IN the HIGH COURT of SINDH, KARACHI CP D-7097 of 2016 & CP D-131 of 2017
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IN THE HIGH COURT OF SINDH, KARACHI CP D-7097 of 2016 & CP D-131 of 2017 ------------------------------------------------------------------------------ Date Order with signature of Judge ------------------------------------------------------------------------------ Present: Munib Akhtar and Arshad Hussain Khan, JJ. For hearing of main case and miscellaneous applications Dates of hearing: 06,11,13,19,20,26,27.04 and 02,03,04,10,11,16,17,18,23,24,25 and 30.05.2017 Mr. Faisal Siddiqui, Advocate for petitioners Mr. Zameer Ghumro, Advocate General, Sindh, and Mr. Mustafa Mahesar, AAG, for the Province Mr. Salman Talibuddin, Additional Attorney General and Mr. Asim Mansoor Khan, DAG, for the Federation Mr. Shahab Usto, Advocate for respondent No. 7 in CP D-7097/2016 ************* Munib Akhtar, J.: These two petitions are in the nature of public interest litigation, the petitioners being concerned citizens who are resident in Sindh (more particularly Karachi, though nothing turns on that). Some of the petitioners are NGOs. The petitioners are all deeply concerned with, and aggrieved by, what they describe as the sorry, and indeed appalling, state of policing in the Province. The principal statute regarding the police currently in force in Sindh is the Police Act, 1861 (“Police Act”), as revived and restored by the Sindh (Repeal of the Police Order, 2002 and Revival of the Police Act, 1861) Act, 2011 (“2011 Sindh Act”). As the short title suggests, the 2011 Sindh Act (which came into effect on 15.07.2011) repealed the Police Order, 2002 (“2002 Order”) insofar as it applied in this Province and revived the Police Act, with immediate effect as it stood on 13.08.2002. This last is important because the Police Act was amended fairly extensively by the Police (Amendment) Order, 2001 (“2001 Order”), which took effect on 14.08.2001. Therefore, the Police Act was revived inclusive of the changes made in 2001. 2. The petitioners have advanced two constitutional arguments. Firstly, they challenge the 2011 Sindh Act and hence the revival and currency of the Police Act in this Province on the ground of legislative competence. It is 1 submitted that the 2002 Order was and, notwithstanding the 18th Amendment which omitted the Concurrent Legislative List from the Fourth Schedule to the Constitution, remained a federal statute. It could not therefore be repealed by provincial legislation. The 2011 Sindh Act was constitutionally invalid and hence the purported revival of the Police Act was to no legal effect. Thus, it is argued, the principal statute regarding the police continues to be the 2002 Order, and various declaratory and injunctive reliefs are sought to ensure its enforcement and implementation. In the alternative and assuming that the 2011 Sindh Act was constitutionally valid, it is submitted that the manner in which the Police Act and a relevant provision of the Sindh Government Rules of Business, 1986 (“1986 Rules”, framed under Article 139 of the Constitution) have been given effect (or not, as the case may be) has seriously affected, if not substantially eroded and compromised, the efficacy and availability of fundamental rights in the Province. Accordingly, suitable relief is sought for the enforcement of the fundamental rights by the making and issuance of appropriate directions by the Court in exercise of its jurisdiction Article 199(1)(c) of the Constitution. In particular, the petitioners are much exercised by the alleged failure of the Provincial Government to adhere to that provision in the 1986 Rules which specifies the term of office of the Inspector General of Police to be five years. In the years that the 2002 Order was in force in the Province (under which the equivalent post was that of the Provincial Police Officer), the term of office was three years. However, whatever was the applicable provision, it is claimed that it was, and has almost always been, honored in the breach since very few Inspectors General have, in the 30 odd years since 1986 (and in particular since 2002), had a term commensurate with the tenure specified. The present Inspector General of Police is the Respondent No. 7 in CP D-7079/2016 (he is also a respondent in the other petition). The Respondent No. 7 was appointed to the post on or about 12.03.2016. One additional point, also in the alternative, was raised as well, by way of appointment of a commission to make recommendations regarding police reforms. This point will be noted in greater detail in due course. The Province of course seriously contests the petitioners’ case on all points and prays that the petitions be dismissed. The Federation, which is a party to these proceedings, has also had something to say especially with regard to the appointment in the Province of officers of the Police Service of Pakistan (“PSP”), an All-Pakistan Service within the meaning of Article 240 of the Constitution. 