NAVEED SIKANDAR Versus ZAFAR MEHMOOD
Through this Constitutional petition, declaration is being sought that order, dated 25‑2‑1998 passed by the learned District and Sessions Judge, Sheikhupura in his capacity as District Chairman Human Rights is coram non judice and the proceedings pending before the learned Additional Sessions Judge, Sheikhupura pursuant to the above order are of no consequence.
2. On 25‑2‑1998, Zafar Mehmood, Ahmed Sher and Wali Ullah (respondents Nos. l to 3) moved an application before the District and Sessions Judge, Sheikhupura in his capacity as District Chairman Human Rights, Sheikhupura alleging therein that Warburton Police had registered a case vide F.I.R. No.9 of 1998 under section 11/18 of the Offence of Zina (Enforcement of Hadood) Ordinance No.VII of 1979 read with section 354, P.P.C. against Muhammad Ashraf. On his arrest, in the process of "Jams Talashi" Rs.32,000 were removed from his pocket. Later on this case was, however, cancelled having been found as false; but the police declined to return the abovesaid amount of Rs.32,000 Muhammad Ashraf, therefore, lodged a complaint with the Senior Superintendent of Police against the S.H.O. Ejaz Ahmed, A.S.I. Muhammad Afzal, A.S.I. and Gulzar, F.C. who marked the same to D.S.P. (HQ). The latter had fixed 13‑2‑1998 for holding an inquiry.
However, a day earlier i.e., on 12‑2‑1998 when Raza Ullah and Ashraf were watering to their fields, they were whisked away by the police, subjected to torture and then placed in lock‑up. Muhammad Ashraf was also made to put his thumb‑impressions on the blank stamp paper. To cover up their arrest a case was also registered vide F.I.R. No.56 of 1998 under section 188, C.P.C. On getting a wind of this incident, Naveed Ullah and Wali Ullah brothers of Raza Ullah went to Police Station, Warburton and inquired from the police about the cause of arrest of said Raza Ullah and Muhammad Ashraf. On their entreaties, Raza Ullah was released but the police declined to show a similar favour to Ashraf. This led to an altercation between the aforesaid brothers of Raza Ullah and the police. In relation thereto, the entire police of Warburton Circle got together on the following morning at 5 a.m. and rounded up the houses of Raza Ullah, Naveed Ullah and Wali Ullah (respondent No.3) as well as those of Manzoor Hussain and Ghulam Muhammad and Muhammad Ali. They also raided the Dera of Rana Zafar Joiya, Ahmed Sher (respondents Nos.l and 2), Sakhawat Mehmood son of Mehmood Khan, Ahmed Sher son of Amir Khan, Muhammad Sarwar son of Shahadat, Ejaz Ahmed son of Ghulam Muhammad, Dr. Imtiaz son of Abdul Hameed, Shah Muhammad son of Ali Gohar, Aftab Ahmed son of Ali Asghar. They scaled over the wall and broke open the doors and thus, played havoc with the privacy of their houses. The women folk were beaten up and subjected to insulting behaviour. Hafiz Ejaz Ahmed, Muhammad Sarwar, Muhammad Iqbal, Ghulam Muhammad, Manzoor Ahmed, Wali Ullah, Nazir Ahmed and Ilyas were arrested and were subjected to torture. Ornaments of Rs.8,000 were removed from the house of Zia Ullah. Similarly from the house of Shah Muhammad, a cable worth Rs.10,000 and cash Rs.10,000 were also taken away by force. A case was also registered under section 13 of the Arms Ordinance No.XX of 1965 against Wali Ullah and Nazir Ahmed.
3. On the receipt of this complaint, the learned Sessions Judge respondent No.4 exercising his authority as Chairman Human Rights passed the following orders:‑‑‑
"Very serious allegations have been levelled against some Police Officers. In order to verify the genuineness of the allegation, Rana Zahoor‑ul‑Haque Additional Session Judge, Sheikhupura is directed to make a detailed enquiry and submit his report within seven days."
4. The learned Additional Sessions Judge, Sheikhupura on being entrusted with the inquiry proceeded to depute the Senior Superintendent of Police, Sheikhupura, to ensure the service of all the police officials. They were also directed to submit their written statements and parawise comments.
