' Akbar Gul Khan, a member of tribe of Bani Afghanan, District Mianwali, who is an accused person in various criminal cases and presently has been declared as absconder among many other members of his tribe, as stated by Dr. A. Basit, Advocate, learned counsel for the petitioner, has filed this Constitutional petition alleging therein that there is a long-standing enmity between his tribe and Nawabzadgan of Kalabagh which family is presently being headed by Mr. Asam Khan, respondent No,4 in this petition, as a result whereof lot many cases have been registered against the petitioner as well as the other members of his tribe and there is a close relation between Sardar Farooq Ahmad Khan Leghari, President of Pakistan and the said respondent, the Federal Government and the Provincial Government of Punjab have illegally got cardened the village "Bani Afghan" getting deployed Army Personnel, Rangers, Punjab Constabulary and Punjab Police, which forces have virtually taken the womanfolk and children of the village as hostages, whereas the male residents of the village have been forced to leave the village and take refuge in surrounding mountains. It is further alleged that there is a possibility of large scale bloodshed as a result of expected encounter between the population of the said tribe as well as the deployed forces, hence it is prayed that this Court may immediately step in and pass the following orders:--
(i) Official respondents be restrained from using Military, Para-Military or Police Forces to conduct a large scale armed punitive operation against the civilian population of Bani Afghana located within the territorial jurisdiction of Union Council, Massan;
(ii) Official respondents be directed to conduct a Military and paramilitary operation against.The illegal militia sponsored by respondent Asad in his capacity as head of Nawabzadgan of Kalabagh which militia mainly composes of proclaimed offenders;
(iii) Respondent be directed to forthwith remove which has resulted in the illegal confinement of 25000 persons in such a way as to infringe their fundamental rights of free movement, assembly and association;
(iv) Official respondents be directed not to interfere in the daily occupation of Bani Afghana in any manner whatsoever. All police pickets to prevent freedom of movement and illegal searches and seizures conducted by them be restrained;
(v) Respondent SP be directed to take concrete steps such as arrest of the nominated accused in murder cases which stand registered since long against Nawabzadgan and their employees;
(vi) Respondent officials be restrained from treating the entire population of Bani Afghana as a criminal tribe and also to refrain from declaring most of them as proclaimed offenders even though most of the criminal cases instituted against them stand dismissed by appropriate Courts; and
(vii) Any other relief deemed appropriate to the peculiar facts of the case be also afforded to the petitioner.
2. This writ petition was placed before me on 6-2-1995, on which date, I had ordered to supply a copy of the writ petition to Mr. Ijaz Ahmed, learned Deputy Attorney-General of Pakistan and Mr. Abdul Sattar Najam, learned Advocate-General, Punjab to seek instructions and assist this Court today. Dr. A. Basit, Advocate has appeared on behalf of the petitioner. Mr. Ijaz Ahmed Ch. Deputy Attorney-General, has prayed for print of adjournment on the ground that he is busy before Supreme Court of Pakistan which request has been seriously opposed by the learned counsel for the petitioner, therefore, I have summoned Mr. Faqir Muhammad Khokhar, Deputy Attorney- General, to appear in Court on behalf of Federal Government, respondent No,1. Mr. Abdul Sattar Najam, learned Advocate-General Punjab assisted by Syed Mukhtar Hussain Shah, Advocate have appeared on behalf of respondents Nos.3, 4 and 6 to 9.
