PLJ 1990 SC 216
[Original Jurisdiction]
Present:
muhammad afzal zullai i, javed
iqbal and S usman ali shah, J
J DARSHAN MASIH alias REHMATAY and others-Petitioners
versus
THE STATE-Respondent
Constitution
Case No. 1 of 1988, decided on 15-3-1989
(i) Bonded
Labour--
—Brick-kiln owners and labourers—Disputes
between—Solution of—Future pesligis—Grant and recovery of—Procedure for—Peshgis
system in future is to be discontinued-Held: If a valid agreement on this point
is reached between a labourer
and an owner, an advance loan not exceeding seven day's wages can be given payment/adjustment whereof will be made
to owner in easy instalments as
agreed by parties. [Pp. 238&239]C
(ii) Bonded Labour--
—Brick-kiln owners and
labourers—Disputes between—Solution of— Jamadar/Jamadarni system—Finishing
of—Held: Existing Jamadar/Jamadarni system is to cease forthwith-Held further: All
labourers shall have direct dealings with owners and no payment on their behalf
shall be made to Jamadars/Jamadarnis. [P. 239JF
(iii) Bonded Labour--
—Brick-kiln owners and
labourers-Disputes between-Solution of--Past peshgis-Recovery of-Method for-Past
unreturned peshgis given to labourers by brick-kiln owners still
outstanding-Labourers are legally bound to return all such peshgis-Held:
In case of denial of peaceful return of those peshgis, owners are authorised to recover same by legal
means, i.e. court decrees, but they
are not authorised to use unlawful means such as coercive methods or use of Police. [P. 238]A
(iv) Bonded Labour—
—Brick-kiln owners and
labourers—Disputes between—Solution of—Past special emergency
loans-Recovery of-Held: A maximum of Rs. 5000/- per household granted in
past as formal loans or grants for marriages, religious festivals, medical
treatment and death ceremonies by owners, shall not be recoverable and shall be
treated as donation to those labourers who return and resume work
voluntarily. [P.238JB
(v) Bonded Labour—
—Brick-kiln owners and
labourers-Disputes between-Solution of-Payment of wages—Procedure
for—Held: Payment of wages shall have to be made to labourers on
daily/weekly/fortnightly/monthly basis as agreed upon between labourer and Bhatta owner-Held further: No
deductions are to be made from their
wages for damage/losses to bricks caused by rain and same shall be borne by Bhatta owners. [P. 239] E
(vi) Bonded Labour--
—Brick-kiln owners and
labourers-Disputes belwccn--So)ution oi-Return of labourers to
work—Procedure for—A notice/direction is to be issued to all labourers to come for work and report to
their respective Bhatta owners who will
give assurance in writing that they will not use any coercive methods or use
police force to bring them back or retain them—Held: A labourer who does not want to come back or having returned, wants to
leave work in Bhatta of existing
owner or to get job elsewhere or in Bhatta of another owner, shall not be retained forcibly provided he gets a
certificate for this purpose from concerned
District Judge/Civil Judge 1st Class—Held further: Retention shall not be
treated as detention and labourers shall not be retained in any manner which is otherwise unlawful.[Pp.
239&241JD&H
(vii) Bonded Labour-
—Loans in form of pesligis-Rccovvry of-Future
loans-Prohibition of-Whether enactment of new provisions is necessary-Question
of-Enquiry, though limited, has revealed that individual young people, by selling
their properties and/or by
earnings from abroad through similar labour, advanced loans to Bhatta labour in lacs of rupees-Labourers fled away treating it
astheir right
neither to work nor to return money—Mr. Ihsanullah and his Union insisted till end ui.it it is ihcir
right to do so as according to Indian Law, amount could be appropriated on account of what he
thought philosophy underlying
practice of bonded labour-Held: His view, if made a law in Pakistan, an Islamic State, it is
likely to fail—Held further: Contracts whether of loans or of work should be tested on touchstone of
Contract Act which already
contains enough strong safeguards against illegal, immoral, unconscionable and other similar
contracts and those against public policy.
[Pp. 243&244]P
PLJ 1988 SC 306 = PLD 1988 SC 416 and PLJ 1990 SC 139 rel.
AIR 1984 SC (India) 1099 and 802 ref.
