' SALAHUDDIN PANHWAR, J--Through the instant petition, an alarming situation had surfaced with regard to infringement of fundamental rights and that of degradation of human soul so this Court had passed an order whereby entrusting learned District and Sessions Judge, Jacobabad to submit comprehensive report.
2. In pursuance thereof, the learned District and Sessions Judge, Jacobabad submitted comprehensive report, that report and other material surfaced on record that:
(i) Jirga was held by Mohabbat Khan Khoso and others deciding therein for payment of a huge amount and in case of failure for marriage of his daughters;.
(ii) Flashing of news that one person is moving in the town with demand and slogan that he is poorer and not in a position to pay amount, imposed by JIRGA so he is selling out his daughters;
(iii) On recommendation of JIT, the FIR was also lodged in this regard;
3. Before coming to the merits of the instant case, I painfully feel it necessary to address certain issues. The above facts made it clear that: i) the influential did dare to hold 'JIRGA' openly; ii) announced a verdict without an authority imposing fine with further direction to give girls on failure of payment of imposed amount; iii) a man became compelled to come in town for sell of his daughters; iv) the police lodged the FIR after recommendation of the JIT;
4. The area of holding `JIRGA' does fall within domain of the defined territory of Pakistan hence souls, residing therein, do qualify the term 'citizen of Pakistan'. The status of 'citizen of Pakistan' earns him/her all the privileges, protection and guarantee for which the 'State' is duty bound to provide necessary protection. The term 'State' shall not stand well with its meaning unless each single organ thereof functions properly and masses feel existence of protection, safety, liberty and all other rights which have been defined as 'fundamental rights'. To ensure this, the 'State' confers its authority to different 'offices'. Since the freedom and safety is the prime basic (fundamental) rights of an individual which are to be protected through law enforcing agencies, in particularly the 'police' which is established at root level(s) so as to create a sense of 'fear' among the wrong-doers while that of 'peace' in minds of peace loving persons. The Honourable Supreme Court of Pakistan in the following cases held that: ' Rohaifa v. Federation of Pakistan (PLD 2014 SC 174)
' Under Article 9 of the Constitution... That he shall not be deprived of life and liberty save in accordance with law. State of Pakistan being guardian of its citizen is bound to implement the Constitution provisions in letter and spirit particularly the Fundamental Rights, which are guaranteed by the Constitution.
' Watan Party v. Federation of Pakistan (PLD 2011 SC 997)
'The State is duty bound to protect the life and property of its citizens in accordance with law against all the atrocities, target killings, homicide, etc. The basic human rights of life, liberty and enjoyment of one's property have been recognized nationally as well as internationally. Article 3 of the Universal Declaration of Human Rights provides that 'everyone has the right to life, liberty and security of person', no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment; everyone has the right to recognition everywhere as a person before the law and all are equal before the law and are entitled without any discrimination to equal protection of the law.
' Human Rights Case No.20107-G of 2013 (2014 SCM R 287)
'It is trite law that Article 9 of the Constitution, 1973 guarantees the protection of the life of citizens. It is the duty of the State to ensure such protection by following relevant laws which are made to protect and preserve life.'
5. From above, it becomes quite clear and unambiguous that it is the absolute and exclusive responsibility of the State through its Organs (parts) to ensure safety and enforcement of fundamental rights. Worth to add here that there can be no denial to the fact that to achieve an object, one must stick to the path (rules) leading to the goal. Here, the path (law) is the Constitution and all other laws of the land (State) are subject to Article-8 of the Constitution which is:- ' Laws inconsistent with or in derogation of Fundamental rights to be void. -(1) Any LAW, or any CUSTOM or USAGE having the force of law, (in so far as it is inconsistent with the rights conferred by the Chapter), shall, to the extent of such inconsistency, be "VOID'.
(2) The STATE shall not make any Law, which takes away, or abridges the rights so conferred, and any law made in contravention of this clause, shall, (to the extent of such contravention), be "VOID".
6. The Article-8(1) leads nothing ambiguous that not only the law but all the 'custom' or even 'usage' , having the force of law, shall be void if are inconsistent or in derogation to fundamental rights. The custom or usage of 'JIRGA', being in derogation to fundamental rights, in particularly that of Article 10-A of the Constitution was/is 'void' . Further, the JIRGA cannot dress itself up with status of a 'Law Authority' which is always vested with jurisdiction to enforce its 'verdict' , therefore, holding of Jirga(s) are illegal which even has so been declared by Hon'ble Apex Court. In a society or State illegality or crimes do happen hence happening of such thing is not shocking but it becomes shocking when the authority, required to take action against an illegality, remains silent. A silence over or against an illegality/crime always amounts in encouraging the wrong doers which on other hand discourages the victims (masses of society) in their faith in 'State'. Needless to add that the moment the direct functionaries, in particularly the law enforcing agencies or administrative authorities, slow down in taking necessary legal actions at relevant time, the ultimate effect thereof would be nothing but infringement of Article 4(2) of constitution i.e.: a) no action, detrimental to the life, liberty , body, reputation or property of any person, shall be taken except in accordance with law; b) no person shall be prevented from, or be hindered in doing that which is not prohibited by law; and no person shall be compelled to do that which the law does not require him to do.
