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IN the SUPREME COURT of PAKISTAN (Original Jurisdiction)

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IN the SUPREME COURT of PAKISTAN (Original Jurisdiction) IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Iftikhar Muhammad Chaudhry, CJ Mr. Justice Anwar Zaheer Jamali Mr. Justice Sarmad Jalal Osmany Mr. Justice Amir Hani Muslim Mr. Justice Ghulam Rabbani SUO MOTU CASE NO. 16 OF 2011 [Suo Motu Action regarding law and order situation in Karachi] AND CONSTITUTION PETITION NO. 61 OF 2011 Watan Party & another … PETITIONERS VERSUS Federation of Pakistan & others … RESPONDENTS Petitioner: Barrister Zafarullah Khan, ASC (Const. P. 61/2011) On Court notice: Maulvi Anwar-ul-Haq, Attorney General for Pakistan Syed Ashiq Raza, DAG Mr. M. Shoaib Shaheen, DAG Raja Aleem Abbasi, DAG Ms. Asma Jehangir, ASC/President SCBA Mr. Anwar Mansoor Khan, Sr. ASC/President, SHCBA Mr. Abdul Fattah Malik, AG Sindh Mr. Shahadat Awan, P.G. Sindh Mr. Wajid Ali Durrani, I.G.P, Sindh Mr. Saud Ahmad Mirza, Addl. I.G. Sindh Mr. Anwar Subhani, Legal Consultant For Province of Sindh: Mr. Abdul Hafeez Pirzada, Sr. ASC [assisted by Mr. Abdul Sattar Pirzada, Adv.] For the Federation: Dr. Babar Awan, Sr. ASC Mr. A.S.K. Ghouri, AOR SMC 16/2011 ETC. 2 For M/o Interior: Mr. Arif Chaudhry, ASC Mr. A.S.K. Ghouri, AOR For the applicant: Syed Iftikhar Hussain Gillani, Sr. ASC (CMA 4108/2011) For the applicant: Mr. Abdul Mujeeb Pirzada, Sr. ASC (CMA 531-K/2011) Mr. Mazhar Ali B. Chohan, AOR Applicants: Mr. Muhammad Aqil, Advocate, President KBA (CMA 532-K/2011) Syed Haider Imam Rizvi, Advocate, Gen. Secy. Mr. Iftikhar Javed Qazi, ASC, Vice Chairman Sindh Bar Council For the applicant: Mr. Ghulam Qadir Jatoi, ASC/AOR (CMA 533-K/2011) For the applicant: Khawaja Naveed Ahmad, ASC (CMA 535-K/2011) Mr. Mazhar Ali B. Chohan, AOR For the applicant: Mr. Irfanullah Marwat in person (in CMA 541-K/2011) For the applicant: Syed Iqbal Haider, Sr. ASC (in CMA 544-K/2011) Mr. K.A. Wahab, AOR For the applicant: Mr. Faisal Kamal Aalam, ASC (in CMA 546-K/2011) Mr. Ghulam Qadir Jatoi, AOR For the applicant: Mr. Rasool Bux Palijo, ASC (in CMA 552-K/2011) Mr. Ghulam Qadir Jatoi, AOR For the applicant: Mr. Jamil Ahmad Virk, ASC (in CMA 555-K/2011) Mr. Mazhar Ali B. Chohan, AOR For the applicant: Mr. Javed Ahmad Chhattari, Adv. In person (in CMA 558-K/2011) For the applicant: Mr. Ashraf Samoo, Advocate/ President (in CMA 560-K/2011) Malir Bar Association For the applicant: Mst. Surriya in person (in CMA 561-K/2011) For the applicant: Dr. Farogh Naseem, ASC (in CMA 565-K/2011) Dr. Kazi Khalid Ali, ASC Mr. Izhar Alam Farooqi, AOR For the applicant: Afaq Ahmed (through Jail) (in CMA 569-K/2011) Dates of hearing: 26 & 29-30 August, 5-9 & 13-16 September, 2011 … SMC 16/2011 ETC. 3 JUDGMENT IFTIKHAR MUHAMMAD CHAUDHRY, CJ. – Islam is a religion of peace and tolerance and it stands for safety, security and sanctity of human life. Islam abhors unlawful killing of innocent people and strictly prohibits it in a number of Quranic verses and Ahadith. In Surah Al-Maidah verse 32, Allah says:- “Because of that, We ordained for the Children of Israel that if anyone killed a person not in retaliation of murder, or to spread mischief in the land – it would be as if he killed all mankind, and if anyone saved a life, it would be as if he saved the life of all mankind. And indeed, there came to them Our Messengers with clear proofs, evidences, and signs, even then after that many of them continued to exceed the limits (e.g. by doing oppression unjustly and exceeding beyond the limits set by Allah by committing the major sins) in the land.” Some of the other verses of the Holy Quran are as under:- “And (remember) when We took your covenant (saying): Shed not the blood of your (people), nor turn out your own people from their dwellings. Then, (this) you ratified and (to this) you bear witness.” [Sura Al-Baqarah verse 84] “And whoever kills a believer intentionally, his recompense is Hell to abide therein; and the Wrath and the Curse of Allah are upon him, and a great punishment is prepared for him.” [Sura An-Nisa verse 93] The Holy Prophet [SAW] said – “O People, just as you regard this month, this day, this city as Sacred, so regard the life and property of every Muslim as a sacred trust. Return the goods entrusted to you to their rightful owners. Hurt no one so that no one may hurt you. Remember that you will indeed meet your Lord, and SMC 16/2011 ETC. 4 that He