address
matters of public concern; the administration of justice, and defense
against external enemies being typical examples of such matters.
111. Article 90 of the Constitution defines “executive authority”
as “subject to the Constitution the executive authority of the
Federation shall be exercised in the name of the President by the
Federal Government which consists of Prime Minister and Federal
Ministers, who shall act through the Prime Minister who shall be the
chief executive of the Federation.” Whereas in relation to the Provincial
Government, Article 129 with the substitution of Governor with the
President defines the Executive Authority of the Province consisting of
the Chief Minister and Provincial Ministers, who shall act through the
Chief Minster. Both these executive authorities represent the Federal
and Provincial Governments whereas the institution of State is
distinguished from executive authorities as defined in Article 7 of the
Constitution as under: -
“7. Definition of the State
In this Part, unless the context otherwise requires, "the
State" means the Federal Government, Majlis-e-Shoora
(Parliament), a Provincial Government, a Provincial
Assembly, and such local or other authorities in Pakistan
as are by law empowered to impose any tax or cess.”
112. Here the object of instant proceedings is not to make any
declaration against the State of Pakistan, but one of the Governments,
namely, the Government of Sindh Province, which is represented
through its executive as defined under Article 129 referred to
hereinbefore. Although Article 7 of the Constitution defines the State
as the Federal Government, Majlis-e-Shoora (Parliament), a Provincial
SMC 16/2011 ETC. 128
Government, a Provincial Assembly and local or other authorities in
Pakistan empowered to impose any tax or cess, therefore, distinction
is abundantly clear as the act of the Executive of the Province is under
consideration in terms of Article 129 of the Constitution, which is
essentially a distinct and a different concept from the State as defined
in Article 7. The order dated 24.08.2011 reproduced supra also
explicitly makes it clear that the conduct of the Executive in enforcing
Fundamental Rights of the citizens guaranteed under Articles 9, 14,
15, 18 and 24 is under examination, and as far as the State is
concerned, its role has not been examined. The arguments so put
forward by the learned counsel appear to be irrelevant and are not in
the context of the proposition under consideration. This is not for the
first time that the conduct of the Provincial Executive is being
scrutinized. As such, its performance relating to enforcement of the
Fundamental Rights or its failure not to enforce these rights is under
examination. Admittedly, under Article 184(3), this Court exercises
same powers, which are available to a High Court under Article
199(1)(c). The Court can make an order giving such direction to any
person or authority including any government exercising power or
performing any function and, in or, in relation to, in any territory
within its jurisdiction as may be appropriate for the enforcement of
Fundamental Rights conferred by Chapter 1 of part II. Reference in
this behalf may be made to the cases of Muhammad Nawaz Sharif v.
President of Pakistan (PLD 1993 SC 473), Syed Wasey Zafar v.
Government of Pakistan (PLD 1994 SC 621), Bank of Punjab v. Haris
Steel Industries (pvt.) Ltd. (PLD 2010 SC 1109) and Federation of
Pakistan v. Munir Hussain Bhatti (PLD 2011 SC 752). Also see Zulfiqar
Mehdi v. Pakistan International Airlines Corporation (1998 SCMR 793),
SMC 16/2011 ETC. 129
Benazir Bhutto (supra), Asma Jilani v. Government of the Punjab (PLD
1972 SC 139), Fauji Foundation v. Shamimur Rehman (PLD 1983 SC
457), Jibendra Kishore v. Province of East Pakistan (PLD 1957 SC 9).
113. So, on the basis of distinction between the State and
Executive authority vis-à-vis the jurisdiction of this Court under Article
184(3), it is concluded that instant proceedings are not against the
State but to consider whether the Provincial Government of Sindh
allegedly had failed to enforce the Fundamental Rights of the citizens.
However, Pakistan as a sovereign country as well as a nuclear power
for all intents and purposes is a successful State because such a State,
in the words of Max Weber, maintains a monopoly on the legitimate
use of physical force within its borders. But, coming to the
fundamental question of exercise of jurisdiction keeping in view of the
facts and circumstances noted hereinabove in detail, it is held that this
Court is empowered under Article 184(3) to consider any question of
public importance with reference to enforcement of any of
Fundamental Rights, conferred by Chapter 1, Part 11 and can make an
order of the nature mentioned in Article 199. If the argument of the
learned counsel referred to above is accepted, it would be tantamount
to abdicating the powers and jurisdiction conferred by the Constitution,
thereby refusing to enforce Fundamental Rights conferred by Chapter
1 of Part II in a matter relating to public importance. The scope of the
jurisdiction of the Court with procedure, which is to be followed, has
been examined in the case of Pakistan Muslim League (Nawaz) v.
Federation of Pakistan (PLD 2007 SC 642), wherein it has been held
that this Court under Article 184(3) is not dependent only at the
instance of the "aggrieved party" in the context of adversarial
proceedings and while dealing with a case under Article 184(3) of the
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130
Constitution, this Court is neither bound by the procedural trappings of
Article 199 ibid nor by the limitations mentioned in that Article for
exercise of power by the High Court in any case. Relevant Para
therefrom is reproduced hereinbelow:-
“20. After having discussed the law laid down in the above
mentioned cases the judicial consensus seems to be as
follows: -
(i) That while interpreting Article 184(3) of the
Constitution the interpretative approach should not be
ceremonious observance the rules or usages of the
interpretation but regard should be had to the object and
purpose for which this Article is enacted i.e. the
interpretative approach must receive inspiration from the
triad of provisions which saturate and invigorate the entire
Constitution namely the Objectives Resolution (Article 2A),
'the fundamental rights and' the directive principles of
State policy so as to achieve democracy, tolerance, equity
and social justice according to Islam.
(ii) That the exercise of powers of Supreme Court under
Article 184(3) is not dependent only at the instance of the
"aggrieved party" in the context of adversary proceedings.
Traditional rule of locus standi can be dispensed with and
procedure available in public interest litigation can be
made use of, if it is brought to the Court by a person
acting bona fide.
(iii) That the provisions of Article 184(3), provide
abundant scope for the enforcement of the Fundamental
Rights of an individual or a group or class of persons in the
event of their infraction and it would be for the Supreme
Court to lay down the contours generally in order to
regulate the proceedings of group or class actions from
case to case.
