1. ' S. SAJJAD ALI SHAH, C.J.--Petitioner No,1 Syed Saleemul Haq, M.N.A. From Karachi and Petitioner No,2 Ameenuddin, M.P.A. From Hyderabad are Vice-Chairman and member of Muhajir Qaumi Movement (hereinafter to be referred as M.Q.M.) respectively. It is submitted on behalf of the petitioners that MQM is in the mainstream of country's body politic having secured 27 seats in the Provincial Assembly of Sindh and 14 seats in the National Assembly of Pakistan. After election, there was accord between Pakistan People Party (to be referred hereinafter as PPP) and MOM on the basis of mutually agreed document, which gave assurance to MQM that their problems would be solved and demands of their supporters would be accepted. Due to dual policies of P.P.P. And their intolerable and inhuman persecution, accord floundered and regrettably stood shattered as per announcement of MQM made on 23-10-1989. In the aftermath untold atrocities were brought to bear upon supporters, workers and members of MQM resulting into burning, looting, arson and migration of Muhajirs and non-Sindhis from areas where PPP has influence. Law and order situation in Sindh was reduced to a farce and writ of Government became totally ineffective. With intermittent intervals, urban areas of Sindh particularly Karachi, Hyderabad and Sukkur were main targets of killings, kidnappings and economic destruction. Curfew was imposed in cities time and again. In order to highlight the gross irregularities, and maladministration of PPP regime, Combined Opposition Parties (COP) started mobilizing public opinion by holding public meetings. One such mammoth public meeting was held in Karachi near Mazar-eQuaid-e-Azam on 26-1-1990 which was arranged and organised mainly by MOM. It was addressed by leading political figures including Mr.Ghulam Mustafa Jatoi, Nawabzada Nasrullah Khan, Mr.Abdul Wali Khan, Begum Abida Hussain, Moulana Fazlur Rehman, M.N.As., Mr. Nawaz Shareef and Mr. Altaf Hussain. This meeting was great success and in consequence reign of terror was let loose by P.P.P. Government.
2. Kidnapping of workers and supporters of MQM became order of the day and there were frequent incidents of firing and lawlessness in which Student Organisations were used. P.P.P. Provincial Government failed completely in discharging its Constitutional duties so much so that it is replaced by another Chief Minister and new Cabinet. Even the change has failed to arrest the deteriorating situation. It is further submitted on behalf of the Petitioners that these facts were brought to the notice of President of Pakistan repeatedly and at his apex level a national all parties conference was mooted. On 7-2-1990 MOM gave a call for observance of peaceful strike. Citizens of Karachi in response to call observed complete strike, upto noon time but thereafter the police, goondas and workers of PPP embarked upon the killing resulting into loss of innumerable human lives, arson, burning and looting of property.
3. ' Respondent No,1 (Government of Pakistan through Secretary, Ministry of Interior) announced formation of Commission to enquire into and determine causes of the disturbances which led to the events of 7th February, 1990 and thereafter. This was done by way of Notification issued on 15th February, 1990 by the Federal Government. According to this Notification, 66 lives were lost, hundreds of persons were injured and property worth millions of rupees, including vehicles, was destroyed or damaged in Karachi on 7th February, 1990 and the days immediately following.
4. Federal Government appointed Commission of Enquiry consisting of a Judge of Supreme Court of Pakistan and one Judge from each High Court. In the said Notification the names of the Judges, who are members of the Commission, are mentioned as under:-
(1) Mr.Justice Saad Saood Jan, Judge, Supreme Court of Pakistan.
(2) Mr. Justice Abaidullah Khan, Judge, Lahore High Court.
(3) Mr. Justice Allandino Memon, Judge, Sindh High Court.
(4) Mr. Justice Nazir Ahmed Bhatti, Judge, Peshawar High Court.
(5) Mr. Justice Amirul Mulk Mengal, Judge, Balochistan High Court.
