ISLAMABAD - Remarking that extreme restraint had been observed and the bench could not wait more, the Supreme Court on Monday ordered federal and Khyber Pakhtunkhwa (KPK) governments to recover and produce 35 missing persons before it in 48 hours .
The KPK Advocate General informed the SC that a new commission on missing persons had been formed and it would present a report in the court within a month.
The AG also said that presidential ordinance facilitating the setting up of the new commission had been promulgated.
Attorney General (AG) Suleman Butt told the court that a one-member commission comprising Justice (r) Sardar Raza Muhammad Khan had been set up to settle the issue of 35 missing persons . He requested the court to adjourn the hearing so that the commission could finalise its report.
The court, however, refused to adjourn the hearing remarking, “Let the commission do its work and we will continue to do our work.”  Justice Jawwad S Khawaja, heading a three-member bench of the Supreme Court, gave these remarks hearing missing persons case here Monday.
“We cannot leave the matter to commission . Law will take its course. AG KPK should discharge his constitutional obligations. If government has to resolve the matter, it should do it. We cannot wait more. Attempt was made to convince us earlier that if we uphold law and constitution, there will be devastation. We are not deterred by such things,” the court observed.  The apex court further remarked, “We have been told that this is democratic attitude that political members are answerable to parliament only. People and courts can ask nothing from them”.
The court said, “How will you control what is going on in Lahore and Karachi. Dead bodies of 25 persons have been found in Panjgore. This is a question mark on the performance of federal and provincial government”.
The court rejected federation’s plea for adjourning the hearing of the case till finalisation and presentation of commission report. The hearing of the case was adjourned till January 29.
The Supreme Court ordered federal and Khyber Pakhtunkhwa (KPK) governments for recovery and production of 35 missing persons before it within 48 hours who were picked up from Malakand by agencies.Justice Jawwad S Khawaja remarked, “Court has gone to the extreme end of restraint. Failure to implement basic human rights is a question mark on the performance of federal and KPK governments”.
He further remarked, “Government is deviating from law and Constitution by giving importance to doctrine of necessity. Federal and provincial governments should focus on the issue of missing persons seriously. We want to give full opportunity to the governments to address the matter of missing persons . We don’t want the court to exercise its powers. No one is ready to protect the fundamental rights of the citizens”.
He further remarked, “We are being frightened that this case should not be heard otherwise a major disaster would befall. I want to tell that “no matter heaven falls or earth splits, no one will be allowed to back track from law and Constitution. No law contrary to Constitution can be enacted. There is no more need of in camera or open court hearing on missing persons case”.
He further observed, “Everyone knows who has taken away the persons . No one should consider him above the law. Court has gone to extreme end of restraint.
Advocate General (AG) KPK requested the court to conduct in-camera hearing of the case. The court remarked, “We have noted the request and will give appropriate decision on it”.  KPK AG said army had no powers to pick up these persons . Court was also of the same view.
Justice Jawwad remarked, “You want to say legislation is domain of government and federation has to do it. Administrations of federal and provincial governments have to ensure provision of fundamental rights t every citizen. If they do nothing, the court has to do something. AG and you will assist the court in this regard. We will summon the law officers of other provinces to ascertain their view point”.  He remarked, “If seven persons can be recovered whose statements have been recorded by our judge in chamber, why not the remaining ones can be recovered.
Two have passed away. About the remaining 20 or 21 persons it has been told that some of them are in Afghanistan’s Kunnar province. See Protection of Pakistan Ordinance. There are one or two such things therein which needs to be reviewed necessarily”.
Justice Jawwad further remakrs, “Tell us the law that certain institutions are above the law and Constitution and they cannot be touched. No investigation has been carried out in Yasin Shah case. No one is above the law. Your report is not implementation of our orders”.
KPK AG said fundamental rights had been breached. Upon which the court inquired from the AG if someone was above the law. Addressing Tariq Khokhar the court remarked, “We have been asking about Yasin Shah repeatedly that where is he. But there is no reply so far. This court does not have any knowledge that whether he is alive or not. What happened to him. Tell us something. If he is not produced, we will take action.
 Get directives in this regard. We cannot give concession therein. Two officers of Ministry of Defence have attended court. We don’t need them”.