ISLAMABAD - In the 35th hearing of the case of 35 missing persons, the government told the Supreme Court Wednesday that it has lodged an FIR against the army personnel who took away those men from an internment centre in Malakand Garrison.
Heading a three-member bench, Justice Jawwad Khawaja termed the move a major development and ordered that a copy of the FIR be presented in court today (Thursday).
“A thing which should have been done earlier by the Khyber Pakhtunkhwa government has been done today,” Attorney General of Pakistan informed the court. “An FIR has been registered in compliance of the court order (issued on Dec 10, 2013) and its copy will be supplied tomorrow (Thursday).”
Col Inamur Rahim, talking to The Nation, said Justice Nasirul Mulk had declared in Abida’s husband disappearance case that after the registration of FIR, only the police could investigate the army officials involved in any crime.
In Tuesday’s hearing, the court had come went closer to issuing a show cause notice to the prime minister, the KPK chief minister and the governor.
Former chief justice Iftikhar Muhammad Chaudhry in the December 2013 judgment had stated that “prima facie, we can draw the conclusion that all the 35 undeclared internees were taken away by army officials from Malakand interment centre” two years ago and it ruled “there is no law or authority to authorise any agency like Military Intelligence (MI), Intelligence Bureau (IB), Inter-Services Intelligence (ISI), and Frontier Constabulary (FC) to detain anyone illegally”.
The federal and the KPK authorities though complying with the court’s order produced 12 missing persons, out of 35, but took no action against the military authorities who illegally took away these undeclared detainees.
Justice Jawwad remarked: “Everyone has to follow the law and Insha Allah (by the grace of God) the affairs of the country would be run in accordance with law,” he said. “Any law passed in violation of the constitution would not sustain,” he declared, probably to allay the common apprehension that the recently passed Pakistan Protection Ordinance and other such laws could be misused by security agencies to the detriment of fundament rights of the citizens.
The defence ministry has already challenged the December judgment, saying the order could have profound national and international implications that could be detrimental to the federation of Pakistan.
The same bench on March 11 had given the federal and provincial governments a week to comply with the (December) order, which they failed to comply with.
During Wednesday’s hearing Defence Additional Secretary Maj-Gen (r) Arif Nazir wanted to say something but the court stopped him. Justice Jawwad said, “We don’t need defence ministry’s input as since August 2013 there is no progress on 35 missing persons case... We will continue to perform our duties and shall enforce the fundamental rights enshrined in the constitution.”
AGP Salman Aslam Butt stated that it was not the premier’s but of the provincial government’s responsibility to ensure fundamental rights. To this Justice Khawaja responded that the attorney general should give this in writing, adding that a notice will be given to the prime minister. The judge said the prime minister himself can appear before the court and say that it was not his responsibility.
The attorney general said that efforts were being made to recover remaining missing persons but insisted that show cause could not be issued to the prime minister as the internment centre, from where 35 detainees were taken away, falls in the jurisdiction of KPK. But, KPK Advocate General Latif Yousafzai argued that according to Article 247 of the constitution the Federally Administered Tribal Areas (Fata) was subject of the federal government, therefore the federation should take action against the accused.
Justice Jawwad told the AGP that if his contention was that notice could not be issued to PM then the premier should write in his reply that under the constitution it was not his responsibility to protect the fundamental rights of citizens. He said after December 2013 judgement they have issued three orders, but neither the federation nor the provincial government had shown any progress.
The AGP said that the commission constituted by KPK government has also submitted its report, but required further investigation. Justice Jawwad remarked that the commission was set up on January 14 but no progress was shown. “We can’t be oblivious of our duties,” he remarked. The court on the assurance that the copy of the FIR would be provided, adjourned the case till today.