5. ' Abovementioned Notification of appointment of Commission of Enquiry is impugned in this Constitutional Petition on several grounds. First ground on which this Notification is assailed is that question of law and order situation being a provincial matter, Federal Government was not empowered to appoint Commission. Now perusal of Notification impugned in this Petition shows that Commission is appointed by the Federal Government under Section 3 of Pakistan Commissions of Enquiry Act, 1956 which is a federal law. Enquiry does relate to law and order situation and subjects of criminal law including Pakistan Penal Code, Criminal Procedure Code, Civil Procedure Code and Enidence Act are included in the concurrent legislative list as such on these subjects laws can be promulgated both by the Federal as well as Provincial Governments. On the subject of enquiries, there is Federal law which is mentioned above under which this Commission is appointed and likewise there is Provincial law which is called West Pakistan Tribunals of Enquiry Ordinance, 1969 under which a Tribunal can be appointed by the Provincial Government for the purpose of enquiry. If comparison is made of both the Federal and Provincial laws on the subject, it would be apparent that Commission appointed under the Federal law is more broadbased and has wider scope than Tribunal appointed by the Provincial Government.
6. Main grievance of the petitioners as stated in the memorandum of petition and reflected in foregoing paragraphs is that atrocities have been committed by the Government of People Party in Sindh and its members and workers and student organisations. In Sindh there is Government of People Party and in other words the allegations are directly against the Government of Sindh. In the circumstances appointment of Commission under Federal law is a much better forum with representative characteristics of all the Provinces ensuring complete impartiality, non-partisanship and flawless judicial outlook. Federal character given to the Commission gives guarantee of complete independence to the conduct of enquiry particularly when the composition of the Commission is such that it is headed by a Judge of the Supreme Court of Pakistan with other members, who are one Judge from each High Court. This only shows that intention of the Federal Government is bona fide in the appointment of Commission of Enquiry of such eminent and impartial nature.
7. ' Secondly the nature of subject-matter of enquiry is also such that it is in the public interest that this controversy be gone into and decided finally so that some solution may be found out to put an end to the riots and recurrence of such law and order situation in Karachi and other parts of Sindh where people from different communities such as Sindhis, Muhajirs, Punjabis, Pathans and others live together. In such circumstances, Federal character of Commission of Enquiry is in public interest and more in conformity with need of the hour. In support' of the assertion that action of the Federal Government in appointing Commission of Enquiry is proper, learned Deputy Attorney- General relied upon the case of Karnataka State v. Union of India and another (AIR 1978 SC 68) with relevant portion at page 74. In that case Commission of Enquiry was appointed by the Central Government of India against Chief Minister and other Ministers of the State and it was held that doing so was not ultra vires powers of the Central Government as contemplated under Section 3 of Commission of Enquiry Act, 1952 of India. Mr. Naseem Farooqui pointed out that in the Indian Act on the subject such powers have been given to "appropriate-Government" as mentioned in Section 3 thereof which shows that appropriate Government can be Central Government as well as State Government which means that Central law can be used by the Central Government as well as by the State Government. Be that as it may, this will have no adverse effect on our laws in Pakistan where on the same subject, we have a Federal law and a Provincial law separately. In any case petitioners have not challenged the vires of our Federal law on the subject.
8. ' Another ground on which Notification impugned in this Petition was assailed by Mr.Naseem Farooqui is that in the scope of Enquiry only incidents of Karachi on 7th February, 1990 and the days immediately following are included when in fact similar incidents in Hyderabad, Sukkur and other parts should also have been included. Mr.Naseem Farooqui went on further to say that not only this but the scope should cover malfunctioning of Government of People's Party throughout Sindh right from the day it came into power. It was further submitted by him that requirement of public importance is that scope should not have been limited to Karachi starting from particular date but should have been widened and broadened to include whole of Sindh. In support of the proposition, reliance was placed by him on the case of Shri Ram Krishna Dalmia and others v. Shri Justice S.R.
