C.P.No.D-2526 of 2014
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Date Order with signature of Judge
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Present:- Mr.Justice Muhammad Ali Mazhar
Mr. Justice Shahnawaz Tariq
Muhammad Nadeem Rana……v…………D.G.Rangers &
others
Date of hearing 16.07.2014
Ms.Uzma and Mr. Habib Ahmed, Advocates for the Petitioner.
Dr. Niaz Abbasi, Home Secretary, Government of Sindh.
Barrister Mustafa Mehaser, A.A.G .
Mr. Shaikh Liaquat Hussain, Standing Counsel.
Saeed Ahmed Soomro, Zia Arif Janjua and Allah Bachaya Bhatti from Pakistan Rangers.
Mr. Zafar Ahmed Khan, Addl. P.G
Aftab Ahmed Nizamani, S.S.P City and Mohammad Asif, S.H.O, P.S Garden.
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Muhammad Ali Mazhar-J: This constitution petition has been brought to challenge the illegal detention of the Muhammad Hanif Rana.
2. It is contended in the memo of petition that that on 1st May, 2014 the petitioner’s son went for shopping when the officials of respondent No.1 conducted the raid, arrested six to seven persons from the area market along with the son of the petitioner. He approached to the respondent No.4 but he did not lodge the report.
3. On 2nd June 2014, the Major Deputy Assistant Judge Advocate General Pakistan Rangers Sindh (Ashfaque Ahmed), filed the comments in which he stated that on the direction of this court necessary ground check was carried out which revealed that detenue Muhammad Hanif has been detained for three months with effect from 4.5.2014 to 1.8.2014 by the Sector Commander Abdullah Shah Ghazi Rangers under Section 11.EEEE of Anti-Terrorism Act 1997 and at present he is confined in the Central Prison, Karachi. He also attached the detention order dated 4.5.2014, passed by the Sector Commander who received the credible information relating to involvement in extortion/bhatta target killing and kidnapping against Muhammad Hanif, hence his preventive detention order was passed in public interest so that an inquiry be conducted against the above said person and during the inquiry he may be kept under preventive detention for the period of three months.
4. On 13.6.2014, the petitioner was allowed to file amended petition in view of the subsequent developments made in the matter. The petitioner filed the amended prayer for seeking the declaration that the act of the official respondent is illegal, unconstitutional and misuse of official power. He further prayed to set aside the impugned order dated 4.5.2014 and release the detenue.
5. Section 11.EEEE was inserted by the Act No.XX/13 dated 26.3.2013 which was substituted by the Act No.VI of 2014 dated 18.6.2014. A proviso was added that the detention of such person, including detention for further period after three months, shall be subject to the provisions of Article 10 of the Constitution. Sub-Section 5 was also inserted which provides that any person detained shall be provided facility of medical checkup as may be prescribed by the rules. One more important aspect which cannot be ignored is the language used in the proviso that was attached with Section 1 of 11.EEEE inserted in 2013 which was substituted through the Act No.VI of 2014 dated 18.6.2014. In the earlier proviso (inserted in 2013 to Section 11.EEEE), further detention if necessary was the subject to the provisions of Article 10 of the Constitution while the proviso brought in through substitution in 2014 covers both the detention i.e initial detention including detention for further period after three months which shall be subject to the provisions of Article 10 of the Constitution. For ready reference, Section 11.EEEE of the Anti-Terrorism Act 1997 is reproduced as under:-
(11) EEEE. Preventive detention for inquiry. (1) The Government or where the provisions of section 4 have been invoked the armed forces or civil armed forces, as the case may be, subject to the specific or general order of the Government in this regard, for period not exceeding three months and after recording reasons thereof, issue order for the preventive detention of any person who has been concerned in any offence under this Act relating to the security or defence of Pakistan or any part thereof, or public order relating to target killing, kidnapping for ransom, and extortion/bhatta, or the maintenance of supplies or services, or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned for purpose of inquiry.
Provided that the detention of such person, including detention for further period after three months, shall be subject to the provisions of Article 10 of the Constitution.