3. Arguments at limine stage have been heard. Dr. A. Basit, Advocate, learned counsel for the petitioner has vehemently contended that there is proven enmity between petitioner's tribe as well as the tribe of respondent No,4, and this enmity is going on for the last about one hundred years; that there is evidence of registration of false criminal cases against the members of the petitioner's tribe wherein they have been acquitted; that admittedly there is close relationship between President of Pakistan as well respondent No,4; that village Bani Afghana has been illegally cardened by military and para-Military forces which include Mahmend rifles, Punjab Constabulary and Punjab Police with a view to exterminate the members of the petitioner's tribe which act amounts to naked genocide; that as a result of the use of the aforementioned forces all the male members of the tribe have left the village and have taken refuge in the mountains and in the village only womenfolk and children are left at the mercy of cardening forces; that all the members of the petitioners tribe have wrongly been declared as absconders; that it is in fact respondent No,4' who has raised Militia in violation of the provisions of Article 226 of the Constitution which provides that no person can raise private Militia and that in the above manner about 25,000 members of the tribe are being illegally confined by the forces maintained by the other respondents at the behest and for the benefit of the respondent No,4. Therefore, this Court may immediately depute a Bailiff to recover the aforementioned persons and set them at liberty; may direct respondents to disband private Militia being maintained by respondent No,4 to call up Military and Para-Military Forces and to allow the members of the petitioner's tribe to have free ingress and outgress to their residences in the village; provide Court protection by ordering the deploying of women police for safety of womenfolk and children who have been taken as hostages, under direct supervision of Judicial Officials, who may be appointed by this Court, who may also collect information and submit a report in this Court for taking of necessary action against the respondents and arrest. To elaborate and support his contentions, learned counsel has taken me through certain news items which have been published in the Press appended from pages 13 to 28 of the Paper Book, and, Annexure IV and page 31 thereof which is a copy of the letter written by Superintendent of Police Mianwali, to the Commissioner Sargodha, wherein after giving a brief history of the incidents occurred between Bani Afghanan and Nawabzadgan of Kalabagh starting w,e,f, 1985 up to the year 1994 and pointing out of 44 registered criminal cases of serious nature against various persons, who are residents of village Bani Afghanan and a few cases against Nawabzadgan of Kalabagh has given, following further details and suggestions to solve the problems:
(C) DETAILS OF BANI AFGHANS WHO HAVE BEEN DECLARED AS PROCLAIMED OFFENDERS.
' The information/detail regarding Bani Afghans who have been declared as proclaimed offenders is enclosed as Annexure "A".
(D) DETAILS OF THE PERSONS KILLED DURING THE CONFLICT SO FAR: {{TABLE}}
(a) Nawabzadgan side. #TBS Date of death 15-8-1989 15-8-1989 15-8-1989 15-8-1989 19-6-1989 19-6-1989 19-6-1989 9-8-1989 #TBE S/No, Name and address
1. Bashir Ahmad s/o Samand Khan caste Pathan r/o Nawan P.S. Chakrala.
2. Zumarad s/o Sher Khan caste Pathan r/o Nawan P.S. Chakrala.
3. Din Muhammad s/o Ghulam Muhammad caste Pathan r/o Nawan P.S.Chakrala.
4. Ramzan s/o Muzaffar caste Awan r/o P.S. Chakrala.
5. Malik Muzaffar s/o Amir Muhammad Khan caste Awan r/o Kalabagh.
6. Raisham Gul s/o Speen Gul caste Pathan r/o Kalabagh.
7. Muhammad Zafar s/o Abdul Khaliq caste Awan r/o Kalabagh.
(b) Bani Afghan side
1. Taj Rasul s/o Ghulam Rasool caste Pathan r/o Bani Afghan S/No Name and address
2. Nek Muhammad s/o Sher Muhammad caste Pathan r/o Bani Afghan.
3. Haji Rashid Gul s/o Raheem Gul caste Pathan r/o Bath Afghan.
(c) Police.
1. A.S.I. Sher Samand, Mianwali.
Date of death 15-8-1989 15-8-1989 27-10-1988 .
2. Const. Muhammad Anwar No, 495 Mianwali 27-10-1988
3. Const. Sher Ahmad No, 698 P.C. Farooqabad 27-10-1988
(E) DETAIL OF LOSSES CAUSED DURING THE CONFLICT.
(a) To the property of Nawabzadgan.
S/No, Detail of property damaged. Estimated cost.
1. Damage of building
(i) Nassan Fort ransacked and material taken away.
(ii) Wandha Nawan Sher completely set-ablazed.
(iii) Set ablazed Wandhs Jhemrs.
(iv) Damaged Meat Factory.
(v) Crops Stolen. (wheat)
(vi) Stolen golden ornaments etc. Rs, 40,000
(vii) Agriculture land in 12 villages belonging Estimate can be to Nawabzadgans is not being cultivated obtained from Revenue for the last 6 years due to hold of Bath Department.
Afghan.
(viii)
(F) SUGGESTIONS TO SOLVE THE PROBLEM In order to solve the problem the following recommendations are made:--
(i) The inhabitants of Bani Afghan may be disarmed and a sense of security protecting should be created among them.
(ii) Police personnel men may be deputed who will gather intelligence about the activities of out laws and observe movements and signs of activity of criminals.
(iii) Proclaimed offenders of Bani Afghan may be hauled up by exercising sincere efforts. A close surveillance may be kept over the nefarious activities of criminals of Bani Afghans.
(iv) In case of emergency about 2000 Military personnel will be required in aid to Civil power as already requested by this office.
(Sd.)
Superintendent of Police, Mianwali. ' and has contended that this is a case of clear abuse of the power by the public functionaries and, therefore, the petitioner is entitled to the grant of reliefs as prayed for in exercise of the extraordinary Constitutional jurisdiction of this Court as according to the learned counsel the petitioner has no other efficacious remedy available to him under the law.
