P L D 2020 Peshawar 52 (a) Khyber Pakhtunkhwa Continuation of Laws in the Erstwhile Provincially Administered Tribal Areas Act, 2018 (III of 2019)

P L D 2020 Peshawar 52

Before Waqar Ahmad Seth, C.J. and Ms. Mussarrat Hilali, J

SHABBIR HUSSAIN GIGYANI---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA, through Secretary and 9 others---Respondents

Writ Petition No.3035-P of 2019, decided on 17th October, 2019.

(a) Khyber Pakhtunkhwa Continuation of Laws in the Erstwhile Provincially Administered Tribal Areas Act, 2018 (III of 2019) ---

----S. 3 & Preamble---Khyber Pakhtunkhwa Continuation of Laws in the Erstwhile Federally Administered Tribal Areas Act (XXIV of 2019), Preamble---Actions (in Aid of Civil Power) Regulation, 2011, Regln. 11 & Chapt. V---Khyber Pakhtunkhwa Actions (in Aid of Civil Power) Ordinance (V of 2019), S. 11 & Preamble---International Covenant on Civil and Political Rights (ICCPR), 1966, Art. 9(4)---Constitution of Pakistan, Arts. 4, 8, 9, 10, 10A, 15, 17, 19 & 25 & Fourth Sched., Pt.1, Sr. No. 1-Criminal Procedure Code (V of 1898), S. 61---Internment centers operating in erstwhile Federally Administered Tribal Areas---Constitutionality---Khyber Pakhtunkhwa Actions (in Aid of Civil Power) Ordinance, 2019, the Khyber Pakhtunkhwa Continuation of Laws in the Erstwhile Provincially Administered Tribal Areas Act, 2018, the Khyber Pakhtunkhwa Continuation of Laws in the Erstwhile Federally Administered Tribal Areas Act, 2019 coupled with Actions (in Aid of Civil Power) Regulation, 2011 were ultra vires of the Constitution---High Court directed the relevant Provincial Secretary to notify all the Internment Centers, as Sub-Jails in accordance with law and Provincial Inspector General of Police was directed to take control of all such sub-jails so declared---Constitutional petitions were allowed with certain directions.

Action (in Aid of Civil Power) Regulation, 2011 ('the 2011 Regulations') stood omitted/deleted by virtue of (Twenty Fifth) Constitutional amendment, introduced on 4-6-2018, which was effective/applicable to the Federally Administered Tribal Areas (FATA) of Pakistan. Sensing the situation that the 2011 Regulation ceased to exist and no further legislation/rules, bye-law etc were not made, the Provincial Government promulgated the Khyber Pakhtunkhwa Continuation of Laws in the Erstwhile Provincially Administered Tribal Areas Act, 2018 ('the 2018 Act') and the Khyber Pakhtunkhwa Continuation of Laws in the Erstwhile Federally Administered Tribal Areas Act,2019 ('the 2019 Act').

Act/Ordinance/Regulation enacted by the Federation which was not in existence at all could not be made to continue in a Province. The continuation of Action (in Aid of Civil Power) Regulation, 2011, through the 2018 and 2019 Acts on the face of it was defective legislation. Said two acts were promulgated on 10-01-2019 and 03-05-2019 respectively; whereas the (Twenty-Fifth) Constitutional Amendment was introduced on 4-6-2018.

Khyber Pakhtunkhwa Actions (in Aid of Civil Power) Ordinance, 2019 ('the 2019 Ordinance') was promulgated on 5-8-2019 by the Provincial Governor. Plain reading of Serial No.1 of Part 1 to the Fourth Schedule to the Constitution and the Preamble of the 2019 Ordinance showed that such legislation was the job of the Federation and according to the Federal Legislative List the Bill was to be introduced by the President and not by the Provincial Governor. As such the Governor had no authority whatsoever to pass such the 2019 Ordinance in the given circumstances. Furthermore the provisions of the 2019 Ordinance violated almost all the fundamental rights enshrined in the Constitution, specially the mandatory provisions of Articles, 4, 8, 9, 10, 15, 17, 19 and 25.

Under the 2011 Regulation and 2019 Ordinance there was no concept of trial etc rather it was 'preventive detention' only and the duration of the internment was given in section11 of the 2019 Ordinance which read "the power of intern shall be valid from the date when this Ordinance deemed to have come into force, or on the day the order of internment is issued, whichever is earlier, till the continuation of Action in aid of civil power". Same wording was used in Regulation 11 of the 2011 Regulations. Looking at both said provisions on the touchstone of violation of fundamental rights as enshrined in the Constitution along with law of the land, section 61, Cr.P.C prescribed that "persons arrested not to be detained for more than 24 hours". No law enforcing agency was to detain in custody a person arrested without warrant for period longer than 24 hours. In the present cases, the Armed Forces were not the law enforcing agencies, but had been given the powers to detain the person indefinitely. In the internment centers, the detenues were kept for years with no access to the lawyers and they were denied meeting with their families/closed blood relations nor any charge was communicated to them. Neither there was any time (frame) given for prosecuting them.

