' MAZHAR ALAM KHAN MIANKHEL, C.J.--Through instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioners Khan Asghar and Hussain Asghar, have asked for issuance of a writ that respondents be directed to release/allow/grant them compensatory amount for loss of lives and bodily injuries sustained by inmates of their houses and the damage caused to their residential houses, due to aircraft strike of Pakistan Air Force.
2. It is averred in the petition that on 11.06.2009 at 09/10 hours, the Aircraft of Pakistan Air Force while targeting their houses with missiles, caused death of six inmates, serious bodily injuries to eight inmates of their houses and collateral damage to their residential louses and household articles lying therein. The petitioners approached respondents Nos.5 to 11 for redressal of their grievance by demanding compensation under "Shuhada Package", but the same was refused, hence, this petition.
3. Respondents were put on notice, who submitted their respective comments, admitting therein the incident but denied the claim of the petitioners on the ground that no such policy of the Government exists so as to meet the grievance of the petitioners.
4. Arguments of the learned counsel for the parties heard and record perused with their able assistance.
5. As per material available on the file three missiles were fired in the settled area/village Zargari District Hangu by Jet Fighters of Pakistan Air Force, out of which, two hit the adjacent houses of the petitioners, resulting loss of six human lives including women and children, serious injuries to eight inmates of petitioners' houses. The third missile by falling in the fields fortunately went unexploded.
Record of the case so far produced, would confirm the fact that none of the deceased and victims was reported either to be a militant or facilitator of the militants, but even then, neither any FIR has been registered on the report of the petitioners nor any compensation has been paid to the victims or the LRs of the deceased. In absence of any evidence qua militancy and terrorism of the deceased and victims, the only aspect which remains is that of accidental air strike by the Pakistan Air Force jets, therefore, the casualties of civilians and other damage caused to their properties though cannot be said to be intentional by the Pakistan Air Force Pilots while flying the Jet Fighters assigned with the high value targets of the militants, but at the same time whether such killings of the innocent citizens and damage to their valuables, let it be accidental and unintended, can be left un-noticed? Being citizens of Pakistan whether Constitution of the country has not provided them constitutional and fundamental rights? Whether the local police and administration was not duty bound to record the report of such a heinous incident and take remedial measures? Whether all the concerned Provincial/Federal authorities were not morally, ethically and legally bound to have taken action and necessary steps on their own? If they failed, whether such a negligence on the part of all the concerned does not amount to criminal negligence? The above crucial questions and many other similar questions were time and again put to the Law Officers of the Federation and the Provincial Government, but they were unable to satisfy the conscience of the Court. The tenor of the comments so filed by all the concerned is also shocking. Their simple stance is that the Policy/ Package so announced is for the affecters of the terrorist activities only and no such Policy is there to help out the petitioners. We think that the persons sitting on the helm of affairs have not met such like situation. Had they been, then the Policy would have come of their choice within no time whereas the petitioners are struggling for their rights since 2009 and no one is there just to have a considerate thinking on their grievance. We may say that this is not the job of the Courts to look into such matters rather it is their duty and job to consider such like mishaps with open mind and eyes as they are the Policy Makers and not the Courts. We, while handing down the judgment are clear in our mind that it is not a civil suit for damages/compensation, but a constitutional petition and the petitioners have claimed the protection of their constitutional and fundamental rights and being custodians of the Constitution, we cannot shut our eyes regarding the constitutional and fundamental rights ordained by the Constitution of Islamic Republic of Pakistan, 1973, where all the citizens of the country have been given equal protection of law and to be treated in accordance with law wherever they may be, which is their inalienable right. Similarly, no organ of the State can take action detrimental to the lives liberty, bodies, reputation and properties of the citizens save in accordance with law. There is nothing on the record to reflect that the deceased and the victims were not loyal to the State or not law abiding citizen. Article 9 of the Constitution provides that no person shall be deprived of life and liberty except in accordance with law. Article 24 of the Constitution protects the property rights of the citizens. Question as to whether such inalienable rights of the victims and the deceased were ever looked into by all the concerned? The answer would be a big NO. All sitting on helms of affairs are equally responsible for this unfortunate situation. Respondents concerned have not denied the occurrence but have tried to technically knock out the petitioners by saying that no such relief/ compensation package was there on the part of the Government. Strange to note that Deputy Commissioner and District Police Officer of the area (respondents