ISLAMABAD: In a solemn but assertive mood, the Supreme Court reminded the authorities, including intelligence agencies, on Monday that they were bound to trace the people who had been missing for years, and said that state organs should refrain from taking actions which were illegal.
“No government functionary or any officer is competent or can possibly detain, arrest or pick up any citizen unless there is sufficient evidence leading this court or the judicial commission on missing persons to take an appropriate action,” a bench comprising Justice Raja Fayyaz Ahmed and Justice Anwar Zaheer Jamali said in an order issued after lengthy proceedings on a number of cases relating to the missing people.
Usually Justice Javed Iqbal heads the three-judge bench, but he has been in Lahore since the tragic murder of his parents last week.
The court hinted at summoning of ISI Director General Lt-Gen Shuja Pasha, saying it had no other option but to summon him.
“All state functionaries, (intelligence) agencies and government officers are subject to the law and the Constitution and they are supposed to act only and only in accordance with the law and obey the command of the Constitution. Any violation whereof may entail legal consequences if the mandate of the law is not strictly adhered to,” the order said.
“We are not living in mediaeval ages as every functionary of the government has taken oath to protect and preserve the Constitution,” Justice Fayyaz observed. He said the court would not even desist from registering criminal cases against those involved directly or indirectly in such matters. “There is a limit to every thing.”
The order requires the secretaries of interior and defence to be present in the court on each hearing because both of them, in one way or the other, directly or indirectly, have been accused in matters relating to the missing persons.
At one time the court even asked Supreme Court Bar Association chairperson Asma Jehangir to sit with heads of law-enforcement agencies (intelligence agencies) concerned, give her legal opinion on the matter and also allay their fears by assuring them that these are “our courts and that everybody should work for the rule of the law”.
“The secret agencies have the fear that if they surrender a victim they will face legal consequence,” Justice Fayyaz observed.
The order said: “This court being an apex court of the country is under obligation to ensure the right of citizens under the law. Any person found involved in terrorist activities, directly or indirectly, should be brought to the court of law and can be detained only under the security law.
“All that is wanted by the families whose near and dear ones have gone missing is that they at least have the right to know about the whereabouts of their relatives.”
The court adjourned the hearing till January 27. Justice Fayyaz observed that the court order was being flouted flagrantly all the time. “Is it not the responsibility of the state to locate the disappeared persons?”
He deplored that reports submitted to courts on the matter were only attempts to kill time.
When Justice Jamali mentioned the recent cases moved by Zaibun Nisa and Qari Abdul Samad, Justice Fayyaz said he thought of the torture such persons must be undergoing. Pointing towards Attorney General Maulvi Anwarul Haq he observed that such incidents were more than killing a person.
Justice Fayyaz said that parliamentarians, being elected representatives, should legislate in this regard. The AG assured the court that the matter regarding legislation to fix responsibility over missing persons would be looked into in due course of time under which a commission set up for missing people would have enhanced powers.
The commission, he said, had given two weeks’ time for payment of compensation to the families of missing persons. The AG also requested the court not to make public certain portions of the commission’s report. He said that although the report was not privileged or classified, some of its observations were sensitive in nature which he would submit to the court later.
“Let it be checked first by the court after the editing of which if it deems proper the report will be handed over to the counsel of petitioners,” Justice Fayyaz said.
Asma Jehangir questioned the holding of the report by the commission set up by the government in March last year on the directive of the Supreme Court.
The commission comprises Justice (retd) Kamal Mansoor Alam, a former judge of the Supreme Court; Justice (retd) Nasira Javed Iqbal, a former judge of the Lahore High Court; and Justice (retd) Fazlur Rehman, a former judge of the Balochistan High Court.
Dr Mohammad Bashir, the father of 27-year-old Imran Qureshi who has been missing since Jan 7 last year, blamed intelligence agencies for his son’s disappearance.
He informed the court that every time he came to attend the hearing he promised his three-year-old grandson that he would give him good news about his father, but in vain. “I have a fear that I too would be picked up by some intelligence agencies,” he said.
Ms Jehangir said that three people had recently disappeared from Balochistan — Ashfaq Hussain Shah picked up the army, Sameer Rind by the Frontier Corps and Siddiq Idhu, an activist of the Human Rights Commission of Pakistan, taken away from Gwadar after receiving several threats from agencies. Shahzad Murtaza Alvi, who worked for the PAF, disappeared from Jacobabad in Sindh.
According to the HRCP, 174 of the 235 missing people have been traced.
Ms Jehangir said she was also concerned about Arjumandi, a Norwegian national who had been picked up from Turbat in Balochistan two years ago.
She claimed that Norwegian embassy officials told her that secret agencies had informed them that the man was with them, but officially they were not accepting it.