PESHAWAR: Peshawar High Court, Mingora Bench, has dismissed 18 identical petitions filed by close relatives of several missing persons as government has denied their arrest.

A single-member bench of Justice Mohammad Naeem Anwar ordered that the petitioners were at liberty to approach the appropriate forum for redressal of their grievance as and when anyone of them got the knowledge of illegal detention or whereabouts of their relatives. The bench observed that their application should be then decided in accordance with law of the land.

Most of the petitions were filed several years ago, accusing the law enforcement agencies and security forces of taking away the alleged detainees and keeping them in illegal confinement.

Following a marathon verification process of many years, a focal person of provincial home department submitted his report wherein intelligence agencies and security forces denied the arrest of the alleged detainees and also expressed ignorance regarding their whereabouts.

Govt shows ignorance about whereabouts of petitioners’ relatives

The bench observed that the allegations in most of the petitions pertained to the years 2009, 2010 and onward when local Taliban carried out attacks against security forces including Pakistan Army, Frontier Corps and police that led to military operation against militants in Malakand region in April, 2009.

The bench observed that it had directed all the respondents including provincial home department, ministry of defence and others to inform the court about the whereabouts of the missing persons because an effective judicial remedy was considered essential to prevent enforced disappearance and determine the whereabouts of the missing persons.

The bench observed that the reply of respondents in categorical terms in juxtaposition with the insurgency, militancy and military operation in Swat district, some part of Dir, Bajaur and Buner, showed that neither the respondents could be held responsible nor the petitioners could place on file any concrete evidence with exactitude about the abduction or custody of missing persons.

“In such circumstances when the comprehensive report regarding concerns of the petitioners of all these petitions have been submitted by the respondents with a clear stance that the missing persons (detainees) are not in their custody then the instant as well as connected petitions cannot be proceeded ahead,” the bench ruled.

It was further observed that apart from the report submitted by the government, the respondents had refuted the allegations of arrest or detention of missing persons.

The bench observed that undoubtedly, the missing persons had neither been formally charged under any criminal law nor had been detained as a preventive measure under any federal or provincial preventive detention laws.

In its 11-page detailed judgment, the bench also explained the constitutional provisions and international conventions including Universal Declaration of Human Rights and International Covenant on Civil and Political Rights, dealing with civil liberties and protection to life and property of individuals.

In the replies filed to the petitions by the home department, the court was requested to reject the petitions as those were not maintainable.

It was mentioned that Supreme Court of Pakistan in one of its judgments in 2017 held that the applicants in such like cases should first approach the Commission of Inquiry on Enforced Disappearances instead of the superior courts.

In one of the petitions, a petitioner Akbar Khan claimed that his son Saddam Hussain was taken into custody by security forces in 2009 and since then his whereabouts were not known. He claimed that the detainee was neither a member of any proscribed organisation nor wanted in any criminal case by police.

Another petitioner named Bibi Halima alleged that her sons Fazal Subhan and Zakriya were taken into custody on July 11, 2012, and Oct 11, 2018, respectively, by law enforcement agencies following which they had no contact with them.

Another petitioner Naik Haram claimed that her son Najeebullah was taken away by security forces at a checkpost in Malakand on October 14, 2009, and thereafter he was neither charged in any case nor set free.

Published in Dawn, March 18th, 2024