(viii)
Constitution of Pakistan, 1973--
—-Art. 184(3) read with Articles 199(l)(c), 187, 189 and
190-Orders to be passed
under Art. 184(3)-Nature of-Jurisdiction of Supreme Court-Sometimes Supreme Court has to satisfy
dictates of "complete justice" as its judgment is subject of ample authority as well as of
future application in given cases-Held: When this power is exercised, Court will have necessary additional power to "issue such
directions, orders or decrees as may be necessary"~Held further: Besides binding effect of
judgment/order of Supreme
Court on all other courts, question of law or principle of law enunciated by it is a similar command
to all executive and judicial authorities throughout Pakistan, hence Supreme Court, in a fit case
of enforcement of Fundamental
Rights, has jurisdiction, power and competence to pass all proper/necessary orders as facts
justify. [P. 242]M
(ix) Constitution of Pakistan, 1973--
—-Art. 184(3)-Orders to be passed under Art.
184(3)~Nature of~Nature of orders
which can be passed in such cases, is also indicated in Article 184(3), that is
, such as can be passed under Article 199-HeId: Even if it is assumed that nature of order is confined only
to orders under sub-clause (c) of Article 191(1) and not to other orders under Article 199,
any concievable just and proper order can be passed in a case like present
one-Held further: Principle of extension involved in relevant phrase used in Art. 199(l)(c) "an
order givingsuch
directions to any person or authority as
may be appropriate forenforcement of " cannot be abridged or curtailed by law. [P. 242]L
(x) Constitution of Pakistan, 1973—
—Art. 184(3)--Telegram to Chief Justice—Whether can be
made basis for action-Question
of-Under Article 184(3), without prejudice to provisions of Art. 199, Supreme Court, in a question
of public importance with reference to enforcement of Fundamental Rights, has power to make an
order of nature mentioned
in said Article-Held: Acceptance of a telegram in this case is covered by Miss Benazir Bhutto's case
as also by due extension of principles laid therein-Held further: Such information through
telegrams and letters, even
if addressed to individual Judges, has to go to Hon'ble Chief Justice for initiation of proceedings. [Pp. 241&242JJ&KPLJ 1988 SC 306=PLD 1988 SC 416 rel—Forced
labour—Expression of—Definition of—Necessity of—For purposes of convenience of all
concerned, it might be necessary to define expression "forced
labour" with illustrations of iis different forms to minimise any confusion about its
real purport as also resultant unproductive litigation—For this purpose, other
elements in these Fundamental Rights may be collected together and put in
a self contained code—It might cover all aspects of human dignity, deprivations
and misery including those rights in this behalf enshrined in Islam—Held: These
aspects of enforcement of Fundamental Rights guaranteed in Constitution and other
basic human rights ensured by Islam, can, by law, be made also into an independent
inalienable right with self operating mechanism for its enforcement as well. [P.
243JN&O
(xii) Practice and Procedure--
—Deciding of an issue—Strict legal
principles of—Adherence to—There is great merit in Court proceeding to decide an issue
on basis of strict legal principles and avoiding carefully influence of purely
emotional appeal—Certainty of substance and certainty of direction are indispensable
requirements in development of law and invest it with credibility which commands public
confidence
in its legitimacy—Held: This warning is of especial significance in this phase of
judicial history when a few social action groups tend to show evidence of presuming
that in every case, Court must bend and mould its decision to popular
notions of which way a case should be decided. [P.245]Q&R
AIR 1984 SC (India) 802 ref.
Mr KJwlil Ramdey, Advocate General and Mr.
Tanvir Ahmad KJian, Addl. Advocate General for State.
Mr Abdul Sattar Najam
and Mrs
Asrna Jeliangir, Advocates, representatives of the High Court Bar
Association. Mr. Zainul Abidin, Advoate for Bhatta owners. Mr KJialidMahmood, Advocate for
Labourers.
