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January 11, 2021

2020 saw major judgments from superior courts in Sindh


January 11, 2021

Although the Covid-19 pandemic affected the working of the civil and criminal courts in Sindh during 2020, the judiciary managed to dispose of around 24,807 cases at the Sindh High Court (SHC) and 258,906 cases in the district courts during the year.

The backlog of pending cases, the number of which was 83,944 in the SHC and 93,960 in the district judiciary at the start of 2020, could not be reduced significantly at the end of the year due to the Covid-19 pandemic as at the end of November, the balance of cases remained at 81,180 cases in the SHC and 113 894 cases in the district judiciary.

According to the data of cases filed and disposed of between January 2020 and November 2020, more than 25,198 cases were instituted at the SHC and 277,201 cases were filed before the district judiciary during that time.

The Supreme Court (SC), the high court and the district judiciary also took precautionary measures to save judicial officers, lawyers and litigants from the pandemic during the lockdown and the post-lockdown period.

Apex court hearings

Like previous years, the SC continued public interest litigation pertaining to encroachments on amenity plots and public land in Karachi, revival of the Karachi Circular Railway and removal of unauthorised buildings in the city, and issued several directions to the federal and provincial governments, cantonment boards and other civic agencies in this regard.

The apex court took exception to the performance of Karachi’s civic agencies, including the Karachi Building Control Authority and cantonment boards, for allowing unauthorised constructions at different residential areas of the city which severely damaged the town planning and infrastructure of the city.

In a hearing, the chief justice of Pakistan observed that gangs and land grabber mafias were operating in the city with the support of government officials and directed the Sindh chief minster to submit a report with regard to steps being taken for remedying the state of affairs in Karachi as there was a total collapse of civic affairs in the city.

In another public interest case with regard to the computerisation and verification of government land in the province, the SC directed the board of revenue to remove all the encroachments from the public land, including the forest and irrigation departments’ land.

The apex court also ordered K-Electric (KE) to end load-shedding in the city, observing that load-shedding of a single minute would not be tolerated and the power utility would have to face consequences of it. The SC directed the KE chief executive officer to submit a timeline for ensuring zero load-shedding in the future.

Chief Justice of Pakistan Gulzar Ahmed while addressing the bar association in Hyderabad observed that it had been noted with great concern that people were not getting real benefits of laws in health and education sectors and opportunities of dignified living were not being provided to the people, which was not only a grave injustice but also affecting the very fabric of society.

Major SHC rulings

The SHC heard and decided several important matters pertaining to public interest, constitutional rights of citizens, and appeals in criminal and terrorist cases, some of which had been pending for almost two decades.

In a landmark judgment pertaining to the people’s right to know, the high court directed the Sindh government to unveil the joint investigation teams’ (JIT) reports on probes into the activities of Lyari gangster Uzair Baloch and former chairman of Fishermen’s Cooperative Society Dr Nisar Morai, and the Baldia factory fire incident.

The SHC observed that “general public has a right to know the findings made in the JIT reports which are public documents.”

The high court further observed that “To know, subject to certain restrictions, is a fundamental right of a person and which shall be prime concern in a democratic set up of a government,” as it interpreted the Article 19-A of the Constitution.

“If such like incidents, which are barbaric in nature, happen and the public is deprived of access to the information qua the outcome of investigations conducted by the JITs in regard of such incidents, it would mean that the democratic government is not interested in telling the truth about those who are involved, which will result in weakening of the whole system,” the SHC observed.

The high court also remarked that the JITs reports of Uzair Baloch and the Baldia factory fire case had been seen by the court and it did not find anything against the national security in them.

The SHC observed that if such reports were publicized, particularly when most of the facts of such cases had already been brought to the knowledge of public through different mediums including the print and electronic media, no prejudice would be caused to either party in the trial.