Internment centers were in the control of Armed Forces and not with the civil administration, as claimed. Even in the presence of the 2011 Regulations and the 2019 Ordinance, no clear picture regarding the operation, functioning, management etc of internment centers was disclosed to the Courts, which showed the mala fide, ill-will and unconstitutional acts of the Armed Forces, as well as the civil administration. Using camouflage activities the citizens of erstwhile tribal area were treated inhumanly and unconstitutionally. Since the inhabitants of the erstwhile tribal areas, the Province and the entire country were equal after the Twenty-fifth Constitutional Amendment, they all enjoyed (the same) the protection of law.

The 2011 Regulations and the 2019 Ordinance clearly violated the entire human rights enshrined in the Constitution. Citizens of the country under no circumstances could be put to the mercy of Armed Forces for an indefinite period, or for investigation, prosecution or trial. Now here in the world preventive detention was for an indefinite period without providing the reasons for such detention. The 2019 Ordinance gave sweeping powers to members of the Armed Forces, including the power to detain people without charge or trial on a number of vaguely defined grounds where it appeared that such internment would be expedient for peace. Individuals could be detained for an unspecified period without any right to be brought before a court of law or to challenge the lawfulness of their detention before a Court. In addition to the vague and overbroad detention provisions, the 2019 Ordinance provided that statements or deposition by members of the armed forces shall on their own be sufficient for convicting the detainees if they were tried for any offence. The said Ordinance also provided wide immunity for armed forces for any action done, taken, ordered to be taken, or conferred, assumed or exercised by, before or after the promulgation of the 2019 Ordinance. The 2019 Ordinance was incompatible with "fundamental rights" guaranteed by the Constitution, as well as the country's international legal obligations, including under the International Covenant on Civil and Political Rights (ICCPR).

The 2019 Ordinance and 2011 Regulations gave complete control to the Armed Forces, whereas under no law the Armed Forces could prosecute civilians, and as such the said two laws were also hit by the law laid down by the Supreme Court in the case of Malik Mumtaz Qardi v. The State and others (PLD 2016 SC 17).

PLD 2019 SC 218 and Malik Mumtaz Qadri's case PLD 2016 SC 17 ref.

Khyber Pakhtunkhwa Actions (in Aid of Civil Power) Ordinance, 2019, the Khyber Pakhtunkhwa Continuation of Laws in the Erstwhile Provincially Administered Tribal Areas Act, 2018, the Khyber Pakhtunkhwa Continuation of Laws in the Erstwhile Federally Administered Tribal Areas Act, 2019 coupled with Actions (in Aid of Civil Power) Regulation, 2011 were ultra vires of the Constitution. Besides the 2019 Ordinance was of no lawful authority. High Court directed that the Provincial Secretary Home was to notify all the Internment Centers, as Sub-Jails in accordance with law within 24 hours, from the receipt of present judgment and Provincial Inspector General of Police (IG) for prisons was to take control of all such sub-jails so declared, within next three days; that the Provincial IG Prisons shall release all the internees who were not charged in any case and a period of 90 days preventive detention had lapsed from the date of their arrest; that all those who had been charged shall be produced before competent Court of law duly established in the area, failing which the Provincial Secretary Home and the Provincial IG Prisons, would be responsible for the life and liberty of the people interned in the internment centers, and that the Provincial Secretary Home as well as the IG Prisons shall prepare a list of the internees and produce the same in the Court/proceedings of missing person cases.

(b) Constitution of Pakistan ---

----Arts. 184(3) & 199& Pt. II, Chapt. 1---Legislative enactment---Power of superior Courts to strike down a legislative enactment---Grounds---Legislative enactment could be struck down by the Courts only on two grounds; firstly where the appropriate legislature did not have competency to make the law and secondly, where it abridged any of the fundamental rights enumerated in the Constitution or any other constitutional provision.

2015 SCMR 1739 ref.

(c) Constitution of Pakistan ---

----Art. 199---Constitutional petition---Maintainability---Law inconsistent with or in derogation of fundamental rights---Aggrieved person---Scope---Pro bono publico---Where any person filed a (Constitutional) petition alleging that a law contravenes any fundamental rights conferred by the Constitution, the High Court was obliged to examine the same in its constitutional jurisdiction and could not refuse to agitate the same by pro bono publico.

PLD 2012 Bal. 57 ref.

Dr. Adnan Khan and Petitioner in person.

Shumail Ahmad Butt A.G. and Qazi Babar Irshad, A.A.G. (Federation) for Respondents.

Date of hearing: 17th October, 2019.

JUDGMENT

WAQAR AHMAD SETH, C.J.---Though this consolidated judgment/order, this Court intends to decide the instant writ petition as well as connected petitions bearing Nos.109, 431, 5635, 6006, 6103 and 6220-P of 2018, 758, 1845, 2246, 2391, 2844, 3303, 3391, 3449, 3685, 3739, 4427, 4602, 4630, 4631, 4635, 4882, 4901, 4951 and 5056-P of 2019 and COC No. 632-P/2019 in W.P. No. 1334-P/ 2018 and 628-P/2019 in W.P. No.3931-P/2018, being identical in nature as well as facts.

