WAQAR AHMAD SETH, C.J.---Though this consolidated judgment/order , this Court intends to decide the instant writ petition as Well as connected petitions bearing Nos.109, 431, 5635, 6006, 6103 and 6220-P of 2018, 758, 1845, 2246, 2391, 2844, 3303, 3391, 3449, 3685, 3739, 4427, 4602, 4630, 4631, 4635, 4882, 4901, 4951 and 5056-P of 2019 and COC No. 632-P/2019 in W.P. No. 1334-P/ 2018 and 628-P/2019 in W.P. No.3931-P/2018, being identical in nature as well as facts.
2. By invoking the writ jurisdiction of this Court under Article-199 of the Constitution of Islamic Republic of Pakistan, 1973, Shabbir Hussain Gigyani, advocate, hereinafter called the petitioner , has impugned the Khyber Pakhtunkhwa Continuation of laws in erstwhile PATA Act, 2018 (the Act, 2018 ) and Khyber Pakhtunkhwa, Continuation of laws in erstwhile FATA Act, 2019 (the Act, 2019 ) as null, void, ab-initio, of no legal effect and ultra vires of the Constitution whereby all the laws, regulations, rules, notification, bye-laws including Action (in aid of Civil Powers) Regulation, 2011 any other legal instruments applicable in the erstwhile PATA/FATA and having had the force of law under or in pursuance of Article 247 of the Constitution of Islamic Republic of Pakistan, 1973 (now omitted) have been continued and remained in force; with further prayers to declare the establishment of Internment Centers under Chapter-V of the Action (in Aid of Civil Powers) Regulation, 2011, unlawful and direct the respondents to hand over all the internees to the respective Courts of competent jurisdiction for their trial / treatment as per law; and restrain the respondents from promulgation of any law, rules, regulation, bye-laws, notifications or any other legal instrument which discriminate the public of the erstwhile FATA/PATA from the rest of the Province of Khyber Pakhtunkhwa or in violation of the Constitution and Fundamental rights of the inhabitants of the area.
In connected Writ Petition No. 5056-P of 2019 , petitioner has prayed for issuance of a writ declaring the Khyber Pakhtunkhwa Actions (in Aid of Civil Powers) Ordinance, 2019 (KP Ordinance No. V of 2019 ) promulgated on 5th August, 2019, as null, void ab-initio, ultra vires of the Constitution and of no legal effect; with further prayers to declare the Internment Centers established under Chapter-V of the Action (in Aid of Civil Powers) Regulation, 2011 or made legalize / continued under the impugned Ordinance as null, void ab-initio, of no legal effect and ultra vires of the Constitution and direct the respondents to hand over all the internees to the respective Courts of Competent Jurisdiction; and restrain the respondents from promulgation of any laws, rules, regulation, bye-laws, notification or any other legal instruments which discriminate the public of KP Province from the rest of the Country or in violation of the Constitutional and Fundamental rights of the inhabitants of the KP Province.
W.Ps. Nos. 2391, 4602 and 4882-P of 2019 .
Facts in brief are that, petitioner's son Kaleem Ullah, who was working at Shiraz Restaurant was taken by Political Administration/ Security Forces on 17.6.2012 and since then till date he has been detained. Petitioner filed two constitutional petitions before this Court, which were disposed with certain observ ation/directions to respondents, but to no avail, hence this petition with the prayer to declare the Actions (in Aid of Civil Powers) Regulation, 2011, illegal, unlawful, void, discriminatory , arbitrary and being against the spirit of Constitution of Islamic Republic of Pakistan, 1973; with further prayers to declare all the detenues who are at internment centers be treated in accordance with law of the land and their undue internment without any cause and jurisdiction is illegal and unlawful and without jurisdiction and against the law; direct that trials of the detenues be sent to the competent Court constituted under the law and afford all the detenues opportunities to due process of law; declare further that all delays caused in the initiation / conc lusion of the trials of the detenues with respondents be declared to be illegal, unlawful and without jurisdiction; direct the release of petitioner's son from the internment center forthwith for being in unlawful and illegal custody for more than seven years.
In the connected writ petitions quoted above, either the alleged detenues are still missing or have been interned at different Internment Centers, as per reports, hence the instant writ petitions.
