Form No: HCJD/C-121

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

(JUDICIAL DEPARTMENT)

W.P. No.696/2021

Rana Muhammad Akram

Versus
Federation of Pakistan, etc.

S. No. of Date of order/ Order with signature of Judge and that of parties or counsel where
order/ proceedings necessary.
proceedings
23. 25-05-2022 M/s ImaanZainabHazir, Rana Abdul Qayyum, Ch.
Asghar Ali, Mohammad WajeehUllah Khan, Ch.
Muhammad Jahangir, Mohsin Khan Abbasi, Raja
Mushtaq Advocates, for the petitioners, in their
respective petitions.
M/s FahadAzhar Advocate for MOHR.
MrRohailBhatti, S.O. M/O Interior.
Lt. Cdr. Jamshed Gull, Law Officer M/O Defence.
M/s MianShahbaz, Inspector, Muhammad Imran, SI,
with record.
Mr Muhammad Riaz, Inspector Legal, ICT Police.
Mr Khalid Naseem, Registrar, Commission of Inquiry on
Enforced Disappearances.

AtharMinallah, C.J.-The petitions in hand were

fixed for final arguments but request for adjournment has

been made on behalf of the Federation.

2. The petitionshave raised questions of paramount

public importance having profound and grave consequences

for the enforcement of fundamental rights,not only of the

citizens of this country but every human being. The

phenomenon of enforced disappearances exposes the victims

to unimaginable pain and agony. It is the worst form of

subversion of the Constitution because it undermines the

power and authority of the scheme established there under.

The State, instead of fulfilling its constitutional obligation of

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W.P. No.696/2021

protecting its citizens from harm, assumes the role of an

executor sans due process. Amongst the victims of enforced

disappearances, the loved ones of a person who goes missing

suffer unimaginable pain and agony for as long as they are

not informed regarding the fate of the disappeared. The loved

ones of the petitioners are missing and the State has so far

failed in its constitutional obligation to satisfy themthat the

disappearances are not“enforced disappearances”. The

response of the State through its agents, observed by the

Court during the proceedings in hand, has remained

extremely disturbing. Even the chosen representatives,

including the chief executives and members of their cabinet,

have refused to play a positive and proactive role in

consonance with their constitutional obligations. The

expected empathy for the families whose loved ones have

gone missing and remain untraceable has not been observed.

The print and electronic media has a pivotal role in

highlighting the unimaginable ordeal and agony of the

families of the missing persons but it appears that they either

prefer to ignore the worst form of abuse of State power and

violation of fundamental rights or they don't consider it a

priority. The Majlis-e-Shoora (Parliament) and the

legislatures of the respective Provinces are the most

important and crucial organs of the State but nothing has

been placed on record to indicate that they may have adopted

a proactive role to fulfill their Constitutional obligations. The

regrettable State response has become obvious in the

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W.P. No.696/2021

proceedings. The Court, because of its inherent constraints,

cannot assume the role of the other organs of the State nor

has the ability to investigate the cases of disappearance. The

Court had initially referred the matter to the organs and

authorities responsible for protecting the citizens but their

response was not only disappointing but violative of the right

to dignity. As would be discussed later, the response was a

mere eye wash and a passive formality, definitely not

expected from chosen representatives. The Court has

exercised utmost restraint to enable the organs and

institutions to fulfill their constitutional obligations but, for

reasons best known to them, the worst form of abuse of State

power and violation of fundamental rights has been dealt with

in a manner amounting to mere eye wash. While these

proceedings were pending, the Court kept receiving

complaints regarding alleged enforced disappearances from

throughout the country.

3. The petitioners have been running from pillar to post to

compel the State and its agents i.e. the public functionaries

to refrain from doing what is not permitted by law and to do

what they are required to do under the Constitution of the

Islamic Republic of Pakistan, 1973 (hereinafter referred to as

the “Constitution”). The grievances of the petitioners are

only a tip of the iceberg because thousands of citizens are

reported to be missing and their loved ones have been

publically seen demonstrating throughout the country. They

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W.P. No.696/2021

demonstrate not only to compel the State to inform them

regarding the fate of their loved ones but, regrettably, also

that their voice be heard.