3. The first petition (CP D-7097/2016) was filed on 26.12.2016, and an application seeking certain interim injunctive relief with regard to the continuance as Inspector General of the Respondent No. 7 was also filed. The matter came up before a learned Division Bench on 28.12.2016, when such 2 relief was granted. The learned Division Bench also set out the case sought to be made by the Petitioners. The order was in the following terms (emphasis in original): “Mr. Faisal Siddiqui, counsel appearing for the petitioners, contends that the instant petition challenges The Sindh (Repeal of the Police Order 2002 and Revival of the Police Act 1861) Act 2011 in terms of which, inter alia, the Police Order 2002 has been repealed. The counsel submits that the Police Order 2002 enjoyed protection under Article 142(b) of the Constitution of the Islamic Republic of Pakistan, 1973, which confers concurrent jurisdiction of Majlis-e-Shoora (Parliament) and a Provincial Assembly to make law with respect to the “Criminal Law”, “Criminal Procedure” and “Evidence”. Per counsel, there was no specific entry in the concurrent list to confer the jurisdiction either on the Parliament or a Provincial Assembly to legislate the laws for the Police, and such laws were legislated on the basis of entry Nos.1 and 2 available in the concurrent list. Per counsel, after these entries were removed from the concurrent list vide Eighteenth Amendment, the Provincial Government misconstrued the same having fallen in its domain and legislated the Act 2011, which, inter alia, repealed the Police Order 2002, which was a Federal Legislation. Per counsel, through the very Eighteenth Amendment, the introduction of Sub- Clause (b) to Article 142 instantly filled the void and empowered the Majlis-e-Shoora and the Provincial Government to legislate the matters related to Criminal Law, Criminal Procedure and Evidence, rendering the same as an occupied field and accordingly the Provincial Legislature was not entrusted with singular authority of legislating in respect of these subjects, rather these subjects continued to be legislated by the Majlis-e-Shoora and the provincial Government concurrently. Accordingly the singular act of the Provincial Government which resulted in the promulgation of Act 2011 has no Constitutional merit. Per counsel, even otherwise, Article 143 provides that where there is an inconsistency between the Federal and Provincial Laws, the Federal Laws, of course would prevail, therefore, the repeal of the Federal Law by the Provincial Legislators through the Act 2011 is indirect violation of these specific Constitutional Provisions. It is next contended that the Government of Sindh is about to remove the respondent No.7, Inspector General of Police Sindh, which per Police Order 2002 as well as Sindh Government Rules of Business 1986 (through Schedule – IX read with Item 14 Column – 4 of Schedule-I), enjoys a tenure of three years of posting. Counsel in this regard has referred to the judgments of the Apex Court delivered in the case of Ms. Anita Turab vs. Federal of Pakistan (PLD 2013 SC 195 as well as Haider Ali and another vs. DPO Chakwal and others (2015 SCMR 1724). In the case of Haider Ali (supra), the Apex Court at Para 9(v) has reaffirmed the principle that the respective Provincial and Federal heads of police shall have continued posting of three years, therefore, the Provincial Government be restrained from removing the respondent No.7 from his present position of Inspector General of Police Sindh. Counsel has further contended that it is an open secret that the respondent No.7 has been sent on forced leave and there are strong apprehension that this would culminate in the removal of the respondent No.7 which can be ascertained from the review of the press reports, in particular those where many retired police officers made representation to the higher ups to intervene in the matter related to the respondent No.7. The learned counsel further submitted that subsequent to the above forced leave notification, in the last few days, the Provincial Government has attempted to interfere in the process of 3 recruitment of new police force by reducing the passing marks of NTS from 40 to 35 solely aimed to induct individuals, who were initially considered “fail”, thereby mutilating merit. Contentions raised required consideration. Let notices be issued to the respondents as well as Advocate-General Sindh and Attorney General for Pakistan for 12.01.2017, till then the respondent No.7 shall not be dealt with in violation/contradiction of the judgment of the Apex Court, referred to above, by his removal.” 4. Thereafter, the matter was listed on a few dates but no substantive hearing took place. It appears that on 31.03.2017 the Provincial Government wrote to the Federal Government, expressing the former’s desire to surrender the services of the Respondent No.