The Petitioner , Muhammad Suleman, filed an application under Section 491 Cr.P.C. praying that eight persons (named in the title thereof), who were alleged to have been detained by Respondents No.2 & 3 at their brick kiln (the "Detenues") be recovered and set at liberty . This Court admitted that application for regular hearing, issued notice to Respondents No.2 & 3 and directed Respondent No.1 (SHO, Police Station Noshehra Jadid) to recover them but he reported that they were not available at the given address. On 18.01.2020 Respondent No.1 registered FIR No. 31/2020 under Section 365 PPC and Sections 11 & 12 of the Punjab Bonded Labour System (Abolition)
Act, 1992, against Respondents No.2 & 3 and others.
2. At one stage Respondent No.2 appeared through his counsel, Mr. Yousaf Ijaz Mohsin, Advocate, who submitted that there was no illegal detention. The Detenues, who were all adults, worked at the brick kiln of Respondent No.2 with their free will. On their request Respondent No.2 advanced them some money but one day they clandestinely left the place and went into hiding to avoid repayment. He contended that the application under Section 491 Cr.P.C. was malafide and collusive.
3. This Court directed the DPO, Bahawalpur , to trace the Detenues. He conducted raids at various places, including the brick kiln of Respondents No.2 & 3 but they were not found. The inves tigation of case FIR No.31/2020 is in progress. The Petitioner has also not been able to locate the Detenues or pinpoint the place of their detention/illegal confinement. In somewhat similar circumstances, in Shaukat Ali v. DPO and others (2005 YLR 1040 ), a learned Single Bench of this Court disposed of an application under Section 491 Cr.P.C. in the following terms: "To get recovery of detenues under section 491 read with section 561-A of the Cr.P.C., it is necessary that whereabouts of the detenues and the place shall be mentioned or pointed out by the petitioner . The petitioner himself has not been able to locate and disclose any such place from where the recovery could be made. The registration of F.I.R. with regard to the occurrence as noted above, has already been made, so as to trace the rest of the accused and recover the alleged detenues. So, this application has rightly been dismissed by the learned Sessions Judge. However , the petitioner can approach the local police with whom the investigation is in progress, if he is not satisfied with the pace and progress of the investigation, he can have redressal of the grievance from the superior of that force as provided by law . This application being misconceived is disposed of as such."
4. I was minded to follow Shaukat Ali's case, supra, and dispose of the matter but the learned counsel for the Petitioner submitted that this case involved wider question of enforcement of funda mental rights of a downtrodden section of the society and implementation of a number of laws, including, the Bonded Labour System (Abolition)
Act, 1992 (the "Abolition Act"), the Punjab Prohibition of Child Labour at Brick Kilns Act, 2016 (the "Prohibition Act of 2016"), and the Punjab Restriction of Employment of Children Act, 2016 (the "Restriction on Employment Act").
He prayed that this application be treated as public interest litigation and converted into a constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution).
5. Sir Jacob defines public interest litigation ("PIL") as follows: "It consists in the procedural machinery which may be employed to produce the relief or remedy or social effect which would be most advantageous or result in the greatest good of the members of the public as a whole or a significant or a selected section of the public, while at the same time producing a just result which is being sought by the litigant parties themselves."
6. However , in Russel v. Wheeler , [439 P.2d 43 (Colo. 1968)], the Supreme Court of Colorado judicially defined PIL as: "Something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity , or as the interests of the particular localities, which may be af fected by the matters in question."
7. On the other hand, the Supreme Court of India defined the concept of PIL in S.P. Gupta v. President of India and others (AIR 1982 SC 149) as under: "Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illega l burden is threatened and such person or determinate class of persons is by reason of poverty , helplessness or disability or socially or economically disadvantaged position, unable to approach the court for relief, any member of the public can maintain an application for an appropriat e direction, order or writ in the High Court under Art.226 and in case of breach of any fundamental right of such person or determinate class of persons, in the Supreme Court under Art. 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons."
8. PIL has it's origin in the American and British system of laws. In the United States, it commenced during the late 1960s with the emergence of certain law firms which provided legal representat ion to unrepresented or under- represented groups or interests, particularly in matters such as environment, consumerism, civil liberties and minority rights etc. In the United Kingdom, the Attorney-General being responsible for due observance of law is obligated to ensure compliance with the rule of law. Hence, he is required to initiate proceedings where there is breach of law or act of negligence or failure of a public duty. Besides, relator action may be employed to protect public interest, for example to prevent public nuisance, protect the environmen t, ensure public health, check executive action which is against welfare of the people. This kind of suit is generally brought about jointly by the Attorney-General and an individual having sufficient interest in the matter . Howeve r, there are some exceptions to this rule.
9. The Supreme Court of India started it's populist approach when it decided L. C. Golak Nath and others v. State of Punjab and another (AIR 1967 SC 1643) and His Holiness Kesavananda Bharati Sripadgalvaru and others v. State of Kerala and another [(1973) 4 SCC 225]. However , in the case of S.P. Gupta v. President of India and others (AIR 1982 SC 149), supra , in which some lawyers challenged government policy regarding transfer of judges of the high courts laid the foundation of PIL in India. A seven-member Bench unanimously ruled that any member of the public, acting bonafide and not for oblique considerations, can maintain an action seeking judicial action for the judicial wrong or injury caused to such person or determinate class of persons. The case of1 Bihar Legal Support Society , through its President, v. Chief Justice of India and another [(1986) 4 SCC 767] gave impetus to PIL when the Supreme Court declared that judiciary was willing to help the disadvantaged sections of the society and protect their rights. Bhagwati C.J. wrote: "...the weaker sections of Indian humanity have been deprived of justice for long, long years: they have had no access to justice on account of their pove rty, ignorance and illiteracy . They are not aware of the rights and benefits conferred upon them by the Constitution and the law. On account of their socially and economically disadvantaged position they lack the capacity to assert their rights and they do not have the material resources to enforce their social and economic entitlements and combat exploitation and injustice. Majority of the people of our country are subjected to this denial of access to justice and, overtaken by despair and helple ssness, they continue to remain victims of an exploitative society where economic power is concentrated in the hands of a few and it is used for perpetuation of domination over large masses of human beings. This Court has always, therefore, regarded it as its duty to come to the rescue of these deprived and vulnerable sections of Indian humanity in order to help them realize their economic and social entitlements and to bring to an end their oppression and exploitation. The strategy of public interest litigation has been evolved by this Court with a view to bringing justice within the easy reach of the poor and the disadvantaged sections of the community . This Court has always shown great concern and anxiety for the welfare of the large masses of people in the country who are living a life of want and destitution, misery and suffering and has become a symbol of the hopes and aspirations of millions of people in the country".