Dates of hearing: 11,12,13,14 and 15-3-1989.
order
Muhammad Afzal Zullah, J.--On 30th July,
1988 during the long summer vacations the following telegram was received by the
Honourable Chief Justice of Supreme
Court."Chief Justice Supreme Court of
Pakistan, Rawalpindi. We plead for protection and bread for our family. We are
brick kiln bonded labourers. We have
been set at liberty through the Court. And now three amongst us have been abducted by our owners. Our children
and women are living in danger. We
have filed complaint. No action taken. We are hiding like animals without protection or food. We are afraid
and Hungry. Please help us. We can be contacted through counsel Asma
Jehangir. Our state can be inspected. We
want to live like human beings. The law gives no protection to us.Darshan Masih (Rehmatay) and 20 companions with
women and children main market
Gulberg, Lahore."The same day it was marked to me. A Bench with myself as
a Member was then functioning at
Lahore. On the receipt of the telegram by me at Lahore it was, prima-facie, considered to be a case falling in the
category of public interest litigation
and direct cognizance by the Supreme Court under Article 184 of the
Constitution, was possible. As it was the first case of its nature, while
treating the matter in Chambers, it
was necessary to seek assistance of the Bar on the legal side and the police, for the purpose of the
release of the detenues who, it appeared prima-facie from the telegram,
were the bonded labourers in the brick Kiln
Industry. The following order was accordingly passed:-"Malik Abdul Karim, President cf Lahore High
Court Bar Association be requested io assign a senior member of the Bar
on the criminal side to handle the case.In the meanwhile ihe office to trace out the case
marked 'A' in the telegram.A
copy of the telegram and this order be immediatlely taken to I.G. Punjab peisocally by an official of the Court
for a very prompt action; in
accordance with law and report."Although the Order was taken
personally io the I.G. Police by an official of the Court as a mark of urgency to impress upon him for personal
immediate attention, he sent it down
to the D.LG. Police who in turn sent it down to the lower staff; and ultimately, during the subsequent
detailed inquiry it was discovered
that a copy of the Supreme Court directive had reached Bhatta owner concerned.
He obviously took all precautionary measures so as to avoid serious consequences. Be that as it may, a D.I.G. reported
that "a case under sections 406/420
PPC was reigstered at pc4ke station Bhai Pheru, District Kasur, against Boota Masih and 20 others on the complaint of
Malik Abdul Qayyum, for an alleged criminal breach of trust. The accused
reportedly received four lacs in advance
as labour charges for manufacturing raw bricks; but slipped away alongwith advance money. Boota Masih and 13
others have been arrested." The President
Bar Association deputed a senior Member of the Bar who had also been a
Government Law Officer (Assistant Advocate General). He also made preliminary inquiries through the sources of the
Bar. The accused persons were ordered to be produded before the Court.
However, as the matter was being dealt by a
Magistrate 1st Class under the Criminal Procedure Code, after the afore noticed arrest of the persons concerned, it was
not considered appropriate in the circumstances
of the case to pass direct orders of release; particularly because the Police
itself offered that they would themselves get them released on bail. -Some
persons out of the total mentioned in the telegram were stated to be not
available nor they had been arrested.
After a detailed preliminary discussion with all concerned the following Order was passed:-"This matter has come up for further examination after prima
facie satisfaction through
preliminary inquiries that the complaint is bonafide.""The concerned police officials including
Muhammad Ashraf, DSP, Pattoki, are
present. The learned Advocate-General has appeared to assist as Senior Officer of the Court. He has with
him his own team including Mr. Tanvir Ahmad,
Additional-Advocate-General. Mr. AbdusSattar
Najam, as ex-Law Officer (Assistant Advocate-General), who has been
assigned the duty to assist the Court in this matter in pursuance of the request sent to the President of the Bar
Association in this behalf. Mrs.
Asma Jehangir, a local Lawyer, is assisting Mr. Najam. One Mst. Bashiran,
who claims to be acquainted with the facts and circumstances in which the complaint was made to the Supreme
Court, is assisting this team of
Lawyers."The DSP has stated that a criminal case having been
registered in respect of the subject matter of the complaint, 21 persons (all
adult males) were required by the Police for
investigation; 14 of them having already
been arrested as accused, 11 were bailed out in accordance with law.