(iv) That under Article 184(3) there is no requirement
that only an aggrieved party can press into service this
provision. Supreme Court can entertain a petition under
Article 184(3) at the behest of any person.
(v) That the Article 184(3) is remedial in character and
is conditioned by three prerequisites, namely -
*
There is a question of public importance.
*
Such a question involves enforcement of
fundamental right, and
*
The fundamental right sought to be enforced is
conferred by Chapter 1, Part II of the Constitution.
SMC 16/2011 ETC. 131
(vi) That it is not every question of public importance
which can be entertained by this Court, but such question
should relate to the enforcement of Fundamental Rights.
(vii) That even the disputed questions of facts which do
not require voluminous evidence can be looked into where
Fundamental Right has been breached. However, in case
where intricate disputed question of facts involving
voluminous evidence are involved the Court will desist
from entering into such controversies.
(viii) That the language of Article 184(3) does not admit of
the interpretation that provisions of Article 199 stood
incorporated in Article 184(3) of the Constitution.
Therefore, this Court I while dealing with a case under
Article 184(3) of the Constitution is neither bound by the
procedural trappings of Article 199 ibid, nor by the
limitations mentioned in that Article for exercise of power
by the High Court in a case.
(McCabe v. Atchison (1914) 285 US 151, S.P. Gupta and
others v. President of India and others AIR 1982 SC 149,
Standard Vacuum Oil Company v. Trustees of the Port of
Chittagong PLD 1961 Dacca 289, Sneed Khan v. Chairman,
District Council of Bannu PLD 1967 Pesh. 347, Asma Jilani
v. Government of the Punjab PLD 1972 SC 139,
Muhammad Boota and 77 others v. Commissioner,
Sargodha Division PLD 1973 Lah. 580, Hakim Muhammad
Anwar Babri v. Pakistan PLD 1973 Lah. 817, National Steel
Rolling Mills v. Province of West Pakistan 1968 SCMR 317,
Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457,
Abanindra Kumar Maity v. A.K. Majumdar AIR .1956 Cal.
273, Fazal Din v. Lahore Improvement Trust PLD 1969 SC
223, K.K. Kochumii v. State of Madras AIR 1959 SC 725,
Jibendra Kishore v. Province of East Pakistan PLD 1957 SC
9, Messrs East and West Steamship Company v. Pakistan
PLD 1958 SC (Palo.) 41 and Waris Meah v. The State PLD
1957 SC (Pak.) 157, PLD 1988 SC 413, PLD 1990 SC 513,
1990 PLC 61, PLD 1988 SC 416, KLR 1988 SC 423, 1988
PSC 809.”
114. Thus, in view of the principle laid down hereinabove, this
Court is empowered to examine as to whether the executive
authorities of the Province have failed to enforce Fundamental Rights
in terms of order dated 24.08.2011 and the objections raised by the
learned counsel that any declaration in this behalf would have serious
repercussions against the State of Pakistan being without any
substance for the above reasons are overruled.
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115. Learned counsel has emphasized that in a system based
on trichotomy of powers being the basic feature of the Constitution,
the Armed Forces of Pakistan are also part of the executive or the
government as held in the case of Liaqat Hussain v. Federation of
Pakistan (PLD 1999 SC 504). There is no doubt about the fact that the
Armed Forces also fall within the definition of the executive, but in the
instant case, action of the Armed Forces is not under examination.
However, this Court has examined this aspect of the case in the light
of the judgment cited by the learned counsel wherein it was held that
Pakistan Armed Forces (Acting in aid of Civil Powers) Ordinance, 1998
as amended up-to-date in so far as it allowed the establishment of the
Military Courts for control of the civilians, charged with the offences
mentioned in section 6 and the Schedule to the said Ordinance is
unconstitutional, without lawful authority and of no legal effect.
Therefore, it can safely be held that this Court is not exercising such
jurisdiction for the first time. This Court has jurisdiction to examine an
instrument on the basis of which power to try the accused is conferred
upon the executive or the Armed Forces.
116. Learned counsel candidly conceded that although in the
18th Constitutional Amendment, more provincial autonomy has been
given to the Provinces, but in spite of it under sub-Article (3) of Article
148 of the Constitution it is the duty of the Federation to protect every
Province against external aggression and internal disturbance, and to
ensure that the Government of every Province is carried on in
accordance with provisions of the Constitution. On having so admitted,
he has cited following steps taken by the Federation to protect the
Government of Sindh from internal disturbances: -
SMC 16/2011 ETC.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
133
Placement of civil armed forces (Sindh Rangers and
Frontier Constabulary) at the disposal of the
Government of Sindh;
Monetary support of 2.5 billion specifically for
training and capacity building of the police
department during this financial year;
Sharing of real time intelligence with the Province,
which is actionable intelligence;
Data regarding family tree of criminals maintained in
NADRA and the database is shared with the Province
after an order by the Interior Minister;
Information helped by FIA regarding different crimes
and criminals shared with the Provincial
Government;
Blocking of over 20.1 million illegal mobile phone
SIMs, which are mostly used in commission of
crimes;
Grant of 5 billion rupees outside the regular budget
(besides 2.5 billion rupees) as a special initiative of
the President of Pakistan for enhancing the training
and capacity of provincial law enforcement
personnel, directing the Provincial Government to
equip the Police Department with 15 APCs [20 more
APCs are in the pipeline];
Coordination set up is created for Sindh and
Balochistan border posts – one of the infamous
routes of illicit arms to the city of Karachi;
Customs and FIA intelligence another outfit is
created to control gun running and drug trafficking
into Karachi;
Coastal border management also ordered through
the Coast Guards to control the incoming traffic of
guns and drug trafficking;
Aerial surveillance from SUPARCO for determination
of the factum of land grabbing and to control land
mafia;
Google imageries through NADRA;
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134
13.
Complaint cell is established against bhatta mafia in
Karachi on the complaint of Chamber of Commerce,
which is being monitored by the Interior Minister
directly through the police and all other intelligence
sources.