10. In the following years the Supreme Court of India decided many cases to help the underprivileged segments of the society get their social and economic rights. Notable among them are: M.C. Mehta and another v. Union of India and others (AIR 1987 SC 1086), Kishen Pattnayak and another v. State of Orissa (AIR 1989 SC 677), Bangalore Medical Trust v. B. S. Mudappa and others (AIR 1991 SC 1902) and Supreme Court Legal Aid Committee through its Hony . Secretary v . State of Bihar and others [(1991) 3 SCC 482].
11. In Malaysia, Muhammad Bin Ismail v. Tan Sri Haji Othman Saat (1982-2 MLJ 133) is the leading case on PIL. The appellant and 183 others had applied for a State land and received no response. After eight years they found that the land had been allotted to the respondent, Menteri Besar of Johor . A question arose whether the appellant had the locus standi in bringing the matter to the Court. W an Yahya J. held: "If they (public authorities) transgress any law or constitutional directive, then any public-spirited citizen, even if he has no greater interest than a person having regard for the due observation of the law, may move the courts and the courts may grant him the appropriate legal remedy in its discretion."
12. The PIL movement took it's flight in Pakistan with the case Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416) when a Larger Bench of the Hon'ble Supreme Court unanimously held that the rule of "locus standi" and "aggrieved person" can be relaxed whenever a question of public importance arises with reference to enforcement of fundamental rights. The apex Court went further and added that fundamental rights include not only the rights enumerated in Chapter 1 of Part II of the Constitution but also those envisaged by Article 2A and the Principles of Policy in Chapter II of Part II. It said: "While construing Article 184(3), the interp retative approach should not be ceremo nious observance of the rules or usages of interpretation, but regard should be had to the object and the purpose for which this Article is enacted, that is, this interpretative approach must receive inspiration from the triad of provisions which saturate and invigorate the entire Constitution, namely , the Objectives Resolution (Article 2A), the Fundamental Rights and the Directive Principles of State policy so as to achieve democracy , tolerance, equality and social justice according to Islam."
13. Commenting on the above-mentioned holding of the august Supreme Cour t of Pakistan Dr. Faqir Hussain wrote: "This triad of provisions together with the preamble of the Constitution and Article 4 occupy a place of pride in the scheme of our Constitution, as this combination extends the concept and scope of human rights beyond its traditional compass. The emerging catalogue of human rights is so comprehens ive that it includes all essential human rights, crucial for a civilised existence in the society . The preamble and Article 2A especially lay emphasis on the rights guaranteed by Islam. Indeed the right to have an access to justice is an important right guaranteed by2 the Islamic law. Article 4 gives every citize n the right to enjoy the protection of law and to be treated in accordance with law. This Article is stated to be the equivalent of the principle of the rule of law. The Chapters on Fundamental Rights and Principles of Policy ensure a vast array of fundamental rights including social, economic and political rights. The rights given in Chapter on Principles of Policy though not justiciable per se are actually an altruistic extension of fundamental rights and impose an obligation on the State to make necessary legislation for giving effect to such rights."
14. However , in subsequent cases it was clarified that PIL must be grounded in bonafide public interest. The courts should not allow the corridors of justice to be polluted by vested interests or unscrupulous persons.
15. In India, the constitutionality of PIL is founded on Articles 32 and 226 of the Indian Constitution while in Pakistan the relevant provisions are Articles 184(3) and 199 of the Constitution of Islamic Republic of Pakistan. These Articles give wide powers to the superior courts to enforce fundamental rights, ensure compliance with the rule of law and provide access to justice to all citizens. After Benazir Bhutto' s case, supra, the superior courts in Pakistan have entertained numerous PIL cases. In this respect reference may be usefully made to Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others (1999 SCMR 2883 ), Salahuddin Dharaj v. Province of Sindh through Secretary , Local Government Departm ent and 4 others (PLD 2013 Sindh 236), Iqbal Ahmad Dhudhi v. Federation of Pakistan and 5 others (2014 CLC 1348 ), Muhammad Qahir Shah and others v. Federation of Pakistan, Ministry of Railways, through Secretary , Islamabad and others (2014 YLR 2571 ), Habibullah Energy Limited and another v. WAPDA through Chairman and others (PLD 2014 SC 47), Ms. Imrana Tiwana and others v. Province of Punjab and others (PLD 2015 Lah. 522), Province of Sindh and others v. Lal Khan Chandio and others (2016 SCMR 48) and Mian Shabir Asmail v. Chief Minister of Punjab and others ( PLD 2017 Lah. 597 ).
16. "The raison d'etre of public interest litigation is to break through the existing legal, technical and procedural constraints and provide justice, particularly social justice, to a particular individual, class or community , who on account of any personal deficiency or economic or social deprivation or State oppression are prevented from bringing a claim before the court of law." I considered the Petitioner 's request for treating this petition as PIL in the light of the jurisprudence discussed above and, relying on the law enunciated by the Hon'ble Supreme Court of Pakistan in Mian Asghar Ali v. Government of Punjab through Secretary (Colonies) BOR, Lahore and others (2017 SCMR 118), vide order dated 20-01-2020, allowed it to be converted into a constitutional petition under Article 199 of the Constitution. The office re-numbered the petition according ly. Consequent thereupon, the Petitioner was directed to implead the following as respondents: (i) Province of the Punjab (through the Chief Secretary); (ii) Secretary , Labour & Hum an Resource Department; (iii) Secretary , Human Rights and Minorities Affairs Department, Government of the Punjab, Lahore; (iv) Additional Secretary , Punjab Treaty Implementation Cell (PTIC), HR & MA, Lahore; (v) Inspector General of Police, Punjab, Lahore; (vi) Deputy Commissioner , Bahawalpur; (vii) District Police Officer, Bahawalpur; (viii) Deputy Director , Social Welfare, Bahawalpur; (ix) District Incharge, Child Protection Bureau, Bahawalpur; (x) Deputy Director , Social Security , Bahawalpur; (xi) Deputy Director , Education Department, Bahawa lpur; and (xii) Director , Labour Welfare, Bahawalpur . In compliance with that direction the Petitioner submitted amended petition after which notices were issued to the newly-added respondents. On 29-1-2020, Babar Naseer , President of the District Brick Kilns Union, Bahawalpur , filed C.M.
No.567/2020/BWP for being impleaded as a respondent which was accepted by this Court. The learned counsel for the Petitioner then submitted amended memo of parties which was placed on record.
17. The learned counsel for the Petitioner submitted that forced labour was rampant despite constitutional and statutory prohibitions. Tens of thousands of men, women and children were suffering under it's yoke with no possibility of deliverance. He prayed that a writ of mandamus be issued to the Respondents to implement the laws in force.
