' NASIR ASLAM ZAHID, C.J.--- This order will govern the following Constitutional Petitions:--
(i) D-2926 of 1992 filed by Mst. Raisa Farooq in respect of Dr. Imran Farooq, her son.
(ii) Constitutional Petition No,D-3038 of 1992 filed by Mst. Feroza Begum in respect of her son Hafiz Osama Qadri.
(iii) Constitutional Petition No,D-507 of 1993 filed by Mst. Salma Bano in respect of her son Irshaduddin.
(iv) Constitutional Petition No,D-508 of 1993 filed by Mst. Nasim Begum in respect of her son Aleem Raza.
(v) Constitutional Petition No,D-509 of 1993 filed by Mst. Khurshida in respect of her husband Faqir Muhammad.
(vi) Constitutional Petition No,D-510 of 1993 filed by Mst. Riazunnisa in respect of her son Muhammad Arif.
(vii) Constitutional Petition No,D-511 of 1993 filed by Mst. Kishwar Jehan in respect of her son Kanwar Naveed Jameel.
(viii)Constitutional Petition No,D-512 of 1993 filed by Mst. Bano Begum in respect of her son Muhammad Rafiq Ajmeri.
(ix) Constitutional Petition No,D-513 of 1993 filed by Mst. Rukhsana Anis in respect of her husband Anis Ahmed Qaim Khani.
(x) Constitutional Petition No,D-514 of 1993 filed by Mst. Aisha Khatoon in respect of her son Anis Ahmed Khan (xi)Constitutional Petition No,D-515 of 1993 filed by Mst. Zamarud Begum in respect of her son Farooq Jameel Durrani.
(xii) Constitutional Petition No,D-1266 of 1993 filed by Mst. Mafia Khatoon in respect of her son Syed Salimul Haq (Salim Shahzad).
2. The petitioners in these Constitutional petitions have challenged the orders of the Home Department, Government of Sindh fixing "head money" on the concerned accused. First Petition No,D-2926 of 1992 was filed in November, 1992. Notice was issued in the said petition to the Advocate-General, Sindh and, after giving time to the Government to make statement whether in fact orders fixing "head money" had been passed and if so, under what authority of law, the petition came up for hearing on 3-2-1993 when the following order was passed; "Mr. Nasim Faruqui, Advocate for petitioner. Mr. K.M. Nadeem, A.A.-G., Sindh requests for time to obtain instructions. Mr. Nasim Faruqui, Advocate, rightly makes a grievance that sufficient time has already been granted to the Government. However, we are granting a final opportunity.
' To come up on 10-2-1993 when a positive statement should be made whether any decision has been taken by the Government announcing a reward of Rs,7,00,000 on the head of Dr. Imran Farooq, son of the petitioner."
3. The petition then came up before this Court on 10-2-1993, when the learned Additional Advocate-General placed on record a letter, dated 9-2-1993 of Section Officer (Police II) on behalf of the Home Secretary, Government of Sindh, addressed to the Advocate-General, Sindh which reads as follows:- "I am directed to refer to your letter NoA.G./512/93, dated 7-2-1993 on the subject noted above.
' It is informed that such proclamation has been issued by the Provincial Government, however, no posters and newspaper advertisement have been published by this Department."
4. From the above it appeared that, according to the Home Department itself, a proclamation had been issued for payment of "head money" in case the son of the petitioner was produced by anyone, dead or alive. However, when the matter came up before this Court on 1-3-1993, Mr. K.M.
Nadeem, AA.-G. Who then appeared made a statement on behalf of the Government and for the first time relied upon a notification of the Home Department, Government of Sindh, dated 1-11-1992 issued under section 54 of the Code of Criminal Procedure in which the words "head money" and/or "death" or "alive" had not been used but in the said notification names of six persons are mentioned and against each person numbers of F.I.Rs, registered against such person and also the section of law are mentioned alongwith the police station where the F.I.R. Is registered and amount of reward money extending from Rs,3,00,000 to Rs,7,00,000 are also mentioned. The learned Law Officer was asked to make his submissions as to whether such notification fixing reward to arrest such accused or cause their arrest could be issued under section 54, Cr.P.C. Other petitions had also been filed. Hearing in these petitions was adjourned from time to time at the request made on behalf of the Government.
