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September 8, 2017

SHC directs AD Khawaja to continue as IGP Sindh


September 8, 2017

KARACHI: The Sindh High Court on Thursday set aside the notification and the Sindh cabinet’s  approval of transfer of IG Sindh AD Khawaja and appointment of Sardar Abdul Majeed Dasti as IGP in his place, declaring it as being contrary to the law and of no legal effect. The SHC also reinstated the IGP till the completion of his three-year tenure.

SHC’s division bench headed by Justice Munib Akhtar observed that since proper procedure in accordance with law has not been followed regarding  transfer of IG Sindh AD Khawaja, therefore the correspondence addressed by the provincial government to the federal government and the follow up notification of April 1, 2017 are quashed as being contrary to law and of no legal effect. The court also declared the Sindh Cabinet's endorsement of the transfer order as contrary to law.

The court however declared that the legislative competence of  Police is in the exclusive provincial domain. They declared  that the Sindh (Repeal of the Police Order 2002 and Revival of the Police Act, 1861) Act, 2011 is intra vires the Constitution. Therefore the Police Act, 1861, as revived and restored by the said Act is the law in force in Sindh, and not the Police Order, 2002. 

The court observed, in its 98 page judgment, that the post of IGP is associated with a mandatory tenure set out in the Sindh Government Rules of Business, 1986. The bench observed that Inspector General, A D Khawaja is entitled to have the benefit of the term associated with the post.  

The court observed the power of transfers and postings in the police force, at all levels  including that of PSP officers, shall be exercised only by the Inspector General, and any orders issued by him in this regard shall be self-executing. The court ordered quashing of all   orders and notifications relating to transfer and posting of police officers from July 7  and declared them to be of no legal effect.

It observed that frequent change of police officers has destabilized the police force  and cast a seriously negative effect on their performance.  The bench also ordered bringing an end to the  bewildering rapidity of transfers and postings by the provincial government. The court directed federal and provincial governments to comply with orders and directions in the judgment.

The court directed the IG Sindh to draft rules within 30 days regarding transfer and postings of the police force at all levels including PSP cadres. The rules must also set out the tenure against all posts ensuring implementation of the directions given by the Supreme Court in the Anita Turab case. 

The court observed that provincial cabinet must consider the draft rules at its next meeting within 15 days. Only those modifications and amendments in the policy would hold that are concurred to in writing by the Inspector General. If the rules are not approved by the cabinet or if the changes are not accepted by the Inspector General, then the entire exercise will have to be repeated. The exercise shall be subject to judicial review. 

The court observed that the administration of the police force vests in the police hierarchy acting through the Inspector General and his role is a key and central one. The court observed that any attempt to sideline or marginalize the Inspector General would have no legal effect.  Furthermore, any attempts to curtail his powers or circumvent him directly or indirectly (by holding meetings with police officers in which the Inspector General is not invited) would expose any police officer to disciplinary proceedings, the bench observed.

The court observed that views of the police hierarchy, through the Inspector General, must be taken while formulating policies relating to law and order and for that purpose  the Inspector General must be invited to the Cabinet meetings 

Petitioners counsel Faisal Siddiqui submitted that provincial government on March 31 in violation of SHC’s order relieved IG Sindh AD Khawaja and appointed Sardar Abdul Majeed Dasti as acting IG Sindh which was unlawful and contrary to the directions of the court.

Advocate General Sindh Zamir Ghumro contended that power to appoint the Inspector General always vested with the provincial government. Arguing for dismissal of the petition, he  strongly denied any violation of fundamental rights  due to  the alleged policing failure  and said these allegations were made  to malign the provincial government.

Additional attorney general  submitted that the power to appoint the Inspector General of Police in the provinces was the prerogative of the federation. He submitted that IG Sindh had been appointed under the agreement between the federal and provincial governments, but the  provincial government did not give any cogent reason for his sudden removal and “surrender”. Furthermore, he said the provincial government could not itself act unilaterally.

 Azeem Samar adds: Reacting to the judgment Advocate General Sindh Barrister Zamir Ghumro has said  the Sindh govt has different options available including legislation and appeal in Supreme Court against  the judgment. 

He said the Sindh govt will initiate new police reforms in accordance with democratic principles and would appoint IGP in accordance with its own law. The Sindh govt has complete executive authority over police under the law and it will continue to exercise that authority. Authority of provincial govt over police can't be curtailed or exercised by federal govt through IGP. Under the Constitution, autonomy regarding Police vests with provincial govt and such autonomy can't be handed over to IG. Sindh govt shall soon enact law keeping in view the fundamental rights of its citizens.   Pakistan People's Party leader and MPA Saeed Ghani has said it is a lamentable situation that any institution or person has become more stronger in the province than its chief minister, cabinet, and assembly. 

“Nobody  praised the Sindh government when it posted AD Khowaja as new IG of Sindh Police,” said the PPP leader  on Thursday.    

 Sindh government is not being allowed to do its work likewise its counterparts in other provinces, he said. MPA Saeed Ghani said  other provincial governments  were allowed to have services of advisors and special assistants to the CM, but Sindh didn’t have permission to this effect. 

INP adds: Pakistan Peoples Party's Saeed Ghani said the Sindh government has the power to decide whether the incumbent Inspector General Police AD Khawaja should continue on his post or not. It seems as if Sindh is on another island where a different law is in place.