18. The learned Assistant Advocate General submitted that Article 3 of the Constitution commands the State to ensure elimination of all forms of exploitation and in compliance thereof bonded labour was abolished in 1992 through the Abolition Act. This was followed by the Prohibition Act of 2016 and the Restriction of Employment Act to eradicate child labour . He contended that the government was fully conscio us of its obligations and was3 continuously striving to improve not only the legal framework but also enforcement of the existing laws. He added that it had made substantial progress in this regard and had achieved several milestones.
19. The Labour and Human Resource Department, Government of the Punjab, filed comments stating that situation regarding bonded labour had considerably improved in the province during the last decade particularly at the brick kilns. So far as child labour was concerned, the Department submitted, it was actua ted by (i) poverty , (ii) low wages of the adults, (iii) unemployment, (iv) migration to urban areas, (v) large families, (vi) children being cheaply available, (vii) non-existence of provisions for compulsory education, (viii) illiteracy and ignorance of parents, and
(ix) traditional attitudes. The government had, therefore, adopted three-pronged strategy to eradicate it: (a) legislative reforms, (b) child labour survey , and (c) social reforms through the Annual Development Programme.
The Prohibition Act of 2016 and the Protection of Employment Act were being strictly implemented and during the year 2019 following actions were taken under the said laws: The Punjab Prohibition of Child Labour at Brick Kilns Act, 2016 Year No. of inspectionsChild labourers foundBrick kilns sealedFIRs lodged Arrests 2019 10,362 959 5 846 602 The Punjab Restriction on Employment of Children Act, 2016 Year No. of inspectionsChild labourers foundBrick kilns sealedFIRs lodgedArrests 2019 30,676 2673 25 2304 1191
20. The Labour Department added that a four days special campaign regarding implementation of minimum wages under the Punjab Minimum Wages Act, 2019, was conducted from 8th to 11th January , 2020, in all the districts of Punjab during which industrial and commercial establishments, including the brick kilns sector , were inspected. The statistics of the said campaign are as under: Statute No. of inspections No. of violations found No. of prosecutions lodged Punjab Minimum Wages Act, 20196105 7534 7634
21. The Director , Labour Welfare Department, Bahawalpur Division, filed separat e comments. He submitted that implementation of the above-mentioned laws within his remit was quite satisfactory . In the year 2019 no case of bonded labour was reported in District Bahawalpur . However , 25 FIRs were registered under the Prohibition Act of 2016 during that period. A three days special campaign was conducted from 9th to 11th December , 2019, in industrial and commercial establishments and in 33 inspections only one violation of child labour laws was found in respect of which one FIR was registered. In another four-day campaign (from 8th to 11th January , 2020) in Bahawalpur Division regarding implemen tation of the Punjab Minimum Wages Act, 2019, a total of 13 inspections were conducted and 81 violations were found.
22. The Deputy Commissioner , Bahawalpur , and the Director , Labour Welfare, District Bahawalpur , submitted joint comments stating that despite limited financial and human resources they were "quite cognizant" of the situation and had taken all legal and administrative measures to curb the menace of bonde d labour and child labour . They further stated that Government of the Punjab had launched EBLIK-4D, a Project for Elimination of Bonded Labour in four districts of the province, including Faisalabad, Gujrat, Bahawalpur and Sargodha, under the Labour & Human Resource Department. The said project aimed at issuance of CNICs and Birth Registration Certificates, distribution of hygiene kits to brick kiln workers, arranging health screening camps for them and their families, arranging awareness sessions for them, providing education to their children and, lastly , extending veterinary services to their animals. According to the Deputy Commissioner , EBLIK-4-D was being implemented in Bahawalpur District with full vigour and had achieved the following results:
(a) 50 Non-Formal Education Centers were established at 50 brick kilns in which 2775 (1242 male and 1503 female) learners were enrolled. Out of them 40 Non-Formal schools were mainstreamed in Formal Government and Literacy Schools (Male:531, Female:582). 1113 learners were mainstreamed into nearby formal schools. At present 10 NFECs are running at brick kilns.
(b) 10 Adult Literacy Centers were established at brick kilns in which 219 adult learners were enrolled.
(c) Two teachers training programmes were conducted at the Government SD High School, Bahawalpur , and training certificates were awarded to 43 newly-recruited teachers.
(d) 3009 CNICs were processed and delivered to the brick kiln workers.
(e) 635 birth registrations were processed and delivered to the brick kiln workers.
(f) 1750 hygiene kits were distributed among NFE learners at school.
(g) Medical camps were held at 39 brick kilns for learners and brick kiln workers.
(h) 18 awareness sessions were conduc ted at brick kilns on the topic of "Socio Psycho & Early Child Education" and awareness of the Legal Aid Service Unit.
(i) Veterinary Assistant of the project provided veterinary treatment to 326 animals of the brick kiln workers and 32 cases were referred to veterinary hospitals.
23. The Punjab Treaty Implementation Cell submitted that there was a need for harmonization of domestic laws and their practical implementation in the light of international obligations. PTIC had conducted a gap analysis of 27 core Conventions out of which eight related to labour . The analysis had been shared with the concerned departments, including Labour and Resource Department, for necessary action.
24. Ch. Riaz Ahmad, Advocate, who appeared for Babar Naseer , President of the District Brick Kilns Union, Bahawalpur (Respondent No.16), submitted that all the brick kiln owners were faithfully complying with the labour laws, particularly those mentioned hereinabove. However , he complained that officials of the Labour Department unduly harassed them.
Discussion
25. Slavery has existed since ancient times but 1815 Declaration Relative to the Universal Abolition of the Slave Trade started a movement to eliminate it. The Slavery Convention of 1926 and the Supplementary Convention of 1956 finally outlawed it. Nevertheless, there are certain practices which are termed as modern slavery . They consist of forced labour (including labour trafficking), sex trafficking (including child sex trafficking), bonded labour and debt bondage, domestic servitude in the form of domestic work, forced child labour , unlawful recruitment and child soldiers, and State-imposed forced labour . The International Labour Organization' s Forced Labour Convention, 1930 (C.No.29) defines forced labour as "all work or service which is extracted from any person under the menace of penalty and for which the said person has not offered himself voluntarily" [Article 2(1)]. The Convention, however , provides for certain exceptions, such as military service for work of purely military characters, normal civic obligations, work as a consequence of conviction in a court of law and carried out under control of public authority , work in emergency , wars or other calamities and minor communal services (Article 2.2). The ILO categorizes forced labour into five key areas which include slavery and abduction, misuse of public and prison works, forced recruitment, debt bondage, and domestic workers under forced labour situation.