4. The Court vide order, dated 25-11-2021, had

directed the Secretary, Ministry of Interior to arrange an

opportunity of audience of the mother and child of a missing

journalist, MudassarMehmood, with the then worthy Prime

Minister and members of his cabinet. The Court was informed

on 29-11-2021, that a summary had been forwarded for

consideration by the Federal Cabinet. The Court vide order,

dated 01-12-2021, had again directed as follows.-

“11. In view of the above, it is directed as

follows.-
i. The Minister for Human Rights shall
ensure a meeting of the parents
and child of the Missing Person with
the worthy Prime Minister before
the next date fixed.

ii. The matter shall thereafter be

placed before the Federal Cabinet
i.e. worthy Prime Minister and its
members. The latter shall direct all
the agencies under its control to
produce the Missing Person before
this Court or trace his
whereabouts.

iii. In case the Missing Person is not

produced before this Court nor his
whereabouts are traced, then the
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W.P. No.696/2021

Federal Cabinet shall ascertain the

agencies and public functionaries
responsible for the failure and
inform this Court regarding the
action taken against them.

iv. In case the Missing Person is not

produced before this Court nor his
whereabouts are traced before the
next date of hearing, then the
learned Attorney General will
appear and assist regarding the
responsibility and liability of the
Federal Government i.e. the
worthy Prime Minister and
members of the Cabinet.”

5. The Court was informed on 13-12-2021 that a

meeting of thefamily members of one of the missing citizens,

MudassarMehmood, had been arranged with the then Prime

Minister and that the latter had given directions to the

concerned authorities. However, nothing was placed on

record to indicate the response of the Federal Cabinet. Prima

facie it appears that probably the cabinet did not consider the

issue of enforced disappearances as a priority. The Secretary,

Ministry of Interior was directed vide order, dated 22-04-

2022, to reach out to the mother of

MudassarMehmoodbecause the latter claims that she has

some material information regarding the alleged detention.

Later the court was informed that although the meeting had

taken place but the Secretary, Ministry of Interior, instead of

taking appropriate action, had informed the aggrieved mother

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W.P. No.696/2021

of a missing citizen that the Ministry of Defence was not

responsive. This response was appalling and an

acknowledgment of lack of empathy and neglect of

constitutional obligations. When the case was taken up on 17-

05-2022, the Court was expecting that the response of the

newly formed Federal Government would be proactive and in

consonance with its constitutional obligations. The Court had

expected that it would take meaningful and effective

steps,not only to recover all the missing citizens but,

simultaneously,demonstrably dispel the perception that

“enforced disappearances” was an undeclared tacit policy of

the State. Regrettably, neither the previous nor the present

government consisting of chosen representatives have been

able to show and satisfy the Court through effective and

proactive response that “enforced disappearances” was not

nor is a tacit undeclared policy of the State. The conduct and

response of the executive authorities observed by the Court

during these proceedings has been disturbing and contrary to

the obligations of the State under the Constitution. The Court

has, therefore, reasonable grounds to believe that the

phenomenon of 'enforced disappearances' has and continues

to remain a tacit undeclared policy of the State till such

presumption has been rebutted through proactive, effective

and visible manifestation of a will to end impunity.

6. It is an undeniable fact that General (retd)

Pervaiz Musharraf, who had taken over the reins of power

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W.P. No.696/2021

after abrogating the Constitution and, thereafter,had ruled

the country as its chief executive for almost a decade, has

candidly conceded in his autobiography “In the Line of Fire”

that “enforced disappearances” was an undeclared policy of

the State. It is noted that the obligation of the State under

Article 9 of the Constitution is not confined to a citizen, rather

it extends to every human within the territorial limits of

Pakistan. Even non Pakistani citizens enjoy the fundamental

right of security and protection of life. The reports submitted

on behalf of the the Commission of Inquiry on Enforced

Disappearances (hereinafter referred to as the

“Commission”)manifests that the phenomenon of enforced

disappearances not only exists but the impunity is to such an

extent that no one has ever been held accountable. It has,

prima facie, become obvious that the Commission, rather

than achieving its object, has become a forum which

contributes towards making the agony and pain of the victims

more profound. Its proceedings seem to have become a mere

formalityand its adversarial nature undermines and violates

the dignity of the loved ones. Its role is no more than a

bureaucratic post office. Moreover, it is alarming that the

Federal Government does not seem to have maintained the

record and report of the earlier Commission which was

headed by Justice (retd) Kamal MansoorAlam. The report and

recommendations of the Federal Task Force on Missing

Persons also seemto have fallen on deaf years. In a nutshell,

while the existence of the grave phenomenon of “enforced

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W.P. No.696/2021

disappearance” and impunity against it has never been

denied, the Federal Government has so far failed to dispel the

impression that it is an undeclared policy of the State.