117. He has further stated that the President, Prime Minister,
Army Chief and Chief of every Intelligence Agency had visited Karachi
and held meetings on the law and order situation. He admitted that
the above steps were taken by the Federation from January, 2011
onwards; however, no documentary proof was brought on record. Be
that as it may, except the stand taken by the learned counsel in
respect of the steps taken by the Federal Government to protect the
Province of Sindh from its internal disturbances, although most of the
steps fall within the category of long term solutions for the purpose of
controlling the disturbances in Karachi but unfortunately neither the
executive of the federal government nor of the provincial government
succeeded in controlling the internal disturbance as it is evident from
the documentary evidence i.e. the report of JIT dated 31.03.201 and
the report of Special Branch of Police Department dated 18.08.2011
and the presentations of the IGP Sindh as well as the DG Rangers, and
in camera briefing by the ISI to the Members of the Bench, which have
already been discussed hereinabove.
118. There is no dispute with the fact that only in one month
from 24th July to 24 August, 2011, 306 persons lost their lives and in
this period body bags, drilled bodies of human beings as well as torsos
of persons who were tortured to death were recovered. Although the
Rangers, vide deployment notification dated 17.05.1995 was available
in the Province, but in the recent past despite internal disturbances
powers were conferred upon the Rangers only on 25.08.2011.
SMC 16/2011 ETC. 135
Although, admittedly the decision was taken in this behalf on
22.08.2011, yet negligence was shown in conferring the authority. In
this manner, a huge loss of life and property of the citizens had
occurred. It is to be noted that learned counsel, without realizing its
repercussions, himself conceded the obligation of the Federation in
providing assistance to the Provincial Government in controlling the
disturbances in terms of Article 148(3) of the Constitution. As it has
been pointed out hereinabove that at the time when in the year 1997
the Federal Government headed by Mohtarama Benazir Bhutto was
dismissed by the President, in exercise of powers under Article
58(2)(b) of the Constitution, one of the reasons for dismissal of the
Federal Government was that it had failed to discharge its
constitutional obligations under Article 148(3). The principle laid down
in the case wherein the order of dissolution of Assembly was
maintained by this Court, is undoubtedly applicable to the present
situation, as it has been explained by means of the documentary
evidence produced by the learned Attorney General and the learned
Advocate General before the Court. Therefore, the conclusion can
conveniently be drawn that despite the steps taken by the Federation,
the situation of law and order has not been controlled and the life and
property of citizens in Karachi have not been secured.
119. It is contended by the learned counsel that the Speaker of
the National Assembly has, with the consent of the political parties and
leaderships acting in furtherance of the national call and duty,
constituted a bipartisan Committee of the House to look into the issues
of Karachi and Quetta and to recommend desired measures for the
restoration of peace and tranquility and the Committee is holding its
meetings. He has further stated that the Federation and the Provincial
SMC 16/2011 ETC.
136
Government of Sindh had the will to control internal disturbances and
to achieve this object following steps have been taken and the
documents produced before the Court: -
1.
JIT Report dated 31st March, 2011: report is being
acted upon to achieve the desired result of
controlling internal disturbances in Karachi
2.
Special Branch report dated 18th August, 2011,
which has also been produced before this Court.
Both these reports have already been referred to hereinabove,
particularly with reference to hardened and desperate criminals
including one Ajmal Pahari, who has shown his connection with MQM.
We inquired from the learned counsel that in spite of receiving credible
information through both the above reports, as to whether any action
has been taken while remaining within the Constitutional framework
against the political party/organization with whom allegedly some of
the accused have shown their linkage, he stated that as there is
democratic system; the people have chosen their representatives and
the Government of the day while performing its duty as per the will of
the voters will take into consideration all these reports in due course of
time. We have pointed out to him not only the above reports, but
there are also the reports of IB, Daily Situation reports, presentations
of IGP as well as other information which have been received through
ISI, which are sufficient to adjudge the position of law and order
prevailing presently in Karachi, which can confront not only Karachi
but the whole country with a greater disaster if curative measures in
accordance with the Constitution and law to control the situation are
not taken. Thus, we may note that internal violence in Karachi is also
being noted with concern. Reference to a write-up published in The
Economist of 27.08.2011, which is reproduced hereinbelow: -
SMC 16/2011 ETC. 137
“ETHNIC warfare in Pakistan’s most populous city has
reached such a level that Karachi’s ambulance service now
has to send out a driver matching the racial make-up of
the destination district to pick up the victims of gang
attacks. Otherwise, the district’s gunmen will not let the
ambulance through. Now ambulances themselves are
coming under fire, as gangsters try to stop them saving
the lives of their enemies. Karachi’s ethnic wars have
claimed some 1,000 lives this year, with more than 100 in
the past week alone. By contrast the Taliban and other
religious extremists kill tiny numbers in Karachi.
A grisly new feature of the carnage is that people are not
just being shot. They are being abducted and tortured;
then their bullet-ridden, mutilated bodies are dumped in
sacks and left in alleyways and gutters. Victims’ limbs,
genitals or heads are often severed. Torture cells operate
across Karachi. The butchery is filmed on mobile phones
and passed around, spreading the terror further. Most
victims are ordinary folk randomly targeted for their
ethnicity.
At the city’s Abbasi Shaheed Hospital, a public facility,
doctors treat only Mohajirs, who dominate the local district
and are the biggest ethnic group in Karachi. Mohajirs are
descendants of those who moved to Pakistan from India in
1947, when the subcontinent was partitioned. Ambulance
crews must determine the ethnicity of patients and take
them to the right hospital.
If this were just a turf war between criminal gangs, things
might be brought under control. But each gang has the
patronage of a mainstream political party, in a fight that
exploded in 2008 when an election was held to end
Pakistan’s latest period of military rule. Political support for
warring ethnic gangs means the police largely stay out of
the conflict: each gang will call on political muscle if its
henchmen are rounded up. The provincial authorities
launched a crackdown this week, but little is expected of it.