26. Bonded labour is one of the severest forms of human rights abuse in which the powerful become vicious masters and the weak turn into captive toilers. When a person becomes an oppres sed menial worker in exchange for repayment of a loan, he or she becomes a bonded labourer and the lender becomes his/ her owner . Often the debts are even passed on to the next generations leading to children being involve d in this bondage. The terms of this unwritten, interlinked labour-creditor contract are heavily biased in favour of the lender . As a result, the bonded labourers are forced to forfeit their basic human rights, including the right to emplo yment, to live freely , to exercise the freedom of association and even the right to sell the product of their labour at market value. The workers and their families are additionally subjected to physical and mental abuse. According to ILO's Committee of Experts on the Application of Conventions and Recommendations, debt bondage falls within the ambit of forced labour .
27. Child labour is condemned because it deprives children of their childhood, potential and dignity and is harmful for their physical and mental development. Child labour reinforces intergenerational cycles of poverty , undermines4 national economics and impedes progress towards the Sustainable Development Goals (SDGS).
28. The ILO's Worst Forms of Child Labour Convention (C.No.182) specifical ly includes forced labour , debt bondage and serfdom of children in it' s purview .
29. Global Slavery Index (GSI) 2018 ranks Pakistan eighth among 167 countries in the prevalence of modern slavery with an estimated 3,186,000 peop le living in this condition. Forced labour in the form of debt bondage is widespread in agriculture, brick kilns, mining, tanneries, carpet weaving, glass-bangle making, construction and fisheries. According to the Human Rights Commission for Pakistan, as per conservative estimates, in the brick kiln sector alone over 1.3 million persons are working under conditions of debt bondage. Further , vulnerability to modern slavery is higher in our country as compared to India and Bangladesh.
International commitments
30. The International Court of Justice has declared protection from slavery as an "obligation erga omnes arising out of human rights law." Pakistan is, therefore, committed to the world community to eradicate it from her soil and has ratified 36 Declarations and Conventions. She is a signatory to the United Declaration of Human Rights (UDHR) which prohibits slavery and servitude (Article 4) and provides for the right to free choice of employment (Article 23(1)). These rights were further elabora ted in the International Convention on Civil and Political Rights (ICCPR) and the International Convention on Econ omic, Social and Cultural Rights (ICESC R). Pakistan ratified the ICCPR in June 2010 and the ICESCR in April 2008. Other important international instruments regarding forced and child labour to which Pakistan is a party are:
(i) ILO Convention Concerning Forced or Compulsory Labour , 1930 (C.No.29), which calls for abolition of forced labour and is the most widely ratified ILO instrument. Pakistan ratified it on 23rd December 1957. The basic obligation of the State which ratifies this Convention is "to suppress the use of forced or compulsory labour in all its forms" [Article 1(1)]. This implies an obligation for the State both to abstain and to act. The State must neither extract forced labour itself nor tolerate its extraction by others. State parties to the Convention have to ensure that "illegal extraction of forced or compulsor y labour shall be punishable as a penal offence" and that "the penalties imposed by law are really adequate and are strictly enforced." (Article 25).
(ii) The ILO Abolition of Forced Labour Convention, 1957 (C.No.105) which Pakistan ratified on 15th February 1960. This Convention binds every member of the International Labour Organization which ratifies the Convention to suppress and not to make use of any form of forced or compulsory labour -
(a) as a means of political coercion or education or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system;
(b) as a method of mobilizing and using labour for purposes of economic development;
(c) as a means of labour discipline;
(d) as a punishment for having participated in strikes;
(e) as a means of racial, social, national or religious discrimination.
(iii) ILO's Minimum Age Convention, 1973 (C.No.138) that prescribes the minimum legal age for admission to any employment. Pakistan ratified this Convention on 6th July 2006 and set that age at 14 years.
(iv) The UN Supplementary Convention on the Abolition of Slavery , the Slave Trade, and Institutions and Practices Similar to Slavery , 1956. It obliges the States parties to abolish debt bondage, serfdom and any institution or practice whereby a child or young person under the age of 18 years is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour (Article 1). Pakistan ratified this Convention on 20th March 1958.
(v) United Nations Convention on Rights of the Child (CRC) (1989) which affirms the children' s right to special protection. This Convention not only recognizes their civil and political rights but also guarantees protection of their economic, social, cultural and humanitarian rights. Article 32 thereof which is of particular importance for our present purposes is reproduced hereunder: Article 32
1. States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child' s education, or to be harmful to the child' s health5 6 7 8 or physical, mental, spiritual, moral or social development.
2. States Parties shall take legislativ e, administrative, social and educational measures to ensure the implementation of the present article. To this end, and having regard to the relevant provisions of other international instruments, States Parties shall in particular:
(a) provide for a minimum age or minimum ages for admission to employment;
(b) provide for appropriate regulation of the hours and conditions of employment;
(c) provide for appropriate penalties or other sanctions to ensure the ef fective enforcement of the present article.
(vi) The ILO's Worst Forms of Child Labour Convention, 1999 (C.No.182) which declares debt bondage as one of the worst forms of child labour . Pakistan ratified it on 11th October 2001. For the purposes of this Convention the worst forms of child labour comprise:
(a) all forms of slavery or practices similar to slavery , such as the sale and trafficking of children, debt bondage and serftdom and forced or compulsory labour , including forced or compulsory recruitment of children for use in armed conflict; procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances;
(b) The use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties;
(c) Work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children (Article 3).
This Convention obligates each Member to design and implement programs of action to eliminate as a priority the worst forms of child labour [Article 6(1)]. It also requires the State parties to take into account the importance of education in eliminating child labour and adopt ef fective and time-bound measures to:
(a) prevent the engagement of children in the worst forms of child labour;
(b) provide the necessary and appropriate direct assistance for the removal of children from the worst forms of child labour and for their rehabilitation and social integration;
(c) ensure access to free basic education, and, wherever possible and appropriate, vocational training, for all children removed from the worst forms of child labour;
(d) identify and reach out to children at special risk; and
(e) take account of the special situation of girls. [Article 7(2)].
31. It is also pertinent to point out that elimination of modern slavery by 2030 is part of Goal 8 (Target 8.7) of the Sustainable Development Goals of which Pakistan is a party .
Command of the Constitution
32. Article 3 of the Constitution commands that the State shall ensure elimination of all forms of exploitation and gradual fulfillment of the fundamental principle "from each according to his ability and to each according to his work." Article 4 stipulates that every citizen and every other person for the time being in Pakistan has an inalienable right to enjoy the protection of laws and to be treated in accordance with law. Article 9 sanctifies right to life and ordains that no one shall be deprived of life or liberty and Article 10 provides protection against illegal detention.
