Criminal justice system has failed in Pakistan: IHC

Islamabad : In a case of enforced disappearance of an Information Technology (IT) expert Sajid Mehmood since March 2016, Justice Athar Minallah of the Islamabad High Court (IHC) here on Wednesday through a land mark judgment has imposed a cost of Rs100,000/- each on Lt. General (Retd) Zamir-ul-Hassan Shah secretary ministry of defence, Zulfiqar Haider chief commissioner ICT, Khalid Khan Khattak IGP Islamabad and Captain (R) Mushtaq Ahmed, district magistrate.

In a 47 pages judgment, IHC bench has described the attitude of the officials of the law enforcements institutions as most appalling. The bench said that the criminal justice system has failed in Pakistan. It has directed the above said respondents to pay the said amount to the wife of missing man Mahera Sajid. IHC bench has also imposed a cost of Rs300,000/- on Qaiser Niaz Inspector who was Incharge of the Shalimar Police Station on March 14, 2016 when Sajid Mehmood was abducted from his house.

Justice Athar Minallah said that 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 this judgment. The bench has also directed the state to pay monthly expenses amounting Rs117,500 to the petitioner Mahera Sajid as her husband was the only bread winner in the house and since state and its functionaries failed to trace her husband so they are liable to pay the monthly expenses to the petitioner. IHC bench said that the state shall pay the monthly expenses to the petitioner from March 14, 2016 till her husband is traced.

IHC bench has rendered this judgment in the case of Mahera Sajid wife of Sajid Mehmood whose husband was picked up from her house in F-10 on March 14, 2016 and previously an SHO of Shalimar police station had submitted before the court that this case seems to be of ‘enforced disappearance’. Ministry of Interior and Ministry of defense however expressed their complete ignorance about the whereabouts of the missing man.

IHC bench in its judgment reserved on February 2, this year has expressed that this court “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. 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, the petitioner despite her grave anguish and suffering was subjected to unnecessary litigation and harassment. 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.

"Each public functionary has made himself liable to pay special costs to the petitioner. Moreover, it is settled law that while exercising constitutional jurisdiction under Article 199 of the Constitution court may impose costs in excess of the amount prescribed under section 35-A of the Civil Procedure Code, 1908," IHC bench said.

The bench said that the court expects that the said 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.

Missing Sajid Mehmood, a resident of F-10 is father to three daughters while his wife filed a petition for the recovery of her husband and also applications seeking allowance on account of monthly household expenses from the federal government till her husband is recovered. On October 21, 2016 the Ministry of Interior (MOI) had submitted a report before the IHC that the 15 departments working under its auspices have denied any involvement in the abduction of Sajid Mehmood. The MOI had suggested the court that the petitioner should pursue her case before the Commission of Inquiry on Enforced Disappearance.

IHC bench said that there is nothing on record to show that Sajid Mehmood was ever involved in any illegal activity, let alone a crime. There is also nothing on record to even remotely indicate that he had any enmity or that he was involved in politics or had any connection with any crime. Both Sajid Mehmood and his wife Mahera Sajid had established software development business which was duly registered with the Pakistan Software Export Board.

It is to mention here that a joint investigation team (JIT) was also formed in this matter that was headed by IG Islamabad with members from intelligence agencies. The JIT in its report submitted to the court had unanimously concluded that it was a case of “enforced disappearance”.

The IHC bench while referring to the affidavits filed by the functionaries of the first said state institutions remarked that ‘None took responsibility for the failure of the criminal justice system in responding to the plight of the petitioner. Not a single official referred to obligations imposed upon him under the law. Interestingly, every official has tried to be evasive and shift the blame on others”.

IHC bench commented that “the State and its functionaries, instead of fulfilling the obligations imposed upon them as fiduciaries and trustees, resort to inhuman and cruel usurpation of fundamental rights. It is for this reason that enforced disappearance has been declared as a crime against humanity and indeed that is exactly what it is”.

Enforced disappearance' is one of the most cruel and inhuman acts and categorized as a crime against humanity, the bench said.

The IHC said that it is the duty and obligation of the State to take effective and prompt action when 'enforced disappearance' has been alleged. The federal government is directed to 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 ICT and would also identify the officials responsible.

It is the duty of the intelligence outfits 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 the whereabouts of the victim.