(2) The inquiry under sub-section (1) may be conducted by a police officer not below the rank of Superintendent of police or through a join investigation team (HT) to be notified by the Government comprising a police officer not below the rank of Superintendent of Police and officers of other investigation agencies and the powers of the inquiry officer will be vested as per section 5 of the Federal Investigation Agency Act, 1974 (VIII of 1975).
Provided that where the detention order has been issued by the armed forces or civil armed forces under sub-section (1), the inquiry shall be conducted by the JIT comprising members of armed forces or civil armed forces, as the case may be, intelligence agencies and other law enforcement agencies, including a police officer not below the rank of Superintendent of Police.
(2A) The provisions of sub-sections (1) and (2) shall remain in force for such period as may be notified by the Government from time to time.
Provided that such period shall not exceed two years from the commencement of the Anti-Terrorism (Amendment) Act, 2014.
(3) The detenue shall be produced in camera before the presiding officer of the court or in his absence before the District and Sessions Judge or the Magistrate appointed under the Shariah Nizam-e-Adl Regulation, 2009, within twenty four hours of his detention and before the presiding officer of the court if and when any extension if the period of detention is requested.
(4) During inquiry the concerned police officer not below the rank of Superintendent of Police or equivalent officer of the law enforcement agencies or the members of joint investigation team (HT) as the case may be shall have all the powers relating to search, arrest of persons and seizure of property, and other relevant material connected with the commission of offence and shall have all the powers as a police officer has in relation to the investigation of offences under the Code or any other law for the time being in force.
Provided that the detenue shall be kept in a detention centre so notified by the Government and the presiding officer of the court or the Magistrate, as the case may be referred in sub-section (3) that have the authority to inspect the detention centres to ensure that the custody is in accordance with the law for the time being in force.
(5) Any person detained under the section shall be provided facility of medical check up as may be prescribed by rules.
6. Article 10 is one of the basic fundamental rights which envisages in sub-article (1) that no person who is arrested shall be detained in custody without being informed, as soon as may be of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice while sub-article (2) makes emphasis that every person who is arrested and detained in custody shall be produced before a Magistrate within a period of 24 hours of such arrest, excluding the time necessary for journey from the place of arrest to the court of nearest Magistrate, and no such person shall be detained in custody beyond the authority of the Magistrate. However, it is further provided in sub-article/clause (3) that nothing in clause (1) and (2) shall apply to any person who is arrested or detained under any law providing for preventive detention, however, clause (4) clearly stipulates no law providing for preventive detention shall be made except to deal with person acting in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof or external affairs of Pakistan or public order for maintenance of supplies or services and no such law shall authorize the detention of a person exceeding three months unless the appropriate review board has after affording him an opportunity of being heard in person reviewed his case and reported before the expiration of the said period that there is in its opinion, sufficient cause for such detention.
7. What the record reveals in this case that on 2nd July 2014, the learned standing counsel submitted that the matter has been referred to JIT but the report is awaited. He was directed to file the latest update on JIT and the matter was adjourned to 9.7.2014. On 09.07.2014, learned A.A.G Mr. Mustafa Mehaser shown us a letter dated 2.7.2014 which was written to SSP (South) to submit the report of JIT. He further submitted that despite sending letter to SSP South no efforts were made to submit the report or comments. On this statement, we issued direct notice to DIG South, Karachi to ensure that the report should be submitted on the next date. On very same date, Mr. Zia Arif Janjua, from Pakistan Rangers submitted that on 07.05.2014 they had written a letter to Home Department for constituting JIT and he further submitted that JIT has been constituted but he does not know with regard to the outcome of investigation report, the matter was then adjourned to 11.07.2014. On 11.07.2014, Mr. Ali Bux S.P City, District South, Karachi and S.H.O, P.S Garden both have submitted the comments, which were totally irrelevant as nothing was mentioned to show as to whether any JIT was constituted or whether any report of JIT has been prepared in connection with the detention of the petitioner’s son, however, they orally submitted that they had not received the letter of Pakistan Rangers nor any intimation from Home Department regarding the constitution of JIT in this case. Since according to the available information, the JIT was not conducted despite lapse of 60 days’ time and proper assistance was also not provided perhaps due to lack of coordination, so we had issued notice to the Home Secretary, Government of Sindh to appear in person and assist this court. We had also issued notice to learned A.G to address this court on this issue.