In another landmark judgment, the SHC struck down a continuous eight-month preventive detention of a suspect belonging to a banned militant organisation, declaring it as unlawful and observed that during challenging times the courts must ensure the constitutional guarantees and protections provided to the citizens of the country and protect them from any misuse or abuse of the executive authority especially when the liberty of individuals was at stake, which was one of the most important fundamental rights guaranteed by the constitution.

The high court observed that without a jealous protection of the liberty of the citizens and their other fundamental rights by the courts, we would be nowhere as a state and the road to anarchy and tyranny would not be far away.

Regarding lack of an effective procedure to deal with rape and sexual assault cases, the SHC took exception to the standard operating procedure (SOP) of police to deal with rape and woman assault cases and directed the prosecution and police departments to simplify the SOP to deal with such cases and circulate the simplified procedure in all the police stations and to all the investigation officers of the province.

Regarding the publication of blasphemous content on websites, the SHC directed the Pakistan Telecommunication Authority to block all websites in Pakistan pertaining to obscene and blasphemous material.

The high court also directed the federal government to submit a progress report with regard to the well-being and health of Dr Aafia Siddiqui, a Pakistani woman incarcerated in a prison in Texas, United States.

In another ruling on the issue of children’s religious conversion, the SHC observed that there was no prohibition under the Islamic law as well as the law of the land to allow a newly converted Muslim girl/woman to live or reside with her non-Muslim parents.

Issuing a judgment on petitions with regard to controversy over the kidnapping, conversion of religion and marriage of a minor girl, the SHC observed that the constitution of the country categorically stated that no person shall be deprived from his/her life and liberty save in accordance with the law and every person had the right to opt his/her religion.

The SHC also directed all the district and sessions judges to ensure the implementation of the Juvenile Justice System Act by ensuring disposal of juvenile cases through diversion.

On a petition for providing medical treatment to patients during Covid-19, the SHC directed the city’s public and private hospitals to continue their OPDs, first aid and emergency services in the larger public interest. The direction came on a petition seeking a court direction to hospitals for providing first aid to every patient at initial stage without asking for producing the Covid-19 test.

For the local government elections in Sindh, the SHC directed the Election Commission of Pakistan to conduct the local government elections in Sindh within 120 days in accordance with the law. The high court also directed the federal government to submit a report about the decision of the sub-committee constituted by the federal cabinet to consider the issue of the publication of the final census results.

In another case, the SHC directed the private schools directorate to implement the Sindh law pertaining to a 20 per cent fee concession to the students during the Covid-19 pandemic and take action against the private schools not implementing the law.

The high court also took notice of the illegal grant of Rs34.564 million funds to 11 individuals under the education endowment fund scholarship meant for poor and orphans by the finance department on the direction of the CM, and directed the authorities to return the same to the government exchequer and utilise the same for needy students.

The SHC directed the Sindh inspector general of police and inspector general of prisons to ensure that the identification of every prisoner through a biometric verification was made along with the national identity card or a copy of criminal record at the time of handing over the custody of the prisoners to prisons to avoid impersonation.

Deciding pleas of Karachi Port Trust (KPT) employees against termination, the SHC set aside a notification of the KPT with regard to the termination of as many as 1,200 KPT employees who had been hired between June 9, 2012, and November 21, 2013. The high court also ordered the federal government to pay the outstanding dues of over 1,400 retired employees of the Pakistan Steel Mills as well as directed the Karachi Metropolitan Corporation and Karachi Development Authority to clear the outstanding dues of their retired employees.

In the stray dogs case, the SHC issued several directions to the Sindh local government and health departments to prevent the people from stray dog bites. The high court took exception to the delay in framing of by-laws for dealing the matter of stray dogs under the Sindh Local Government Act 2013 and directed the local government secretary to frame the by-laws in larger public interest expeditiously.

The SHC ordered the Sindh IGP, DIGs and others to ensure that no substandard CNG kits or cylinders were used in any vehicle and remove all the CNG cylinders not certified by the Hydrocarbon Development Institute of Pakistan from vehicles in the province.

