P L D 2015 Peshawar 169 (PLP)

NISAR HUSSAIN KHAN, J.

By way of instant petition, petitioner seeks issuance of direction to respondents for appointment of judicial commission to enquire that how many people have been killed and injured and houses and properties have been demolished or dilapidated since launch of operation in September, 2008; should suggest compensation for them and also point out those responsible security personnel so as to punish them under the law. It is further prayed that direction be issued to lift the curfew from the affected area of Khyber Agency including Bara Bazar and repatriate the displaced people.

2. Learned counsel for petitioner argued that the Armed Forces were called in 2008 and they are still present in the Khyber Agency which stay is the longest one in the history; that the Federal Government is responsible to pay compensation of the losses. He maintained that since then, three operations have been conducted but no fruitful result could be achieved. He maintained that so many persons have been arrested and put in internment centres. He contended that people have been done to death but no action had been taken against any body while Government is responsible to protect the properties and lives of people by virtue of Articles 9 and 24 of the Constitution; that respondents are required to adopt precautionary measures and to proceed in accordance with law.

3. Learned Standing Counsel for respondents Nos.7 and 8 contended that militants challenged writ of the government which necessitated calling of the Armed Forces in aid of civil power. He maintained that in some cases, compensations have been paid. While there is no curfew in Bara Khyber Agency.

4. Learned Additional Attorney General contended that petitioner is a single person who has filed this petition having no personal grievance while nobody else from the inhabitants of Khyber Agency has come forward. He maintained that the Armed Forces have been called in aid of civil power to curb menace of miscreants and militants; that in case of any casualty or damage, its report was required to be lodged with the concerned authorities provided under the FCR but no such matter has been reported. He maintained that Article 245(3) of the Constitution bars exercise of jurisdiction by the High Court. He lastly submitted that representative of FATA are sitting in the National Assembly and the Senate where they may raise issue and government is all set to redress their problems, if any.

5. The learned Additional Advocate General, representing the provincial Government, endorsed the contentions of the petitioner.

6. Arguments heard and record perused.

7. It is a matter of common knowledge known around the globe that in aftermath of episode of 9/11 of 2001, the NATO forces invaded the neighbouring country wherefrom militants infiltrated into tribal areas. They were not only armed with illicit/lethal weapons and money but also with thoughts of medieval era of running over the country with the power of sword and conquer the same with barbaric delusion that it would be just a walk over. The tribal areas proved a safe heaven for them as it was not managed and controlled by the regular civil authority like settled area. The area has its own dynamics of customs and usages, having the force of law. People have their own traditions for settling their disputes through Jirgas (council of elders) which remained in vogue since long. So much so, that during the British era, the rulers did not establish their own administration or judicial system like other parts of the sub-continent. They were allowed to lead their lives according to their own customs and traditions and settle their disputes through Jirgas under the Political Agent who was installed to look after their affairs as ceremonial Administrator on behalf of the Crown. Whatever civil or criminal disputes arose between the inhabitants of the tribal area, were reported to the Political Agent, who too referred the same to the Council of Elders which was competent to recommend its decision to the Political Agent and the Political Agent by affirming the verdict of Jirga, gave it a legal protection.

8. The elders were known as Malaks and the Levy Force was posted just to guard the roads, offices and Fort, if any. There were just three tiers of administration, i.e. Malaks, Levies and Political Agent. The moment these miscreants and militants entered into tribal area, they targeted these three institutions and smashed the whole fabric of administrative system of the tribal areas. They made tribal areas as their base-camp for launching terrorist activities in the settled area in which thousands of innocent people lost their lives, limbs and properties, including children, women and youngsters. It was an organized and planned offensive against the State on the part of militants which necessitated calling upon the Armed Forces by the Government for protection of lives and properties of the citizens.

9. In view of reign of terror unleashed by the militants on the general public and particularly security forces, it became inevitable to call upon the Armed Forces in aid of civil power, pursuant to the command of Article 245 of the Constitution of Islamic Republic of Pakistan, 1973. The Armed Forces do not operate on their own nor they have got their personal agenda or vendetta but they are assigned the task to eradicate the evil forces which cannot be handled by the civil security agencies. Since in the instant case, it is not an ordinary war against regular army between forces of two countries across the borders but is a Guerrilla warfare so it has got its own complexities, dimensions and resultant collateral damages of life and property.

10. To safeguard all these eventualities, Actions (in Aid of Civil Power) Regulation, 2011 was promulgated on 27th June, 2011, which was made effective from 1st February, 2008. The very opening part of the preamble of the Regulation vividly demonstrates the very object of its promulgation. It states that there exists grave and unprecedented threat to the territorial integrity of Pakistan by miscreants and foreign funded elements, who intend to assert unlawful control over the territories of Pakistan and to curb this threat and menace, Armed Forces have been requisitioned to carry out actions in aid of civil power. In the second part of the preamble, it is provided that since Armed Forces have been called in aid of civil power, so it is necessary and imperative that proper authorization be given to the Armed Forces to take certain measures by incapacitating the miscreants by interning them during the process of the actions in aid of civil power. In consequence of this Regulation, internment centres were established in different areas where miscreants and suspects were interned. Para 4 of the instant Regulation provides for precautionary measures before use of force which have been enumerated in the same para including: to warn the civilians to vacate the area before action in aid of civil power is taken; send out warning to the residents to withdraw support for the miscreants; direct them to point out to the Armed Forces personnel the hide out of the miscreants; to take special measures in respect of the life and safety of children, women and elderly persons and to take all feasible precautionary measures to avoid and minimize the collateral loss of civilian lives and properties. In this regard in compliance of Sub-Clause (2) to Para-4, the Commander of the Armed Forces has been made responsible to control the Armed Forces to adhere all these principles and instructions.