4. Mian Abdul Sattar Najam Advocate-General, Punjab under instructions from the respondents Nos. 3, 4 and 6 to 9 on whose behalf he has appeared has categorically denied the allegations levelled by the petitioner in this Constitutional petition as well as during the course of arguments addressed by the learned counsel for the petitioner. He has explained that no illegal activity has taken place in the area. None of the forces have any intention to illegally enter in village Bath Afghan except for the purpose of enforcement of law and order situation, checking the illegal trafficking of Arms and Narcotics and that too on the route, arrest of absconders, etc., and that the respondents performing their statutory functions within the four corners of the law without there being any involvement of the President of Pakistan. It is further stated that the respondents have not stopped the ingress and outgress of the villagers nor have conducted illegal raids in the village nor have any intention in future to commit any illegal act. According to the learned counsel this petition has been filed by an absconder who is fugitive at law just to malign the head of the State, for his own nefarious ends politically motivated, is mala fide and hence is liable to be dismissed in limine. Mr. Faqir Muhammad Khokhar, learned Deputy Attorney-General has also made a similar statement and has stated that the Federal Government is not acting in an illegal manner and that this petition has been filed mala fidely as a part of the vilificatory political campaign against the Head of the State and the Government in power, hence, is not maintainable. As regards the dispute between the petitioner and respondent No,4, the same is continuing since long and even in the year 1980, a Court of inquiry was constituted as is clear from the reported judgment in case of Malik Muzaffar Khan v. Government of the Punjab and 2 others (1980 SCMR 122). Therefore, allegations of action being presently taken by the Administration is of normal course and the President of Pakistan is being involved in it dishonestly just because he is the relative of Nawabzadgan, which factor alone is hardly sufficient to prove that he has anything to do with the exercise in question. It is contended that the petition is based upon surmises and conjectures and at any rate reliefs of general nature for grant whereof no basis has been made out, cannot be granted in exercise of the Constitutional jurisdiction of this Court. In support of his contentions, learned counsel has placed reliance on the following cases:--
(1) The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmed Khan and others (PLD 1974 SC 151),
(2) Ghulam Haider and 7 others v. S.H.O., City Police Station, Quetta and 9 others (PLD 1989 SC 479), and
(3) Government of Sindh through the Chief Secretary and others v. Khalil Ahmed and others (1994 SCM R 782).
5. I have considered the arguments addressed by the learned counsel for the parties and have perused the record. A perusal of the annexures appended to the writ petition do prove that there is enmity between the tribes of Bath Afghanan as well as the family of respondent No,4. The letter issued by S.P. Mainwali which has been appended with this Constitutional Petition as Annexure IV does show that keeping in view the series of long-standing enmity and criminal cases between the two tribes and nature of the people of living in Village Bani Afghanan, it is necessary to take the proposed actions and this is what the S.P. Has written to the Commissioner, Sargodha for seeking his permission to proceed with the matter. If the public functionaries in a situation of this type have taken precautions and the forces are being used for the purposes of maintenance of law and order situation and also for stopping of illegal trafficking of Arms and Narcotics, action should rather be commended than condemned. Allegation of wrongful confinement, etc., and excess use of forces have been categorically denied by the learned Advocate-General, Punjab as well as Deputy Attorney-General of Pakistan.
As against the above, the petitioner who is an accused person and is fugitive at law and is not even present today in Court, his statement cannot be given preference and, therefore, under the present circumstances, there is nothing on record on the basis whereof it could be said that the public functionaries in performing their functions have committed any excess.
6. As regards the presence of Military and Para-Military Forces, there is a specific bar of jurisdiction to issue writ against the said personnel as is clear from the provisions of Article 199 (3) of the Constitution which is reproduced as under:-- "Article 199.--(1). .................
(2). ...
(3) An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces in respect of his terms and conditions of service, in respect of any matter arising out of his service, in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law."