The high court also decided in2020, the years-long appeals against the conviction in Daniel Pearl kidnapping and murder case and the Pakistan Industrial Development Corporation car bombing pending for over 15 years.

The SHC set aside the death sentence of British nationality holder Ahmed Omer Sheikh and life imprisonment of three Pakistanis in the US journalist Daniel Pearl kidnapping for ransom and murder case after 18 years hearings of appeals, observing that “kidnapping for ransom and murder charges could not be established against them.”

The court, however, convicted Sheikh having found him guilty of abducting Pearl by deceitful means and sentenced him to seven years in prison, which he had already undergone, with a fine of Rs2 million.

The high court dismissed the appeals of two convicts and upheld their death sentence in the Pakistan Industrial Development Corporation car bombing case. The SHC, however, set aside the death sentence of a third convict, Abdul Hameed Bugti, and acquitted him of charges as no evidence was found against him.

The SHC also set aside the conviction of Muttahida Qaumi Movement (MQM) leader Amir Khan, who was a former general secretary of the Mohajir Qaumi Movement-Haqiqi (MQM-H), and his fellow in a 17-year-old killing case of two Muttahida activists.

Amir was sentenced to 10 years by an anti-terrorism court (ATC) in Karachi on December 15, 2004, for abetting co-accused Tariq, alias Bata, Raees and Nazim of the MQM-H in the killing of two activists of the MQM on June 23, 2003. The co-accused were awarded life imprisonment and other punishments in the said case.

In an important case against the conviction of a journalist in a terrorism-related case, the SHC ruled that the JIT report had no evidentiary value, unless the material on the basis of which the said report was prepared was produced and proved during the trial.

The high court set aside the conviction by an ATC to senior journalist Nasarullah Khan on the charges of possessing literature and magazines of banned organisations, and termed the case as fabricated. The high court observed that there was nothing on record that the alleged material so collected by the recovery officer was authored, printed or published by the appellant nor even any material was placed on record to show that the appellant was a member of any proscribed organisation.

The SHC also dismissed the appeals of former district and sessions judge and co-accused, maintaining their death sentence in an honour killing case.

Sikandar Ali Lashari, a former district and sessions judge, and co-accused Mohammad Irfan Khan were sentenced to death by an ATC that found them guilty of causing the murder of a young son of a district and sessions judge in Hyderabad.

The SHC also took notice of defective investigations and registration of fake police encounter cases, and ordered registration of criminal cases against police personnel for killing suspects in fake encounters.

Another major ruling of 2020 by the high court was the quashing of the sugar inquiry commission report as unlawful. The high court directed the National Accountability Bureau, Federal Board of Revenue and other statutory bodies to conduct an independent inquiry with regard to corruption, tax evasion, money laundering and other allegations against sugar mills without being influenced by the inquiry commission report.

The order came on a petition of a sugar mill in Mirpurkhas and others which sought quashment of the sugar commission inquiry report.

In a lawsuit of insurance companies for damages against airlines after the Karachi airport attack, the SHC ruled that the Karachi airport attack in June 2014 was part of the protracted and intensified non-international armed conflict between different proscribed organisations and the State of Pakistan, dismissing insurance companies’ lawsuits for multi-billion rupees damages against international foreign airlines and cargo companies.

The EFU and IGI insurance companies had filed the lawsuit for damages against foreign international airlines and cargo companies in relation to various cargos destroyed on June 9, 2014 at the Karachi airport during an armed attack by a group of terrorists.

On the imposition of income support levy, the SHC held that the imposition of the levy by the former Pakistan Muslim League-Nawaz government in the 2013 budget did not possess the characteristics of a tax as it was not a common burden for raising revenue to be utilised for the general public, and declared the relevant law as ultra vires of the constitution.

The SHC dismissed petitions against imposition of a super tax for rehabilitation of temporarily displaced persons. The high court held that super tax was not in violation of the Article 25 of the constitution as it was neither discriminatory nor created any unreasonable classification amongst the same class of person upon which its charge had been created.