8. Today Dr. Niaz Abbasi, Home Secretary, Government of Sindh appeared and also submitted a brief note in this matter. He categorically stated that letter for constituting JIT was received from Pakistan Rangers on 7th May 2014 and on 08.05.2014, he issued order and constituted J.I.T. He also attached the letter dated 15th July 2014 written to him by SP Investgcation-1, South, Karachi in which he communicated that JIT was conducted on 11th July 2014. The findings of JIT shows that Muhammad Hanif denied the charges nor any material admissible in Court was produced by the arresting agency against the accused so he was cleared. The Home Secretary further stated that the proper facts have not been disclosed to this court, particularly the date when he issued order for constitution of JIT. On 16th July 2014, Senior Superintendent of Police, District South Karachi again submitted a statement in court in which he shown complete ignorance as to whether any JIT has been conducted and its report has been submitted or not while the copy of covering letter 15.7.2014 submitting the JIT report to the Home Secretary Sindh was also endorsed to DIG South and this letter was written by SP, Investigation-1, South, Karachi. Again this is a case of lack of proper coordination between the concerned departments.. The petitioner present in court submitted that his son has been released on the findings of JIT.
9. No doubt under 11.EEEE of ATA, 1997, the preventive detention is permissible for a period not exceeding three months subject to specific or general order in this regard and after recording reasons thereof, for the preventive detention of any person who has been concerned in any offence under the above Act relating to the security or defence of Pakistan or any part thereof, or public order relating to target killing, kidnapping for ransom, and extortion/bhatta, or the maintenance of supplies or services, or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned for purpose of inquiry. It is further provided that the inquiry may be conducted by a police officer not below the rank of Superintendent of police or through a join investigation team (HT) to be notified by the Government comprising a police officer not below the rank of Superintendent of Police and officers of other investigation agencies and the powers of the inquiry officer will be vested as per section 5 of the Federal Investigation Agency Act, 1974. It is further provided that where the detention order has been issued by the armed forces or civil armed forces, the inquiry shall be conducted by the JIT comprising members of armed forces or civil armed forces, as the case may be, intelligence agencies and other law enforcement agencies, including a police officer not below the rank of Superintendent of Police.
10. The purpose of retaining a person in the preventive detention is to conduct inquiry and verify his credential or antecedents whether he is involved in any such act warranting his preventive detention under the law or not and for this purpose JIT is to be formed by the Home Department. The purpose of three months period allowed for detention does not mean that the JIT should be formed at the verge of expiry period of detention or if it is formed earlier then it is not the idea at the back of this legislation to submit the report at the time of ending preventive detention period. In our view, a Standard Operating Procedure must have been made out with the consultation of all laws enforcement agencies so that as soon as person is taken into preventive detention in the above law, not only the JIT is formed immediately if required but the report of JIT shall also be submitted within a reasonable time so that if any person is found innocent in JIT, he should be released forthwith and if a person is found suspect of any crime, he may be dealt with in accordance with law by initiating further legal proceedings. This matter was fixed before us on three different dates i.e 2.7.2014, 9.7.2014 and 11.7.2014 but nothing was shown or placed on record whether any JIT report was submitted or not. Today when Home Secretary appeared he filed a letter dated 15.7.2014 to show that JIT was conducted on 11.7.2014. It is a matter of record that person was taken into preventive detention on 4th May 2014, letter was sent for constituting JIT on 7th May 2014 and JIT was constituted by Home Secretary on 8.5.214 which shows that JIT was conducted after more than 60 days in which the son of the petitioner was found innocent. Since the son of the petitioner has been released, he does not want any further action in this regard. The petition is disposed of but while disposing of this petition, we would like to give some directions that the Respondent No.5 shall designate/appoint a focal person to keep active liaison with Advocate General Office, Sindh and attend this court regularly in the preventive detention and missing person’s cases for proper assistance. The name of focal person may be communicated to the AG office within a week’s time. It is also instantaneously and realistically required that a Standard Operating Procedure (S.O.P) shall also be chalked out immediately and implemented by the Respondent No.5 for constituting JIT in preventive detention cases with some reasonable time frame of conducting JIT and submission of its report to the competent Authority to an early date.
Judge
Judge