Article 11 prohibits slavery , all forms of forced labour , human trafficking and child labour . Article 14 makes dignity of man inviolable, Article 15 guarantees freedom of movement through Pakistan and Article 18 freedom of trade, business and profession. Article 25 affirms the principle of equality and assures that there shall be no discrimination. All citizens are equal before law and are entitled to equal protection of law. Article 25A guarantees right to free and compulsory education to all children of the age five to sixteen years as determined by law. Article 27 provides for protection against discrimination in services. Finally , the Principles of Policy set out in Articles 33, 37 & 38 require the State to promote social justice and social and economic wellbeing of the people. They also oblige the State to ensure humane work conditions as well as to ensure that women and children are not employed in unsuitable working conditions.
33. A cumulative reading of the above-mentioned Articles shows that the State has a constitutional obligation to abolish all manifestations of slavery , forced and child labour and free Pakistan of this ignominy .
Statutory provisions9
34. The Legislature has enacted a good number of laws to protect the rights of labour in Pakistan which cover almost all necessary aspects. So far as child labour is concerned, the Mines Act, 1923, was probably the first enactment which dealt with the subject. Section 26 of the said Act ordained that no child shall be employed in a mine or to be present in any part of a mine which is below ground. In 1929 a Royal Commission on Labour was established to inquire into various matters relating to labour in India. The Commission' s report brought to light many inequities and shocking conditions particularly relating to women and children. In pursuance of it's recommendations another law on the subject called the Children (Pledging of Labour) Act, 1933, was enacted. This was followed by many others. Some of the most important enactments presently in force in Punjab that prohibit employment of children in dif ferent occupations are:
(i) Children (Pledging of Labour) Act, 1933;
(ii) Punjab Compulsory Education Act, 1994;
(iii) Punjab Destitute and Neglected Children Act, 2016;
(iv) Punjab Restriction on Employment of Children Act, 2016.
In addition to the foregoing, there are also sector-specific legislations like:
(i) Mines Act, 1923;
(ii) Factories Act, 1934 (adopted by province of the Punjab through Amendment Act of 2012);
(iii) The Road Transport W orkers Ordinance, 1961;
(iv) The Shops and Establishments Ordinance, 1969 (adopted by province of the Punjab through Amendment Act of 2014); and
(v) Punjab Prohibition of Child Labour at Brick Kilns Act, 2016.
35. The issue of bonded labour was highl ighted for the first time in 1988 when brick kiln workers sent a telegram to the then Hon'ble Chief Justice of Pakistan pleading for protection against inhuman treatment of their employers.
The august Supreme Court took cognizan ce holding that it was a case of public importance for the enforcement of fundamental rights regarding bonded labour practices. In this case, which is reported as Darshan Masih alias Rehmatay and others v. The State (PLD 1990 SC 513), the Court declared bonded labour unconstitutional and directed the government to introduce legislation to stamp it out. Consequent thereupon the Parliament enacted Bonded Labour System (Abolition) Act, 1992 (herein referred to as the "Abolition Act"), which abolished the bonded labour throughout Pakistan, discharged bonded labourers from obligation of bondness and put an end to outstanding loans. It also criminalized employment by way of bonded labour and various other acts ancillary thereto. Subsequently , it also framed Bonded Labour System (Abolition) Rules, 1995, for carrying out the purposes of the Abolition Act. By virtue of the Eighteenth Amendment in the Constitution the subject on which this statute was enacted devolved on the provinces. Thereupon the province of Punjab adopted it by the Punjab Bonded Labour System (Abolition) (Amendment) Act, 2012, with certain amendments.
36. It may not be out of place to menti on here that some brick kiln owners assailed various provisions of the Abolition Act before the Federal Shariat Court in petitions under Article 203-D of the Constitution as being repugnant to the Injunctions of Holy Qur'an and Sunnah. In it's judgment reported as Syed Shabbir Hussain Kazmi and others v. Government of Punjab and others (PLD 2006 FSC 1) the Court observed that Islam had etched out fundamental rights of mankin d which cannot be denied to the people of Pakistan. Citing a number of verses from the Holy Quran and quoting traditions (Ahadith) of the Prophet (peace be upon him) it held that forced labour cannot be countenanced. Relevant excerpt from the judgment is reproduced hereunder: "Islam is the greatest emancipator of mankind and zealously upholds the dignity of worker in particular . Perusal of the Ayats of Holy Qur'an and the Ahad iths of Prophet (Peace be upon him), quoted above would prove that exploitation of down-trodden and toiling labourer is strictly forbidden so that he is saved from eking out his livelihood in abject servitude. We are absolutely clear in our mind that the Peshgi system being vague and unconscionable, besides being exploitative in nature, is violative of the Injunctions of Islam."
37. The Federal Shariat Court dismissed the aforementioned petitions and declared that the "Bonded Labour System (Abolition) Act, 1992, as a whole, is a beneficial statutory dispensation of vital importance as it is intended to curb and put to irreversible end the reprehensible institution of bonded labour not only in the brick kiln industry10 but also in other sectors in the country like Haris tenants-at-will, labourers in mining industry , glass bangle industry , tanneries etc."
38. In Punjab, the Abolition Act is supplemented by the Punjab Prohibition of Child Labour at Brick Kilns Act, 2016, which aims to further regulate labour at the brick kilns in the province. It ordains that every engagement or appointment of a worker shall be subject to written contract in the prescribed form duly executed by the worker and the employer . It also restricts the amount of money that the employer may advance (peshgi) to the worker to Rs.50,000/- and requires maintenance of record in respect thereof. This Act recognizes that the environment at the brick kiln is detrimental for children and prohibits their employment. The employer as well as the guardian or parent of the child are liable to be punished with simple imprisonment which may extend to six months and fine upto Rs.500,000/- in the event of violation. Besides, the brick kiln can be sealed. The said Act also requires the government to appoint inspectors and constitute District Labour Committees for it' s enforcement.
39. Sections 370 & 371 of the Pakistan Penal Code, 1860 (PPC), criminalize slave trade while Sections 371-A & 371-B PPC condemn selling and buying of persons for purposes of prostitution and make them penal of fences.
40. Section 374 PPC criminalizes unlawful compulsory labour . It stipulates that whoever unlawfully compels any person to labour against his will shall be punished with imprisonment for a term which may extend to five years or with fine or with both. The said offence is cognizable and non-bailable. Wrongful constraint and wrongful confinement is also punishable under various provisions of Chapter XVI-A of PPC.
Institutional framework
41. The prime responsibility of administration of the labour laws mentioned hereinabove rests on the Labour and Human Resource Department and the inspectors appointed by the government. However , the Legislature has also provided for constitution of certain committees under various laws.
