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NAEEM SAJID versus FEDERATION OF PAKISTAN

4 Art 4 and 8 - Fundamental Rights - Jurisdiction - Fundamental rights cannot be treated lightly nor can they be interpreted in a comfortable or succinct way while the basic rights guaranteed by the Constitution. When interpreting, one of the basic principles should always be kept in mind is that such guarantees make people want to benefit more from society - fundamental rights have no real meaning if the state itself is in danger and is irregular. If the state is at risk, the liberties of the articles themselves are at stake. The balance between the two competing interests must be at stake. One, the individual freedoms and the positive rights of the citizens that were enshrined in the Constitution. Secondly, social control and reasonable limits need to be imposed on the enjoyment of these rights in the interest of the collective good of society, [Page 49] A

P L D 2017 Sindh 31 

Before Irfan Saadat Khan and Zafar Ahmad Rajput, JJ

NAEEM SAJID and 4 others—Petitioners

versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Interior and 6 others—Respondents

Constitutional Petition No.D-7759 of 2015, decided on 24th May, 2016.

(a) Constitution of Pakistan—

—Arts. 4 & 8—Fundamental rights—Scope—Fundamental rights can neither be treated lightly nor interpreted in a casual or cursory

manner—While interpreting fundamental rights guaranteed by the Constitution, a cardinal principle has always to be borne in mind that such guarantees to individuals are subject to overriding necessity or. interest of community—Fundamental rights have no real meaning if State itself is in danger and disorganized—If State is in danger, liberties of subjects are themselves in danger—Equilibrium has to be maintained between two contending interests at stake; one, individual. liberties and positive rights of citizen which were declared by the Constitution to be Fundamental; and the other, need to impose social control and reasonable limitation on enjoyment of those rights in the interest of collective good of society, [p. 49] A

(b) Mala fides—

—Connotation—Action or decision is said to be suffering from mala fide on facts if it is taken due to some personal grudge, animosity, or for some personal benefit—State of mind of person taking action is of great importance. [p. 52] B

(c) Malice—

—Scope—Any action suffers from malice in law if authority taking action is not competent ,o do so or has acted beyond its powers or in violation of law applicable even though it may have acted bona fide and without ill-will—Malice in law is found when order has been passed without contrary to objects and purpose of relevant statute and in abuse of powers conferred upon such authority, [p. 52] C

(d) Anti-Terrorism Act (XXVII of 1997)—

—Ss. 7 & ll-EEE(l)—Penal Code (XLV of1860), Ss.302, 324, 427, 109 & 34—Pakistan Army Act (XXXIX of 1952),

Ss.2(l)(d)(iii)(iv)(4)(5), 8(11) & 112—Constitution of Pakistan,

Arts. 199 & 175 las amended by Constitution (Twenty-First Amendment) Act, (I of 2015)]—Constitutional petition—Military Court—Transfer of case to Military Court—Petitioners were accused in cases of terrorism resulting into killing of innocent persons—Authorities authorized the case to be tried by Military Courts constituted under Pakistan Army Act, 1952—Validity—Safoora Goth incident was also one of the cases sanctioned for the trial under Pakistan Army Act, 1952, vide impugned letter and petitioners were alleged to be the abettors and facilitators of the crime—Legal and procedural fÓrm;alities for sanctioning of their cases were duly complied with—No mala fide or malice in law existed so far as sanction of trial of petitioners along with co-accused persons was concerned—All rights of criminal trial were available to accused before military trial and even those persons who were convicted by Military Courts could approach superior Courts if they could establish Mian Manzoor Ahmed Watto v. Federation of Pakistan and 3 others PLD 1997 Lah. 38; Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26; Arbab Akhtar Adil v. Government of Sindh through Home Secretary, Government of Sindh Karachi PLD 2005 Kar. 538; Syed Mubbashar Raza v. Government of Punjab through Secretary Home Department and 2 others PLD 2015 Lah. 20; Shahazad Abid v. The State 2003 PCr.LJ 661; Jahanghir Akhter Awan and 2 others v. The State and 8 others PLD 2000 Kar. 89; Khizar Hayat v. The State 2012 SCMR 1066; Muhammad Shoaib and others v. The State 2013 MLD 1469; Nizamuddin v. The State PLD 2014 Sindh 248; Federal Government M/o Defence, Rawalpindi v. Lt. Col. Munir Ahmed Gill 2014 SCMR 1530; Rang Mirapi v. The State 2003 YLR 2007; Iftikhar Ahmed v. The State 1990 SCMR 607; Sheikh Muhammad Aslam and another v. The State and 2 others 1991 MLD 1973; The State v. Mirza Azam Beg, P.C.S. and another PLD 1964 (W.P.) Lah. 339; Ramesh M. Udeshi v. The State 2002 PCr.LJ 1712; Iftekhar Ali v. The State PLD 2013 Sindh 532 and Noor Ahmed v. The State PLD 1964 SC 120 distinguished.

District Bar Association Rawalpindi and others, v. Federation of Pakistan and others PLD 2015 SC 401 and Brig. (Retd.) F.B. Ali’s case PLD 1975 SC 506 rel.

Saghir Ahmed v. Province of Punjab and others PLD 2004 SC 261; The Federation of Pakistan through the Secretary Establishment Division, Government of Pakistan Rawalpindi v. Saeed. Ahmad Khan and others PLD 1974 SC 151; Lt.-General (Retd) Jamshaid Gulzar, Chairman, FPSC and 4 others v. Federation of Pakistan through Secretary Establishment Division, Jslamabad and 2 others 2006 YLR 425; Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others PLD 1996 SC 632; Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607; Sardar Ahmed Siyal and others v. National Accountability Bureau through Chairman and 4 others 2004 SCMR 265; Akhtar Ali v. Judge Special Court (Offences in Banks), Punjab Lahore and 3 others PLD 2004 Lah. 182; Muhammad Nazim-ud-Din v. Chairman, National Accountability Bureau through Director General, National Accountability Bureau, Karachi and 6 others PLD 2007 Kar. 586 and Shahid Orakzai v. Pakistan Muslim League (Nawaz Group) 2000 SCMR 1969 ref.

Khawaja Shamsul Islam, Khawaja Saiful Islam, Shehzad Mehmood and Imran Taj for Petitioners (in C.P.No.D-7759 of 2015).

Khawaja Muhammad Azeem for Petitioner (in C.P.No.D-134 of

2016).

Salman Talibuddin, Addl. Attorney General for Pakistan and Muhamamd Aslam Butt, Deputy Attorney General for Pakistan for Respondents No. 1 and 5 (in both cases).

Shahadat Awan, Prosecutor General Sindh, Muhammad Sarwar Khan, Addl. A.-G; Sindh, Saifullah, Assistant A.G. Sindh, and Jan Muhammad Khohro, Assistant A.G. Sindh along with DSP Mazhar Hussain Alvi for Respondents Nos.2, 3, 4, 6 and 7 (in both cases).

Dates of hearing: 20th, 28th January, 2nd, 4th, 10th, 16th, 25th February and 4th March, 2016.

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