7. This petition appears to be tainted with mala fide. The whole emphasis in the Constitutional petition is to various disputes between the two private persons but the functionaries of the State including the President of Pakistan have been maligned in this petition on the basis of mere conjectures and suppositions. On the one hand it is stated that the male members of the village have left the village, but in the same breath it is being argued that they are in wrongful confinement. The object of this petition appears to be an abuse of the process of this Court to get a blanket protection to the criminals against their nefarious activities, including the petitioner. Reliefs which are being prayed for in this Constitutional petition are also of general nature and can even be attended to by the Local Administration at the local level if there is an iota of truth in the allegations. It is not the petitioner's case that he has approached the Local Authorities and they have not attended to his grievance, if any. In case of Ghulam Haider and 7 others. v. S.H.O. Police Station City, Quetta and 9 others (PLD 1989 SC 479 at pages 481 and 482 of the report), it has been held as under:-- "A learned Division Bench of the Quetta High Court in a detailed and well-considered judgment took note of all the pleas raised and pressed before them and disposed them of with adequate reasons. However, learned counsel for the petitioners has raised two contentions and sought one relief as follows:--
(i) That the petitioners are not committing any offence. However they are not committing cognizable offence which would empower the police to take direct action against them.
(ii) That if the petitioners exhibit a programme and they cannot do so by virtue of any provision of Motion Pictures Ordinance, 1979, that law would take its own course; and the Police would thus be not competent to take any action against the petitioners unless the action is taken by a competent authority and the complaint is also made competently under section 18 (5) of the Ordinance.
' Accordingly the learned counsel urged that the Police should refrain from interfering with the petitioner's business in any manner except in accordance with law. And further that if an illegal action is taken against the petitioners they should be at liberty to proceed against the persons concerned.
' If the petitioners were not committing any illegality and/or offence they should take up this plea before the forum where they are arraigned to answer an allegation, accusation or to face a criminal trial. Similarly, if the petitioners are not committing any cognizable offence the Police will not treat so and would proceed accordingly. If despite this the petitioners have any complaint against any individual functionary of the State they can proceed against him in accordance with law for infringement of any right.
' The second argument of the learned counsel also is too wide to be accepted as such. Petitioners cannot claim an uncontrolled unregulated right to exhibit anything/film in any manner before any audience in their business premises. Learned counsel admits that if the allegations made against the petitioners are kept in view their conduct might fall under the definition of several offences and other illegalities. He is, however, right that no accused or offender should be dealt with except in accordance with law. The arguments that the police has not power to stop/prevent any illegality amounting to an offence if it is being done in their presence or within their view or knowledge cannot be accepted as presented. If however, in so doing they (police) themselves commit an illegality/offence, this can be brought to the notice of the higher law enforcing agencies,the other relevant Government functionaries and/or the Courts for proper redress against the so-called Police highhandedness. This might, if other remedy fails, include at proper stage a private complaint against a Police Officer who commits any offence, of course in accordance with the prescribed procedure. The plea that the action to be taken against the petitioners has to be by a competent authority and in a competent manner again involves questions of facts which when arising, would be dealt with by the forums and Courts concerned. It is not possible to issue a general order or writ in favour of the petitioners in this case."
' In case of Government of Sindh through the Chief Secretary and others v. Khalil Ahmed and others (1994 SCM R 782) at page 790 of the report it has been held that act performed and order made by the Public Authorities, deserve due regard by the Courts and every possible explanation for their validity should be explored. Similar is the view taken in The Chairman, East Pakistan Railway v.
Abdul Majid Sardar (PLD 1966 SC 725) and Lahore Improvement Trust v. The Custodian, Evacuee Property and others (PLD 1971 SC 811). In case of the Federation of Pakistan through the Secretary Establishment Division, Government of Pakistan, Rawalpindi. v. Saeed Ahmed Khan and others (PLD 1974 SC 151) it has been held that controversial questions of facts cannot be inquired into in exercise of the writ jurisdiction of this Court. As per Article 245 of the Constitution read with section 129, Cr.P.C. Armed Forces have to act in aid of civil power when called on to do so and validity of any direction issued by the Federal Government under clause (1) shall not be called in question in any Court. Similarly, the High Court shall not exercise any jurisdiction under Article 199 in relation to any area in which the Armed Forces of Pakistan are, for the time being, acting in aid of civil power in pursuance of Article 245. Consequently, if the Armed Forces or the Para-Military Forces have been called for by the Civil Administration for maintenance of law and order situation in the disturbed area or for the purpose of checking the trafficking of illegal Arms and Narcotics, etc., it cannot be said that the public functionaries are acting in excess of their jurisdiction. Therefore, in exercise of the discretionary jurisdiction of this Court reliefs claimed by the petitioner in this Constitutional petition cannot be granted.
8. Resultantly, this writ petition which is pregnant with general, vague and multifarious reliefs, is presumptive, assumptive, and pre-emptive in nature, is based upon conjectures and surmises, is aimed at abuse of process of Court, with an intention to interfere with the performance of lawful duties by the respondents public functionaries and to malign the Head of State without any lawful basis and justification, being seditious in nature having been filed by a fugitive at law has no force, hence is dismissed in limine.