2014 PLP 216 (SCMR)

The Secretary Defence, reportedly has been advised medical rest, therefore, he is not in attendance in response to our direction dated 25-11-2013. This may be noted that in respect of one Yaseen Shah son of Qabil Shah missing person, Superintendent, Judicial Lockup Malakand vide letter dated 12-2012(sic.) submitted before the Peshawar High Court, acknowledging that he along with other 34 undeclared internees had been handed over to the Army Authorities without any Internment orders. He further stated in the letter that when he took over the charge of Internment Centre Malakand on 19-9-2011, 66 undeclared internees including Yaseen Shah son of Qabil Shah resident of Katlang were handed over to the Army Authorities without any Internment orders, the list of which was submitted to the Inspector General of Prisons KPK vide letter No. 1954 dated 29-11-2011. Later on, 31 undeclared internees were handed over to him and rest of 35 detenues who were not declared as internees by the Interning Authorities including Yaseen Shah, were shifted out of Internment Centre Malakant by the Army Authorities.

2. The hearing of the case was postponed from time to time and mostly on every date of hearing, the learned Additional Attorney-General for Pakistan has assured that the said Yaseen Shah will be produced before the Court. On the last two dates of hearings i.e. 22-11-2013 and 25-11-2013 when no progress was shown, learned Addl. Attorney General was directed to make sure the production of Yaseen Shah, in view of the evidence which has been furnished in writing by the Superintendent, Judicial Lockup Malakand, that he is not a missing person but is in the custody of the Army. Thus having left with no option, the Secretary Defence, Superintendent Judicial Lockup, Malakand and Inspector-General of Prisons were directed to remain in attendance. The Secretary, however, failed to appear for the reason which has been disclosed by one Maj. Gen. (Retd) Raja Arif Nazir, Additional Secretary Defence (appointed on contract) but no document has been placed on record about his proceedings on leave under the medical advice. He is hereby directed to produce the leave sanction order along with the charge report of any other incumbent who, in view of Rule 28 of the Revised Leave Rules 1980, has taken over the charge of the post. It is equally important to note that the Superintendent, Internment Centre Malakand, has furnished a list of undeclared internees who were taken away by the Army Authorities, their names are reproduced herein below:-- Sl. No. Name with parentage Declared/Un-declared Internees Remarks

1. Shah Hussain son of Umar Khitab Undeclared The charge of internment centre Malakand was taken on 4-2-2012 by the Army authority through Naib Subidar Amanullah Beg since then the where-abouts of these undeclared detenues are not known to Jail authorities.

2. Sultan Zeb son of Aurang Zeb Undeclared

3. Ijaz son of Miraj Muhammad Undeclared

4. Qamar Zeb son of Awal Khair Undeclared

5. Abdar Ali son of Yar Muhammad Undeclared

6. Nawab Ali son of Abdul Matin Undeclared

7. Khalid-ur-Rehman son of Jamil-ur-Rehman Undeclared

8. Yousaf son of Akhtar Munir Undeclared

9. Hashim son of Ghulam Rasool Undeclared

10. Muhammad Sabir son of Pir Said Undeclared

11. Abdu Bakar son of Liaq-ur-Rehman Undeclared

12. Hamid Ayoub son of Muhammad Ayoub Undeclared

13. Habib Ullah son of Hazrat Muhammad Undeclared

14. Amjid Hussain son of Saeed Gul Undeclared

15. Akhtar Ali son of Naik Muhammad Undeclared

16. Abdul Wadood son of Abdul Qayoom Undeclared

17. Zakir Ullah son of Majid Ullah Undeclared

18. Naeem-ur-Rehman son of Sher Zada Undeclared

19. Muhammad Ilyas son of Muhammad Sadiq Undeclared

20. Abdul Salam son of Arshed Ali Undeclared

21. Numan son of Abdul Waris Undeclared

22. Sardar Ali son of Rozi Mand Undeclared

23. Rahmat Ullah son of Naser Ullah Undeclared

24. Zakir Khan son of Akhtar Gul Undeclared

25. Faisal Khan son of Tahir Khan Undeclared

26. Alam Khan son Rahmat Khan Undeclared

27. Nadar Khan son of Said Rahman Undeclared

28. Salim Khan son of Hazrat Hussain Undeclared

29. Haroon Rasheed son of Fazal Ghafoor Undeclared

30. Rasheed Ahmad son of Shad Muhammad Undeclared

31. Yaseen Shah son Qabil Shah Undeclared

32. Sartaj Hussain son of Khan Sherin Undeclared

33. Muhammad Khan son of Yousaf Khan Undeclared

34. Sajjad Khan son of Bakhti Rawan Undeclared

35. Zafar Khan son of Faqir Khan Undeclared As sufficient evidence has been made available to conclude that 34+1=35, named herein above, are in custody of Army, therefore, the Army authorities are bound, under the law, to produce them before the Court of Law and has no authority to retain their custody un -authorisedly.

3. As there is no authorized person on behalf of the M/o Defence, to comply with the direction, therefore, we direct the Additional Attorney-General to take up the matter with the M/o Defence with the direction to produce the above named persons under the Constitution and law from the custody of the Army during course of the day and submit his report in this behalf at 1-00 p.m. MWA/H-19/SC Order accordingly.