9. Tendolkar and others (AIR 1958 SC 538).
10. ' Mr. Naseem Farooqi also submitted that it was not proper for the Federal Government to have delegated their powers to the Chief Justice of Pakistan and Chief Justices of the High Court to nominate Judges for appointments in the Commission of Enquiry which was exclusive function of the Government as contemplated under section 3 of the Pakistan Commissions of Enquiry Act, 1956. Perusal of Section 3 of the said Act shows that it is not mandatory for the Government to nominate specifically each member of the Commission of Enquiry. Secondly, Federal Government had announced the infrastructure of the Commission of Enquiry by saying that it would be headed by a Judge of the Supreme Court of Pakistan to be nominated by Chief Justice of Pakistan with one Judge from each High Court to be nominated by Chief Justice of each High Court. This action of the Federal Government shows absolute impartiality which is beyond dispute of doubt. This is not delegation of power because the relevant section does not enjoin upon the Federal Government to specifically name each member of the Commission.
11. ' Moreover, nowhere in the memorandum of petition or arguments advanced by Mr.Farooqui on behalf of the petitioners composition of the Commission of Enquiry as such has been challenged but other objections as stated above have been taken. The fact cannot be lost sight of that nature of this enquiry is such that .Nobody is going to be punished and the function of the Commission is to assimilate the facts in order to find out the reasons. While dealing with the contention of Mr.Farooqui that scope of enquiry should be widened to include Hyderabad and other parts of Sindh, Mr.Yahya Bakhtiar, Attorney-General of Pakistan stated that he has no objection if Hyderabad is also included but there is no need to provide so specifically for the reason that in the Notification scope of Enquiry is very wide and if terms mentioned are examined in detail then it will appear that scope is wider in nature and is not narrowed down to the disturbances of Karachi only.
12. In this context, the terms are reproduced as under:- "(a) To determine the circumstances which resulted in and the motives and intentions of the persons, if any, responsible for, the heavy toll of human life, injuries to persons and destruction of and damage to property in Karachi on the 7th February, 1990, and the days immediately following;
(b) To determine the adequacy or otherwise of the measures taken by the Administration and other authorities to prevent, and subsequently deal with the disturbances;
(c) To fix responsibility for the loss of life, injuries to persons, destruction of and damage to property and causing the disturbances;
(d) To make recommendations considered necessary."
13. ' It is very clear that in order to determine the circumstances which resulted in the disturbances in Karachi on 7th February, 1990, the whole factual background will have to be gone into, which may not necessarily remain confined to Karachi but reasons and causes can go beyond Karachi and in other parts of Sindh as is claimed and secondly in that connection measures taken by the Administration and other Authorities to prevent such causes and circumstances are to be considered by the Commission and responsibility is to be fixed and recommendations are to be made by the Commission. Hence the scope is already very wide.
14. ' We would like to mention here that before the Commission of Enquiry, affidavits have been filed in a very large number by persons and Messrs Naseem Farooqui and other counsel for the petitioners have appeared before the Commission and have raised the same objections which have been raised here in this petition. After hearing both the parties, we are of the view that there is no illegality committed by the Federal Government in the appointment of Commission of Enquiry, which is in the public interest and would serve a very useful purpose. This enquiry is fact-finding enquiry and would not punish any person as such no fundamental rights of any person are contravened as are mentioned in the Petition. We are also of the view that Petitioners have locus standi to file this Petition as they are elected representatives of the people belonging to Karachi and Hyderabad which are involved in the disturbances.
15. ' For the facts and reasons stated above, we arc of the considered view that no ground is made out for interference in Constitutional jurisdiction so far impugned Notification is concerned and this Petition is dismissed in limine.
16. ' On 13-5-1990 after hearing the learned Advocates for both parties we have dismissed this Petition for reasons to be recorded later, which we have given now.