In a rare verdict, IHC slams fine on retired three-star general

Says it is an obligation of the state to pay monthly compensation to missing person's family

ISLAMABAD: For the first in Pakistan's history, a high court has penalised a retired three-star general and several civilian officials in the case of a missing person and directed them to pay one-time fine while ordering the state to pay monthly compensation to missing man's heirs.

In a landmark judgement which sets a new precedent in missing persons' cases, the Islamabad High Court's (IHC) Justice Athar Minallah on Wednesday held that "enforced disappearance is one of the most cruel and inhuman acts and categorised as a crime against humanity."

The IHC's milestone judgement came in the case of a missing IT professional, Sajid Mehmood, who was abducted from his house in Islamabad's F-10 Sector in front of his family and neighbours in 2016.

His wife, Mahera Sajid, through her counsel, Umer Gilani, had filed a writ of habeas corpus in the IHC and the court had repeatedly directed the police and intelligence agencies to produce Mehmood in the court but the person is still missing.

Beside safe recovery of her husband, Mahera had demanded that the government should be held liable for gross negligence in discharging its duty to protect the liberty of her husband and be made to pay her and her daughters a monthly maintenance.

In view of the facts, Justice Minallah imposed cost of Rs100,000 each on Ministry of Defence Secretary Lt General (retd) Zamirul Hassan Shah, Islamabad's Chief Commissioner Zulfiqar Haider, Inspector General of Police Khalid Khan Khattak and District Magistrate Capt (retd) Mushtaq Ahmed.

"A cost of Rs300,000 … is imposed on Mr Qaiser Niaz, Inspector who was the Incharge of Police Station, Shalimar on 14-03-2016," he added. The officials shall pay the costs through crossed cheques drawn in the name of the petitioner within ten days from the date of announcement of the judgement.

Justice Minallah stated that the state and its functionaries have failed in safeguarding the fundamental right of the petitioner guaranteed under Article 9 of the Constitution.

It is, therefore, he said, an obligation of the state to financially put the petitioner in the same position by way of compensation as existed on the day of occurrence March 14, 2016.

The breakup of the expenses amounting to Rs117,500 per month placed on record has not been contested by the respondents, he said, but authorities can verify the actual expenses if they have any reservations within 30 days.



He said the arrears shall be calculated and paid to the petitioner with effect from March 14, 2016. "Monthly payment shall be made to the petitioner till the state through its functionaries has traced the whereabouts or fate of the Detenu," Justice Minallah ruled.

The court for the first time held that it is the duty of the Special Branch, the Intelligence Bureau, the Inter-Services Intelligence and the Military Intelligence to collect information and promptly report to the concerned functionaries regarding any incident of abduction of a citizen having the characteristics of an 'enforced disappearance' and to take effective measures in tracing him/her.

He noted that these instrumentalities of the state are part of the joint investigation team (JIT) constituted under the regulations. "In the case of failure in fulfilling this duty the respective Sector Commanders shall expose themselves to being accountable and proceeded against," the judge held.

The court directed the JIT to take appropriate measures and effectively investigate the alleged enforced disappearance in the instant case. It directed members of the JIT representing intelligence agencies to trace the whereabouts of the detenu and asked head of the JIT to submit a progress report before the registrar IHC on the 15th of each month.

The judge also ordered that the federal government conduct an inquiry through an officer, not lower in rank than a federal secretary or a committee, into the failure of the criminal justice system in the Islamabad Capital Territory as is evident from the facts highlighted.

He said the inquiry shall also identify the officials responsible for the established failure in the instant case and the loss suffered to the exchequer as payment of maintenance to the petitioner and her three young daughters shall be recovered from such delinquents.

He has directed that the inquiry be completed within 30 days and a report in this regard shall be submitted by the secretary interior to the IHC's registrar.

He held that if it is established that the criminal justice system failed in responding promptly, followed by conducting effective investigations into a complaint of a citizen alleging enforced disappearance of a loved one, then the state depending on the facts and circumstances in each case shall become liable to compensate the person if it can be shown that the latter's fundamental right(s) stand infringed.

The judge said any loss suffered by the exchequer on account of payment of compensation shall be recovered from the public functionaries, inter alia, in the case of the ICT from the chief commissioner and the inspector general of police.

Additional note

Once again, Justice Minallah expressed his opinion about the miseries of a common person in a note at the end of the judgement. Before conclusion, Justice Minallah stated that while exercising constitutional jurisdiction he cannot ignore the conduct and attitude of the public functionaries towards the petitioner, which is evident from their affidavits.

"They owed a duty of care towards the petitioner who has been running from pillar to post to make the criminal justice system respond to her unimaginable plight," Justice Minallah noted, "those who have been appointed as agents of the state to safeguard the rights of the citizens have displayed an attitude which was appalling and distressing."

Because of the conduct and attitude of the custodians of fundamental rights of the citizens, he noted, the petitioner despite her grave anguish and suffering was subjected to unnecessary litigation and harassment.

The judgment read that "it is evident from the affidavits that the attitude of each functionary has been degrading towards the helpless citizen who was not required to engage in litigation had the criminal justice system responded to her complaint promptly and effectively."

Since, he said, the failure of the criminal justice system to promptly respond to the complaint of the petitioner and then to conduct effective investigations stands established in the instant case, each public functionary has made himself liable to pay special costs to the petitioner.

Justice Minallah said the court expects that the public functionaries and others would deal with ordinary citizens and display conduct and attitude towards them which visibly demonstrates respect and care, having regard to the fundamental right guaranteed under Article 14 of the Constitution which provides that "the dignity of man and, subject to law, the privacy of home, shall be inviolable".

A complaint which alleges or discloses characteristics in the nature of 'enforced disappearance' shall be treated by the respondents as a heinous act and thus dealt with accordingly.