KARACHI: Upholding the principle of the public’s right to information, the Sindh High Court on Tuesday ordered the Sindh government to constitute an inquiry tribunal headed by a sitting or retired high court judge to probe the violent incidents of May 12, 2007, which occurred over a decade ago.
The order came on a petition seeking the restoration of court proceedings related to the May 12, 2007 carnage and the formation of a judicial commission to probe the incident, in which more than 50 people were killed in different parts of the city during violence and armed attacks on political parties and lawyers’ rallies that wished to welcome the then chief justice of Pakistan (CJP) Iftikhar Mohammad Chaudhry on his arrival to the city.
The SHC, which also framed a 13-point terms of reference for the inquiry, observed that tribunal shall complete the inquiry within three months.
Expressing dissatisfaction over the criminal proceedings against the May 12 culprits by the provincial government, the court observed that “hardly any of the big fish who were part of the command and control structure in Karachi on May 12, 2007 had been named in any FIR or was facing any kind of proceedings.”
“In our view it is apparent that after 11 years of the incident either through inefficiency or design the investigation agencies, the prosecution department GOS and the Anti Terrorism Courts (ATCs) have miserably failed to discharge their duties in deciding these important cases for reasons best known to themselves,” an SHC’s division bench comprising Justice Mohammad Iqbal Kalhoro and Justice Mohammad Karim Khan Agha observed in 49-page judgment.
The court stated that the way in which 65 cases have been dealt with, investigated, prosecuted and tried was “completely unacceptable” and that despite all the videos, TV footages and other material available as evidence it seems quite astonishing that so many cases have been disposed of in A class (non-arrest of culprits).
The court observed that the events of that day still remain to be fairly, properly and independently inquired into and responsibility remains to be fixed on those responsible for any lapses on May 12, 2007 before or during the incidents. The court observed that few small fish in 65 FIRs which to be going nowhere does not get to heart/root of the issue.
The bench’s report stated that it has to be probed as to whether those at the helm of affairs who had command and control responsibility on and before May 12, 2007, bear any responsibility for the incident which led to a denial of access to justice to citizens, a complete breakdown in the law and order in the country’s commercial hub, cost many precious lives, injured many others, caused millions of rupees in damage to private and public property and led to an attack on the independence of the media.
The court further ordered the constitution of a joint investigation team under Section 19 of the Anti-terrorism Act to trace out all the persons involved in A class cases and make further investigation in all other cases related to the incident, and submit a report in two weeks.
The court also requested the Chief Justice of SHC to appoint a sitting judge to monitor the 65 cases of May 12 violence through monthly progress reports from the concerned trial courts which initially should give an explanation for their failure to dispose of the cases despite the passage of 11 years.
The court observed that the inquiry tribunal will not prejudice the ongoing individual criminal cases which arose after the May 12 2007 incident such like Mir Murtaza Bhutto murder inquiry tribunal which was made public prior to the conclusion of the trial.
The court declared that SHC has the authority and the power either on its own motion either to establish a commission of inquiry or tribunal of inquiry or to direct the government of Sindh to establish a commission of inquiry or tribunal of inquiry to inquire into and determine certain matters concerning the May 12, 2007 incident especially in so far as it concerns access to justice.
The court ordered that the inquiry tribunal shall submit its report before SHC and simultaneously make it public as the people have the right to information under Article 19 (A) of the Constitution. The purpose of report would be entirely defeated if it remained hidden away gathering dust on some shelf in the Sindh Secretariat or some other place like so many reports of other Tribunals/Commissions of the inquiry, it stated.
The court observed that May 12, 2007 incident was one of the blackest days in the history of Karachi which has seen much turmoil in respect of the legal community and the public’s fundamental right to unhindered access to justice especially when the court had directed federal and provincial governments to provide fool proof security arrangements for the visit of then CJP.
The court observed that public must have confidence that their fundamental right to access to justice must be maintained under all circumstances no matter what event occurs let alone have it prima facie deliberately impeded and no genuine steps taken by the government of Sindh to prevent it from being so impeded or even be a part of impeding such right.
Regarding the five-member PCO judges’ judgment on May 12 siege case, the court observed that a virtual sea change in hearing the case occurred once the emergency was imposed on November 3, 2007 but such judgment could not be interfered in the five-member bench judgment as same had attained finality.
The court observed that previous five-member bench judgment also prima facie does not on balance, fall within the definition of per incuriam as it appears that judges were aware of the relevant law although it is doubtful that they were properly assisted.
The court observed that five-member bench heard only arguments of government of Sindh which had no interest in the incident being properly inquired into so that responsibility, if any, could be fixed on the higher echelons who were in fact instructing the advocate general and can even be said to have conflict of interest in the matter as it was in their best interests to shield members of the provincial government and others who may have had some responsibility for the events which unfolded on May 12, 2007.
The court observed that matter of such public importance and affecting the fundamental rights of the citizens access to justice, intimidation of the legal community of Karachi by the miscreants should simply be swept under the carpet on account of a five-member bench judgment which in fact rules that it was not role of the court to act as an investigator. The court observed that five-member bench did not consider the contrary affidavits/statements and the material submitted by the bar council, associations and others and simply accepted the affidavits of government functionaries and police.