Nos.11 and 12) in their comments have taken the stance that no one filed any such application and none approached for lodging the report of the incident. Agreed for the time being, but what was their responsibility and duty. While dealing with compensation related cases of deaths/ injuries/collateral damages in terrorist activities, record of a case was produced and quoted as an example that a Pakistani was killed in Afghanistan and his family was paid a compensatory package of Rs,50,00,000/- (fifty lacs) vide notification No,S0- (H)/FS/SSD/578-86 dated 03.08.2012, FATA Secretariat Social Sectors Department. We are unable to understand that how this picks and choose Policy is being run. There are hundreds of cases of "Shuhada Packages" pending in the Courts and the LRs of the deceased or the injured are not paid their due as per announced Packages. If anyone is not entitled then his/her case is not decided timely with reasons. It is a matter of great concern that civilians of Khyber Pakhtunkhwa, Law Enforcement Agencies both Federal and Provincial and the Armed Forces have suffered a lot in this terrorism affected Province. We think, it is a moment of appreciation that the families of the victims of Armed forces are handsomely and honorably compensated and the legal heirs of such Shahada live, at least an honorable life whereas legal heirs of ordinary civilians and law Enforcement Agencies both Federal and the Provincial like Frontier Constabulary and the police are stabbed with double edged dagger, on one side loss of valuable life and then sufferings of their LRs to get their due, honorably. Besides, violation of their constitutional rights, they are refused and compelled to beg for whatever is their due, notified and approved by the Government. Their cases are prolonged for years due to non-cooperative attitude of all the concerned sitting over the helms of affairs. Instead of giving priority and preference to such cases very casual attitude and behavior is shown. The only reason for such a behavior apparently can be that they have not gone through such miseries and sufferings. Whatever the case may be, cases of such victims require expeditious disposal by all the concerned and it is their legal and moral duty.
6. While coming back to the facts and circumstances of the case in hand, in spite of vague comments of the Deputy Commissioner/ respondent No,12, his revenue officials have prepared the list of collateral damages, being present on file and the same has not been questioned by anyone.
Death certificates and medical reports of all the injured are available on file and have not been touched by anyone which would affirm the stance of petitioners and goes un-rebutted. When their deaths/injuries/collateral damage are established on record, then by keeping in view guaranteed constitutional and fundamental rights, the legal heirs of all the deceased, as per available record, who suffered injuries and collateral damage of their houses are entitled for compensation. Then comes the question of quantum of compensation. Yes, to determine the quantum of compensation in such like situation and specially when this Court is seized of the constitutional jurisdiction, is the prerogative of the Federation and we in view of our limited scope of constitutional jurisdiction cannot indulge ourselves in such controversy, but at least can say that it should not be less than the latest compensatory Relief Package announced by the Government for the legal heirs of civilians/ law enforcing agencies because we think that terrorism related deaths are also untimely and unexpected and similar is the case of the petitioners. The only difference is that it was an accidental act.
7. In an identical case titled, "Qabal Shah v. The Federation of Pakistan and others (W.P.No,1014 of 2011)), this Court had also directed the respondents/ Federal Government to pay compensation amount to the true legal heirs of each deceased and injured.
8. Since, it was an accidental air strike by the Pakistan Air Force Jets, so it becomes the responsibility of the Ministry of Defense. Yet another important aspect of the case is that we were informed during hearing of the case that the third unexploded missile was still lying in the fields, so that must be taken care of by the concerned technical staff of Pakistan Air Force/Pakistan Army just to avoid any further misshape and Deputy Commissioner should visit the site immediately and take necessary steps along with all the concerned by submitting report to the Additional Registrar (Judicial) of this Court.
9. The question of limitation was also argued by the respondents, but as per available record, the petitioners moved applications to all the concerned, but none bothered to have a serious look on their applications and ultimately they approached this Court. So, in our view, the question of limitation would not be a hurdle in the way of the petitioners against their constitutionally guaranteed rights.
10. For what has been discussed above, this petition is allowed and the respondents/ Federal Government is directed to pay compensation amount as discussed above to the true legal heirs of each deceased, injured and for damages caused due to the incident, after due satisfaction as well as according to report already prepared by the Deputy Commissioner, within a period of three months, positively. Needless to say that in case of non-compliance, the petitioners can approach this Court.
11. Copy of this judgment be sent to the Secretary Interior and Defense Federal Government at Islamabad, the Chief Secretary and Secretary Home and Tribal Affairs, Khyber Pakhtunkhwa, Peshawar for expediting the matter in hand and all other similar matters pending with them.