2. By invoking the writ jurisdiction of this Court under Article-199 of the Constitution of Islamic Republic of Pakistan, 1973, Shabbir Hussain Gigyani, advocate, hereinafter called the petitioner, has impugned the Khyber Pakhtunkhwa Continuation of laws in erstwhile PATA Act, 2018 (the Act, 2018) and Khyber Pakhtunkhwa, Continuation of laws in erstwhile FATA Act, 2019 (the Act, 2019) as null, void, ab-initio, of no legal effect and ultra vires of the Constitution whereby all the laws, regulations, rules, notification, bye-laws including Action (in aid of Civil Powers) Regulation, 2011 any other legal instruments applicable in the erstwhile PATA/FATA and having had the force of law under or in pursuance of Article 247 of the Constitution of Islamic Republic of Pakistan, 1973 (now omitted) have been continued and remained in force; with further prayers to declare the establishment of Internment Centers under Chapter-V of the Action (in Aid of Civil Powers) Regulation, 2011, unlawful and direct the respondents to hand over all the intemees to the respective Courts of competent jurisdiction for their trial / treatment as per law; and restrain the respondents from promulgation of any law, rules, regulation, bye-laws, notifications or any other legal instrument which discriminate the public of the erstwhile FATA/PATA from the rest of the Province of Khyber Pakhtunkhwa or in violation of the Constitution and Fundamental rights of the inhabitants of the area.

In connected Writ Petition No. 5056-P of 2019, petitioner has prayed for issuance of a writ declaring the Khyber Pakhtunkhwa Actions (in Aid of Civil Powers) Ordinance, 2019 (KP Ordinance No. V of 2019) promulgated on 50 August, 2019, as null, void ab-initio, ultra vires of the Constitution and of no legal effect; with further prayers to declare the Internment Centers established under Chapter-V of the Action (in Aid of Civil Powers) Regulation, 2011 or made legalize / continued under the impugned Ordinance as null, void ab-initio, of no legal effect and ultra vires of the Constitution and direct the respondents to hand over all the internees to the respective Courts of Competent Jurisdiction; and restrain the respondents from promulgation of any laws, rules, regulation, bye-laws, notification or any other legal instruments which discriminate the public of KP Province from the rest of the Country or in violation of the Constitutional and Fundamental rights of the inhabitants of the KP Province.

W.P. Nos. 2391, 4602 and 4882-P of 2019.

Facts in brief are that, petitioner's son Kaleem Ullah, who was working at Shiraz Restaurant was taken by Political Administration/ Security Forces on 17.6.2012 and since then till date he has been detained. Petitioner filed two constitutional petitions before this Court, which were disposed with certain observation/directions to respondents, but to no avail, hence this petition with the prayer to declare the Actions (in Aid of Civil Powers) Regulation, 2011, illegal, unlawful, void, discriminatory, arbitrary and being against the spirit of Constitution of Islamic Republic of Pakistan, 1973; with further prayers to declare all the detenues who are at internment centers be treated in accordance with law of the land and their undue internment without any cause and jurisdiction is illegal and unlawful and without jurisdiction and against the law; direct that trials of the detunes be sent to the competent Court constituted under the law and afford all the detenues opportunities to due process of law; declare further that all delays caused in the initiation / conclusion of the trials of the detenues with respondents be declared to be illegal, unlawful and without jurisdiction; direct the release of petitioner's son from the internment center forthwith for being in unlawful and illegal custody for more than seven years.

In the connected writ petitions quoted above, either the alleged detenues are still missing or have been interned at different Internment Centers, as per reports, hence the instant writ petitions.