3. In essence the case of petitioner is that on May 29, 2018, Regulation to provide for an Interim System of Administration of Justice, Maintenance of Peace and Good Governance, in the Federally Administered Tribal Areas was promulgated, called the FATA Interim Governance Regulation, 2018, wherein through section 3, the Frontier Crimes Regulation, 1901 (amended in 2011) was repealed. On 31st May, 2019, the President, assented the Act, called the Constitution (Twenty-fifth Amendment) Act, 2018, promulgated on June 5, 2018, thereby" omitting the Article 247 of the Constitution and altered Article 246, bringing FATA/PATA within the limits of Khyber Pakhtunkhwa.
The said FATA Interim Governance Regulation, '2018, were challenged before this Court through Constitutional'
Petition bearing No. 3098-P of 2018 titled Ali Azim Afridi v. Federation of Pakistan and others . The said petition came up for hearing before this Court on 30.10.2018 and while allowing the petition, declared the FATA Interim.
Governance Regulation, 2018 to the extent of allowing Commissioner to act as Judge; Council of Elders deciding Civil and Criminal matters; Constitution of Qaumi Jirga; modified application of Chapters VIII and XLII of the Code for Security; third schedule; administered area, as ultra vires.
4. Felt aggrieved, the Federation/respondents assailed the said judgment before apex Court in Civil Petition No.773-P of 2018, which was decided on 16th January , 2019 with certain observations/directions to Provincial Government to do the needful within six months. Thereafter the matter was proceeded with snail pace and this Court was approached by the locals of newly merged area for want of jurisdiction etc, which were entertained to some extent, but sensing the situation, this Court through Reference No.01 of 2019 in pursuance of Constitution (Twenty-Fifth Amendment) 2018, describ ed forums by directing to approach the Competent Court, established under the changed circumstances. The grievance of the inhabitants of newly merged areas cropped up again when the Khyber Pakhtunkhwa, Continuation of laws in erstwhile PATA Act, 2018 (the Act, 2018 ) and Khyber Pakhtunkhwa, Continuation of laws in erstwhile FATA Act, 2019 (the Act, 2019 ) were promulgated, whereby all the laws, regulations, rules, notification, bye-laws including action (in Aid of Civil Power) Regulation, 2011 any other legal instruments applicable in the erstwh ile PATA/FATA and having had the force of law under or in pursuance of Article 247 of the Constitution of Islamic Republic of Pakistan, 1973 (now omitted) have been continued and remained in force; followed by impugned Ordinance commonly known as Khyber Pakhtunkhwa Actions (in Aid of Civil Power) Ordinance, 2019 ( KP Ordinance No. V of 2019 ) hence the writ petitions.
5. We have heard learned counsel for the petitioners, worthy Advocate General on behalf of Provincial Government, Additional Attorney General on behalf of Federation and available record gone through.
6. Without going deep into the history of the Federal Administered Tribal Area and Provincial Administered Tribal Area, erstwhile, wherein the legal remedies, rights of audience, right of defence, right of liberty , freedom of expression, freedom of movement and above all the inalienable right of fair trial was not given, despite being the part and parcel of the rest of the country . Frontier Crime Regulations, 1901, amended in 2011, was made applicable which was subsequently amended and finally in the recent past Actions (in Aid of Civil Power)
Regulation, 2011, was made applicable, in utter violation of the mandate of the Constitution. Twenty Fifth Constitutional amendment was introduced on 4-6-2018 whereby Article 247 was omitted and Article 246 was altered, erstwhile FATA/PATA practically merged into Khyber Pakhtunkhwa, Province, all the black-laws referred above including the FCR and Action (in Aid of Civil Power) Regulation, 201 1 cease to remain in force.