The court observed that a seven-member bench earlier constituted by the Chief Justice of SHC prior to imposition of PCO was intending to consider all such material having heard all the parties and pass a detailed and comprehensive judgment on denial of citizens right of access to justice and preventing the lawlessness which prevailed on May 12, 2007 which prevented the then CJP from reaching the high court.
The court observed that although 11 years have passed after May 12, 2007 incident but this is no reason not to at least attempt to try to uncover the truth behind the incidents which the public have a right to know. Justifying the probe, the court observed that former Prime Minister Nawaz Sharif was convicted of an offence 20 years back while in Britain the police officers who failed in duties in traffic Hillsborough football stadium incident at Sheffield have been finally brought to court to face justice.
The court observed that the public has a right to know whether some persons at the helm of affairs in Sindh, in violation of the court orders, had deliberately put in place a plan to ensure that former CJP was not allowed to leave Karachi Airport and reach Malir district court and SHC and why the police and Rangers were virtual spectators while the city was overrun by miscreants and complete access to justice was denied to the public and with the legal fraternity being particularly targeted.
The court observed that the public also has the right to know what role the federal government played in the planning or unfolding of the incident, what was the role of the coalition government in Sindh as it appears from the record that activists of Muttahida Quami Movement or any other political party or group who largely terrorised the public and especially lawyers on that day.
The court also directed the Sindh government to file a compliance report with regard to payment of compensation to the aggrieved persons of the May 12 incident.
The petitioner, Iqbal Kazmi, who earlier had withdrawn his petition on November 19, 2007, had approached the court again after the restoration of the pre-November 3, 2007, judiciary for reopening of the May 12 case and constitution of larger bench to hear the case.
Amicus curiae Faisal Siddiqui, Shahab Sarki and senior counsel Rasheed A Razvi submitted that high court can constitute commission or order probe over the May 12 mayhem in the public interest so that no such incidents could be repeated again. They submitted that rights of the people including lawyers and judges have been violated and judges were obstructed from performing their duties.
They submitted that the seven-member bench of the high court was probing the May 12 incidents which could not conclude its proceedings due to imposition of Provisional Constitution Order and later on the five-member bench dismissed the proceedings without addressing the issue of denial of public rights to access to the justice and obstruction in the judicial process. They suggested that fact-finding commission should be formed to fix the responsibility on official respondents for criminal negligence a well as witnesses of the May 12 related cases should be provided protection under the witness protection laws.
Narrating the incidents of violence on May 12, the petition says the then home secretary and the IGP of Sindh had violated the court’s order for the provision of security to the then chief justice Iftikhar Mohammad Chaudhry during his visit to Karachi.
It adds that mobs had laid siege to buildings of the Sindh High Court and the City Courts, and manhandled lawyers. It says that the government had failed to protect the life, liberty, freedom of movement and other fundamental rights of citizens, requesting the court to initiate contempt proceedings against then home adviser Waseem Akhtar for issuing derogatory remarks against the chief justice.
The petition prayed the court that an inquiry be conducted under the supervision of a high court judge, cases be lodged against the persons involved in the May 12 incidents, and senior government officials be sacked for their failure to perform their duties in accordance with the law and the Constitution.
Former President Pervez Musharaf, Muttahida Quami Movement (London) chief Altaf Hussain, then home adviser Waseem Akhtar, then home secretary Ghulam Mohammad Mohtram, then secretary interior, then DG Rangers, then IGP Sindh Niaz Siddiqui, then CCPO Azhar Farooqui, and then SHO PS City Courts have already been named as respondents in the petition.
It is pertinent to mention that May 12 mayhem proceedings could not be concluded due to the imposition of a provisional constitutional order (PCO) in November 2007, however the matter was later disposed of by another bench during the PCO, and now the matter was pending since then for revisiting the court orders.
On May 12, 2007, former CJP Chaudhry was visiting Karachi to attend the Sindh High Court Bar Association’s golden jubilee celebrations. A suo motu notice was taken of the riots on the report of the SHC incharge registrar that was submitted before the then high court chief justice Sabihuddin Ahmed.
The registrar said the SHC and the city court buildings were surrounded by a mob, and they were stopping everyone from entering the courts’ premises.
The report said that because of the blockade of roads and the siege of the high court premises, a number of judges also faced hardships, which was evident from the letters of protocol officers of judges, including Justice Azizullah M Memon, Justice Maqbool Baqar, Justice Mohammad Athar Saeed and Justice Yasmeen Abbasey, and information communicated by the driver of Justice Sajjad Ali Shah.
The SHC reconstituted a five-member bench, which dismissed the suo motu petition regarding the siege of the high court and the city courts buildings as “not maintainable”. The bench observed that the court, under Article 199, cannot assume the role of an investigator, and can only issue directions to expedite investigations and proceed in accordance with law.
A shorter version of this story was published in newspaper on Sept 12.