3. In essence the case of petitioner is that on May 29, 2018, Regulation to provide for an Interim System of Administration of Justice, Maintenance of Peace and Good Governance, in the Federally Administered Tribal Areas was promulgated, called the FATA Interim Governance Regulation, 2018, wherein through section 3, the Frontier Crimes Regulation, 1901 (amended in 2011) was repealed. On 31st May, 2019, the President, assented the Act, called the Constitution (Twenty-fifth Amendment) Act, 2018, promulgated on June 5, 2018, thereby omitting the Article 247 of the Constitution and altered Article 246, bringing FATA/PATA within the limits of Khyber Pakhtunkhwa. The said FATA Interim Governance Regulation, 2018, were challenged before this Court through Constitutional Petition bearing No. 3098-P of 2018 titled Ali Azim Afridi v. Federation of Pakistan and others. The said petition came up for hearing before this Court on 30.10.2018 and while allowing the petition, declared the FATA Interim Governance Regulation, 2018 to the extent of allowing Commissioner to act as Judge; Council of Elders deciding Civil and Criminal matters; Constitution of Qaumi Jirga; modified application of Chapters VIII and XLII of the Code for Security; third schedule; administered area, as ultra vires.
4. Felt aggrieved, the Federation/respondents assailed the said judgment before apex Court in Civil Petition No.773-P of 2018, which was decided on 16th January, 2019 with certain observations/directions to Provincial Government to do the needful within six months. Thereafter the matter was proceeded with snail pace and this Court was approached by the locals of newly merged area for want of jurisdiction etc, which were entertained to some extent, but sensing the situation, this Court through Reference No.01 of 2019 in pursuance of Constitution (Twenty-Fifth Amendment) 2018, described forums by directing to approach the Competent Court, established under the changed circumstances. The grievance of the inhabitants of newly merged areas cropped up again when the Khyber Pakhtunkhwa, Continuation of laws in erstwhile PATA Act, 2018 (the Act, 2018) and Khyber Pakhtunkhwa, Continuation of laws in erstwhile FATA Act, 2019 (the Act, 2019) were promulgated, whereby all the laws, regulations, rules, notification, bye-laws including action (in Aid of Civil Power) Regulation, 2011 any other legal instruments applicable in the erstwhile PATA/FATA and having had the force of law under or in pursuance of Article 247 of the Constitution of Islamic Republic of Pakistan, 1973 (now omitted) have been continued and remained in force; followed by impugned Ordinance commonly known as Khyber Pakhtunkhwa Actions (in Aid of Civil Power) Ordinance, 2019 (KP Ordinance No. V of 2019) hence the writ petitions.
5. We have heard learned counsel for the petitioners, worthy Advocate General on behalf of Provincial Government, Additional Attorney General on behalf of Federation and available record gone through.
6. Without going deep into the history of the Federal Administered Tribal Area and Provincial Administered Tribal Area, erstwhile, wherein the legal remedies, rights of audience, right of defence, right of liberty, freedom of expression, freedom of movement and above all the inalienable right of fair trial was not given, despite being the part and parcel of the rest of the country. Frontier Crime Regulations, 1901, amended in 2011, was made applicable which was subsequently amended and finally in the recent past Actions (in Aid of Civil Power) Regulation, 2011, was made applicable, in utter violation of the mandate of the Constitution. Twenty Fifth Constitutional amendment was introduced on 4-6-2018 whereby Article 247 was omitted and Article 246 was altered, erstwhile FATA/PATA practically merged into Khyber Pakhtunkhwa, Province, all the black-laws referred above including the FCR and Action (in Aid of Civil Power) Regulation, 2011 cease to remain in force.
7. Learned Advocate General / AAG (F) on behalf of respondents/ State contended that Article-264 of the Constitution of Islamic Republic of Pakistan, 1973, says that where a law is repealed, or is deemed to have been repealed, by, under, or by virtue of the Constitution, the repeal shall not, except as otherwise provided in the constitution-, (a) revive anything not in force of existing at the time at which the repeal takes effect; (b) affect the previous operation of the law or anything duly done or suffered under the lase; (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the law; (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law; or (e) affect any Mvestigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment;

and any such investigation, legal proceedings, remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the law had not been repealed

8. The contention, so advanced is misleading one, as Article, 264 is applicable to the repeal of laws and the conditions given from (a) to (e); whereas in the instant case, the law itself i.e. Action (in Aid of Civil Power) Regulation, 2011 stand omitted/deleted by virtue of (Twenty Fifth) Constitutional amendment, introduced on 4.6.2018, which was affective/applicable to the FATA of Pakistan. Regulation-2 of the Regulations ibid is referred. Sensing the situation that the Regulation, 2011 ceased to exist and whereunder no further legislation/rules, bye-law etc. was not made, Acts Nos. III and XXIV of 2019, known as erstwhile Provincially Administered Tribal Area Act, 2018 and erstwhile, Federally Administered Tribal Area, Act, 2019 were promulgated by the Provincial Government.
9. The preamble of above referred Acts No.III of 2019 promulgated on 10.01.2019, and Act No. XXIV of 2019, promulgated on 3.05.2019, reads "Whereas it is expedient to provide for the continuation of laws in the erstwhile-which are merged into the Khyber Pakhumkhwa in pursuance of the Constitution (Twenty-fifth Amendment) Act, 2018. Learned counsel for respondents failed to convince the Court that how can an Act/Ordinance/Regulation enacted by the Federation which is not in existence at all could be made continued in a Province. The continuation of Action (in Aid of Civil Power) Regulation, 2011, through these Acts, on the face of it are defective legislation. The above two acts were promulgated on 10.01.2019 and 03.05.2019 respectively; whereas the (Twenty-Fifth) constitutional amendment was introduced on 4.6.2018 and learned counsel for respondents failed to justify the intervening period and the rights of individuals, kept by the agencies in the internment centers etc.
10. The above said two Acts Nos. III and XXIV were presented by the respondents in the proceedings of the missing person cases to which the Bench observed that how can a Federal Law/Regulation be made continued in a Province or adopted by Provincial Authorities. The impugned Ordinance No.V of 2019 was promulgated on 5.8.2019 by the worthy Governor, Khyber Pakhtunkhwa with the title "The Khyber Pakhtunkhwa, Actions (in Aid of Civil Powers) Ordinance, 2019". The preamble of Ordinance No. V of 2019 reads as under:-

WHEREAS there exists grave and unprecedented threat to the territorial integrity of Pakistan by miscreants and foreign funded elemenis, who intend to assert unlawful control over the territories of Pakistan and to curb this threat and menace, the Armed Forces have been requisitioned to carry out actions in aid of civil power;

AND WHEREAS continuous stationing of the Armed Forces in territories, that have been secured from miscreants in the Province of the Khyber Pakbtunkhwa is necessary and it is, therefore, imperative that a proper authorization be given to the Armed Forces to take certain measures for incapacitating the miscreants by interning them during continuation of the actions in aid of civil powers and it is also necessary to ensure that the Armed Forces carry out the said operation in accordance with law,