7. Learned Advocate General / AAG (F) on behalf of respondents/ State contended that Article-264 of the Constitution of Islamic Republic of Pakistan, 1973, says that where a law is repea led, or is deemed to have been repealed, by, under , or by virtue of the Constitution, the repeal shall not, except as otherwise provided in the constitution-, (a) revive anything not in force of existing at the time at which the repeal takes effect; (b) affect the previous operation of the law or anything duly done or suffered under the law; (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the law; (d) affect any penalty , forfeiture or punishment incurred in respect of any offence committed against the law; or (e) affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability , penalty , forfeiture or punishment; and any such investigation, legal procee dings, remedy may be instituted, contin ued or enforced, and any such penalty , forfeiture or punishment may be imposed, as if the law had not been repealed
8. The contention, so advanced is misleading one, as Article, 264 is applicable to the repeal of laws and the conditions given from (a) to (e); whereas it the instant case, the law itself i.e. Action (in Aid of Civil Power)
Regulation, 2011 stand omitted/deleted by virtue of (Twenty Fifth) Constitutional amendment, introduced on 4.6.2018, which was affective/applicable to the FATA of Pakistan. Regulation-2 of the Regulations ibid is referred. Sensing the situation that the Regulation, 2011 ceased to exist and whereunder no further legislation/rules, bye-law etc. was not made, Acts Nos. III and XXIV of 2019, known as erstwhile Provincially Administered Tribal Area Act, 2018 and erstwhile, Federally Administered Tribal Area, Act, 2019 were promulgated by the Provincial Government.
9. The preamble of above referred Acts No.III of 2019 promulgated on 10.01.2019, and Act No. XXIV of 2019, promulgated on 3.05.2019, reads "Whereas it is expedient to provide for the continuation of laws in the erstwhile-- which are merged into the Khyber Pakhtunkhwa in pursuance of the Constitution (Twenty-fifth Amendment) Act, 2018. Learned counsel for respondents failed to convince the Court that how can an Act/Ordinance/Regulation enacted by the Federation which is not in existence at all could be made continued in a Province. The continuation of Action (in Aid of Civil Power) Regulation, 2011, through these Acts, on the face of it are defective legislation. The above two acts were promulgated on 10.01.2019 and 03.05.2019 respective ly; whereas the (Twenty-Fifth) constitutional amendment was introduce d on 4.6.2018 and learned counsel for respondents failed to justify the intervening period and the rights of individuals, kept by the agencies in the internment centers etc.
10. The above said two Acts Nos. III and XXIV were presented by the respond ents in the proceedings of the missing person cases to which the Bench observed that how can a Federal Law/Regulation be made continued in a Province or adopted by Provincial Authorities. The impugned Ordinance No.V of 2019 was promulgated on 5.8.2019 by the worthy Governor , Khyber Pakhtunkhwa with the title "The Khyber Pakhtunkhwa, Actions (in Aid of Civil Powers) Ordinance, 2019". The preamble of Ordinance No. V of 2019 reads as under:- WHEREAS there exists grave and unprecedented threat to the territorial integrity of Pakistan by miscreants and foreign funded elements, who intend to assert unlawful control over the territories of Pakistan and to curb this threat and menace, the Armed Forces have been requisitioned to carry out actions in aid of civil power; AND WHEREAS continuous stationing of the Armed Forces in territories, that have been secured from miscreants in the Province of the Khyber Pakbtunkhwa is necessary and it is, therefore, imperative that a proper authorization be given to the Armed Forces to take certain measures for incapacitating the miscreants by interning them during continuation of the actions in aid of civil powers and it is also necessary to ensure that the Armed Forces carry out the said operation in accordance with law , AND WHEREAS the miscreants are no longer loyal and obedient to the State and Constitution of the Islamic Republic of Pakistan; AND WHEREAS, to address this situation upon request of the Provinc ial Government, the Federal Government has directed the Armed Forces to act in aid of civil power in certain defined areas to counter this threat to the solidarity and integrity of Islamic Republic of Pakistan while being subject to the law provided hereinafter; AND WHEREAS the Provincial Assembly in not in session and the Governor of the Khyber Pakhtunkhwa is satisfied that circumstances exist which render it necessary to take immediate action; NOW THEREFORE, in exercise of the powers conferred by Clause (I) of Article 128 of the Constitution of the Islamic Republic of Pakistan, the Governor of Khyber Pakhtunkhwa is pleased to make and promulgate the following Ordinance.
11. While promulgating the Ordinance, which is the ditto copy of Action (in Aid of Civil Power) Regulation, 2011, the authority has maintained the status of Internment Centers. Section 3 of Act No.III of 2019 and Act No.XXIV of 2019 are exactly with same words which read as under:--
3. Continuation of laws.--(I) Notwithstanding anything contained in any other law, for the time being in force, all the laws, regulations, rules, notification and bye-laws, including Actions (in Aid of Civil Power)
Regulation, 2011, or any other legal instrument, applicable in the erstwhile Provincially Administered Tribal Areas and having had the force of law under or in pursuance of Article 247 of the Constitution of the Islamic Republic of Pakistan, now omitted vide the Constitution (Twenty Fifth Amendment) Act, 2018, shall continue to remain in force, until altered, repealed or amended by the competent authority .