They are all present in Court and have stated that they are no more under detention. Three persons have appeared in
custody. The DSP stated that excepting Sadiq Masih, who is in custody under
judicial orders, the remaining two
are going to be released by him to-day on personal bonds and on furnishing of surety bonds by one Yasin, who is present in Court and is stated to be the present
employer of all the detenus and their companions. Regarding the
remaining seven persons, after obtaining
time from the Court, the DSP has made a statement that to the best of his satisfaction they are not in
any form of illegal detention. According to him they have concealed themselves
out of fear of arrest by the police in
the case which has already been registered. He further stated that Sadiq, Allah Ditta, Boota and Rehmat,
who are present (out of the alleged detenus) have assured him (the DSP)
that the remaining seven persons would
appear before the DSP as soon as possible because, as stated, they are
no more now under the fear of any illegal treatement. On their assurance, the DSP, in turn, has assured the Court that the remaining seven persons would also be "Insha
Allah" produced in Court on
16.8.1988 at 1.30 P.M."The DSP has been told to submit his report
also on 16.8.1988. Mr. Abdus Sattar Najam,
the representative of the Bar Association, shall also try to complete his report which, he has stated, is under
preparation.""Order
acccordingly."
"Some representatives of the Press were
present in the Court. They have been directed not to publish the proceedings
for the time being because that might prejudice the result of these proceedings. Heowever, they have
been assured that the final order would not be subject to this restriction, unless
till then some such development takes placewhich compels the Court to order
otherwise."It was feared that perhaps the Police, in order to avoid the
charges of illegal intervention/detention and pressure at the behest of the owners, had
resorted to registration of a case and had also arrested some persons; and the
remaining were also thought to
be under some type of detention and were neither being arrested nor were they produced, under the fear that they
might divulge something'against the
owners and/or the Police. In order to further know the nature of relationship between
the labourers and their employers as also the police connections, it was
thought necessary to ensure the production of all the persons who were
allegedlyaccused persons though they appeared in reality to be bonded labour.
It may be stated here that by and large all those who were arrested were being
released on bail either on the asking of the
Police and/or by the owner or by the Magistrate on the merits of the case.
The proceedings were being held day to day in
Chambers; several hours daily, were devoted to this matter. The following three
orders dated 16th of August, 17th of August and 21st of August, 1988 were
passed after about a fortnight
of the receipt of the telegram, which would show the trend and purpose of the inquiry, Contemporaneously it was being
ensured that wHerever somebody was being detained or coerced to render
forced labour, should be protected. The results
were being achieved in geometrical progression.
"Order. (Dated 16.8.88)
Muhammad Ashraf, DSP, has submitted a report in writing. He
appears to have completely aligned with the
Bhatta owner - in this case Rana Abdul
Qayum. He has not mentioned anything about the accusation against the police about which he heard a lot in
the Court proceedings.
"The Additional Advocate-General Mr. Tanvir Ahamd stated that the report by
the Advocate-General is under preparation and would be submitted soon. He
has cited two cases from Indian jurisdiction Neeraja Choudhary AIR 1984 SC 1099
(Para 2) and AIR 1982 SC 1473) in W.P. 8143 of 1981."
"Mr. Ahsanullah, who from appearance
seems to be a respectable person, claiming to be a Journalist attached with a
newspaper of
Hyderabad and also the Chief Organizer of a Union constituted to help the Bhatta
Workers, has appeared to-day with his team; including one Yaqoob an uneducated person described
by Mr. Ahsanullah as his Office Secretary - presumeably of the Union. Rana
Abdul Qayyum, the main actor in this entire
episode has attended today. A Lawyer named Muhammad Arjf, is present presumeably with a watching brief, form Rana Abdul Qayum."
"Mr. Najam, learned Advocate
representing the Bar Association with Mrs. Asma Jehangir have also appeared. Mr. Najam has
submitted his report in a folder with additional four folders containing
photostat copies of unarranged many
documents, including newspaper reports etc, which have not yet been perused on account of their bulk. Some other Members of the Bar are also present. Many other
persons including the majority of
alleged detenus, their partisans and theemployees of .the Bhatta owners are present. Due to paucity of
space, the proceedings could not be
held in the chamber. They have been held in the Court hall."
