P L D 2006 Karachi 584 (PLP)

MUHAMMAD MUJEEBULLAH SIDDIQUI, J.

Affidavit has A been filed by Syed Iftikhar Hussain Naqvi, Section Officer Ministry of interior to the effect that the alleged detenu namely, Muhammad Saleem Baloch is not in the custody of F.I.A. and Islamabad Police. Statements have been filed on behalf of Deputy Inspector General of Police Investigation-II C.C.P., Karachi and Senior Superintendent of Police Investigation, Zone III, C.C.P., Karachi, to the effect that they had called reports from S.S.P. Investigation II and the Town Investigation Officers who have reported that the detenu Muhammad Saleem Baloch has neither been arrested nor detained by the respective investigation staff. In this petition it is alleged that Muhammad Saleem Baloch brother of petitioner Abdullah Baloch has been kidnapped/arrested and illegally detained by the respondents. This is not the first petition of this kind before this Court. We have dealt with a large number of petitions at principal seat, as well as at Sukkur Bench and Circuit Benches Hyderabad and Larkana, wherein the aggrieved persons approached this Court in similar circumstances and in every petition stereotyped statements have been filed on behalf of State to the effect that the detenue is not in the possession of one or the other agency of Federal and Provincial Government. We have been expressing our serious concern about this state of affairs. The modus operandi adopted at the Federal and Provincial level and by civil and military agencies is alarming. It is in sheer violation of their responsibility under the Constitution. Whenever any person, being a citizen of this country or even if he is not a citizen of this country and is for the time being in this country, is required by any agency it is the constitutional responsibility, of the Federal and Provincial Government to deal with such person in accordance with law, meaning thereby that if any such person is required in connection with any matter he can be arrested, interrogated upon, inquiry/investigation can be held and thereafter if found guilty can be prosecuted before the competent Court of law or if there are sufficient circumstances a detention order can also be passed in accordance with law, which is to be placed before the Review Boards from time to time, as specified in law. However, no agency of the Federal or Provincial Government has any right to persecute any body and to deprive any body of his life or liberty without due course of law. If custody of any person is required in connection with an inquiry/investigation he must be produced before a. Court of competent jurisdiction. Request for police custody be made and person required be kept in the manner authorized under the law. Whisking away of citizens in clandestine and surreptitious manner by any agency/authority in negation of the rule of law. Whenever any person is missing it is the responsibility of the Federal and Provincial Government to search and locate such person even if he is not in their custody and produce him before the Court to show their bona fide and to demonstrate that they are alive to their legal responsibility under the Constitution and law. In several cases we have found, and we cannot remain oblivious of the fact, that after long rigmarole detenus have been released by some unknown persons and the matters have been reported to us that in the darkness of night the person was released or he was left at some distant place. All these instances indicate that the Federal and Provincial agencies are involved in missing of such persons. We would like to observe in very clear terms, that .there is no room for such acts in a society, which is at least purported to be governed by law. The failure of the Federal and Provincial agencies in procuring the attendance of such persons amounts to their sheer failure in discharge of the responsibilities which they are required to perform under the law and reflects adversely on their working. In the above circumstances the Secretary, Ministry of Defence, the Director, Military Intelligence Karachi, the Director, F.LU., the Home Secretary, Government of Sindh and Inspector General of Police Sindh, are directed not tot file mere statements that the detenu is not in their possession/custody but to employ all the resources at their disposal, search the detenu and produce him before this Court without fail on the next date of hearing. If the detenu is not produced before this Court on the next date of hearing the Director Military Intelligence, the Director F.I.U., and the Inspector General of Police Sindh, should appear in person before this Court with explanation for non-production of the detenu. The Secretary Ministry of defence is further directed to submit a clear statement giving the nature of F.I.U., its authority and mandate and law under which it has been established and is functioning, with particular reference to scope of its authority quo the civilian citizens. While passing this order, we are conscious that sub-Article (3) of Article 199 of the Constitution, which provides that an order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law. We are of the opinion that the direction given by us does not fall within the restriction envisaged under the above sub-Article (3) of Article 199 of the Constitution, because the order is in respect of the discovery of a civilian citizen of this country and not in respect of production of military official. The direction is issued for added reasons that if the military agencies have involved themselves in civil affairs of v the country then they are responsible to this Court which is custodian of the liberty of the citizen. Copies of this order be communicated to all the respondents. S.A.K./A-83/K Order accordingly.