AND WHEREAS the miscreants are no longer loyal and obedient to the State and Constitution of the Islamic Republic of Pakistan;

AND WHEREAS, to address this situation upon request of the Provincial Government, the Federal Government has directed the Armed Forces to act in aid of civil power in certain defined areas to counter this threat to the solidarity and integrity of Islamic Republic of Pakistan while being subject to the law provided hereinafter;

AND WHEREAS the Provincial Assembly in not in session and the Governor of the Khyber Pakhtunkhwa is satisfied that circumstances exist which render it necessary to take immediate action;

NOW THEREFORE, in exercise of the powers conferred by Clause (I) of Article 128 of the Constitution of the Islamic Republic of Pakistan, the Governor of Khyber Pakhtunkhwa is pleased to make and promulgate the following Ordinance.

11. While promulgating the Ordinance, which is the ditto copy of Action (in Aid of Civil Power) Regulation, 2011, the authority has maintained the status of Internment Centers. Section 3 of Act No.III of 2019 and Act No.XXIV of 2019 are exactly with same words which read as under:--
12. Continuation of laws.-(I) Notwithstanding anything contained in any other law, for the time being in force, all the laws, regulations, rules, notification and bye-laws, including Actions (in Aid of Civil Power) Regulation, 2011, or any other legal instrument, applicable in the erstwhile Provincially Administered Tribal Areas and having had the force of law under or in pursuance of Article 247 of the Constitution of the Islamic Republic of Pakistan, now omitted vide the Constitution (Twenty Fifth Amendment) Act, 2018, shall continue to remain in force, until altered, repealed or amended by the competent authority.
13. As already held that both the Acts of 2018 and 2019, referred above, which were for the continuation of laws, in the erstwhile tribal areas, as defective legislation, the section-3 of the same was in respect of giving continuity to the laws, regulations, for the time being, unless and until altered/repealed, but the promulgated Ordinance is silent in this respect, meaning thereby that simultaneously Regulation, 2011_ and the Khyber Pakhtunkhwa Actions (in Aid of Civil Power) Ordinance, 2019 are in field; whereas section 24 gives the overriding affect to the Ordinance. Article 70 of the Constitution of Islamic Republic of Pakistan, 1973, prescribed introducing and passing of bills and the authority of Federal Legislative is given in Federal Legislative list, given in the fourth schedule. Part-I, serial No.1 is relevant for the purpose which reads as under:-

"The defence of the Federation or any part thereof in peace or war; military, naval, and air forces of the Federation and any other armed forces raised or maintained by the Federation; any armed forces which are nat forces of the Federation but are attached to or operating with any of the Armed Forces of the Federation including Civil Armed Forces; Federal Intelligence Bureau; preventive detention for reasons of State connected with defence, external affairs or the security of Pakistan or any part thereof; persons subjected to such detention; industries declared by Federal law to be necessary for the purpose of defence or for the prosecution of war."

13. The plain reading of serial No.1 of Fourth Schedule and the preamble of the Ordinance No.V of 2019, by the Governor Khyber Pakhtunkhwa, would show that it's the job of the Federation and according to the Federal Legislative List the Bill is to be introduced by the President and not by the Governor, and as such the Governor had no authority whatsoever to pass such an Ordinance in the given circumstances.
14. Learned counsel for respondents stressed mainly on the non maintainability of the writ petition, wherein the vires of the enactment has been called in question by relying on different judgments. In this respect we are conscious of the fact that the apex Court of the country has time and again held that when striking down or declaring a legislative enactment as void or unconstitutional, following principles be considered.

(i) There was a presumption in favour of constitutionality and a law must not be declared unconstitutional unless the statute was placed next to the Constitution and no way could be found in reconciling the two;

(ii) Where more than one interpretation was possible, one of which would make the law valid and the other void, the Court must prefer the interpretation which favoured validity;

(iii) A statute must never be declared unconstitutional unless its invalidity was beyond reasonable doubt. A reasonable doubt must be resolved in favour of the statute being valid;

(iv) Court should abstain from deciding a Constitutional question, if a case could be decided on other or narrower grounds;

(v) Court should not decide a larger Constitutional question than was necessary for the determination of the case;

(vi) Court should not declare a statute unconstitutional on the ground that it violated the spirit of the Constitution unless it also violated the letter of the Constitution;

(vii) Court was not concerned with the wisdom or prudence of the legislation but only with its Constitutionality;

(viii) Court should not strike down statutes on principles of republican or democratic government unless those principles were placed beyond legislative encroachment by the Constitution; and

(ix) Main fides should not be attributed to the Legislature.

