JAVED IBRAHIM PARACHA Versus FEDERATION OF PAKISTAN

ABDUL HAMEED DOGAR, J.‑‑ ‑By this judgment, we proposed to dispose of Civil Petitions No.639 and 640 of 2002 as they arise out of a common judgment, dated 28‑3‑2002 passed by a learned Judge in Chambers of the Peshawar High Court, Peshawar, whereby Writ Petitions No.12 and 319 of 2002 filed by the petitioners were dismissed.

2. Briefly stated the facts leading to the filing of the instant petitions are that the petitioner an Ex. Member of National Assembly from Kohat District invoked the Constitutional jurisdiction of Peshawar High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, (hereinafter referred to as `the Constitution') through Writ Petitions Nos.12 and 319 of 2002 wherein he challenged the unlawful and illegal arrest and detention of about 57 foreigners belonging to various Arab, countries and 145 Pakistani citizens resident of different places in Pakistan. According to him, Arab foreigners were taken into custody by Pakistan Army in Federal Administered Tribal Areas (hereinafter referred to as `FATA') said to have been engaged in the terrorist activities in Afghanistan at the behest of terrorist network like Al‑Qaeda whereas above‑mentioned Pakistanis were taken into custody in the week of January, 2002 who had crossed the border and had gone to Afghanistan in support of Taliban.

3. According to the petitioner, aforesaid detenus have not only been denied the right of legal consultation but medical treatment also. They have been kept in the solitary confinement and are not being allowed any interview with them. Irrespective of above, he has shown an apprehension of their being handed over to United States.

4. The respondents in their comments besides raising preliminary objections about the maintainability, of the petitions took the plea that detenus were arrested by the competent authority while infiltrating into Pakistani territory on the Western Border from Afghanistan. They being affiliated in terrorist Groups in Afghanistan have been booked under section 40 of the Frontier Crimes Regulation, 1901 (hereinafter referred to as `the FCR') and are thus in lawful custody. As per comments, 43 foreigners belonging to the terrorist network like Al‑Qaeda were sent back to Afghanistan after interrogation being unwanted.

5. After hearing the parties at length, the above mentioned writ petitions were dismissed by the learned High Court vide impugned order.

6. We have heard petitioner Javed Ibrahim Paracha in person and have gone through the record and proceedings of the case in minute particulars.

7. The petitioner at the very outset stated that all foreign Arab detenus have been released and are no more in detention in Pakistan. In view of such statement, Criminal Petition No.640 of 2002 has become infructuous and is dismissed.

8. On query as to how the petitioner is an aggrieved party in term of Article 199 of the Constitution, he replied that since it is the right of every citizen to get justice against public functionaries, as such, he as pro bono publico is entitled to agitate the legality of the detention of the above mentioned detenus.

9. As regards Pakistani detenus, petitioner informed that many of them have been released but only few are in custody. He, however, admitted that he has not given the particulars of the alleged Pakistani detenus either in the writ petition before the High Court or before this Court as none of them is related or connected with him in any capacity. So much so he was not confident as to how many detenus were released and how many are still in custody. He even was unable to give the names and addresses of those released and still in detention.

10. No doubt with the development of new concept of public interest litigation in the recent years, a person can invoke the Constitutional jurisdiction of the superior Courts as pro bono publico but while exercising this jurisdiction, he has to show that he is litigating, firstly, in the public interest and, secondly, for the public good or for the welfare of the general public. The word `pro bono publico' as defined in Black Law Dictionary, Chambers Dictionary and Oxford Dictionary generally means `for the public good' or `for welfare of the whole' being or involving uncompensated legal services performed especially for the public good. `Public interest' in the Black Law Dictionary, has been defined as the general welfare of the public that warrants recognition and protection. Something in which the public as a whole has a stake; esp., an interest that justifies governmental regulation. It thus signifies that in case of public interest litigation, one can agitate the relief on his own behalf and also on behalf of the general public against various public functionaries, where they have failed to perform their duties relating to the welfare of public at large which they are bound to provide under the relevant laws. Viewing the bona fide of petitioner in the above contest, we are of the opinion that the petitioner has not been able to show that he was aggrieved person within the meaning of Article 199 of the Constitution and can agitate his grievance as `pro bono publico'.

11. This Court in the case of Col. (Rtd.) Muhammad Akram v. Federation of Pakistan through Secretary, Ministry of Defence and others (1998) SCMR 2073) while elaborating the principle of pro bono publico and its applicability has held that the petitioner has failed to show any personal interest or close relationship in the convict thus was not an aggrieved party in the term of Article 199 of the Constitution and could not invoke jurisdiction as pro bono publico.

12. For what has been discussed above, we do not find any exception to interfere with the findings recorded by the learned High Court in the impugned judgment which are accordingly, maintained. Resultantly petition being devoid of force is dismissed and leave to appeal refused.

S.A.K./J‑2/S Leave refused.