will indeed reckon your deeds. … …” [The Farewell Sermon (Khuṭbatul-Wadā)] “The biggest sins are: To join others in worship with Allah; to be undutiful to one’s parents; to kill somebody unlawfully; and to take an oath Al-Ghamus.” [Sahih Bukhari, Vol VIII, P.434, Number 667] “Narrated Abdullah bin Umar: One of the evil deeds with bad consequence from which there is no escape for the one who is involved in it is to kill someone unlawfully.” [Sahih Bukhari, Vol IX, P.2, Number 3] 2. This aspect of the Islamic teachings, as well finds its reflection in the Constitution of the Islamic Republic of Pakistan 1973. The Constitution, in its very Preamble, postulates that the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed and the fundamental rights, including equality of status, of opportunity and before the law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality; shall be fully guaranteed. These very principles have been made a substantive part of the Constitution under Article 2A. Thus, it is the duty of the State to protect and safeguard all these Fundamental Rights including the right to life and liberty as envisaged by Article 9 of the Constitution, which has been interpreted by this Court in Shehla Zia’s case (PLD 1994 SC 693) as under: - “Article 9 of the Constitution provides that no person shall be deprived of life or liberty save in accordance with law. The word "life" is very significant as it covers all facts of human existence. The word "life" has not been defined in the Constitution but it does not mean nor can it be restricted only to the vegetative or animal life or mere SMC 16/2011 ETC. 5 existence from conception to death. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally. For the purposes of present controversy suffice to say that a person is entitled to protection of law from being exposed to hazards of electromagnetic fields or any other such hazards which may be due to installation and construction of any grid station, any factory, power station or such like installations. Under the common law a person whose right of easement, property or health is adversely affected by any act of omission or commission of a third person in the neighbourhood or at a far off place, he is entitled to seek an injunction and also claim damages, but the Constitutional rights are higher than the legal rights conferred by law be it municipal law or the common law. Such a danger as depicted, the possibility of which cannot be excluded, is bound to affect a large number of people who may suffer from it unknowingly because of lack of awareness, information and education and also because such sufferance is silent and fatal and most of the people who would be residing near, under or at a dangerous distance of the grid station or such installation do not know that they are facing any risk or are likely to suffer by such risk. Therefore, Article 184 can be invoked because a large number of citizens throughout the country cannot make such representation and may not like to make it due to ignorance, poverty and disability. Only some conscientious citizens aware of their rights and the possibility of danger come forward.” 3. In case of Arshad Mehmood v. Government of Punjab (PLD 2005 SC 193) also, the Court observed that the word ‘life’ used in Article 9 of the Constitution includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally. The word ‘life’ in the Constitution has not been used in a limited manner; a wide meaning should be given to SMC 16/2011 ETC. 6 enable a man not only to sustain life but to enjoy it. The State is duty bound to protect the life and property of its citizens in accordance with law against all the atrocities, target killings, homicide, etc. The basic human rights of life, liberty and enjoyment of one’s property have been recognized nationally as well as internationally. Article 3 of the Universal Declaration of Human Rights provides that ‘everyone has the right to life, liberty and security of person’, no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment; everyone has the right to recognition everywhere as a person before the law; and all are equal before the law and are entitled without any discrimination to equal protection of the law. Article 17 ibid lays down that ‘every one has the right to own property alone as well as in association with others. It is worth mentioning here that no society can make any progress in a state of chaos and disorder.
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