SHC orders AD Khowaja to continue as police chief with full powers

Naimat Khan

KARACHI: What came as a serious blow to Pakistan Peoples Party’s Sindh Government after months of row over the top police posting, the Sindh High Court on Thursday ordered Allah Dino Khowaja to continue functioning as Inspector General of Police Sindh with full powers.

The court also ordered to annual the posting being made without consent of the Sindh Police Chief by Home Minister through a notification.

The judgment came a day after the Sindh Government sought reply from the IG to approve leave application of senior officials, which according to the rules set by Sindh Government notification, was required to get approval from home minister.

In its order, the bench dismissed the notification for removal of Khowaja from the IGP post, ruling that the provincial government could not remove an IGP without any justification.

There is associated with the post of Inspector General a term or tenure as set out in the Sindh Government Rules of Business, 1986.

The term is part of the law of the land insofar as this Province is concerned. It cannot be disregarded, disobeyed or flouted by the Provincial Government. It has mandatory and binding effect. It must also, as explained herein above, be given due recognition by the Federal Government, the bench ruled, adding that the present incumbent of the post of Inspector General, the Respondent No. 7, is therefore entitled, subject to what is said  below, to have the benefit of the term associated with the post.

Since the post of Inspector General has a fixed term associated with it, the rule laid down by the Supreme Court in the Anita  Turab case is applicable. Therefore, if at all an incumbent can be removed during the term that can only be for compelling reasons within the meaning of the rule, the order reads.

Since the proper procedure in accordance with law has not  been followed, the correspondence addressed by the Provincial  Government to the Federal Government on 31.03.2017 and the  follow up notification of 01.04.2017 are quashed as being  contrary to law and of no legal effect. “The endorsement by the Sindh Cabinet of the foregoing at its meeting held on 05.04.2017 (vide agenda item No. 6) is also set aside as being contrary to law”, according to the bench.

For purposes of giving directions and making orders for enforcement of fundamental rights, the Police Act ought to be interpreted and applied by adopting the approach articulated  by the House of Lords in the Ghaidan case, in applying the  (UK) Human Rights Act, 1998. Sections 3, 4 and 12 of the  Police Act in particular have been so interpreted and applied,  keeping in mind at all times the objective identified above,  namely that there must be autonomy of command and  independence of operation in the police force.

If at any time the Provincial Government (here meaning the Provincial Cabinet) amends or alters the 1986 Rules in relation to the term or tenure of the Inspector General, such term cannot under any circumstances be reduced to less than three years. Furthermore, no authority or body can be given any power to curtail, reduce, suspend or otherwise dispense with the stipulated term. However, any such change, if ever made, shall apply also to the incumbent for the time being of the post of Inspector General, the bench ordered.

It is declared that the Sindh (Repeal of the Police Order, 2002 and Revival of the Police Act, 1861) Act, 2011 is intra vires the Constitution and that therefore the Police Act, 1861, as revived and restored by the said Act is the law in force in this Province and not the Police Order, 2002.

According to the judgment, the Respondents as aforesaid are restrained from acting in any manner that is inconsistent with, or which contradicts, any orders made or directions given in this judgment and, without prejudice to the generality of the foregoing, from issuing, acting upon or giving effect to any circular, notification, guideline, instruction, order or direction that is inconsistent with, or contradicts, this judgment.

Soon after the court’s judgment came out Pakistan Peoples Party’s Saeed Ghani said that the Sindh government had the power to decide whether the incumbent Inspector General Police AD Khawaja should continue on his post or not.

“It seems as if Sindh is on another island where a different law is in place,” he said while reacting to Sindh High Court’s verdict which dismissed the provincial government’s order to remove AD Khawaja and ordered that he will continue on his post till his due term.

Moreover, in its verdict, the court directed the federal government to draft rules regarding the tenure and appointment of the IG.

Ghani also claimed that no one praised the Sindh government when AD Khawaja was appointed as the inspector general.

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