SHC restores AD Khowaja as IG Sindh

Suspends two notifications of Sindh govt; also suspends notification to hand over Baghe Ibne Qasim to private builder

KARACHI: The Sindh High Court on Monday suspended the Sindh government’s notifications regarding the transfer of IG Sindh AD Khowaja and the appointment of Sardar Abdul Majeed as acting IG and restored Khowaja as the IG Sindh till further orders.

The Sindh High Court also suspended the Sindh Local Government’s notification on handing over the possession of Bagh Ibne Qasim from the Karachi Metropolitan Corporation to a private builder till further orders.

The interim orders came on a petition of Karamat Ali and other rights activists and non-government organisations against the repeal of the Police Order, 2002, purportedly through the Sindh (Repeal of the Police Order, 2002 & Revival of the Police Act, 1861) Act, 2011, lack of implementation of the Police Order, 2002, and the illegal action of the Sindh government to interfere and make ineffective IG Sindh AD Khowaja.

The petitioners' counsel, Faisal Siddiqui, submitted that the SHC in its December 28 last year order had directed the provincial government that the issue regarding the transfer or removal of IG Sindh A.D Khowaja shall not be dealt with in violation of the Supreme Court’s judgments that protects the tenure of federal and provincial police heads for three years.

He submitted that the provincial government, in violation of SHC’s order, had surrendered the services of IG Sindh AD Khowaja to the federal government and later relieved him from the post of IG Sindh and appointed Sardar Abdul Majeed Dasti as the acting IG Sindh in addition to his own duties. He sought action against the alleged contemners for violating the court orders and restoration of A.D Khowaja as IG Sindh.

Advocate General, Sindh, Zamir Ghumro, strongly opposed the applications of the petitioners without prejudice to his right to file appropriate reply to the same. He submitted that the provincial government’s chief secretary and others did not violate the court orders and in any case matters relating to transfer/posting of officers were particularly within the provincial domain and, therefore, the provincial government had appropriately exercised its powers in this regard by issuing the order and notification.

To a court query, the AG Sindh submitted that legal power with regard to the police force of the province in general and in particular in relation to the IG Sindh vested in the provincial government in terms of sections 3 and 4 of the law currently in the force being the Police Act.

He submitted that the impugned order and notification regarding the transfer of A.D Khowaja has not been issued as a result of decisions taken by or in the provincial cabinet. The SHC’s division bench headed by Justice Munib Akhtar observed that the Supreme Court has held in specific context of the exercise of statutory powers that if such powers are conferred on the government concerned, they can be exercised in the cabinet and by the Cabinet Division and not otherwise.

The court also inquired the petitioner's counsel that in an interim order, reliance has also been placed on the Sindh government rules of business with regard to continuation of IG Sindh for which he accepted that this plea did not appear as such in prayer clause of the petition although such ground had been taken. The court observed that such ground does sound on the constitutional plane and in any case is a legal point and decision will be taken later as to whether this point will be entertained when the petitions are taken up on merits directing the counsel to come prepared on such point.

The court observed that prima facie case of further relief is made out and suspended the impugned notification on surrendering the service of AD Khowaja to the federal government and appointment of Sardar Abdul Majeed Dasti as the Acting IG.

The court observed that Acting IG Sardar Abdul Majeed, if at all has taken over the charge of IG Sindh, shall restrain from acting in such charge and restored AD Khowaja to his position as IG Sindh till further orders. The court directed that identical petitions will be decided at katcha peshi stage on April 6.

The petitioner's counsel, Faisal Siddiqui, had earlier submitted in the petition that the Police Order 2002 was repealed by the Sindh government in 2011 by reviving the Police Act 1861 though the Police Order 2002 has been protected under Article 142(b) of the Constitution, which confers concurrent jurisdiction of parliament and the provincial assembly to make law with respect to the criminal law and criminal procedure and the evidence. The counsel contented that there was no specific entry in the concurrent list to confer the jurisdiction either on parliament or the provincial assembly to legislate the laws for the police and such laws were legislated on the basis of entry 1 and 2 available in the concurrent list.

The provincial home department, however, submitted in the comments that the Police Order 2002 has been validly repealed and a legislated statute through the Sindh (Repeal of the Police Order, 2002 & Revival of the Police Act, 1861) Act, 2011 has replaced it.

The home department submitted that police were a provincial subject and it has not any relevance to concurrent jurisdiction of parliament and provincial assembly.

The provincial home department had submitted that police were neither part of the federal legislative list nor the concurrent list and was a subject entrusted to the provinces adding that 18th Amendment did not disturb or change the position. The home department’s secretary submitted that the police law was not a criminal law but organization law, therefore, mixing up the Police Act with criminal law was nothing but lack of legal understanding of the petitioners of constitutional position. The home department secretary said that legislature was the competent authority to amend, alter or repeal the law governing police force including the police order.

On the tenure of IG Sindh for three years, the home department mentioned that none of the IGs Sindh who were appointed from 2005 to 2011 completed their three-year tenures even when the Police Order 2002 was in field. It was submitted that IG Asad Jehangir remained as IG Sindh for 10 months, Jehangir Mirza 15 months, Niaz Siddiqui two months, Ziaul Hasan Khan seven months, Azhar Ali Farooqi four months, Dr. Shoaib Suddle two-and-a-half months and Fayaz Leghari five months from 2005 to 2011.

Meanwhile, the Sindh High Court on Monday suspended the Sindh local government’s notification regarding handing over the possession of Bagh Ibne Qasim from the Karachi Metropolitan Corporation to a private builder till further orders.

The interim order came on the petition of Mayor Karachi Waseem Akhtar who challenged the local government’s notification in which 130 acres Bagh Ibne Qasim in the Clifton area was taken over from the KMC and handed over to a private builder M/s Bahria Town for adoption as per an agreement executed on March 30. According to the notification, the existing staff deployed at Bagh Ibne Qasim and aquarium will continue to serve at the same place and the salary of such staff will be paid by the KMC.

The petitioner's counsel, Sameer Ghazanfar, submitted that the park was the property of KMC while the provincial local government department unilaterally and without taking the KMC into confidence or having done consultation had issued the impugned notification and letters, including the agreement. He submitted that under Section 74 of the Sindh Local Government Act, 2013, it is only the institution or service maintained by a council which can be transferred to the government whereas the park in question neither falls in the definition of institution nor service.

The counsel submitted that in terms of Schedule II part I of the SLGA 2013, it was the responsibility of the KMC to perform the functions of controlling the land owned by it. He contended that parks and gardens are exclusively the domain of the KMC to maintain and create any recreation for convenience of the public. He submitted that the agreement between the local government and private builder was commercial arrangement whereby they have settled certain terms and conditions according to which the management of the park was handed over to the private builder but the government will still pay the salaries of the staff and would allocate budget.

He pointed out the Supreme Court’s judgment which also relates to the portion of the park wherein commercial activity was initiated and the court came to the conclusion that no commercial activity can be carried on an amenity plot.

The SHC’s division bench, headed by Justice Mohammad Junaid Ghaffar, after preliminary hearing of the petition, issued notices to secretary local government, Bahria Town and others and called their comments on April 18. The court in the meantime suspended the impugned notification whereby the KMC was directed to hand over the possession of the park to Bahria Town till further orders.