2009 PLP 2407 (YLR)

AMER RAZA NAQVI, J.

Through this order, I intend to dispose of the Constitutional Petitions Nos.313, 314, 315 and 316 of 2009. In these petitions, the petitioners have complained that police has harassed them, it is also stated that they forcibly robbed certain properties of the petitioners mentioned in para No.2 of each petition. It has also been alleged that three persons namely Muhammad Pannah, Muhammad Siddique and Abdul Ghafoor were arrested by the police, however, Abdul Ghafoor was released after taking bribe while Muhammad Siddique has been challaned in a false criminal case and Muhammad Pannah is untraceable. It has also been alleged that on 2-4-2009 police raided the houses of the petitioners and harassed them and took away their valuables including 142 Buffaloes. Since petitions have been filed for enforcement of fundamental rights office objection to the effect that alternate remedy is available under section 22-A, Cr.P.C. is overruled. Learned counsel for the petitioners argued that police has done all this due to rivalry between two communities viz. Kalhoro and Channa and at the instance of high officials belonging to Channa community, they are harassing the petitioners who belong to opposite community. Learned counsel states that this is a very serious matter and if illegal activities of the police are not checked then violations of fundamental rights of the citizens will continue. Since the allegations are very serious in nature, and it is duty of this Court to enforce and protect the fundamental rights of people. Petitions are held to be maintainable. Article 24 of the Constitution of Islamic Republic of Pakistan, 1973 provides:-- (1) No person shall be compulsorily deprived of his property save in accordance with law. (2) No property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation therefor and either fixes the amount of compensation or specifies the principles on and the manner in which compensation is to be determined and given. (3)

Learned counsel -appearing on behalf of the State conceded that although two motorcycles and buffaloes were taken away but those are not taken in pursuance of Sub-Article (3) of Article 24 of the Constitution of Islamic Republic of Pakistan, 1973. It is further submitted that 59 buffaloes have been taken into possession under section 550, Cr.P.C. and such report has been submitted before the concerned Magistrate. It is also submitted that two motorcycles have been recovered under Article 134 of Police Order, 2002 and are in possession of the police. In view of the above situation, it appears that there is substance in the allegations made in these Constitutional petitions, however, it is not possible for this Court to enter into detailed investigation and record evidence in the constitutional jurisdiction. Learned counsel for the petitioners also stated that he has prayed for an independent and impartial Judicial Enquiry in the matter. Nevertheless, since prima facie there appears to be high-handedness on the part of the police officials, matter- cannot be dealt lightly. In view of the above facts and circumstances, I direct the concerned Magistrate viz. 2nd Civil Judge and Judicial Magistrate, Gambat to hand over/release the buffaloes (booked under section 550, Cr.P.C.) to the petitioners on execution of personal bond in the sum of Rs.10,000 (Ten Thousand Rupees) for each buffalo. Mr. Farman Ali Kanasero, Advocate files power on behalf of one Ghous Bakhsh Channa and stated that out of 59 buffaloes his client has a claim over two buffaloes. The buffaloes shall be released to the petitioners, as observed above, however, Mr. Kanasero shall be at liberty to approach the concerned Civil Judge and Judicial Magistrate and in case his client proves the ownership of said two buffaloes, the same can be handed over to him and such enquiry shall be made by the learned Civil Judge and Judicial Magistrate in accordance with law. Mr: Kanasero states that he has already made an application to the concerned Magistrate which will be decided within two weeks. Mr. Kanasero is satisfied with this observation. The two Motorcycles seized under Articles 134 of Police Order, 2002, shall be handed over to the petitioner in C. P. No.313 of 2009 namely Sher Khan Kalhoro, on execution of personal bond in the sum of Rs.100,000 (One Lac). The learned District & Sessions Judge, Kahirpur is directed to hold a Judicial Enquiry into the allegations made in the petitions. He shall issue notices to all concerned and record required evidence in order to reach to the conclusion that whether any high-handedness has been committed by the police officials against the petitioners and whether petitioners have been deprived of their valuables in vilolation of Article 24 of the Constitution of Islamic Republic of Pakistan, 1973. In case the learned District & Sessions Judge, Kahirpur reaches to the conclusion that any such violation has taken place and there has been high-handedness on the part of police, he shall exercise his powers as Ex-officio Justice of Peace and shall pass appropriate directions under sections 22-A and 22-B, Cr.P.C. and such directions may not be restricted to but may include the registration of F.I.R./F.I.Rs. against any person who has violated the law of the land. It is expected that such enquiry shall be completed within six weeks from receipt of this order. Office is directed to communicate the copy of this order along with memo. of petitions to be treated as complaints under sections 22-A and B, Cr.P.C. with annexures to the learned District & Sessions Judge, Khairpur for the purpose of Judicial Enquiry into the matter so also copy of this order may be sent to Provincial Police Officer, Karachi, Regional Police Officer, Sukkur and Deputy Inspector General of Police, Sukkur for information and any action which they like to take into this matter on their part. The copy of this order shall also be sent to the learned 2nd Civil Judge & Judicial Magistrate, Gambat for immediate compliance, as the matter involves confinement of livestock viz. Buffaloes. With the above observations, Constitution Petitions Nos.S-313, 314, 315 and 316 are disposed of. H.B.T./S-75/K Order accordingly.