The Muttahida Qaumi Movement (MQM), a party
established in the 1980s that claims to represent the
Mohajirs, once had an iron grip over Karachi. That
monopoly is now being challenged by the Awami National
Party, which says it speaks for the ethnic Pushtun
population, who migrated from the north-west of the
country, and the Pakistan Peoples Party (PPP) of President
Asif Zardari, which heads the ruling coalition in the capital,
Islamabad. Its gang following is ethnic Baloch, from the
neighbouring province of Balochistan. It is the MQM versus
the rest.
The conflict’s ferocity may yet threaten Pakistan’s fragile
return to democracy. In recent days Karachi businesses
have called for the army to restore order. Violence in
Karachi was repeatedly used as part of the justification for
toppling four national governments in the 1990s. This city
of 18m people is Pakistan’s economic lifeline, and the port
SMC 16/2011 ETC. 138
through which most supplies reach NATO forces in
Afghanistan.
Away from the ritzy villas of Defence and Clifton districts,
the people of Karachi’s 3,500 square-kilometer (1,350
square-mile) sprawl live in decrepit homes and apartment
blocks set on narrow, filthy streets, where gangs rule with
near impunity. Trouble often flares when one ethnic ghetto
abuts another.
In Korangi, a ramshackle semi-industrial district in the east
of the city mainly inhabited by Mohajirs, Pervez has not
been to work for 20 days. He mends tyres on Tariq Road in
the city centre, a half-hour bus ride away. But since gangs
started pulling people off buses and killing them, he has
been too afraid to venture out. “The Pushtuns will cut your
throat,” Pervez says. “If I am killed, what will my children
do?”
Kashif Malik, a 32-year-old rickshaw driver and PPP
activist, was at home with a friend, Shoib, in Orangi Town,
in Karachi’s north-west, when gunmen came to the door.
Shoib was killed, while Mr Malik was lucky only to be shot
in the arm. He is sure the assailants were from the MQM.
Mr Malik insists that joining a political party offers the
safest protection these days. “A lone person cannot survive
in Karachi,” says Mr Malik from his bed at the Civil
Hospital. Most of those killed are not involved with any
political party. Language, clothes and even haircuts betray
a person’s ethnicity to the killing squads.
For more than two decades the MQM has collected
extortion money, known as bata, from businesses and
homes across the city. Now, using the political backing
they acquired in the 2008 election, gangsters associated
with the PPP and the Awami National Party, in a loose
alliance, also want their share of cash, at the heart of the
conflict. Businesses now have to pay off up to three rival
groups. In the past week Karachi’s markets selling marble,
bathroom tiles and medicines have separately staged
protests against bata.
As for the political parties, they seem to be able to turn the
violence off and on as it suits them. This suggests that
these are not mere criminals draping themselves in the
party flag, but rather integral parts of the parties’ political
machines. If the violence continues, more ordinary people
will be forced to seek the protection of a political party, to
which they will have to pay more dues. Perhaps this is
what the politicians are aiming for. “You can call this the
politicisation of crime, or the criminalisation of politics,”
says a security official in the city. “The state has lost its
writ in Karachi.”
120. It has to be noted that in the past the democratic
governments were dismissed either through the extra constitutional
SMC 16/2011 ETC. 139
instruments or in exercise of the powers available under the
constitutional provisions, inter alia, for the reason that both the
Federation and the Province had failed to control the disturbance in the
Province. Therefore, it is now the right and appropriate time when the
democratic set up must adhere to the constitutional provisions to
protect the Province as well as the country from internal disturbances.
However, in response to this, he has stated that a wake up call is not
needed, only a call to attention is sufficient because the Federal
Government is answerable to the Parliament and it is very much aware
of its duties. We wish that the Federal Government as well as the
Provincial Government could succeed in bringing normalcy in the
Province according to the Constitution before it is too late to overcome
the internal disturbances in view of the material brought before us.
121. The Federal Government could have provided assistance to
the Provincial Government to control the disturbances without any
delay, but we fail to understand the reasons prevailing with the
Federal Government in not acting promptly as the learned counsel has
himself by reciting verses from Holy Quran pointed out that killing of
one human being is tantamount to killing of whole mankind. During
the current year, more than 1300 persons were killed. The Chief
Secretary had admitted that the decision to extend powers to Rangers
to control law and order had taken place on 22.07.2011, but the
notification was issued on 25.07.2011, which has already been
reproduced hereinabove. Hence, the argument raised by the learned
counsel in this behalf does not advance the case of the Federation in
any manner. So far the remaining steps, which according to the
learned counsel had been taken by the Federation, they all seem to be
long term measures. The Federal Government has to protect the
SMC 16/2011 ETC. 140
Provinces against internal disturbances. Such protection, if required by
a Province in terms of Article 148(3) in view of the given facts and
circumstances and the scenario presupposes prompt protection and
failure to do so makes the Federal Government responsible as it has
been held in the cases of Ahmed Tariq Rahim and Mohtarama Benazir
Bhutto (supra).
122. The learned counsel emphasized that the executive
authorities in Pakistan had not failed in maintaining law and order
position and in that behalf he quoted the example of Swat. Precisely
stating, the situation in Swat was altogether different as in view of the
specific facts and circumstances pertaining to the said area and there
too, the civil administration had to call the military for ensuring the
writ of the Government, but in Karachi, which is the hub of economic
activity, breakdown of law and order for a single day allegedly causes
loss of 2.5 billion rupees everyday. The Provincial Government and the
Federal Government owe a duty to the citizens of Karachi to ensure
their Fundamental Rights without comparing the situation prevailing
over there with any other part of the country. Without prejudice to any
findings recorded herein, whether it is Swat or Karachi, equal
responsibility lies on the shoulders of the Provincial Government and
the Federal Government to ensure the implementation of the
Constitution and law.
123. Learned counsel claimed that except in Karachi in other
parts/districts of the Province of Sindh, the position of the law and
order is normal. We do not want to enter into this controversy because
the question relating to other districts of Sindh is not under
consideration, although Mr. Abdul Mujeeb Pirzada, learned ASC, who
appeared on behalf of Sindh Bachao Committee, had uttered a few
SMC 16/2011 ETC. 141
words to indicate that in the interior of Sindh as well, situation of law
and order was not satisfactory. However, it has been pointed out
hereinabove that all the limbs of the State, administrative units, etc.
have got equal importance as far as the duty of the Provincial
Government/Executive or the Federal Government or executive is
concerned, but when there is serious situation of law and order like in
Karachi and if there is non-adherence to the constitutional provisions,
the consequences are bound to reflect on the economic activity of the
whole of country as well as internationally. Therefore, the argument so
raised by the learned counsel needs no further discussion.