12. As already held that both the Acts of 2018 and 2019, referred above, which were for the continuation of laws, in the erstwhile tribal areas, as defective legislation, the section-3 of the same was in respect of giving continuity to the laws, regulations, for the time being, unless and until altered/repealed, but the promulgated Ordinance is silent in this respect, meaning thereby that simultaneously Regulation, 2011_ and the Khyber Pakhtunkhwa Actions (in Aid of Civil Power) Ordinance, 2019 are in field; whereas section 24 gives the overriding affect to the Ordinance.
Article 70 of the Constitution of Islamic Republic of Pakistan, 1973, prescribed introducing and passing of bills and the authority of Federal Legislative is given in Federal Legislative list, given in the fourth schedule. Part-I, serial No.1 is relevant for the purpose which reads as under:- "The defence of the Federation or any part thereof in peace or war; military , naval, and air forces of the Federation and any other armed forces raised or maintained by the Federation; any armed forces which are not forces of the Federation but are attached to or operating with any of the Armed Forces of the Federation including Civil Armed Forces; Federal Intelligence Bureau; preventive detention for reasons of State connected with defence, external affairs or the security of Pakistan or any part thereof; persons subjected to such detention; industries declared by Federal law to be necessary for the purpose of defence or for the prosecution of war ."
13. The plain reading of serial No.1 of Fourth Schedule and the preamble of the Ordinance No.V of 2019, by the Governor Khyber Pakhtunkhwa, would show that it's the job of the Federation and according to the Federal Legislative List the Bill is to be introduced by the President and not by the Governo r, and as such the Governor had no authority whatsoever to pass such an Ordinance in the given circumstances.
14. Learned counsel for respondents stressed mainly on the non maintainability of the writ petition, wherein the vires of the enactment has been called in question by relying on different judgments. In this respect we are conscious of the fact that the apex Court of the country has time and again held that when striking down or declaring a legislative enactment as void or unconstitutional, following principles be considered.
(i) There was a presumption in favour of constitutionality and a law must not be declared unconstitutional unless the statute was placed next to the Constitution and no way could be found in reconciling the two;
(ii) Where more than one interpretation was possible, one of which would make the law valid and the other void, the Court must prefer the interpretation which favoured validity;
(iii) A statute must never be declared unconstitutional unless its invalidity was beyond reasonable doubt. A reasonable doubt must be resolved in favour of the statute being valid;
(iv) Court should abstain from decidin g a Constitutional question, if a case could be decided on other or narrower grounds;
(v) Court should not decide a larger Constitutional question than was necessary for the determination of the case;
(vi) Court should not declare a statute unconstitutional on the ground that it violated the spirit of the Constitution unless it also violated the letter of the Constitution;
(vii) Court was not concerned with the wisdom or prudence of the legislation but only with its Constitutionality;
(viii) Court should not strike down statutes on principles of republican or democratic, government unless those principles were placed beyond legislative encroachment by the Constitution; and
(ix) Main fides should not be attributed to the Legislature.
15. The above principles are from judgment reported as 2015 SCMR 1739 . Reading of the above quoted principles and many other judgments cited by the learned Advocate General, Khyber Pakhtunkhwa, gone through and in nutshell it is conclude that legislative enactment could be struck down by the Courts only on two grounds; firstly where the appropriate legislature does not have competency to make the law and secondly , where it abridged any of the fundamental rights enumerated in the constitution or any other constitutional provision.
6. While taking guidance from the said judgment and the nutshell a two conditions the impugned Ordinance No. V of 2019 is hit on both ways. Firstly because serial No.I of the Fourth. Schedule, Federal Legislative List, which is reproduced above, is the job of the Fede ration and not a Provincial subject and secondly , it violates almost all the fundamental rights enshrined in the Cons titution, specially the mandatory provisions of Articles, 4, 8, 9, 10, 15, 17, 19 and 25.
17. Admittedly , Action (in aid of Civil Power) Regulation, 2011 and the impugned Ordinance No.V of 2019 there is no concept of trial etc rather its 'preventive detention' only and the duration of the internment is given in section-1 1 which reads "the power of intern shall be valid from the date when this Ordinance to have come into force, or on the day the order of internment is issued, whichever is earlier , till the continuatio n of Action in aid of civil power .