(1) Provincial V igilance Committee Section 15-A of the Abolition Act ordains that the government shall constitute a Provincial Vigilance Committee which shall perform the following functions:
(a) review implementation of the Abolition Act and the action plan relating to abolition of bonded or forced labour and rehabilitation of persons freed from bonded labour;
(b) monitor the working of District Vigilance Committees constituted under the Act and the rules made thereunder; and
(c) address the concerns of national and international bodies on matters relating to the bonded or forced labour .
(2) District V igilance Committee Section 15 of the Abolition Act requires the government to set up Vigilance Committees at the district level consisting of elected representatives of the area, representatives of the District Administration, Bar Associations, press, social services organizations, representatives of recognized workers' organizations, representatives of recognized employers' organizations, and representatives of the Public Prosecution and the Labour and Human Resource Departments of the government. It is charged with the following duties:
(a) to advise the District Administration on matters relating to effective implementation of law and to ensure its implementation in a proper manner;
(b) to help in rehabilitation of the freed bonded labourer;
(c) to keep an eye on the working of the law;
(d) to provide bonded labourers such assistance as may be necessary to achieve the objectives of law;
(e) to create awareness among labourers and employees about their rights and liabilities under the Abolition Act; and
(f) to resolve disputes among labourers and employers referred to it by the authorized of ficer.
A Vigilance Committee may constitute a sub-committee from amongst its members for carrying out the above- mentioned functions.
(3) District Labour Committee Section 9 of the Punjab Prohibition of Child Labour at Brick Kilns Act of 2016 empowers the government to constitute District Labour Committee in every district for effective enforcement of the said Act. These committees are competent to issue such directions to the inspectors, owners/ occupiers and workers at a brick kiln as may be necessary .
(4) Provincial Committee on Child Labour Section 4 of the Punjab Restriction on Employment of Children Act, 2016, mandates that the government shall constitute a Provincial Committee on Child Labour to advise it for appropriate, legislative, administrative and other measures for eradication of child labour and, subject to Article 11 of the Constitution, to propose the minimum age for purpose of employment in Punjab.
41. In addition to the foregoing, there are three other bodies which need to be mentioned:
(1) National Commission on the Rights of Child The Parliament has enacted the National Commission on the Rights of Child Act, 2017, and established a national commission for discharge of the country' s obligations regarding rights of the children, particularly the CRC. It is, inter alia, tasked to examine existing and proposed legislations and adminis trative instruments and make recommendations; to liaise with the provincial bodies; and to recommend measures for effective implementation of laws and policies for the time being in force.
(2) Child Protection and W elfare Bureau The Punjab Destitute and Neglected Children Act, 2004, has established Child Protection and Welfare Bureau to provide care, rehabilitation, education and training to the destitute and neglected children.
(3) Criminal Justice Coordination Committee Chapter XI of the Police Order , 2002, provides for the establishment of a Criminal Justice Coordination Committee in every district consisting of -
(a) District and Sessions Judge (Chairperson);
(b) Head of District Police;
(c) District Public Prosecutor;
(d) District Superintendent Jail;
(e) District Probation Of ficer;
(f) District Parole Of ficer; and
(g) Head of Investigation (Secretary).
The above-mentioned Committee performs the following functions:
(a) keep under review the operation of the criminal justice system and work towards improvement of the system as a whole;
(b) promote understanding, co-operation and coordination in the administration of the criminal justice system;
(c) exchange information and give advance notice of local developments, which may affect other parts of the system;
(d) formulate co-ordinated priorities and plans to give ef fect to locally agreed policies;
(e) raise relevant issues with the appropriate authorities;
(f) promote the spread of good practices; and
(g) review the implementation of any decisions taken by the Criminal Justice Coordination Committee.
43. Last but not least, Rule 9 of the Bonded Labour System (Abolition) Rules, 1995, provides for establishment of Bonded Labour Fund for rehabilitation and welfare of freed bonded labourers. Likewise, Section 18 of the Punjab Destitute and Neglected Children Act, 2004, provides for setting up Funds for welfare of the children falling within its ambit.
44. The reports and statistics submitted by Respondents No.4 to 14 may look impressive. The government has come up with similar reports in the past. However , the fact remains that bonded and child labour thrives. The above discussion shows that we have a legal and policy framework in place to combat it. A number of bodies, national and international, and NGOs contend that it needs to be improved and have also made valuable suggestions in this regard but real problem lies in failure of the State to remedy the root causes of this menace and not enforcing the existing laws. The National Commission for Human Rights Pakistan, a State institution, in it' s report observed:11 12 "While Pakistan' s slavery abolition laws could be improved and require review , they suffer from ineffective implementation. Majority of the bonded labour victims who got freedom were released under the habeas corpus (unlawful detention) petitions while hardly any convictions have taken place under the Bonded Labour System (Abolition) Act 1992. District Vigilance Committees (DVCs) formed by the government with a legal mandate to free bonded labourers and work towards their rehabilitation remain dormant and ineffective. A hefty amount of 100 million rupees allocated by the federal government for the rehabilitation of freed bonded labour in 2000 remains unaccounted for to date. With a lack of effective rehabilitation efforts and no available alternative sources of income, it comes as no surprise that numerous freed from bonded labour are forced back into the systemic cycle of bondage."
45. This Court has also noticed poor implementation of laws. During the proceedings Respondent No.16 was asked whether he had executed employm ent contracts with all his workers in terms of Section 3 of Prohibition Act of 2016. He was initially evasive but then stated that he would execute them as soon as the prescribed form is provided to him by the authorities.
46. We are trapped in a vicious circle. This can be broken only by a holistic approach. Nevertheless, the first step is the effective enforcement of the laws on the Statute Book which is the duty of the government and its functionaries.
In R. v. Commissioner of Police for the Metropolis [All ER (1968)2 QB 1 18] Lord Denning held: "A question may be raised as to the machinery by which he (Commissioner of Police) could be compelled to do his duty. On principle, it seems to me that once a duty exists, there should be a means of enforcing it. This duty can be enforced. I think, either by action at the suit of the Attorney-General or by the prerogative order of mandamus."
Directions
47. Article 199(1)(a)(i) of the Constitution empowers this Court to command a person performing, within its territorial jurisdiction, functions in connection with affairs of a federation, a province or a local authority , to do anything he is required by law to do. Therefore, Respondents No.4 to 15 are directed to ensure implementation of all relevant laws in letter and spirit and faithfully discharge their duties and perform their functions for eradication of forced and child labour from all sectors of the economy , including (but not limited to) agriculture, brick kilns, mining, tanneries, carpet weaving, glass-bangle making, construction and fisheries. They are reminded that clause (fa) of Section 2 of the Abolition Act defines the term forced labour as "the work extracted from a person under threat of penalty or the work for which a person has not of fered himself voluntary ." It includes bonded labour .