124. The learned counsel referred to the case of Jamat-e-Islami
Pakistan v. Federation of Pakistan (PLD 2000 SC 111) to contend that
internal disturbance cannot be equated with the failure of the
executive authority. In this behalf, it may be noted that in the cited
case, two petitions, bearing Petitions No. 22 & 25 of 1999 filed by
Jamat-e-Islami Pakistan and MQM were filed before this Court under
Article 184(3) of the Constitution, challenging the vires of Anti-
Terrorism Ordinance (No. IV of 1999) dated 27.04.1999 on the ground
of being repugnant to the Constitution and contrary to the guidelines
provided by this Court in the case of Mehram Ali v. Federation of
Pakistan (PLD 1998 SC 1445). This Court examined the expression
‘disturbances’ in the context of amendments made and provided its
definition. However, no observation/comparison vis-à-vis executive
authority of the government was under challenge, therefore, the
judgment being inept is not applicable.
125. He next contended that the will of the Government can be
judged from the fact that this Government has constituted JIT to dig
out the truth. He referred to p. 49 of JIT report to demonstrate that
SMC 16/2011 ETC. 142
the Special Branch, CID, IB, ISI, MI and Pakistan Rangers are Federal
agencies, have prepared the reports and all these reports relate to this
year, so this is ample proof of the will of the executive authority to
bring back normalcy in Karachi. It is important to note that this report
was neither filed by the Provincial/Federal Governments nor the
learned counsel called for the same. It was Syed Iftikhar Hussain
Gillani, learned Sr. ASC, who had filed this report, but in view of the
statement so made by the learned counsel, it is abundantly clear that
with effect from the date of its compilation, i.e. 31.03.2011, the
Government being aware of its contents remained silent. This report
contains horrifying facts. No one has claimed its confidentiality. To
ascertain the willingness of the Federal or the Provincial Governments
to act on this report, life history of one of the persons, namely, Ajmal
Pahari, without prejudice to him, is reproduced hereinbelow: -
TRAINING IN INDIAN TRAINING CAMP
I along with Zeeshan PIB Wala on the direction of Nadeem
Nusrat (London Secretariat) went to Singapore in 1996.
When we reached Singapore I informed Nadeem Nusrat
and told my location. Nadeem Nusrat told me that I must
wait and soon Jameel @ Jimmi will meet me with next
schedule. We stayed for one week in hotel (name not
remember) in Mustafa Market. Jameel @ Jimmy came to
us from South Africa. Also Zeeshan didn’t know about the
programme. Jameel @ Jimmy take ours passport and
photograph. Jameel @ arrange Indian Visa and send us via
Singapore Airline. Sunny who was escaped from Karachi
received us in India Delhi Airport, and took us to the house
where we stayed for 15 days. Then he took us to the
training center in a jungle near to the Delhi
OTHER TRAINING OF PARTY WORKERS IN INDIAN
TRAINING CAMP
When we reached at Indian Training Center we meet Noora
(Shah Faisal Colony Wala), Zafar Tension Duffer Zone
SMC 16/2011 ETC. 143
Wala), Raja (North Nazimabad Wala) Shakir Choota
(Orangi Town) of MQM A group.
MOTIVATION OF TRAINING IN INDIA
After completion of our training Sunny brought different
book on Revolution and every body had been motivated
that if we didn’t get our rights then we have to work under
the Leadership of Altaf Hussain and make our separate
state by unite Karachi and other major parts of Sindh.
WEAPON TRAININGG DURING THE SESSION
We wake up early in the morning for exercise and running.
After that we used weapons in which we used AK 47, G-3,
MP-5, LMG Rocket launcher, Grenade and other weapons.
Our teacher also trained original fire of rocket launcher last
day of our training.
RETURN FROM INDIA TO PAKISTAN
Sunny arrange Indian guide who took us to Indian Punjab
and one day at about 9’0 clock in evening we illegally
crossed the Indian border and entered into Pakistan area
Shakar Garh with our Indian Guide. Then that Indian Guide
took us to Lahore in Suzuki pick up and went back. Then
we came to Karachi in train (Rail).
MEETING WITH OTHER INDIAN TRAINEES IN KARACHI
I met Noora of Shah Faisal, Zafar Tension of Buffer Zone,
Shakir Choota of Orangi Town in Karachi but I never saw
Raju of North Nazimabad in Karachi.”
Above named person has given details of 53 persons murdered by him
from 1986 to 2000. Surprisingly, he also admitted murder of Iqbal
Raad Advocate, who was former Advocate General, Sindh. He has also
given the details of murder of 58 persons after his release from Jail in
2005. This document is full of information, which he has disclosed. The
question here is not the veracity or correctness of his statement. The
question is: what did the Federal Government or the Provincial
Government do on the basis of this information. Of course the truth of
the statement has yet to be determined but it was serious information
SMC 16/2011 ETC. 144
of grave crimes in an alleged confession. Inaction on the statement,
whatever its evidentiary value, means a certain backing and cooperation
with criminal activity. However, on the basis of this report,
no action has been taken against him as well as the organization with
which he showed his affiliation. According to him, he had been getting
training outside the country in India, etc. The remarks of the agencies
of the Federal Government and others, reference of which the learned
counsel for the Federation, are as follows: -
“The subject is a hard core and high profile trained target
killer affiliated with MQM (A) Group, who has been
involved in heinous crimes of murder, attempt to murder,
target killing, several activities of creating law and order
situation abduction, kidnapping, extortion.”
Without commenting on its evidentiary value, at least when the
Federal Government is relying upon it through its learned counsel,
some weightage is to be given to it. We posed a question to the
learned counsel that on the basis of above report, what action so far
was taken by the Government, however, no explanation came forward.
