Mahera Sajid v. Police Station Shalimar (court fines police officers for inaction in case of enforced disappearance)

Date of hearing: 11-05-2018.
Court: Islamabad High Court, Islamabad (Judicial Department)
Judges present: Athar Minallah, J.
Name of case: W. P. No.2974/2016 (Mahera Sajid Versus Station House Officer, Police Station Shalimar & 6 others)

The facts of the case are as follows: The petitioner, Mahera Sajid and her husband, Sajid Mehmood, (the ‘detenu’) were both engineers, had three daughters and lived in an upscale residential area in Islamabad. The detenu was the sole bread winner of the household and worked for his own software development firm which was a legitimate business registered with the Pakistan Software Export Board. He had no political affiliations or any criminal record. The detenu was forcibly abducted from his house around 6:00 pm on 14-03-2016 by a dozen men dressed in uniform of the special police force, who forcefully entered his house. They also confiscated computers/laptops, cell phones and some documents from the petitioner’s house. Since the men were in uniform the petitioner expected to be informed as to the whereabouts of her husband but when this did not happen, she tried to register an F.I.R. the next day at the Police Station Shalimar, F-10, Islamabad. While an entry of the incident was made into the Daily Diary ‘rapat’, no F.I.R. was registered under sec. 154 Cr.P.C. 1989 and therefore no investigations were carried out. The police officers in charge of the police station continued to deny the requests of the petitioner to register an F.I.R. for the next four months until the father of the detenu, Capt. Dilawar Khan, filed a complaint with the Commission of Inquiry on Enforced Disappearance pursuant to which a criminal case was registered on 05-07-2016. A Joint Investigation team (JIT) was also constituted to investigate the matter but when it was unable to find anything the petitioner invoked the jurisdiction of the High Court under article 199 of the Constitution of Pakistan on 03-08-2016.

The court ordered chosen respondents to submit reports. Respondents no.6 and 7 i.e. the Inter-Services Intelligence and the Military Intelligence submitted their respective reports through the Secretary, Ministry of Defence. The Secretary, Ministry of Interior was also directed to submit a written report identifying the officials who had failed to protect a citizen of Pakistan from being abducted and thereafter refused to register a criminal case or to investigate the crime. Pursuant to this, both inspectors posted at the police station at the time the complaint was filed were found guilty of misconduct and were punished by ‘forfeiture of one-year approved service’.

The JIT in its findings had concluded that this was a case of enforced disappearance and a written report by the Secretary, Ministry of Defence stated that the Intelligence Agencies of the country had confirmed that the detenu was not in their custody. The petitioner in response asserted that the state institutions in failing to fulfill their obligations to prevent this incident from occurring had caused a grave violation of the fundamental rights of her, her husband his relatives and their three children. She demanded financial compensation for the daily expenses of her family as the detenu was the sole earning member of their household.

The court sought clarifications from several respondents (members of the police force and the ministry of defence) for the failure to prevent this disappearance from occurring. All respondents were noted by the court as being ‘evasive’ as they all sought to blame other officers and the petitioner for ‘not properly pursuing her written complaint’. Even the JIT was seen to furnish lip service to their responsibilities as it only conducted two meetings. The court termed all these actions collectively to make a mockery of the criminal justice system in Pakistan. It observed the police inspectors on duty to have been least interested in performing their duties as the case for the petitioner had only been registered after the detenu’s father approached the council, four months after his disappearance. No effective investigations were carried out and the little work which was done stopped when the JIT concluded that this was a matter of enforced disappearance, not worthy to be treated as any other heinous crime. The court went so far as to ask the respondents if this would be the course of action they would take if one of their own loved ones were to disappear.

While the Deputy Attorney General favoured the position of the respondents and blamed the petitioner for not having pursued her application properly, the Amicus Curie sided with the petitioner and supported her claim for compensation.

In harsh detail, the court reprimanded the respondents for having failed to perform their duties. It stated that it could not support or ignore such behaviour as it would undermine the rule of law. The court reminded the respondents that it was the collective will of the people which empowered the republic of Pakistan. This primarily required them to be fiduciaries and trustees of Pakistan which meant that they could pursue no interest other than the best interests of the people of Pakistan, in whose name they held their respective offices and from whose pockets they withdrew their salary.