48. Without prejudice to the generality of the foregoing, it is directed that -
(i) The Secretary , Labour and Human Resource Department, Punjab, shall cause registration of all brick kilns under the Factories Act, 1934, within six months commencing from 01-2-2020.
(ii) The Deputy Commissioner of every district shall arrange issuance of CNICs to brick kiln workers and registration of their children by NADRA within six months in collaboration with the District Labour Officer concerned and the brick kiln owners.
(iii) No child below the age of 14 years shall be employed or permitted to work at any brick kiln.
(iv) Every engagement or appointment of a worker at a brick kiln shall be subject to a written contract in the prescribed Form as required under Section 3 of the Punjab Prohibition of Child Labour at Brick Kilns Act, 2016.
(v) No brick kiln owner or manager shall give any advance (peshgi) to a worker engaged by him exceeding Rs.50,000/-
(vi) Every brick kiln owner/ manager shall maintain a Register of Advances in the prescribed manner . In every case where he gives an advance to his worker , he shall enter the same in the said register and also mention payback schedule and endorse a copy thereof to the Inspector of the area notified by the government.
(vii) The Inspectors appointed under Section 11 of the Punjab Prohibition of Child Labour at Brick Kilns Act, 2016, subject to the terms of their appointment, shall ensure execution of employment contracts and maintenance of prescribed registers.
(viii) No industrial, commercial or agricultural establishment, factory , mine, workshop, business, trade, industry or other place where any economic activity is carried on shall employ or permit a child below 15 years to work as mandated by the Punjab Restriction on Employment of Children Act, 2016. It shall also not engage any adolescent13 (15-18 year-olds) to perform any hazardous work in the establishment as specified in the Schedule to the said Act.
Every such establishment shall maintain a register in respect of adolescents in terms of Section 9 of the said Act and also notify his appointment to the Inspector concerned under Section 7. The work hours of every adolescent shall be in accordance with Sections 5 & 6.
(ix) The government shall notify District Vigilance Committee (DVC) for every district within 30 days (unless already done) in terms of Section 15 of the Punjab Bonded Labour (Abolition) Act, 1992. The DVCs shall meet a least once a month.
(x) The government shall notify District Labour Committee (DLC) for every district within 30 days (unless already notified in terms of Section 9 of the Punjab Prohibition of Child Labour at Brick Kiln Act, 2016). The DLCs shall hold meeting at least once a month.
(xi) All the Inspectors shall submit reports to the concerned DVC/ DLC through proper channel on monthly basis for evaluation and monitoring.
(xii) The DVCs and DLCs shall launch awareness campaigns for workers, more particularly brick kiln workers, regarding their rights provided in the labour laws.
(xiii) The Secretary , Labour & Human Resource, Punjab, and the Commissioner , Employees' Social Security Institution, shall take immediate steps for registration of brick kiln of workers under the Provincial Employees Social Security Ordinance, 1965 and provision of social security benefits to them. This exercise shall be completed within the next six months positively .
(xiv) The brick kiln owners shall pay statutory contribution to the Employees' Social Security Institution in accordance with law and if they fail to do so their dues shall be recovered with penalties under Section 23 of the Provincial Employees Social Security Ordinance, 1965, as arrears of land revenue.
(xv) The Secretary Health, Punjab, shall depute lady health visitors to attend families of brick kiln workers on regular basis and provide immunization to their children.
(xvi) The Secretary Education, Punjab, shall direct the relevant departments to make arrangements for enrolment of workers' children in schools and establishment of literacy centres.
(xvii) The Provincial Vigilance Committee constituted under Section 15-A of the Punjab Bonded Labour (Abolition)
Act, 1992, shall formulate an action plan to prevent return of freed labourers into debt bondage through relief, rehabilitation, welfare and social assistance programmes through targeted and transparent utilization of Bonded Labour Fund as provided in the Bonded Labour System (Abolition) Rules, 1995.
(xviii) The Sessions Judge in every district shall nominate a dedicated magistrate for disposal of cases registered under the labour laws.
(xix) Henceforth forced labour and child labour shall be on the agenda of every meeting of the Criminal Justice Coordination Committee. The said Committee shall review disposal of prosecutions under labour laws and, subject to Article 11 of the Police Order , 2002, issue such directions and take such steps as may be necessary for implementation of this order .
(xx) The government shall ensure implem entation of the Minimum Wages Act, 2019, in letter and spirit across the board.
(xxi) There shall be zero-tolerance for violation of the labour laws particularly the Punjab Bonded Labour System (Abolition) Act, 1992; the Punjab Prohibi tion of Child Labour at Brick Kilns Act, 2016; the Punjab Restriction on Employment of Children Act, 2016, and the Punjab Minimum Wages Act, 2019 . Criminal proceedings shall be initiated for all offences. However , no illegal harassment shall be caused to any employer . In case of any complaint against any field officer of the Labour Department the employer may approach the District Complaint Officer notified under Notification No.4507/EXEC-III dated 31.12.2018 issued by the Government of the Punjab.
Doctrine of Continuing Mandamus
49. The writ of mandamus is of ancient origin but the doctrine of continuing mandamus is a recent innovation.
Continuing mandamus, which is also referred to as structural interdict or structural injunction, consists of a series of orders issued by a court of law over a period of time directing an authority to perform its statutory functions or duties. The court does not dispose of the case but keeps it pending so that it can supervise the performance of the duty and execution of the mandate. This happens in a situation which cannot be remedied instantaneously and requires a solution over a long period of time some times even years. A scholar discussed the efficacy of this doctrine as under: "The doctrine of continuing mandamus serves several functions especially in a case where the executive does not carry out its functions effectively and either does not implement a statutory function or duty, or does not exercise its discretion wisely . The judiciary has been seen as an effective tool by the citizens to enforce the law and uphold justice when the executive has not done that. The remedy is often considered useful especially in the case of children' s rights where the executive has continuously failed to implement. Thus the only remedy left for the rights of children is the PIL. ...[and] the court can use its powers under continuing mandamus to address this issue."
50. A number of examples may be cited from various jurisdictions where courts have applied the doctrine of continuing mandamus. In Canada, the case of Doucet-Boudreau v. Nova Scotia (Minster of Education) [2003]
3. S.C.R. 3, (2003 SCC 62) involved a question regarding realization of minority language education rights. The trial court ordered the province to make best efforts to provide homogeneous French-language facilities and programmes by particular dates and also directed it to submit periodical reports on status of those efforts. The Supreme Court of Canada held that the trial court could retain post-judgment supervisory jurisdiction and hear progress reports and would not become functus officio. It added that "the meaningful protection of Charter Rights, and in particular the enforcement of s.23 rights, may in some cases require the introduction of novel remedies. A superior court may craft any remedy that it considers appropriate and just in the circumstances. In doing so, courts should be mindful of their roles as constitutional arbiters and the limits of their institutional capacities."