"Out of the remaining seven detenus,
Ashraf has appeared. Yaqoob has also appeared. He stated that Aslam is his
son and that he is not in detention at the present. For some unavoidable reason, Yaqoob has explained, Aslam
has not been able to attend. With regard to Akram, the DSP has produced a certificate of an
Army Officer stating that he is employed in
the Army in a civilian category since August 1987 and is not in
detention. The Army Officer in his wisdom has not spared the allegeddetenu to appear in Court. Thus Aleam is not in
detention. Out of the remaining
detenus, Paloos (stated to be the younger brother of Sadiq who was present at
the time of the last hearing in police custody), is stated to have gone away to unknown place and
would be produced by the Police if
further time is allowed. Sadiq his elder brother, according to the DSP
was got released on bail by him (DSP) but strangely enough he is not present.
The victim side's apprehension is that though formally released he is still in police custody. The DSP explained about Anwar
and Hanif that they are under the
influence of Rehmat, one of the detenus who is now free and sitting with the victim group on the benches
occupied by the Union officials and
other workers. It is visible that the alleged victims and other workers are in constant communication with the union officials particulary Mr. Ahsanullah while Rana
Abdul Qayum and others with him,
sitting alongwith the Police officials, are in constant communication with the Police. The sympathies and
alignments are obviously visible.
The learned Additional Advocate-General, it seems, has so far adopted an
independent posture and so did the Advocate General who had appeared during the earlier hearings."
"I encouraged both the sides to enter
into some dialogue in Court.
Accusations and counter-accusations started. The purpose was to discover as to how to procure the attendance of
Paloos, Hanif and Anwar who, it
seems, are no more in detention, but still under some outside control. Ultimately it was felt that Rehamt the
freed detenu who is a close relation of Hanif detenu might be able to produce
the latter. Regarding the two; Anwar
and Paloos, it was strongly felt that they are under the influence and control of the Police, and the DSP is in a
position to produce them. Accordingly,
both Rehmat and the DSP were firmly told
to produce them otherwise they might be dealt with under the criminal law.""During the hearing/discussion which, today also, was spread over about three and a half hours as was the
previous one, three important
aspects amongst many others came to light which need to be noted:
"(1) During the heated discussion
amongst them it came to light that some freed detenus who are present, if
examined, would reveal visible marks of injuries on their body. Mr. Najam
Advocate, Mr. Tanvir Ahmad, Additional Advocate-General and the DSP saw the bodies of the two
Rehmats; one who has already been mentioned in these proceedings who might be
described as No.l and another Rehmat who can be described as No.2. They were also seen
by the Court. Rehmat No.2 was so terrified and under such strong pressure from
the police, and about this there is absolutely no doubt, that he insisted that
the marks of injuries on his back which obviously were the result of Sota/Danda
blows, were suffered by him on account of, what he blurred out,
"bricks-bricks." This was obviously false statement. The DSP
also on seeing all this admitted that they were marks of Danda blows but he was
hesitant tG<~ go any further; presumably because the police
officialsthought that on account of the aforementioned warning with regard to
non-production of theremaining detenus they might also be proceeded against
for crime of omissions and commission. Similarly, the victim side was hesitant and terrified that
they might be proceeded against either by the police or by the Court. Further
disclosures were becoming impossible. Therefore, after careful consideration both
the police and the victims as
also Rana Abdul Qayum and Ahsanullah, were clearly
told that whatever has happened it should be brought before the Court so that some measures should be devised
for prevention in future; and further, that the Court shall not take
any action with regard to what has already
happened."
(2) "Two ladies Mst. Reshman and
Sharifan who had appeared on the last hearing, according to the victim side as
freed detenus and according to the police as intruders, also appeared today and
surprisingly enough they were
not taking the side with the victim party
instead they started accusing Rehmat No.l and Yaqoob the Office Secretary of the Union. In order to observe
demeanour further the Court
questioned Mst. Reshman and Sharifan separately.
Both (Reshman and Sharifan) were then allowed to accuse and confront
said Yaqoob in Court as they wished. Yaqoob for
a while faced the questions with firmness and clear denial of allegations of exploitation. However, he was
brought under pressure by the two
women who subdued his voice by their shouts. Apparently Yaqoob seemed to
have lost in this verbal encounter. It would
be too premature to say as to who was in the right. In any case, these women are at present absolutely free
though the possibility that they might have been kept in confinement by
the Bhatta Walas, by the police or some
clever fellow the victims' side cannot
be excluded."