' Today we heard the arguments of the petitioners Advocates, who argued that such notification could not be issued under section 54, Cr.P.C. We also heard the submissions of Mr. S. Sarfraz Ahmed, learned Additional Advocate-General, who argued that such notification could be issued under the third clause of section 54, Cr.P.C. On its face, the submission made by the learned Additional Advocate-General is without substance. This provision, on which the entire reliance was placed for the contention that the notification dated 3-11-1992 had been validly issued, only gives power to a Police Officer to arrest a proclaimed offender without an order from the Magistrate and without warrant. Neither the third clause nor any other provision contained in section 54, Cr.P.C.
Gives any power to the Home Department to issue any proclamation fixing any reward for arrest or causing the arrest of any accused.
5. On being pointed out that the said notification, dated 1-11-1992 could not validly have been issued under section 54, Cr.P.C., Mr. S. Sarfraz Ahmed, learned Additional Advocate-General, on instructions, stated that the notification was being withdrawn.
6. Learned counsel for the petitioners, on earlier dates of hearing, had referred newspaper reports that posters were appearing in different parts of the city that the Government of Sindh had fixed "head money" for capture of at least one accused, dead or alive. Although from the letter, dated 7- 2-1993 of the Home Department address to the Advocate-General, Sindh (referred to earlier in this order), an impression had been given that such proclamation had in fact been issued by the Sindh Government, later on, this had been denied and a clear statement was made on behalf of the Sindh Government that no proclamation or advertisement to the said effect had been issued/published at the instance of the Sindh Government. However, in view of the newspaper report, relied upon by the learned counsel for petitioners, we asked the learned Additional Advocate-General whether any official document was available with him which led to the passing of the orders for issuance of the said notification, dated 1-11-1992, on which the learned Additional Advocate-General brought to our notice a summary, dated 28-10-1992 moved for orders of the Chief Minister. We considered it appropriate to bring the copy of the said summary on record on which the learned Additional Advocate-General claimed privilege. However, he could not refer to any provision of any law under which privilege could be claimed in respect of a summary of the kind in question. Accordingly, the copy of the summary produced by the learned Advocate- General is brought on record. It is reproduced here: "Government of Sindh Home Department SUMMARY FOR CHIEF MINISTER Subject:-- DECLARATION OF PROCLAIMED OFFENDERS AND CASH REWARD.
' The Deputy Inspector-General of Police, Karachi has recommended names of six persons for declaring them as proclaimed offenders alongwith cash reward for their apprehension/elimination (Annexure-I). These persons are involved in heinous offences punishable with death or imprisonment with life and they continue to pose threat to the life and property of people.
(2) Any person from general public or any member of the Police Force including the members of Armed Forces, Frontier Constabulary, Rangers or any semi-Government or Government Security Agency is eligible to claim the reward for arresting or liquidating the proclaimed offenders.
(3) The Provincial Government is empowered under section 54 of Cr.P.C. To declare the persons who are involved in heinous crimes punishable with death or imprisonment of life as Proclaimed offenders.
(4) A draft proclamation on the same pattern as published in the last Gazette Notification in September, 1991, which was duly vetted by Law Department is attached in order to inform the general public and law enforcing agencies regarding the proclaimed offenders (Annexure- II).
(5) A draft press note for wide publicity of Proclaimed offenders and reward/head money is submitted for approval (Annexure-III).
(6) Home Department recommends that six persons whose particulars alongwith case attached at (Annexure-I) may be declared and notified as Proclaimed offenders in exercise of powers under section 54 of the Code of Criminal Procedure, /898 and Finance Department may be advised to sanction a sum of Rs,32 Lacs as head money.
(7) Chief Minister may kindly like to approve para. 4, 5 and 6 above.
(8) The notification (Annexure-II) is covered by sections 54 and 59, Cr.P.C. Under clause (3) of section 54, the Provincial Government is empowered to declare any person involved in any crime as proclaimed offender. Section 59, Cr.P.C. Empowers not only a Police Officer but also any private person to arrest any proclaimed offender.