126. It is to be noted that all criminals, howsoever influential,
have to be dealt with across the board without any discrimination or
compromising the position of the law on the subject. As we have
already pointed out hereinabove that instant proceedings are not
adversarial, therefore, one cannot discuss the case of all those persons
whose names are mentioned in the report, but for the purpose of
meeting argument of the learned counsel, reference to one of the
same has been given with the observation that no prejudice will be
caused to concerned persons as perhaps he has to face trial in
different cases. But perusal of the report qua the argument raised by
the learned counsel showing the willingness of the Federal Government
SMC 16/2011 ETC. 145
to take action in Karachi to control the law and order does not appeal
to us. Thus, we are constrained to conclude that if an agency of the
Federal Government possesses such overwhelming evidence, what
could be the reasons for taking no action against concerned persons or
organizations.
127. Learned counsel stated that every crime committed
constituted violation of the Fundamental Rights one way or the other.
Bhatta, chanda, abduction, extra judicial killing, etc., whenever
committed, constitute violation of the Fundamental Rights qua the
individuals against whom such crimes are committed. According to
him, the Fundamental Rights of individuals have been violated due to
the rivalries between the individuals, there are clashes or crimes
committed by individuals against individuals and groups of individuals
are pitched against each other. Assuming argument of the learned
counsel is correct, then what is the function of the Executive in respect
of protecting Fundamental Rights when there is a violation. It is the
duty of the Provincial Government as well as the Federal Government
to protect and preserve the Constitution, which confers such rights
upon individuals. When violation of the Fundamental Rights is
admitted, ultimately blame lies with the executive authorities, both
Provincial and the Federal, for non-implementation of their rights. In
this behalf, detailed discussion has been made hereinabove. When the
learned counsel for the Provincial Government, Mr. Hafeez Pirzada,
ASC, calls upon this Court “give a wake up call” to his client, and the
learned counsel of the Federal Government concedes that a “Call
Attention Notice” can be issued, what more needs to be said: If they
themselves admit that the Court’s reprimand is need, how can the
Governments concerned be defended?
SMC 16/2011 ETC.
146
128. Dr. Babar Awan, learned counsel stated that the
Federation had no intention to invoke Articles 232 to 234 or Article 245
of the Constitution presently. Undoubtedly, it is for the Federation to
take a decision, but if any decision is taken, it would be strictly in
accordance with the Constitution. This Court has time and again
insisted that except adherence to the constitutional provisions in any
situation prevailing in the country, no extra-constitutional steps have
to be followed. In the neighbouring country, in case of failure of
constitutional machinery in the States, Article 356 is attracted to deal
with the situation. This Article is identical to Article 232 of our
Constitution, therefore, application of these provisions of the
Constitution is not alien to our system because on more than one
occasion the Executive resorted to the same. Reference may be made
to Farooq Ahmed Khan Leghari’s case (supra) wherein it was held as
under: -
“48. I am prompted to take above view inter alia for the
following reasons:
(i)
That the above view fits in with the above modern
jurisprudential theory of proportionality.
(ii)
That as a rule of interpretation, the Courts should
make efforts to preserve the Fundamental Rights of
the citizens while construing the Constitutional
provisions. This aspect, I intend to deal with
hereinafter while touching upon the aforesaid second
question in issue.
(iii)
That those who have taken oath to protect the
Constitution, particularly, the Judges of the Supreme
Court and the High Courts are bound by their oath
and duties to act so as to keep the provisions of the
Constitution fully alive and operative, to preserve it
in all respects, save from all defects or harm and to
stand firm in defence of its provisions against attack
of any kind as held by this Court in the case of
Fazalul Quader Chaudhry (supra), in which the view
taken is in line with the above Constitutional
mandate.
(iv)
That even in spite of suspension of the enforcement
of certain Fundamental Rights under clause (2) of
Article 233 of the Constitution, Article 4 thereof
remains fully operative which lays down that "To
SMC 16/2011 ETC.
147
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.
In particular -
(a)
no action detrimental to the life, liberty, body,
reputation or property of any person shall be taken
except in accordance with law;
(b)
no person shall be prevented from or be hindered in
doing that which is not prohibited by law; and
(c)
no person shall be compelled to do that which the
law does not require him to do."
as held by Salahuddin Ahmad, J. of this Court in the case
of Manzoor Ilahi (supra).”
In view of the peculiar circumstances prevailing in Karachi, issuance of
a large number of arms licences, both prohibited and non-prohibited,
also seems to be one of the reasons for not bringing normalcy in
Karachi and perhaps this is another reason that after every 2 to 4
weeks, some incident of torture, gang war, target killing, etc., takes
place, which comes to an end after taking heavy toll of life. The
Administration/Executive never realized the untold miseries of the
sufferers including widows and orphans; therefore, the executive is
bound to attend to this aspect of the case.
129. After the Court concluded the hearing on 16.9.2011
another very tragic incident took place in Karachi. A car bomb
exploded outside the house of Chaudhry Aslam, SSP CID, in the
Defence area of Karachi. Six Policemen and a mother along with her
young son were martyred. Although this crime is apparently, and
prima-facie of a different variety not related to the turf war or ethnic
strife in Karachi, there is something to be learnt from it by the citizens
of Karachi. The vehicle that exploded at the gate of the SP’s House
must have been loaded with explosives and prepared with a network
of wires, fuses, projectiles such as ball bearings or shrapnels, and
SMC 16/2011 ETC. 148
triggers. A sophisticated remote control device may also have been
needed although it is yet to be determined conclusively whether it was
a suicide attack or not. One thing is clear that the vehicle was loaded
with explosives and prepared for exploding in Karachi and nowhere
else. Surely it was not brought, fully equipped and loaded all the way
from the FATA area with explosives, projectiles, wires, fuses, triggers
and remote control or suicide oriented equipment. It was indeed
prepared in Karachi. All such vehicles and suicide bombers are finally
prepared and equipped in our cities, not in FATA. Houses are
previously rented for this purpose and rooms are taken in hotels.