7. It is noted that this Court, in its judgment titled

“MaheraSajid v. Station Housing Officer, Police Station

Shalimar and 6 others”[2018 CLC 1858], has declared

“enforced disappearances” as one of the most cruel and

inhuman acts, categorized as a crime against humanity. It

has been held and observed as follows.-

“The phenomena of enforced

disappearance is not new and has been
widespread in many countries across the world.
During World War II on 07-12-1941 Adolf Hitler,
the German Chancellor issued ‘Nacht und Nebel’
(The Night of the Fog decree). The rationale for
this official decree was to create a deterrent effect
by making prisoners vanish without leaving a
trace and refusing to give information regarding
their whereabouts or fate to their family
members. Enforced disappearance affects in a
complex and profound manner because the
person subjected to disappearance is not the only
victim. His or her close relatives, particularly
those who are dependents, suffer the most. Their
anguish and suffering cannot be comprehended
because their loved ones are removed from the
protection of the law. By removing a person from
protection of the law gives the captors the
freedom and license to do what they feel like. This
creates an environment of uncertainty for the
dependents and other family members. The
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W.P. No.696/2021

perpetrators get a license to subject the victim to

torture, which is otherwise strictly forbidden
under the law, and in the case of death it enables
them to cause the body to vanish without a trace.
The fundamental rights of the victims guaranteed
under the Constitution become irrelevant and
virtually suspended. It creates anguish, insecurity
and fear for the close relatives, exposing them to
grave economic and social consequences,
particularly if the abductee is the sole
breadwinner. It has the effect of creating a sense
of fear and insecurity in society and, therefore,
depending on the facts and circumstances, it may
also attract the provisions and offences defined
under the Anti Terrorism Act, 1997. Lack of
response, non cooperative and negative attitudes
of the public functionaries entrusted with the duty
to deal with complaints exaggerates the anguish
and suffering of close relatives and amounts to
the degrading treatment of citizens at the hands
of the State functionaries. This inevitably leads to
grave violations of the fundamental rights of the
close relatives as well. 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. It results in multiple violations of
fundamental rights guaranteed under the
Constitution. It is, therefore, one of the most
heinous crimes and cannot be justified on any
ground whatsoever, particularly under the
Constitution of Pakistan. It is definitely a crime
which ought to be given the highest priority by
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W.P. No.696/2021

the State instrumentalities and functionaries and

their conduct and attitude towards the victims
must manifest their intent and will as guardians
of the fundamental rights of citizens”

8. The existence of the phenomenon of “enforced

disappearances” is intolerable and, more so, when

overwhelming evidence manifests that it has remained and

continues to be an undeclared tacit policy of the State. The

perception of the involvement of law enforcing agencies,

particularly the Armed Forces, in this grave crime against

humanity is the most profound violation of public interest and

policy. The Armed Forces have and continue to render

sacrifices for the security and integrity of the country. They

ought to be respected by every citizen otherwise the security

and integrity of the country and its people is exposed to being

jeopardized. The involvement or even a perception of the

involvement of the Armed Forces in acts amounting to

violation of human rights and freedoms of the citizens

weakens and undermines the rule of law. It definitely puts

national security and integrity at risk. The Constitution does

not contemplate the existence of a state within a state and

the framers have unambiguously intended a scheme of

civilian control and oversight through chosen representatives.

Any other form of governance would amount to subverting

the scheme of the Constitution and thus exposing the

perpetrators to be accountable under the high treason offence

described under Article 6.

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W.P. No.696/2021

9. It is noted that the Constitution has explicitly

prescribed the mechanism for the control and oversight of the

law enforcing agencies and the Armed Forces and, therefore,

Article 245 (1) of the Constitution is reproduced as follows.-

“245. (1) The Armed Forces shall, under the

directions of the Federal Government defend
Pakistan against external aggression or threat
of war, and, subject to law, act in aid of civil
power when called upon to do so.