51. Similarly , in Metro Manila Development Authority v. Concerned Residents of Manila Bay [574 SCRA 661 (2008)], the Supreme Court of Philippines issued a writ of continuing mandamus to the government to clean up, rehabilitate and preserve the Manila Bay .
52. In India, Bandhua Mukti Morcha v. Union of India [(1984) 3 SCC 161] marked the Supreme Court' s initial efforts to oversee the implementation of its orders. This landmark constitutional case concerned the plight of labourers, dealt with gross violations of fundamental rights, bonded labour and inhumane working and living conditions, with no access to necessities like clean water . The Court intervened by issuing wide-ranging remedial orders, encompassing twenty-one directiv es to the state government, among other things, to constitute a Vigilance Committee in order to implement the (Indian) Bonded Labour System (Abolition) Act, 1976, in accordance with the Court' s guidelines; to work in coordina tion with District Magistrates for identif ication and release of bonded labourers; to draw up a scheme for their rehabilitation within the prescribed time period and implement the same; take steps to ensure payment of minimum wages within six weeks; and various other directions to ensure safety standards and better working and living conditions. In Sheela Barse v. Union of India [1986 SCALE (2) 230], a PIL concerning violations of constitutional and statutory rights of children in custodi al restraints, the Supreme Court of India gave numerous directions to different state governments, prison authorities, State Legal Aid Board, and made several recommendations to the legislature to enact a central legislation. Justifying its monitoring, the Court noted: "Indeed as the relief is positive and implies affirmative action, the decision are not 'one-shot' determinations but have on-going implications. Remedy is both imposed, negotiated or quasi-negotiated. Therefore, what corresponds to the stage of final disposal in an ordinary litigation is only a stage in the proceedings."
53. Nevertheless, it was Vineet Narain and others v. Union of India and another (AIR 1998 SC 889), where the Supreme Court coined medium of contin uing mandamus. The Court monitored the investigation of the case to ensure that the authorities abide by its directions. It held that "the medium of continuing mandamus was a new tool forged because of the peculiar needs of the matter ." Thereafter , the superior courts in India granted relief of continuing mandamus in a number of cases. For this reference may be made to M.C. Mehta v. Union of India [(2008) 1 SCC 407], Swaraj Abhiyan (IV) v. Union of India (AIR 2016 SC 2953 ), Manushi Sangthan Delhi v.
Govt. of Delhi (Delhi) [2010(168) DLT 168], and Mahendra Lodha v. State of Rajasthan [RLW 2007(2) Raj.
1428].14 15
54. In Pakistan, the august Supreme Court issued directions analogous to the nature of continuing mandamus without specifying that it was following the doctrine. First example is of Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd (PLD 2010 SC 1109) where the apex Court gave a numbe r of directions to the authorities while controlling investigation of a criminal case. Similarly , in the first substantive verdict of the 'Panama case' reported as Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif (PLD 2017 SC 265) dated 20 April 2017, the Hon'ble Supreme Court of Pakistan by a 3:2 majority issued directions for constitution of a joint investigation team
(JIT) to probe, inter-alia, the sources of income through which the then Prime Minister Nawaz Sharif and his family members had come to hold assets in their names. The JIT was directed to submit reports to the Supreme Court on fortnightly basis and to complete the investigation within 60 days. The Court reserved the power to issue further directions on receipt of the final report which it did through final order that was announced on 28 July 2017 cited as Imran Ahmed Khan and others v. Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan (PLD 2017 SC 692). The Court disqualified the Prime Minister from being member of the National Assembly and directed the National Accountability Bureau to file reference against him and his family members. The Court also requested the Hon'ble Chief Justice of Pakistan to supervise and monitor implementation of the judgment as well as the proceedings conducted by the NAB and the Accountability Court.
55. However , it was in Asghar Leghari v. Federation of Pakista n and others (PLD 2018 Lah. 364) that a learned Judge of this Court specifically mentioned the principle of continuing mandamus and stated that he was following it.
After that this doctrine was pressed into service in some other cases, including Mall Road Traders Association v.
The Deputy Commissioner , Lahore (2019 CLC 744) and Sheikh Asim Farooq v. Federation of Pakistan (PLD 2019 Lah. 664 ).
56. The above discussion shows that the doctrine of continuing mandamus, which is being followed in other countries, also forms part of our jurisprudence. Therefore, in the peculiar circumstances of the case, I am not inclined to dispose of this petition and direct the office to fix it for hearing before any available Bench on 22-09- 2020 . Respondents No. 4 to 15 shall submit progress reports in this Court on the said date.
57. The Deputy Registrar (Judicial) of this Bench shall send copies of this order to all concerned, including the District & Sessions Judges of the Punjab. . Jacob, "Safeguarding the Public Interest: New Institutions and Procedures" , in Cooper and Dhavan (Eds.) Public Interest Law , (1985), p.54. . Faqir Hussain, Public Interest Litigation in Pakistan, https://www .sdpi.org/publications/files/W5-Public%20Interest%20Litigation.pdf . Ibid. . http://library .fes.de/pdf-files/bueros/pakistan/10382.pdf. . https://www .unicef.org/protection/57929_child labour .html . https://www .globalslaveryindex.org . National Commission for Human Rights (Pakistan), "Towards Abolishing Bonded Labour in Pakistan" , available at: https://nchr .gov.pk/wp-content/uploads/2019/01/Bonded-Labour .pdf. . Barcelona Traction, Light and Power Co. Ltd (Belgium v . Spain) ICJ Reports, 1970, p.32 . Article 7 of the Constitution defines State as the Federal Government, Majlis-e-Shoora (Parliament), a Provincial Government, a Provincial Assembly , and such local or other authorities in Pakistan as are by law empowered to impose any tax or cess. . Also see: Re Enforcement of Fundamental Rights ( 1989 SCMR 139 ). . See: note 7, supra. . See: Friedrich Elbert Stiftung (FES), Pakistan, "Breaking the Bondage" , available at https://library .fes.de/pdf- files/bueros/pakistan/10382.pdf . See: note 7, supra.1 2 3 4 5 6 7 8 9 10 11 12 13 . Shreemanshu Kumar Dash, Writ of Continuing Mandamus in matters of PILs: A Step towards Development of Environmental Jurisprudence : IOSR Journal of Humanities and Social Science (IOSR-JHSS), Volume 22, Issue 8, Ver. 9 (August. 2017) PP 26-35 available at www .iosrjournals.org . Sheela Basre v Union of India & Ors [JT 1988(3) 15].