15. The above principles are from judgment reported as 2015 SCMR 1739. Reading of the above quoted principles and many other judgments cited by the learned Advocate General, Khyber Pakhtunkhwa, gone through and in nutshell it is conclude that legislative enactment could be struck down by the Courts only on two grounds; firstly where the appropriate legislature does not have competency to make the law and secondly, where it abridged any of the fundamental rights enumerated in the constitution or any other constitutional provision.
16. While taking guidance from the said judgment and the nutshell of two conditions the impugned Ordinance No. V of 2019 is hit on both ways. Firstly because serial No.I of the Fourth Schedule, Federal Legislative List, which is reproduced above, is the job of the Federation and not a Provincial subject and secondly, its violates almost all the fundamental rights enshrined in the Constitution, specially the mandatory provisions of Articles, 4, 8, 9, 10, 15, 17, 19 and 25.
17. Admittedly, Action (in aid of Civil Power) Regulation, 2011 and the impugned Ordinance No.V of 2019 there is no concept of trial etc rather its 'preventive detention' only and the duration of the internment is given in section-11 which reads "the power of intern shall be valid from the date when this ordinance to have come into force, or on the day the order of internment is issued, whichever is earlier, till the continuation of Action in aid of civil power. Except this provision we have not come across any other law, preventive detention for a period of 90 days or more. The same were the wordings of Regulation 11 of the Regulation, 2011. Looking on this touchstone of violation of fundamental rights as enshrined in the constitution along with law of the land, section 61 of the criminal procedure code prescribes "persons arrested not to be detained for more than 24 hours". No law enforcing agency shall detain in custody a person arrested without warrant for period longer than 24 hours and in the instant cases the armed forces are not the law enforcing agencies, but have been given the powers to detain the person indefinitely.
18. We have witnessed in number of missing person cases that they detained detenues for years and years, without even providing the record to this effect. During the missing person cases, about 15-20% cases suddenly detenue appears before the Court and inform that he has been released by the agencies and on the assurance of not disclosing anything. These proceedings are not recorded in any of the order sheet for the last so many years for the reasons, not to expose the conduct of the agencies to the world. Article-10 of the Constitution provides safeguards as to arrest and detention to the effect "every person who is arrested and detained in custody shall be produced before a magistrate within a period of 24 hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the nearest magistrate and no such person shall be detained in custody beyond the such period without the authority of the Magistrate. According to the Pakistan Army Act, 1952, an amendment has also been brought in section 2(d) to the effect "the accused so arrested shall be provided grounds of arrest within 24 hours of arrested as provided for in this Act." The said section-2 of Pakistan Army Act, 1952, is further amended by introducing clause (e) to the effect that "the accused shall have the right to engage a counsel of his choice and in case he is unable to engage a counsel due to any reason, the convening authority at its discretion may provide a counsel, at State expense, whereas in the so called internment centers, the detenues are kept for years and years, with no access to the lawyers etc, even they are denied meeting with their families/closed blood relations nor any charge is communicated to them. Neither there is any time given for prosecuting them. Any law or any custom or usage having the force of law, insofar as it is inconsistent with the rights conferred by the fundamental rights, shall to the extent of such inconsistency, be void.
19. The State cannot make any law which takes away or abridge the rights so conferred and any law made in contravention of Part II Chapter-I, shall, to the extent of such contravention be void. Constitution of Islamic Republic of Pakistan, Article 10(A) provides for a fair trial and due process for the determination of civil rights and obligations or in any criminal charge against him. Likewise Article 4 provides for protection of law and to be treated in accordance with law which is inalienable right of every citizen and no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. We have witnessed in missing persons cases that for years and years the whereabouts of an individual are not known nor provided to the families of those person, but one fine morning they come with the reply that such and such person is interned in internment center. It would be important to mention here that in missing person cases we/the Court gets the reply from the Secretary Home Khyber Pakhtunkhwa, and that report is submitted with the signature of the Home Secretary, but he himself is not aware of the whereabouts and particulars of the detunes. The Secretary gets information/report from number of agencies i.e. six/seven and then file the report meaning thereby (that these internment centers are in the control of Armed Forces and not with the Civil Administration, as claimed. Even in the presence of Action (in aid of Civil Power) Regulation, 2011 as well as the impugned Ordinance no clear picture regarding the operation, functioning, management etc have been disclosed to the Courts even, which is very clear mala fide, ill-will and unconstitutional acts of the Armed Forces, as well as the Civil Administration. It has come into the knowledge of this court during different proceedings that under the camouflage activities and protection of above mentioned regulation and law, the entire erstwhile tribal area citizens are treated inhumanly and unconstitutional, as if they are not the citizens of this Country. The conduct of the Armed Forces is that of conqueror particularly in reference to the erstwhile tribal area. Since the inhabitants of KP, erstwhile tribal area and rest of the country are equal after the Twenty-fifth amendment and as such they are enjoying the protection of law whereas the impugned Ordinance for depression, suppression and deprivation of the public is in utter violation of the Constitution as well.
20. Earlier, on exactly the same principles of discrimination, touchstone of Article, FATA Interim Governance Regulation, 2018, was declared ultra vires of the Constitution by this Court, which was upheld by the apex Court and reported as PLD 2019 SC 218. If the entire impugned Ordinance and the Action (in aid of Civil Power) Regulation, 2011 are gone through the same appears to be the control of Armed Forces and under no law they can prosecute the civilians, and as such the same is also hit by the law laid down by the apex Court in the case of Malik Mumtaz Qadri reported in PLD 2016 SC 17.
21. Lastly learned Advocate General as well as Additional Attorney General for Pakistan objected to the maintainability of the writ petitions by way of pro bono publico. In this respect we are seized with the judgment of Balochistan High Court and exactly in similar situation pro bono publico, it has been held that laws in consistent or in derogation of fundamental rights, if any person files the petition alleging that a law contravenes any fundamental rights conferred by the constitution, High Court is oblige to examine the same in its constitutional jurisdiction nor can refuse to agitate the same by pro bono publico. Reliance is made to PLD 2012 Balochistan 57(c) wherein it has been held as under.-

