ISLAMABAD: The Supreme Court directed the federal government on Monday to come up with details in 10 days about the number of missing persons in the country.

The directive was issued by a two-judge bench headed by Justice Jawwad S. Khawaja which had taken up an application of Nasrullah Baloch, Chairman of the Voice of Baloch Missing Persons, seeking an order for his protection.

During the hearing, Mr Baloch alleged that the mutilated bodies found in different areas of Balochistan were buried within two or three days instead of handing them over to the families. The identity of these defaced bodies, he said, remained a mystery and even their relatives would not recognise them if handed over.

Also read: 122 ‘missing persons’ traced in Balochistan in three years

He regretted that there was no mortuary to preserve such bodies and said that earlier the Bolan Medical Complex in Quetta had such a facility but it had been closed down.

The court asked the advocate general of Balochistan to submit a report on the procedure of handing over such bodies to the families and the number of hospitals and mortuaries functioning in the province. The other three provinces have also been directed to submit similar reports.

Describing the enforced disappearances as a national issue, Justice Khawaja said the matter must be addressed amicably.

The court directed Attorney General Salman Aslam Butt to submit comprehensive data about the number of missing persons in the country.

According to media reports, the Commission of Inquiry on Enforced Disappearances (CIED) was seized with 1,265 cases as of Dec 31. But the Defence of Human Rights (DHR) claims that the total number of cases of missing persons is 5,149 and 252 of them surfaced in 2014 alone.

The attorney general informed the bench that the federal government would submit its reply to the questions the court had framed on May 15 last year whenever the matter was taken up by a larger bench requiring determination whether a serving military officer accused of offences under ordinary laws should be tried by criminal courts or military courts.

During the hearing of a case on June 5 last year, Justice Khawaja had requested the then chief justice to consider constituting a five-judge larger bench to find answers to the questions the court had framed while hearing a case of 35 prisoners who had gone missing from a military internment centre in Malakand.

The request was sent to the chief justice when the court’s attention was drawn to the pendency of a number of cases of missing persons in at least four other benches of the Supreme Court.

The questions framed by the court asked when a person is accused of committing an offence under the Pakistan Penal Code (PPC) and that person is serving in the Pakistan Army, is it the ordinary criminal forum/courts set up under the Criminal Procedure Code (CrPC) that will try the offender or is it for the forums under the Pakistan Army Act (PAA) 1952 to try such an accused?

Secondly, the court asked, whether the ordinary criminal courts (the courts at Malakand) are obliged to accede to the request made by the army authorities or is it within the discretion of the ordinary courts to determine whether or not to allow the request of the army authorities for the transfer of the case to them.

And thirdly, if it is for the ordinary forums to exercise discretion in the matter of a request received from the army authorities, what is the basis on which such a request should be considered and then accepted or declined.

The court formulations had come against the backdrop of the March 25, 2014 letter written by the General Commanding Officer (GOC) Headquarters 17 Division Operational Area Swat to the District Commissioner Malakand after the registration of FIR No 11 of March 20 against Naib Subedar Amanullah Baig along with his other colleagues posted at the Army Fort Malakand on behalf of Defence Minister Khawaja Mohammad Asif in the Levy Post Malakand of Khyber Pakhtunkhwa under Section 346 of the PPC for removing the 35 missing persons from the Malakand internment centre.

The GOC letter had asked the Malakand DC to transfer the case papers to the army authorities. The accused had not yet been arrested. Subsequently on March 28, the DC replied to the GOC that the case had been closed and its documents dispatched to the army authorities.

The court had held that to ensure uniform consideration of these questions, it might be appropriate that these cases be heard by a larger bench and all such matters (missing persons’ cases) be fixed before the same bench. “We should not have two or three different opinions on similar issues,” it had observed.

Published in Dawn January 13th , 2015

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