Except this provision we have not come across any other law, preventive detention for a period of 90 days or more.
The same were the wordings of Regulation 11 of the Regulation, 2011. Looking on this touchstone of violation of fundamental rights as enshrined in the constitution along with law of the land, section 61 of the criminal procedure code prescribes "persons arrested not to be detained for more than 24 hours". No law enforcing agency shall detain in custody a person arrested without warrant for period longer than 24 hours and in the instant cases the armed forces are not the law enforcing agencies, but have been given the powers to detain the person indefinitely .
18. We have witnessed in number of missing person cases that they detained detenues for years and years, without even providing the record to this effect. During the missing person cases, about 15-20% cases suddenly detenue appears before the Court and inform that he has been released by the agencies and on the assurance of not disclosing anything. These proceedings are not recorded in any of the order sheet for the last so many years for the reasons, not to expose the condu ct of the agencies to the world. Article- 10 of the Constitution, provides safeguards as to arrest and detention to the effect "every person who is arrested and detained in custody shall be produced before a magistrate within a period of 24 hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the nearest magistrate and no such person shall be detained in custody beyond the such period without the authority of the Magistrate. According to the Pakistan Army Act, 1952, an amendment has also been brought in section 2(d) to the effect "the accused so arrested shall be provided grounds of arrest within 24 hours of arrested as provided for in this Act." The said section-2 of Pakistan Army Act, 1952, is further amended by introducing clause (e) to the effect that "the accused shall have the right to engage a counsel of his choice and in case he is unable to engage a counsel due to any reason, the convening authority at its discretion may provide a counsel, at State expense, whereas in the so called internment centers, the detenues are kept for years and years, with no access to the lawyers etc, even they are denied meeting with their families/closed blood relations nor any charge is communicated to them. Neither there is any time given for prosecuting them. Any law or any custom or usage having the force of law, insofar as it is inconsistent with the rights conferred by the fundamental rights, shall to the extent of such inconsistency , be void.
19. The State cannot make any law which takes away or abridge the rights so conferred and any law made in contravention of Part II Chapter-I, shall, to the extent of such contravention be void. Constitution of Islamic Republic of Pakistan, Article 10(A) provides for a fair trial and due process for the determination of civil rights and obligations or in executive public offices regarding the administration of justice being compromised, resulting in extending extraordinary relief or favor to an influential litigant. It is noted that this attempted perception was being created by those who exercise and wield the powers of the State as its executive authorities. The Contemnor No. 2 went to the extent of G doubting the medical reports by unequivocally stating that they could have been manipulated. It is ironic that such an assertion was being made by a responsible member of the Federal Cabinet, which was an indictment against his own Government. Having regard to the status, duties and obligations of both the alleged contemnors, they cannot be extended the benefit of doubt for not being aware of the facts and the consequences of their statements which tended to prejudice the determination of matters pending before this Court. They opted not to contest the respective notices and tendered unconditional apologies. As noted above, it is settled law that tendering of unconditional apology does not necessarily lead to putting an end to the contempt proceedings.
24. This Court is satisfied that both the contemnors had acted in a manner that constitutes criminal contempt. They attempted to obstruct the administration of justice and through their acts and statements they had tended to prejudice the determination of a matter pending before this Court. They also tried to create a false perception which was likely to lower the prestige of the judicial process and consequently prejudice the trust of the people in the Courts. Their acts and statements were intended and calculated to impede, obstruct and divert the administration and course of justice. However , this Court, despite the gravity of the offence, restrains itself from handing down a conviction and sentencing both the alleged contemnors because during the course of these proceedings it appeared to this Court that there is probably not sufficient awareness in the society regarding the importance of criminal contempt in the context of a pending matter before a Court. The Courts have also ignored this most crucial form of contempt and thus generally there is hardly any appreciation regarding its importance in the society .
Moreover , both the alleged contemnors appear to have realized the consequences of their conduct and have thus tendered unconditional apologies. This Court expects that in future they will exercise care by not doing anything that tends to prejudice the determination of pending proceedings or to obstruct or divert the course of justice.
25. For the above reasons, the petitions are disposed of and consequently the proceedings stand withdrawn.