(9) Under section 46(3), Cr.P.C. a right to cause the death of a person resisting the arrest is available only when such person is accused of offence punishable with death or with imprisonment for life and that too in extreme circumstances mentioned therein.
(10) The expression "any person" has a wide connotation and would include members of Law Enforcing Agencies i,e, members of Armed Forces, Frontier Constabulary, Rangers etc. It is within the executive powers of the Government to reward a person for arresting or cause the arrest of any proclaimed offender.
(11) In the above view of the matter, the notification appears to be in order. It is in conformity with the previous notification on the same subject vetted by the Law Department.
(Sd.)
(Abdul Qadir Siddiqui), Law Secretary."
7. On the perusal of the aforesaid summary, dated 28-10-1992, it is apparent that the then Deputy Inspector-General of Police had recommended the names of six persons for declaring them as proclaimed offenders with cash rewards for their apprehension/elimination. It is stated in the summary that any person from the general public or any member of the law enforcing agencies or security agencies is entitled to claim the reward for arrest or liquidating the proclaimed offenders.
Draft proclamation was also annexed to the Summary but that is not available with the learned Additional Advocate-General in his papers. Draft Press-note for wide publicity of proclaimed offenders and reward/head money was also attached to the summary (which is also not available with the Additional Advocate-General). Finally, the Home Department recommended that the six persons be declared as proclaimed offenders in exercise of powers under section 54, Cr.P.C. And Finance Department may be advised to sanction a sum of Rs,32,00,000 as head money. The then Chief Minister, by his order, dated 31-10-1992, approved paras. 4, 5 and 6 of the summary. If the said summary had been approved as aforesaid, proclamation and press note must have been issued.
8. We have been greatly disturbed by the use of the words "elimination", "liquidating" and "head money" in the summary, dated 28-10-1992 moved by the Home Department to the Chief Minister.
There is no provision in Pakistan law which authorises the Government to fix "head. Money" for arrest or production A of an accused or even a proclaimed offender, dead or alive. This would, in our view, amount to give a licence to kill, or to use the words in the summary licence to "eliminate" or "liquidate" any accused or proclaimed offender. Such decisions are not only patently illegal but can create extreme, serious situations. Such proposals and decisions must be condemned and it should be ensured that the same are never repeated.
9. Mr. S. Sarfraz Ahmed, learned Additional Advocate-General wants these petitions to be disposed of as infructuous on his statement that the notification, dated 1-11-1992 is being withdrawn by the Government. In the facts and circumstances of the case, however, we have not allowed this request in respect of three petitioners i,e, Petition No,D-2926 of 1992 (relating to Dr. Imran Farooq), Petition No,D-3038 of 1992 (in respect of Hafiz Osama Qadri) and Petition No,D-1266 of 1993 (in respect of Saleemul Haq/Saleem Shahzad). These three accused are named in the notification/proclamation, dated 1-11-1992. The other three accused named in the said proclamation have not filed any Constitutional petition.
We are of the view that section 54, Cr.P.C. Under which the said notification, dated 1-11-1992 has been issued announcing rewards for arrest or causing the arrest of the accused does not give any power to the Government to issue such notification. If there is any other provision of law or rules which authorised the Government to issue such notification, the notification ought to have been issued under such provision.
10. As a result Constitutional Petitions Nos.D-2926 of 1992, D-3038 of 1992 and D-1266 of 1993 are allowed and the impugned notification/ proclamation, dated 1-11-1992 issue under section 54, Cr.P.C. Is declared to have been issued without lawful authority and is of no legal effect. In the special facts and circumstances of this case, the Government of Sindh is directed to pay cost of.
Rs,5,000 to each petitioner in the said three Constitutional petitions, i,e, Constitutional Petition No, D-2926 of 1992, Constitutional Petition No, D-3038 of 1992 and Constitutional Petition No,D-1266 of 1993.
11. Other petitions are dismissed as no proclamation or notification has been issued by the Government of Sindh in respect of the accused in such petitions.