.
It is, therefore, obvious that the Armed Forces

cannot act on their own nor can the Federal Government

allow such an eventuality. It is the duty of the Federal

Government,i.e the Prime Minister and members of the

cabinet, to ensure that the constitutional scheme is not

violated. The buck stops with the Federal Government and it

is solely to be held accountable for any subversive act or

omission of the Armed Forces.

10. The State has been defined in Article 7 of the

Constitution as follows.-

“7. In this Part, unless the context otherwise

requires, "the State" means the Federal
Government, Majlis-e-Shoora (Parliament), a
Provincial Government, a Provincial Assembly,
and such local or other authorities in Pakistan
as are by law empowered to impose any tax or
cess.”
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W.P. No.696/2021

It is obvious that the Armed Forces are subservient to

the control and oversight of the organs of the State explicitly

described in the above reproduced provision of the

Constitution.

11. It is noted that under Article 29(3) of the Constitution,

it is a constitutional duty of the President and each Governor

of the Provinces to prepare and lay before the respective

legislatures reports regarding the observance and

implementation of the Principles of Policy and the

fundamental rights and freedoms guaranteed under the

Constitution. It appears that no report has ever been

prepared and laid by the President nor the respective

Governors regarding the phenomenon of “enforced

disappearances”.

12. The existence of the phenomenon of “enforced

disappearances” and the irrefutable evidence of a tacit

approval by the executive organs of the State as an

undeclared policy is undoubtedly subversion of the

Constitution. No chief executive, whether of the Federation or

the Provinces, can claim that the phenomenon of enforced

disappearances can possibly exist without their knowledge or

tacit approval. They can also not take the plea of being

helpless because the scheme of the Constitution makes them

accountable. There can be no excuse whatsoever for the

abduction of citizens by State functionaries in disregard of the

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W.P. No.696/2021

rights guaranteed under the Constitution, particularly the

right of due process. The buck stops with the Chief Executive

of the State and the Provinces.

13. The Court, therefore, affords a last and final

opportunity to the learned Attorney General to argue the

petitions. In the meanwhile, it is directed as follows.-

(i) The Federal Government shall produce the

missing persons before the Court on the

date fixed or justify the failure of the State

to effectively investigate and trace their

whereabouts.

(ii) The Federal Government shall issue and

serve notices on General (retd) Pervaiz

Musharraf and all other successor Chief

Executives i.e the former Prime Ministers,

including the incumbent holder of the

office. They shall submit their respective

affidavits explaining why the Court may not

order proceedings against them for alleged

subversion of the Constitution in the

context of the undeclared tacit approval of

the policy regarding enforced

disappearances and thus putting national

security at risk by allowing the involvement

of law enforcing agencies, particularly the

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W.P. No.696/2021

Armed Forces. The onus is on each Chief

Executive to rebut the presumption and to

explain why they may not be tried for the

offence of high treason.

(iii) The Federal Government shall consider the

proposals/recommendations submitted by

Ms Amina Masood Janjua, amicus curie

appointed by the Court and furnish a report

before the date fixed.

(iv) In case the missing persons are not

recovered nor effective and demonstrable

actions/decisions are taken by the Federal

Government then the current and former

Ministers of Interior shall appear in person

to explain why the petitions may not be

decided and exemplary costs imposed upon

them for the unimaginable agony and pain

suffered by the petitioners on account of

lack of response and empathy while dealing

with their grievances.

(v) The learned Attorney General shall satisfy

the Court that in case of alleged

disappearances in future why criminal

cases may not be ordered to be registered

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W.P. No.696/2021

against the Chief Executives of the

Federation and the concerned Provinces.

(vi) The Federal Government shall take

appropriate measures so as to enable the

family members of the missing persons to

inform the public regarding their

grievances. It shall also be ensured that

there is no undeclared censorship observed

by the print and electronic media.

14. The Registrar of the Court is directed to send a

copy of this order to the Secretary of Ministry of Interior for

compliance. The latter is directed to place a copy of this order

before the worthy Prime Minister and members of the Federal

Cabinet.

15. Relist on 17-06-2022.

(CHIEF JUSTICE)
Luqman Khan/*