7. A reluctance or hesitation by an authority in taking legal action may compel the victim of an illegality to do what he is not legally required to do or to refrain from what he is legally required to do as in the instant case has happened that a father has to stepped into market (town) to sell out his daughters to fulfill honour illegal decision of Jirga. Such attitude of direct functionaries cannot be approved nor can be swa llowed easily, particularly when the Courts are the ultimate guardians of the rights of the individuals. Reference can be made to the case of Muhammad Aslam (Amir Aslam) v. District Police Officer (2009 SCM R 141), wherein held that: 'The Courts have to safeguard the fundamental rights of every citizen and to protect the life and liberty from illegal, unauthorized and mala fide acts of omission or commission by an authority or person. In cases where the liberty of a citizen was involved, the action initiated by the police when found to be mala fide the Court should not hesitate to step in and grant relief to the citizens.
8. The act of holding 'Jirgas' and passing order(s) therein for payment of amount or giving daughters in lieu thereof was/is prima facie a denial to guarantee provided by Article-4 of Constitution which otherwise has been guarded jealously, therefore, the law should not have taken so much time in taking necessary legal action as has been done in the instant matter. In the instant matter, criminal silence on part of the officer incharge of concerned police station and other authorities is manifest; who neither took the legal action, as insisted by Section 154 of the Cr.P.C. Till recommendation of JIT, flashing of News etc. Every single organ of the State under the law is not only required to take steps but in time so as to ensure discouragement to any such act coupled with bringing the same to justice.
9. Thus, mandatory obligation/duty, created by Section 154 Cr.P.C, was prima facie avoided which, in my view, renders the guilty to legal action by the 'Authority, responsible to have a check. It is also worth to add here that Deputy Commissioner(s) and Commissioner(s) are the authorities which are known as administrative authorities at local levels but in the instant matter as immediate action/notice was also not initiated. The dignity of a person is always to be protected seriously as the same is guaranteed by Article 14 of the Constitution. At this juncture it is pertinent to state that law also provides protection towards 'reputation', as is prima facie appearing from the bare reading of the Articles 4 and 14 of the Constitution therefore, publication of the names and identities of victims of such acts should always be clothed in a manner and fashion that it should not result in harassm ent or bringing serious questions over dignity which otherwise is guaranteed fundamental right of an individual. All the laws of the land, being subordinate to Constitution, can not be made an exception to what the Constitution guarantees; therefore, even news correspondents have to keep this fact in view while wording the news.
10. Further, pertinent to mention that law also provides protection towards 'reputation' as is prima facie appearing from the bare reading of the Article-4 of the Constitution therefore, publication of the names and identity of victim(s) of such act(2) causes damage to the reputation of such family, hence this duty is PEMRA to ensure that no names, videos, 'photos of child victim or accused or females shall be circulated published in print media. Sections 23 and 62 of the Children Act, 1955 provides that:
32. Prohibition on publication of names, address, etc. Of children involved in cases of proceedings under the Act. No report in any newspapers, magazine or news sheet of any case or proceeding in any Court under this Act in which a child is involved shall disclose the name, address or school or include any particulars calculated to lead directly or indirectly to the identification of any such child, nor shall any picture be published as being or including a picture of any such child.
62. Penalty for publication of report or pictures relating to child.---Whoever publishes any report or picture in contravention of the provisions of Section 23 shall, on conviction, be punished with imprisonment of either description for a term not exceeding two months or with fine which may extend to five hundred rupees or with both.
11. Having said so, we shall revert to the merits of the instant case. In result of order dated 14.09.2015 the Deputy Commissioner, Senior Superintendent of Police and District Officer (Education)
Jacobabad, are in attendance. The District Officer Education, who attended in result of direction on complaint of non-functioning of the girls school, took a stand that girls school is at the distance of 8 KM however acknowledged that there is need to establish girls school near the village of victim party for which he will approach to concerned forum. Since the 'education' does come within meaning of 'life' hence the District Officer (Education) shall proceed accordingly till girls school is functioned in village Abdul Karim Katohar and in the vicinity or at easy access of the people or such area. The Sr. Superintendent contended that complete protection would be provided to petitioner and his family and that presently two (2) police personnel are posted there. The Deputy Commissioner, on his turn, ensured that he will act promptly in future. The petitioner did show his satisfaction and accordingly, this petition is disposed of.
12. However, while parting, it is necessary to mention that though, in result of order of this Court, the concerned authorities did came forward while reaffirming discharge of their legal obligations and duties but since this again took a long run for a thing which the law was already insisting, therefore, to avoid such like situation in future, while parting feel it quite necessary to state that: i) if an officer incharge of a police station is found to be guilty of not setting the law into motion despite notice of commission of cognizable offence whatever the mode of information may be, he and his immediate superior shall be responsible for legal action;
13. The Office incharge of a police station is duty bound to set the law into motion without recommendation of JIT or a superior; inquire/investigate an information of cognizable offence and its legal disposal which should not be delayed in search of an informant to come at police station.
Where the law insists an immediate action into such complaint where also provides a mechanism to discourage false information which should not be avoided by concerned in name of technicalities. Ii) the Sr. Superintendent of police, being supervising authorities, shall ensure true application of Section 154 Cr.P.C. which he (Sr. Superintendent of Police) cannot achieve unless he ensures a complete mechanism of supervision over the officers incharge of police stations with an encouragement to take actions against false informants which normally is avoided or ignored. Iii)
Deputy Commissioner shall also show necessary action as and when he notices or acquires knowledge of any such thing, particularly that where dignity of a person is attacked or is involved.
Iv) The PEMRA and all information related concerned are directed to ensure that no name and photos of victims or child accused child are published as per requirement, provided by Sindh Children Act.
14. The office shall communicate the above directives to all concerned to make compliance of the same with further mentioning that any violation thereof shall expose the concerned to contempt of Court besides other available legal action. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.