AD Khawaja is here to stay

SHC quashes govt’s moves to remove IG from his post

KARACHI: The Sindh High Court (SHC) dealt the provincial government a substantial blow on Thursday blocking the government’s move to oust Sindh Inspector-General of Police Allah Dino Khawaja. The provincial top cop was reinstated till the completion of his three-year tenure.

The court quashed the provincial government’s letters addressed to the establishment secretary unilaterally surrendering IG Khawaja’s services to the Centre and giving additional charge of the post to AIG Abdul Majeed Dasti. It also set aside the Sindh cabinet’s decision backing these decisions.

The two-judge bench, headed by Justice Munib Akhtar, announced its verdict, which was reserved in May, after hearing arguments on two petitions filed by civil society groups against IG Khawaja’s removal and seeking reforms in the police law. The petitions were filed by the Pakistan Institute of Labour Education and Research Executive Director Karamat Ali, the Urban Resource Centre and others.

“There is associated with the post of inspector general a term or tenure as set out in the Sindh Government Rules of Business, 1986. The term is part of the law of the land insofar as this province is concerned. It has mandatory and binding effect,” ruled the court. “It must also, as explained herein above, be given due recognition by the federal government.”



The court ruled that the “the present incumbent of the post of inspector general is thereafter entitled, subject to what is said below, to have the benefit of the term associated with the post.”

The judges considered in detail the manner in which the Police Service of Pakistan (PSP) officers were to be appointed to the post of IG.

“Since the post of inspector general has a fixed term associated with it, the rule laid down by the Supreme Court in the Anita Turab case is applicable. Therefore, if at all an incumbent can be removed during the term that can only be for compelling reasons within the meaning of the rule,” stated the bench.

Removal procedure

The court held that “if at all the provincial government [provincial cabinet] is of the view that the continuation in office of AD Khawaja, on account of his having been appointed on own-pay scale basis, is contrary to the law enunciated by the Supreme Court in the Ghulam Fareed case, and that this constitutes a compelling reason, it must follow the proper procedure in accordance with law, as explained in detail herein above”.

The court declared that the procedure adopted by the Sindh government to surrender IG Khawaja’s services to the Centre was contrary to the law. “Since the proper procedure has not been followed, the correspondence addressed by the provincial government to the federal government and the follow up notifications are quashed as being contrary to law and of no legal effect,” it ruled.

It also set aside the provincial cabinet’s decision endorsing the IG’s removal



Police reforms

The judges observed that there was a need for reforms in policing and the police force for law and order to be properly established, which is sine qua non for the rule of law and which, in turn, enables fundamental rights to be fully and properly enjoyed.

They observed that for fundamental rights to be effectively enforced in Sindh suitable directions can and should be given and appropriate orders made under Article 199 of the Constitution.

The judges noted that a problem identified by the petitioners is the rapid turnover in and bewildering rapidity with which postings and transfers are made in the police force at all levels.

The judges observed, “This farcical situation is wholly inimical to the stability of, and any meaningful performance by, the police”. They said autonomy of command and independence of operation in the police force is required to address the issue.

While disposing of the petitions, the judges declared that the legislative competence of the police was in the exclusive provincial domain. They declared that the Sindh (Repeal of the Police Order, 2002 and Revival of the Police Act, 1861) Act, 2011 is intra vires the Constitution and that the Police Act, 1861 as revived and restored by the said Act, is the law in force in the province, not the Police Order, 2002.



The court directed the respondents, provincial government and federal government bodies to “give full and immediate effect to the orders made and directions given in this judgment and to act only in accordance and conformably with the same”.

They were further directed to give full and immediate effect to the court’s orders and directions given in the judgment and to act only in accordance with the same.

The court also restrained the federal and provincial authorities from acting in any manner that is inconsistent with or contradicts any orders made or directions given in this judgment and from issuing, acting upon or giving effect to any circular, notification, guideline, instruction, order or direction that is inconsistent with, or contradicts, this judgment.

Police force inching closer to autonomy

In a judgement of far reaching consequences, the Sindh High Court came closer to granting operational and functional autonomy to the provincial police force to ward off the danger of political interference.

The bench ordered that the police hierarchy, acting through the IG, must have control of its own affairs, especially postings and transfers and that outside interference, whether by the provincial government or anyone else, must come to an end.

The judges observed that for purposes of giving directions and orders for enforcement of fundamental rights, the Police Act ought to be interpreted and applied by adopting the approach articulated by the House of Lords in the Ghaidan case, in applying the (UK) Human Rights Act, 1998. Sections 3, 4 and 12 of the Police Act in particular have been so interpreted and applied, keeping in mind that there must be autonomy of command and independence of operation in the police force.



Making specific reference to Section 12, the judges recalled that detailed directions had been given for the formulation of rules to properly regulate postings and transfers in the police force in accordance with the law. “Pending formulation and adoption of such rules, and with immediate effect, the power of transfers and postings in the police force, at all levels and including that of PSP officers, shall be exercised only by the inspector general, and any orders issued by him in this regard shall be self-executing,” ordered the bench.

The court then quashed the government’s notification regarding postings and transfers as being contrary to the law. It also quashed all other such notifications or orders.

“[The IG’s] role is a key and central one. His position is at the apex of the force,” held the judges. They cautioned that “any attempt therefore to side line or marginalise the IG or to circumvent him or to otherwise curtail his powers directly or indirectly would be contrary to the law”.

They further declared that “the command structure of the police hierarchy is clear”. It flows from, to and through the inspector-general, the bench said. “There can be no autonomy of command, nor independence of operation without this.  If at any time the provincial government amends or alters the 1986 rules in relation to the term or tenure of the IG, such a term cannot under any circumstances be reduced to less than three years,” ruled the court.