The court stated that the most cherished rights in the constitution were carried by article 9, (the right to life and liberty) which carried a caveat against arbitrary arrest and detention. It reiterated the fact that this included elements of a fair trial (art 10A): right to be told grounds on which one was being arrested, access to a legal counsel of the detainee’s own choice, right to be produced before a magistrate within the prescribed time (art 10), to be punished in accordance with the law (art 12) and to be treated with dignity throughout this process (art 14). While these were rights guaranteed by the constitution, they were also safeguards for the public against abuse of power by those in positions of power.

As the case had been identified to be a case of enforced disappearance, the court then turned to examine it in the presence of existing Pakistani jurisprudence on the matter. Given that there was no law dealing with enforced disappearances, the Supreme Court had ordered the institution of the Commission of Inquiry on Enforced Disappearance and the use of the United Nations International Convention for the Protection of All Persons from Enforced Disappearances (2006) in cases of enforced disappearance (in the Human Rights Case No.29388-K of 2013’ [PLD 2014 SC 305]). The convention deemed enforced disappearance to be a crime against humanity as here the state abused its power and acted as an abductor. The court stated that such a crime could not be justified on any ground, it needed the complete attention of the law enforcement authorities. Cases from the European Court of Human Rights and the Inter American Court of Human Rights were cited supporting the court’s position against enforced disappearances.

Precedents from the Supreme Court supported the petitioner’s appeal for financial compensation (‘Dr Mehmood Nayyar Azam v. State of Chaattisgarh and others’ [2013 SCMR 66], ‘Rudul Sah v. State of Bihar and another’ [AIR 1983 SC 1086], ‘Sebastian M. Hongray v. Union of Inida’ [AIR 1984 SC 1026], ‘Bhim Singh, MLA v. State of J. & K. and others’ [AIR 1986 SC 494], ‘President Balochistan High Court Bar Association v. Federation of Pakistan and others’ [2012 SCMR 1958]). The court also observed that the occurrence had been a particularly stressful experience for the petitioner and her three daughters, all of whom were minors. The most concerning fact was noted to be the suffering of the petitioner because of the attitude of the police officers and the members of the JIT, towards her and her family, who instead of serving her as a citizen, treated her and the proceedings as adversarial.

Concluding that the fundamental rights (particularly those contained in articles 9, 14 and 25) of the petitioner and her family had been breached, the court declared all relevant officials to have been complicit in this violation. It termed the attitude of the officials in charge to be ‘non-cooperative, insensitive and humiliating’ which made them each to be deserving of disciplinary action.

The court ordered prompt action in all future cases of enforced disappearance. It also ordered the burden of proof to disprove the case to be an enforced disappearance to lie on the state. If a petitioner was capable of showing that its fundamental rights has been breached owing to the enforced disappearance, it was entitled to compensation from the state which was to be completely funded by the state agents which should have responded adequately at the time of the occurrence. In the present case, the court termed these to be the Chief Commissioner and the Inspector General of Police. The court awarded the petitioner the sought compensation of Rs 117,500/- per month (to be calculated from the date of the disappearance), to reinstate her to the position she was before the enforced disappearance of her husband. This payment was to be provided until the whereabouts or the fate of the detenu were discovered. It also ordered the federal government to conduct an inquiry into this failure of the criminal justice system in the Islamabad Capital territory, where the incident had occurred. The individuals identified to be blamed through this inquiry were also to contribute towards the compensation along with those who had been identified already. The JIT was directed to conduct a thorough investigation to detect the whereabouts of the detenu and to provide the court with a report on their progress on the 15th of each month.

In review of the facts before it, the court decided that the actions of the relevant law enforcement officers involved in the entire process had been humiliating to the petitioner and towards her family. They were therefore violative of their right to dignity as protected in article 14 of the Constitution. It compiled a list of names of all individuals involved (which included a retired army general, Secretary Ministry of Defence, Chief Commissioner, Islamabad Capital Territory, Inspector General of Police, Islamabad Capital Territory and the District Magistrate, Islamabad Capital Territory) and ordered them to pay Rs. 100,000/- each to the petitioner whereas the Inspector who was the in charge of Police Station, Shalimar on the day the petitioner tried to register an F.I.R. was ordered to pay Rs.300,000/-. This the court intended to act as a reminder to all public servants to act with respect and care towards all citizens while keeping in mind their constitutionally protected, fundamental right to dignity.

The Intelligence Bureau, the Inter-Services Intelligence and the Military Intelligence were ordered to promptly report to the relevant individuals in future cases having the characteristics of enforced disappearance and made them liable to penalties in case they failed to do so.