Whether the vehicle was prepared in a workshop or a house, the
neighbours must have noticed some strange or at least dubious
movements around and/or inside the workshop or house. The same
applies to other terrorists and suicide attackers in Karachi, Lahore,
Rawalpindi, Peshawar, Quetta and other cities of Pakistan. The vehicles
and suicide bombers and assault teams are all assembled and
prepared in our own neighborhoods and Mohallas. These then go out
and attack Bazaars, shrines establishments, killing innocent men,
women and children. If the citizens were vigilant and responsive, such
incidents could be prevented. They must report suspicious activity.
That is the best, perhaps the only way to finish this menace.
No doubt the fear of reporting to some extent is due to a
lack of confidence in the administration and the Police but that
confidence will have to be revived for the mutual benefit of all. It is for
the Government to revive that confidence by not using the
administration and the police for political or private ends. That is the
responsibility of the Government of the Day. We have seen the
beneficial and positive effects of a depoliticized administration with the
SMC 16/2011 ETC. 149
intervention of the Court. It is now the bounden duty of the
government to continue with this status and not deflect the
administration to its own benefit in preference to the citizen. The
Police must also be cleansed of unmerited appointments. We intend to
keep an eye on this process and will respond to any genuine complaint.
130. The morale of the police is low. Even honest Policemen are
demoralized. They are caught between the devil and the deep blue sea.
On the one hand, they may be punished for doing their duty if it runs
counter to the political objectives of the party in power and on the
other, they are afraid of being shot by the persons they have
apprehended or their associates. They are conscious of the fact that so
many policemen who took part in the operations of 1992 and 1996
have disappeared or have been eliminated. It is necessary, therefore,
for the Police to fully and impartially investigate and find out the
circumstances of each such disappearance/elimination and provide a
detailed report to this Court in respect thereof.
131. Thus, from the material produced before the Court and the
information conveyed during hearing of the case by the ISI followed by
intensified arguments advanced by the learned counsel appearing for
the Provincial and Federal Governments, learned Attorney General,
learned Advocate General, learned counsel for the Province of Sindh
and learned counsel for the interveners, the Inspector General of
Police, the DG Rangers, the Presidents of the Sindh High Court Bar
Association and the Karachi Bar Association as well as all others, we –
Observe that violence in Karachi during the current year and in
the past is not ethnic alone but it is also a turf war between
different groups having economic, socio-politico interest to
strengthen their position/aggrandizement, based on the
phenomenon of tit for tat with political, moral and financial
SMC 16/2011 ETC. 150
support or endorsement of the political parties, who are claiming
their representation on behalf of public of Karachi including
components and non-components of Provincial Government/
Executive;
A N D
Declare that recent violence in Karachi represents unimaginable
brutalities, bloodshed, kidnapping and throwing away dead
bodies and torsos in bags; as illustration, indicating toll of 306
lives in one month; detection of torture cells video of which has
been produced; receiving bhatta to strengthen the ranks of one
group against the other; grabbing land; drug mafia etc.,
destroying moveable and immovable properties of the citizens,
establishes that the Fundamental Rights of the citizens enshrined
in Articles 9,14,15,18 and 24 of the Constitution have not been
protected/enforced by the Provincial Government/Executive
authority and this failure has made the lives and properties of
the citizens insecure, inasmuch as Federal Government/
Executive has also not protected Province of Sindh against
internal disturbance, thus the government of Province of Sindh,
on this account, too, failed to carry out functions in accordance
with the provisions of the Constitution [Article 148(3)];
A N D
Further observe that both the Provincial and Federal
Governments/Executives have to find out solutions of the
present scenario as per provisions of the Constitution;
A N D
Further observe that to come out of instant grave situation of
law and order in Karachi, police force being principal law
enforcing agency has to be de-politicized and strengthened so
that they could, with full commitment, dedication, zeal and zest,
perform its bounden duty, and unless there is a de-politicized
police, the situation of law and order is likely to become more
aggravated, no sooner the assistance of Rangers is withdrawn;
SMC 16/2011 ETC. 151
A N D
We apprehend that any further failure to protect the lives and
property of the citizens is likely to cause unprecedented disaster,
therefore, all efforts should be made to avoid the same in the
interest of the nation and country, which is supreme as per the
mandate of the Constitution and the law;
A N D
Further observe that in respect of banning any political party
including MQM, against whom all the interveners mostly had
voiced complaints is not within domain of the Court at this stage
as in terms of Article 17(2) of the Constitution every citizen, not
being in the service of Pakistan, shall have the right to form or
be a member of a political party, subject to any reasonable
restrictions imposed by law in the interest of the sovereignty or
integrity of Pakistan and it is the responsibility of the Federal
Government to act under Article 17 for action against any party
violating this Article. The Court will only review such issue at any
other appropriate stage or proceeding if then necessary to
determine whether the actions of any party are directly or
indirectly prejudicial to the sovereignty or integrity of Pakistan
within the meaning of the Article. The Court will remain, in
appropriate proceedings, the ultimate arbiter of this question but
will not allow any government to avoid its duty under the law
and the Constitution;
A N D
Further observe that as per material brought before the Court,
there are criminals who have succeeded in making their ways in
political parties notwithstanding whether they are components or
non-components of government, and are getting political and
financial support allegedly from such parties, therefore, the
political parties should denounce their affiliation with them in the
interest of the country and democratic set up and they should
not allow them to use their names as militant outfits of the
political parties. Failure to do so may entail consequences of a
SMC 16/2011 ETC. 152
penal nature against the party or person responsible, whether in
office or not;
A N D
Further observe that to avoid political polarization and to break
the cycle of ethnic strife and turf war, boundaries of
administrative units like police stations, revenue estates, etc.,
ought to be altered so that the members of different
communities may live together in peace and harmony, instead of
allowing various groups to claim that particular areas belong to
them and declaring certain areas as NO GO Areas under their
fearful influence. Subsequent thereto, on similar considerations,
in view of relevant laws, delimitation of different constituencies
has also to be undertaken with the same object and purpose,
particularly to make Karachi, which is the hub of economic and
commercial activities and also the face of Pakistan, a peaceful
city in the near future. The Election Commission of Pakistan may
also initiate the process on its own in this behalf;
A N D
Further observe that equal chances should be provided to
different communities of Karachi to participate in economic and
commercial activities instead of confining the same to different
political groups on the basis of parochial, racial, tribal, sectarian,
partisan and provincial prejudices;
A N D
Further observe that Karachi is full of arms and ammunition of
prohibited and non-prohibited bores including licensed and illicit,
therefore, Karachi has to be cleansed from all kinds of weapons
by adhering to the laws available on the subject, and if need be,
by promulgating new legislation. All licensed arms genuinely
required for security concerns and personal safety may be
retained but these must also be registered with NADRA. All other
licenses, where such need cannot be shown, or where multiple
licenses have been issued to the same individual (as distinct
from security firms) if not justified, or which are used for
SMC 16/2011 ETC. 153
unnecessary display at ceremonies or elsewhere for aerial firing
should be cancelled after summary and expeditious proceedings
in accordance with law;
A N D
Further observe that there is a need for a fresh comprehensive
law to eliminate and punish land grabbers and encroachers. This
is one of Karachi’s greatest problems. The Court has already
dealt with some cases Suo Motu and otherwise, and will continue
to do so whenever necessary or appropriate. Sometimes this
Court is the last hope of the citizens or a community which turns
to it for redress when all other avenues are denied to them. But
overall it is the duty of both Governments to formulate such law
and initiate it in the appropriate assembly; and thereafter to
implement it fully without showing any favour or immunity to
any person whether a political favourite, ally or for any other
personal or party consideration;
A N D
Further reiterate that monitoring of the criminal cases should
take place in view of the observations made in the case of
Sheikh Liaqat Hussain (supra). Besides, the appointments of the
Presiding Officers of the Anti-Terrorism Courts should also not be
delayed for any reason, as we experienced during the hearing of
the case that those appointments were delayed for a period of
nearly two years. However, under the direction issued by the
Court, the Presiding Officers were appointed and we expect that
such delays shall not be allowed to occur in future;
A N D
We observe that since innocent citizens have lost their lives,
number of which comes to 1310 during the current year.
