Army has no authority to retain citizens in custody, unauthorised: CJP

Army has no authority to retain citizens in custody, unauthorised: CJP | PakistanTribeLAHORE – The Supreme Court of Pakistan while giving a one day deadline to secretary defence, has observed that if government fails to produce 35 missing persons before the court, then Defence Minister (Prime Minister Mian Muhammad Nawaz Sharif) himself should appear before the court on Thursday.

The Apex court has ruled that sufficient evidence has been made available to conclude that 35, missing persons are in custody of Army, therefore, the Army authorities are bound, under the law, to produce them before the Court.

During the hearing, missing persons case Chief Justice Iftikhar Muhammad Chaudhry remarked that 35 missing should be presented before the court, adding that if law made its way than officials should ready to face consequences, which could be seen in abroad as well.

Three-member bench of apex court comprising Chief Justice Iftikhar Muhammad Chaudhry, Justice Jawwad S. Khawaja and Justice Amir Hani Muslim heard the missing persons’ case on Tuesday.

Chief Justice said it is the matter of Article 9 of the constitution and army chief is sub-ordinate to the secretary defence and ministry should take answer from him, adding that if you have no care of constitution its ok but we have taken oath under the constitution.

You think that you are powerful people but court would ensure the supremacy of the constitution and would protect the Article 09 of the constitution.

Additional Defence Secretary informed the court that Defence Secretary was on leave. He requested more time to produce the missing persons in the court. On this, CJP directed him to produce the missing persons by 8 pm.

The CJP showed annoyance over non-implementation of the court’s orders. “If the Defence Secretary was ill, his responsibilities should be given to someone else,” the CJP remarked. The CJP said that the charge of the office should have been assigned to someone else if he was unwell. “Who is the Defence Minister now if there is no Defence Secretary? Isn’t it a joke?” the CJP asked.

The court also directed the Additional Defence Secretary to contact PM, Defence Minister Mian Muhammad Nawaz Sharif or whosoever was the person concerned to implement the orders.

The CJP warned of consequences if the order was not implemented.
The bench stated that a case could be registered against Additionary Secretary of Defence, if the missing persons were not produced before the given deadline.

“There are couples of governments operating in the country and no one hears prime minister’s orders,” CJ observed. CJ said if the charge of defence ministry is with prime minister then why he did not hear the voice of missing persons.

CJ said if the missing persons were not presented then the law would take its course and high officials of defence ministry should be aware of the consequences of the verdict. Chief justice addressing the additional secretary defence said defence minister should be informed that if the case was registered it would create problems. He said that the court will go at every extent for the recovery of the missing persons.

Meanwhile, Superintendent Malakan jail also submitted his statement in the court, stating that army personnel took along 35 persons from the prison.

The CJP observed that in the light of jail superintendent’s testimony the 35 persons are no more ‘missing’ but they are with the army.

Get in touch with the prime minister, defence minister or any uniformed man and find out who would file the reply here, CJ directed.

Later the court mentioned in its written order that according to the report presented in the court the Secretary Defence, reportedly has been advised medical rest, therefore, he is not in attendance in response to our direction dated 25-11-2013.

The court noted that in respect of one Yaseen Shah S/o Qabil Shah missing person, Superintendent, Judicial Lockup Malakand vide letter dated -12-2012 submitted before the Peshawar High Court, acknowledging that he alongwith other 34 undeclared internees had been handed over to the Army Authorities without any Internment orders.

Superintendent, Judicial Lockup further stated in the letter that when he took over the charge of Internment Centre Malakand on 19-9-2011, 66 undeclared internees including Yaseen Shah S/o Qabil Shah r/o Katlang were handed over to the Army Authorities without any Internment orders, the list of which was submitted to the Inspector General of Prisons KPK vide letter No.1954 dated 29-11-2011. Later on, 31 undeclared internees were handed over to him and rest of 35 detenues who were not declared as internees by the Interning Authorities including Yaseen Shah, were shifted out of Internment Centre Malakant by the Army Authorities.

SC maintained that the hearing of the case was postponed from time to time and mostly on every date of hearing, the learned Addl. Attorney General for Pakistan has assured that the said Yaseen Shah will be produced before the Court.

On the last two dates of hearings (22-11-2013 & 25-11-2013) when no progress was shown, learned Addl. Attorney General was directed to make sure the production of Yaseen Shah, in view of the evidence which has been furnished in writing by the Superintendent, Judicial Lockup Malakand, that he is not a missing person but is in the custody of the Army, thus having left with no option, the Secretary Defence, Superintendent Judicial Lockup, Malakand and Inspector General of Prisons were directed to remain in attendance.

Court said in order that the Secretary, however, failed to appear for the reason which has been disclosed by one Maj. Gen. (Retd) Raja Arif Nazir, Addl. Secretary Defence (appointed on contract) but no document has been placed on record about his proceedings on leave under the medical advice. He is hereby directed to produce the leave sanction order alongwith the charge report of any other incumbent who, in view of Rule 28 of the Revised Leave Rules 1980, has taken over the charge of the post.

Court has ruled that it is equally important to note that the Superintendent, Internment Centre Malakand, has furnished a list of undeclared internees who were taken away by the Army Authorities, their names are reproduced herein below : – Shah HussainS/o Umar Khitab, Sultan Zeb S/o Aurang Zeb, Ijaz S/o Miraj Muhammad, Qamar Zeb S/o Awal Khair, Abdar Ali S/o Yar Muhammad, Nawab Ali S/o Abdul Matin, Khalid-ur-Rehman S/o Jamil-ur-Rehman, Yousaf S/o Akhtar Munir, Hashim S/o Ghulam Rasool, Muhammad Sabir S/o Pir Said, Abdu Bakar S/o Liaq-ur-Rehman, Hamid Ayoub S/o Muhammad Ayoub, Habib Ullah S/o Hazrat Muhammad, Amjid Hussain S/o Saeed Gul, Akhtar Ali S/o Naik Muhammad, Abdul Wadood S/o Abdul Qayoom, Zakir Ullah S/o Majid Ullah, Naeem-ur-Rehman S/o Sher Zada, Muhammad Ilyas S/o Muhammad Sadiq, Abdul Salam S/o Arshed Ali, Numan S/o Abdul Waris, Sardar Al S/o Rozi Mand, Rahmat Ullah S/o Naser Ullah, Zakir Khan S/o Akhtar Gul, Faisal Khan S/o Tahir Khan, Alam Khan S/o Rahmat Khan, Nadar Khan S/o Said Rahman, Kalim Khan S/o Hazrat Hussain, Haroon Rasheed S/o Fazal Ghafoor, Rasheed Ahmad S/o Shad Muhammad, Yaseen Shah S/o Qabil Shah, Sartaj Hussain S/o Khan Sherin, Muhammad Khan S/o Yousaf Khan, Sajjad Khan S/o Bakhti Rawan, Zafar Khan S/o Faqir Khan.

Apex court has ruled that sufficient evidence has been made available to conclude that 35, named herein above, are in custody of Army, therefore, the Army authorities are bound, under the law, to produce them before the Court of Law and has no authority to retain their custody un-authorisedly.

Apex court has maintained that there is no authorized person on behalf of the M/o Defence, to comply with the direction, therefore, we direct the Addl. Attorney General to take up the matter with the M/o Defence with the direction to produce the above named persons under the Constitution and law from the custody of the Army during course of the day and submit his report in this behalf. Later the court adjourned the hearing till November 28.

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