11. According to Para-5 of the Regulation, any abuse or misuse of the powers by the Armed Forces personnel, is to be investigated within hierarchy of the Armed Forces whereas any such omission or commission on the part of civilian officers, the Governor shall conduct enquiry to take appropriate action against such officer in accordance with law. While procedure of internment has been provided in Chapter V of the same Regulation, wherein internment authority and power to intern have been provided in paras. 8 and 9 of the same Regulation whereas para.10 relates to remedy for release of the internee. In para. 11 it has been provided that the period of internment shall continue till the continuation of actions in aid of civil power. In terms of Para 14 of the Regulation, Oversight Board is to be notified by the Governor for different internment centres comprising two civilians and two military officers to review the case of each internee and by virtue of para 15, it has been commanded that no inhuman treatment shall be meted out to the internee in terms of torture and manhandling. There are other provisions relating to prosecution, punishment and admissibility of the evidence under the Regulation, which have been given overriding effect, notwithstanding anything contained contrary to any law for the time being in force. This brief survey of the Regulation transpires that all aspects of the operations undertaken in the tribal areas have been canvassed under the Regulation, and any possible fall out of the operation has been taken care of.

12. Maintenance of law and order and protection of lives and properties of the subjects has all along been responsibility of the State in every civilized society. To achieve the same object, Article 245 has been inserted in the Constitution by its framers when ordinary law enforcement agencies fail to cope with law and order situation or when the magnitude of the threat to the internal stability and to the territorial integrity of Pakistan at the hands of miscreants is in such a proportion which may not be curbed by the civil authority, it may call upon the Armed Forces in aid of Civil power. This was the driving force behind the cause of promulgation of Actions (in Aid of Civil Power) Regulation, 2011, which has also been reflected in its preamble.

13. The Armed Forces have not come/entered the tribal area on their own and launched the operation to combat the terrorist activities but have been called upon by the Government pursuant to the Constitutional command, so one cannot attribute that the Armed Force have acted on their own or have got any ulterior motive for the operation. Imposition of curfew is also a part of strategy for smooth and steady progress of operation and accomplishment of their task of restoring peace by eliminating the miscreants and terrorists. In case there is any abuse or misuse on the part of any individual, that has been taken care of in the Regulation which may be reported to the High Ups of the respective officials, whether civilians or Armed Forces personnel where they would be proceeded against in accordance with law.

14. Petitioner has raised some general allegations in the petition and has not referred to any particular incident of misuse or abuse of power. While Article 245(3) bars entertainment of any petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, in relation to any area in which the Armed Forces of Pakistan are acting in aid of civil power in terms of Article 245 of the Constitution, regardless as to whether the Forces are acting in the settled area or in FATA. On the other hand, Article 247(7) of the Constitution excludes the jurisdiction of High Court as well as that of the Supreme Court with regard to the matters relating to FATA. Petitioner has raised all the issues relating to tribal area in the instant petition. Thus in view of the peculiar backdrop of the facts of the case, there is double restriction imposed by the Constitution in exercise of the Constitutional jurisdiction of the High Court: firstly in view of the general bar contained in Article 247(7) of the Constitution regarding the matter relating to FATA and secondly, special restriction is imposed by Article 245(3) of the Constitution relating to the areas where Armed Forces are acting in aid of civil power. Thirdly, petitioner has made a prayer for constitution of judicial commission which does not come within the jurisdictional domain of the High Court, nor the High Court can direct the Armed Forces to lift the curfew from a particular area because it pertains to the strategy of war in the field which may not be controlled nor formulated by the courts. Rather it is the job of the field commanders who according to circumstances and situation prevailing in the field may evolve and implement the same.

15. The petitioner claims compensation for collateral damages in respect of life and property of the inhabitants of the area. The learned Standing Counsel for respondents Nos.7 and 8 stated at the bar that compensation has been paid to the affectees, which means that payment of compensation is part of policy of the Government. Such policy must be applied with uniformity, without any element of discrimination. Petitioner's concern is that there is no proper forum on which the matter may be reported who may investigate and enquire about quantum of loss sustained by the civilians.

16. In view of the facts discussed herein above, it would be appropriate that the Federal Government, Ministry of Safron in collaboration with Additional Chief Secretary (FATA) provide a forum for lodging complaints about civilian casualties and losses who should probe the matter about authenticity of complaint as well as quantum of loss sustained and the remedy for the wrong caused to the inhabitants. After due verification of loss, the affectees be compensated according to the policy of the government by extending equal treatment to all and sundry. The petitioner could not point out any such particular complaint filed by any individual before the Political Agent or Assistant Political Agent where, in normal course, civil as well as criminal disputes are brought by the inhabitants of FATA and settled and decided on the recommendation of the council of elders. Nor it is the case of the petitioner that any such complaint was filed and not considered. Till the establishment of any specific forum to entertain such complaint, the affectees may approach the Political Agent concerned who shall proceed in accordance with the observation made hereinabove.

17. As a sequel to our above discussion, this petition is partially allowed in the above terms. MH/120/P Order accordingly.