Similarly, a good number of citizens have been injured and/or
lost their valuable property, both movable and immovable,
therefore, provincial government/executive shall constitute a
Commission to assess their losses and on its recommendation,
SMC 16/2011 ETC. 154
compensation must be paid to the sufferers without partisan
consideration, as early as possible;
A N D
We direct that there must be no ‘NO GO AREAS’ at all in Karachi.
If any is found or credibly reported to the Court the Police and, if
required by the Provincial Government, the Rangers shall take
strong and decisive action to eliminate it. Moreover, if such an
area is proved to exist to the satisfaction of the Court, we may
require the IGP himself, and if necessary the DG Rangers also, to
personally lead the operation into such areas. The Police and
Rangers are therefore, expected to conduct the on-going
operation across the board without showing any favour to any
one and without being influenced from any quarter, be it political
or otherwise. In case they are asked to obey any illegal orders,
or to show leniency to any criminal, it will be their duty to bring
it to the notice of the Court and appropriate orders will be
passed accordingly;
A N D
Further direct that an independent and a depoliticized
investigation agency be deputed to conduct investigation of
cases fairly, honestly and without being influenced in any
manner. Similarly, the prosecution agency comprising competent
prosecutors and the Provincial Government/Executive must
provide protection to the witnesses so that they may depose
against the perpetrators of crimes without any fear, enabling the
courts to decide cases against them in accordance with law. The
prosecutors, particularly for the Anti-Terrorism Courts should be
appointed in a highly transparent manner according to the
Constitution and the law. Appointments of prosecutors are
required to be undertaken without any political whims and
considerations;
A N D
Further direct that DG NADRA and the IGP will set up a special
joint cell with specialized officials and experts along with
SMC 16/2011 ETC. 155
sufficient manpower to establish several teams to visit on the
spot and identify illegal foreigners so that they may be dealt with
strictly in accordance with law after a proper hearing and
opportunity to present proof of their citizenship. They should
attempt to conclude this exercise preferably in one year;
A N D
Further direct that the IGP shall collect the record and facts
about the disappearance or elimination of all police and other
officials who took part in the Karachi operations of 1992 and
1996 or were witnesses in ethnic or related crimes and present a
report to the Court within the next one month also showing
whether their families were compensated or not;
A N D
Further direct that the Provincial Government shall place on
record of the Court copies of all judicial inquiries instituted in the
matter of law and order in Karachi since 1985. These shall be
retained for perusal and for any necessary action or appraisal of
the situation at any time in the future;
A N D
Further observe that the Provincial Government/Executive shall
ensure smooth running of economic and commercial activities
and shall take necessary steps that the protection is provided
against uncalled for and illegal shutter down and strikes to the
businessmen. During arguments, it was also brought to our
notice that due to illegal strikes and shutter down calls, the
normal life of citizens of Karachi is paralyzed, and allegedly it
causes loss of billions of rupees in a day, therefore, it is
observed that the Government and the political parties shall
evolve a respectable way out to avoid such a situation in future;
A N D
Finally, it is directed that a Committee be constituted by the
Provincial Government/Executive, headed by the Chief Justice of
SMC 16/2011 ETC. 156
Sindh High Court, who shall be assisted by the Chief Secretary,
the heads of the security agencies i.e. para-military
organizations and I.G. Police, to supervise and ensure that law
enforcement agencies take action indiscriminately, across the
board against the perpetrators involved in causing disturbances
in Karachi. The Chief Justice shall convene the meeting at least
once in a month to review the implementation of this judgment
and copy of the proceedings shall be transmitted to the Registrar
of this Court for our perusal and passing appropriate orders at a
later stage, if need be.
132. In view of above declarations/observations, instant Suo
Motu proceedings as well as Constitution Petition No. 61 of 2011 under
Article 184(3) stand disposed of while parting with the saying of James
Bryce that “Our country is not the only thing to which we owe our
allegiance. It is also owed to justice and to humanity. Patriotism
consists not in waving the flag, but in striving that our country shall be
righteous as well as strong.”
Iftikhar Muhammad Chaudhry, CJ
Anwar Zaheer Jamali, J. Sarmad Jalal Osmany, J.
Amir Hani Muslim, J. Ghulam Rabbani, J.
Announced in open Court on 06th October, 2011
CHIEF JUSTICE
APPROVED FOR REPORTING
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