5. Mr. Shabbar Raza Rizvi, learned counsel appearing on behalf of the respondents Nos. 1 to 3 submits that the petition is misconceived. He maintains that all the District and Sessions Judges have been vested with the authority to examine the case of Human Rights violation pursuant to the declaration made by the Chief Justices Committee on 14‑8‑1991 commonly known as Quetta Declaration. It was decided therein that:‑‑‑
"All organs of the State as well as all citizens are expected to contribute and actively participate in the enforcement of the Scheme. However, the Bar and especially the statutory organizations thereof shall act as vanguard and main vehicle for the success of the scheme‑‑‑the judiciary providing the necessary umbrella to every one who would strive for it but all in accordance with law and remaining strictly within the Constitutional set‑up of Pakistan (In-Shallah) "(PLD 1991 Journal 126)
He laid a great stress on the wording of the abovereferred para. of the resolution and maintained that the Committee of the Chief Justices had emphasised that, Judiciary shall provide the necessary umbrella to every‑one who would strive for it.
6. It was further argued that the third tier of the Scheme pertained to District level organization. A Board for Awareness and Enforcement of Human Rights and Obligations at the district level was visualized with District and Sessions Judge as its director. The fourth tier was the constitution of Committees the Directors main function was set out as follows:‑‑‑
"On information received and/or discovery of any infringement of human rights from any source relating to their area, the committee will immediately take cognizance of the matter and try to rectify the infringement by all lawful means of persuasion, thereafter if it fails, the committee will, through its bar competent (Lawyers), take appropriate action in existing legal forums e.g. by providing legal aid etc.;
7. In aid of his submission that Quetta Declaration has the force of law, Mr. Shabbar Raza Rizvi, Advocate, relied on observations made by my learned brother Ihsan‑ul‑Haq Chaudhry, J. in the Full Bench judgment delivered in commonly known Saima Waheed's case (PLD 1997 Lahore 301) to the effect that:‑‑‑
"We propose that the Government should enact law to provide a detailed machinery in this behalf and in the meanwhile, the petitions may be made to the District Judges of the place where the girl last resided with the parents. This could be done under the Quetta Declaration issued by the Chief Justices Committee on 14‑8‑1991. The relevant paras. reads as under:‑‑‑
"(2) to ensure that all citizens, particularly the deprived and unaided sections of the society become conscious and assertive of their rights and obligations as guaranteed and provided by Islam, the Constitution and the law in order to achieve this objective, to provide an efficient machinery at the door‑steps so that they can protect the rights and fulfil the obligations;
(3) -----------------------------
Learned counsel for the petitioner however, pointed out that the above was just a minority view and could not be described as view of the Court.
8. Mr. Naveed Rasul Mirza, learned Additional Advocate‑General on the other hand, submits that Quetta Declaration is just a pious resolve and till date it has not been given effect to by either by the Federal or the Provincial Governments. Unless 'Quetta Declaration' is translated into law by the legislature, it can neither be executed nor implemented in a lawful manner. He placed emphasis on the last lines of the abovereferred resolution that judiciary would provide an umbrella only in "accordance with law and remaining strictly within un-Constitutional set‑up. Meaning thereby that any intervention on the pretext of violation of Human Rights has to be within the frame‑work‑of law.
In the case in hand, it was suggested that the allegations made in the application to the learned Sessions Judge disclosed the commission of penal offences. Remedy of private complaint, as such, was the more proper course for the respondents.
8. I have heard the learned counsel for the parties at considerable length. I do feel the Quetta Declaration is a charter of great potential and could prove as a panacea for the miseries and inhuman treatment meted out to the people of this country. Unfortunately over six years have gone by but no heed has been paid by the Government to legislate on the lines proposed by the Chief Justices Committee or to set up an infra structure for its implementation.
9. In the absence of any steps having been taken to implement the "Quetta Declaration", it cannot be held that the learned Sessions Judges stand vested with any authority by virtue of the said Declaration. The order passed by the learned Sessions Judge, Sheikhupura on 25‑2‑1998 assuming jurisdiction as Chairman Human Rights is, thus, declared to be without lawful authority and the inquiry being conducted by the learned Additional Sessions Judge is held to be of no consequence.
10. However, respondents Nos. l to 3 cannot be allowed to suffer for an act of default of Court. Their application made to the Sessions Judge, discloses commission of penal offences. The said application is ordered to be transferred to the Court of concerned Judicial Magistrate, who will treat the same as a private complaint and proceed in this behalf expeditiously, keep the learned Sessions Judge posted with the progress every four weeks.
11. With the above observation, this petition is accepted. There will be no order as to costs.
A.A./N‑96/L ??????????????????????????????????????????????????????????????? ??????????? Petition accepted