Missing persons be produced within 7 days no matter heaven falls or earth splits : CJP

Chief Justice of Pakistan (CJP) Iftikhar Muhammad Chaudhry has remarked “ missing persons be produced in the Supreme Court (SC)  within 7 days even if heaven falls or earth splits.
A 3-member bench of Supreme Court (SC) headed by CJP Iftikhar Muhammad Chaudhry while disposing of missing persons case maintained here Tuesday that military authorities have taken away 35 missing persons from detention center Malakand forcibly and the Prime Minister, governor and chief minister should ensure recovery of missing persons within seven days.
The court said in its orders no law is in place in the country on enforced disappearances. Prime Minister should make it sure no enforced disappearance takes place in the country in future. 7 persons have been produced and the particulars of the remaining persons are in the knowledge of army. All the remaining missing persons be produced in the court within seven days and its report be sent to registrar SC. Government should expedite legislation to prevent enforced disappearances.
The order further said that government should take action against the persons behind the enforced disappearances.
Attorney General (AG) Munir A Malik, acting secretary defence, Arif Nazir and others appeared in the court during the hearing of the case Tuesday.
AG told the court legislation will be enacted in respect of missing persons during the current National Assembly session. CJP inquired “ where are missing persons.
Acting defence secretary said they could not be produced due to security problems.
CJP remarked “ missing persons be produced , no matter heaven falls or earth bursts. Military personnel come by helicopter from Siachen why the missing persons not. It has this clear meaning that the entire government including Prime Minister is fully aware of missing persons. It seems as if no one accepts your directives. Court’s order will not be like your orders. Judicial order will be powerful. You have locked up them in police station. Don’t sensationalize this thing deliberately. How can you  bring them within an hour.
The court immediately summoned defence minister. He had promised that matter  would be resolved on December, 10. Only 721 cases have come to light. How many more persons are missing, we don’t know about them.
The order said armed forces and other authorities present their report to ministry of defence secretariat. Order was issued on December, 6, 2013 but it was not complied in letter and spirit.. Different reasons were told which are not acceptable. “ We have noted that as per reports, army has picked up 35 persons and it has been proved. A letter was written to IG Jails in the light of these facts.  This letter was presented before Peshawar High Court which included name of all the persons including Yasin Shah.
Order further said directives were issued to Additional Attorney General (AAG) on August, 25, 2013 that Muhammad Yasin Shah was an undeclared detained person and he has to obtain directives from concerned authorities in this regard.
Order said wrong impression was taken that no stern order will be issued. Further headway in this case was highlighted on December, 5, 2013 in this case. This matter is very serious. A telephonic call was received by defence minister Khawaja Asif from Prime Minister Nawaz Sharif during the hearing of this case. Khawaja Asif again appeared in the court after receiving the call. He requested the court to adjourn the hearing and hearing was adjourned till December, 6 on his assurance that a good news will be given to court.
The court was sure that not only progress will be made in resolving this issue following the involvement of prime minister and top administrative functionary but also the case which is under hearing will be resolved. CJP said to defecne secretary that “ I will have to issue orders against you because you are also not telling the names. Had you not kept us on empty assurances the matter would have been resolved so far. This matter has assumed significance after it has come to the notice of prime minister
Court further said in the order that AAG had announced all these missing persons undeclared detainees. Eversince Naib Subedar Aman Ullah Beg has taken away these persons, nothing has become known about them nor any thing has been told to jail authorities about them.
Order further said “court was further told about the status of 35 persons that efforts are underway in this respect. FATA regulations are silent that as to how army authorities wield such powers that they can take away persons from detention center through a Subedar without informing the concerned authorities. We  don’t say that procedure like this is not in place. However nothing particular is before the court with reference to it nor any agreement is there. These people can not be lifted illegally.
When we asked  from acting defence secretary to explain about the legal justification about this  step taken by military authorities   who had taken away these persons from detention centers forcibly. Acting Defence secretary said they can exercise such powers.
Order said “ AG told on behalf of defence minister that a bill pertaining to enforced disappearances  would be tabled in the current session of national assembly. In the light of his statement it can be said that MI, ISI, IB and other agencies have no powers to pick up any one forcibly. Police can exercise this power one time but it has to register case in this respect.
Order said “ human rights can not be violated in the territories upto which the superior court has jurisdiction  to interfere. SC is guarantor of fundamental rights of the citizens. Despite observation and direction of the court, defence minister was involved from August, 5 till now and prime minister also came into contact as chief executive but no solution was evolved to this issue that how the missing persons would be recovered and presented before the court. The matter of 26 persons still stands unsolved.
Order said “ federal government functions under article 90 through chief executive and cabinet. It was its duty to recover these persons and present them besides ensuring legal action against the persons  who are involved in this matter and they have failed in this matter.
Court said “ taking into account these reasons we maintain that military authorities picked up 35 persons forcibly from Malakand detention center under PATA and FATA regulations and only 7 persons were recovered among them. No information has become available about the remaining persons.
Chief Executive, provincial chief executive and governor of KPK are directed to proceed in this case, recover these persons within 7 days and send report to registrar SC besides initiating action against the responsible persons under law. No law is in place to keep any one in custody forcibly. Necessary legislation be enacted to curb this practice. Chief executive should ensure it fully that no one would be picked up forcibly in future.

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