----Preamble-Code of Criminal Procedure (Baluchistan Amendment) Ordinance (III of 2010), Preamble--Constitution of Pakistan, Arts.199 and Part-II, Chap. I (Arts. 8 to 281-Constitutional petition--"Aggrieved person"-Executive Magistrate-Judicial powers-Laws inconsistent or in derogation of Fundamental Rights, assailing of-Pubic interest-Scope-Petitioner was a practising lawyer who assailed promulgation of Code of Criminal Procedure (Balochistan Amendment) Act, 2010, and Code of Criminal Procedure (Balochistan Amendment) Ordinance, 2010, whereby judicial powers had been conferred upon Executive Magistrates--Authorities contended that the petition was not maintainable as the petitioner was not an 'aggrieved person'.-Validity-- Ensuring compliance of laws with human rights/Fundamental Rights and certitude of laws formed bedrock of civilized society-Everyone, in such societies knew their obligations and how those would be dealt with, if charged of having committed an offence-- Any person might not also have sufficient time to assail such laws when he or she was facing trial and trial might be over before a challenge could be launched against it--Persons who did not have the requisite knowledge and/or wherewithal to assail such laws might still come within the ambit; therefore, public spirited persons, including lawyers, acting bona fide in public interest, might assail such laws-Constitution, including Fundamental Rights enshrined therein, must not be permitted to be trampled upon and if a public-spirited person acting in public interest had brought the same to High Court's attention, such person should not be discouraged-Objections taken to maintainability of petition on the ground that petitioners were not 'aggrieved person' and therefore, could not approach High Court under Art. 199 of the Constitution and High Court did not have the power to strike down any law even if it violated the Constitution, were not tenable-Petition was maintainable in circumstances.

In addition to this, it has also been held in the same judgment, which reads as:--

"In a set-up where the Constitution is based on trichotomy of power, Judiciary enjoys a unique and supreme position within the framework of the Constitution as it creates balance amongst various organs of the State and also checks the excessive and arbitrary exercise of power by the Executive and the Legislature. Judiciary has been termed as a watch dog and sentinel of the rights of the people and the custodian of the Constitution. It has been described as "the safety valve" or "the balance wheel" of the Constitution. The jurisdiction and the perimeters for exercise of power by all the three organs have been mentioned in definite terms in the Constitution. No organ is permitted to encroach upon the authority of the other and the Judiciary by its power to interpret the Constitution keeps the Legislature and Executive within the spheres and bounds of the Constitution. The Constitution is a living document which reflects the aims and aspirations, genius and genesis, temper and thinking of the people. Here I would refer to a classical observation of my Lord the Chief Justice Muhammad Ilaleem in Benazir Bhutto's case PLD 1988 SC 416 that "the Constitution is not merely an imprisonment of the past, but is also alive to the unfolding of the future". It is "Law of the Laws".

Similarly it has also been held in the same judgment that.--

"The sanctity of the State which includes the Legislature not to make any law by which any Fundamental Right may be curtailed or taken away and if any law is made to this effect then to the extent of such contravention it shall be void. Therefore, under Article 8(2) a limitation has been placed on the Legislature not to curtail the Fundamental Rights or abridge them by any law. The restriction has been placed on the Executive and the Legislature as by legislation and by executive act, the Fundamental Rights are infringed, violated or curtailed"

22. Yes, the Armed Forces of the country are supposed to protect the Frontiers/Borders of the country and on call they are supposed to defend and support, in Aid of civil powers. The Regulation, 2011 and the Ordinance No.V of 2019 clearly shows violation of entire human rights enshrined in the Constitution and the citizens of Pakistan under no circumstances be put to the mercy of Armed Forces for an indefinite period, or for investigation, prosecution or trial, the way they have been given. Nowhere in the World, what to say of Pakistan, the preventive detention is for an indefinite period and without providing the reasons for preventive detention. Every Organ of the State was to function/operate within the bounds specified in the constitution and as such no law, rules, regulations can be framed according to the will of an organ. Learned Advocate General, Khyber Pakhtunkhwa, stated at the bar that no other areas of Khyber Pakhtunkhwa except the erstwhile FATA/PATA areas have been notified for the purpose of impugned Ordinance, 2019. He was specifically asked by the bench the emergency situation in KP for promulgating the impugned Ordinance and then not placing the same before the parliament, but no convincing reply was put forward rather candidly informed that in rest of the Khyber Pakhtunkhwa, no incident or situation has been created of the nature to extend / notify the area under the impugned Ordinance. Action (in aid of Civil Power) Regulation, 2011 were published in the official gazette on 27.6.2011, but was given effect under regulation-3, from 1st February, 2008 meaning thereby that since 2008 people were arrested and were in their custody without any legal protection, charge etc. This time the Ordinance so promulgated is not even available on the website nor made public, knowingly that the same is hurting the fundamental rights as enshrined in the constitution.
23. Not only the said Ordinance is under discussion of the jurist and public at large in the country rather the International Organizations have also termed the same as unconstitutional and "lead to human rights violation". Reference is made to the International Commission of Jurist (ICJ), available on their website, in the following words. On 27.9.2019, the said International Commission of Jurist denounced the promulgation of Khyber Pakhtunkhwa, Actions (in Aid of Civil Power) Ordinance, 2019, by the Governor of the Khyber Pakhtunkhwa, Province on 5.8.2019. The ICJ said that implementation of the Ordinance will lead to serious human rights violation and miscarriage of justice, contrary to the purported aims of the measure. "The Ordinance is yet another example of Pakistan's resort to exceptional measures that are grossly incompatible with human rights protections, ostensible to combat terrorism and other serious crimes." Pakistan must reject this dangerous, oppressive and counterproductive strategy and instead of strengthening its judicial process and law enforcement in line with its democratic laws and international human law obligations. The ordinance gives sweeping powers to members of the armed forces, including the power to detain people without charge or trial on a number of vaguely defined grounds where it appears that such internment would be expedient for peace. Individuals may be detained for an unspecified period without any right to be brought before a court of law or to challenge the lawfulness of detention before a Court. In addition to the vague and overbroad detention provisions, the Ordinance provides that statements or deposition by members of the armed forces shall on their own be sufficient for convicting the detainees if they are tried for any offence. The ordinance also provides wide immunity for armed forces for any action done, taken, ordered to be taken, or conferred, assumed or exercised by, before or after the promulgation of the Ordinance. The Ordinance is incompatible with "fundamental rights" guaranteed by the Constitution of Pakistan, as well as Pakistan's international legal obligations, including under the International Covenant on Civil and Political Rights (ICCPR), the ICJ said. Article 9(4) of the ICCPR for example, guarantees the rights of all detainees to take proceedings before a court to challenge the lawfulness of their detention, and to be released if the Court finds such detention unlawful.
24. The President of Pakistan passed similar Regulation, namely, the Actions (in Aid of Civil Power) Regulation, 2011 which were applicable in the former Federally Administered Tribal Areas (FATA) and the Provincially Administered Tribal Area (PATA). The Actions (in Aid of Civil Power) Regulation were extensively used as a legal cover for arbitrary detention and enforced disappearances. In their review of Pakistan's implementation of the ICCPR and the Convention against torture (CAT) the UN Human Rights Committee and the UN Committee against Torture in 2017 expressed concerned about the Regulation, and recommended that Pakistan "review the Actions (in Aid of Civil Power) Regulation, 2011, with a view to repealing it or bringing it into conformity with international standards. It is regrettable that not only did Pakistan flout these express recommendations of the UN Committee, but that it extended the scope of the regulations, added Rawski. This step also calls into question Pakistan' pledge for election to the UN Human Rights Council in 2017, where Pakistan "firmly resolved to uphold, promote and safeguard universal human rights and fundamental freedoms for all' Rawski said. ICJ urges the Pakistan Government to immediately revoke the Khyber Pakhtunkhwa Actions (in Aid of Civil Power) Ordinance, and to review all national security legislation to ensure it is fully compatible with international human rights law and standards."
25. These feeling and concern of other organization are also on the Internet and social media, damaging the face of Pakistan. Justice Joseph Bradley of USA, Supreme Court in earlier 18th Century has said quote "that society cannot exist without law. Law is the bond of society... that which makes it, that which preserves it and keeps together. It is in fact, the essence of civil society." Unquote. The rule of law and human rights are two sides of the same principles, the freedom to live with indignity. Frederick Douglass an America author says where justice is denied, where poverty is in force, where ignorance prevails and anyone class is made to feel that society is an organized conspiracy to oppress, rob and degrade them, neither persons nor society will be safe."
26. We while allowing these petitions, it is held that the impugned Ordinance No. V of 2019, Act No. III of 2019 and Act No. XXIV of 2019 coupled with Regulation 2011 are ultra vires of the Constitution, besides it is also held that Ordinance No. V of 2019 is of no lawful authority, in view of which Secretary Home, Khyber Pakhtunkhwa, Civil Secretariat, Peshawar is directed to notify all the Internment Centers, as Sub- Jails in accordance with law within 24 hours, from the receipt of this judgment and I.G Prisons KP is directed to take control of all such sub-jails so declared, within next three days. He is further directed to release all the internees who are not charged in any case and a period of 90 days preventive detention has lapsed from the date of their arrest, and all those who have been charged shall be produced before competent Court of law duly established in the area, failing which Secretary Home Khyber Pakhtunkhwa and the IG Prisons, KP would be responsible for the life and liberty of the people interned in the said centers. Further, Secretary Home as well as the IG Prisons prepare a list of the Internees and shall produce the same in the Court/proceedings of missing person cases. All the exercise be completed within seven days from the receipt of this judgment. The clubbed petitions are disposed of with the direction to approach the Secretary Home and IG Prison for visitation rights of the close blood relatives of the detenues.

MWA/47/P Petitions allowed.