„ (3) "Apart from Reshman, Rehmat No.l,
the DSP, Younis ASI and / Rana Abdul Qayum were afforded separate opportunity of
giving any
information they liked, which was not audible by others sitting in the hall. It is not
necessary to state here all that they said. Rana Abdul Qayum stuck to
his position that he is neither an exploiter nor has he caused any physical harm
to any of the victims nor he manoeuvred it through police. He insisted on his
case against the victims
being true. From his demeanour it did not at all, appear that if he used unlawful acts in the past against the
victims, he had any intention now, to give it up. Otherwise he seems to
be a respectable person. The DSP in very
guarded language gave sufficient indication that the police is helpless
when heavy pressures are applied upon them.
He did not, at all, plead for the ASI Muhammad Younas who seems to be a major character in the episode from
the police side. He, however,
promised that he will help the Court in finishing the bonded labour
practices about which it seems he has considerable information. Rehmat (1) still terrified was virtually speechless when he was asked to disclose the circumstances in
which he was allegedly detained and
physically harmed. He kept on urging that he should be helped in protecting his family. He mentioned
hat he wants toarrange the marriage of his young daughter but is afraid that he
might not be able to do so. Mst.
Bashiran, who had appeared on the earlier
hearing, a daughter-in-law of Rehmat, who was very vocal on the last hearing conspicuously, was absent today.
When questioned about this, Rehmat
said that they have been sent away out of fear of the Bhatta Walas and
the police. When, Muhammad Younus, ASI was
similarly afforded opportunity, he was first confronted with a circumstance which has come to the knowledge of
the AR (1) of this Court: that he in a very extraordinary way had given
photo-copy of an important official document to Rana Abdul Qayum and when further confronted with some other irrefutable
circumstances almost broke down, with
clamour that he should be pardoned. He has committed blunders but with similar explanation as by the DSP that the
police is helpless under higher pressures. From his demeanour it did not seem that the only motive for his wrong
doings was the so-called higher
pressure. He happened to be a reckless youngman risen from the lower ranks. He might have felt pround of what he did including the torture to the victims
presumably at the behest of Rana Abdul
Qayum for obvious alignment and motives as also perhaps due to his own nature. He was clearly told that he should at least now, make a resolve not to do it in future to
which he responded with a very strong
promise. He was also assured that this Court would not take any action nor
would direct any action against him
for what has happened in past provided he keeps his promise."
"The proceedings ended today with the
direction to the DSP to produce Paloos and Anwar by 11 ()' clock on 18lh August, 1988, and similar
directions to Rehmat (1) to produce Hanif tomorrow at any time, during the Court hours.""As on previous hearing the Members of the
Bar including the learned Additional
Advocate-General have been very helpful. The appearance of Mr. Ahsanullah also proved helpful as he gave the background of the bonded labour practices in the
brick-kiln industry in Pakistan and his role initially as a student leader and
then as a Press Reporter/Labour Union
leader. It would be premature to make any further assessment about him or his organization."
"ORDER:
(Dated 17.8.88)
"Today Rehmat (1) appeared with one
Barkat whose wife is the sister of Hanif detenu. Barkat explained that Hanif is
not, at all, now in detention. He
has gone to sonic unknown place. Two other persons also appeared. All stated that Hanif is no more in detention. He
has run away on account of fear of
police and is not traceable though every body having heard about him is
certain that he is no more in detention."
"Paloos who was required to be produced
by the DSP on 18th instant
has also appeared and has stated that he was afraid of the police and was hiding himself here and there. Therefore,
he did not appear earlier. When
asked whether he is under any detention now, he answered in the "negative". Therefore, he is
also now free.""One Anwar
Masih who has come with Paloos when questioned also seemed to be involved in this affair. He, to start with, tried to be
clever and did not want to disclose
anything. But when told that in this behalf
if he declines to state the circumstances in which Paloos had appeared in Court, he might be proceeded against,
he then disclosed that he had gone to
the office of Ahsanullah where he found Paloos already present. He further stated that Ahsanullah has
informed him that Hanif has been held by the police and is now in
confinement. It is not possible to accept his
statement. He himself appears to be of shady character though claims to be Bhatta labourer. If so from
appearance he might be a "Jamadar" of workers in the making.
However, if Ahsanullah volunteers any
fresh information about Hanif that would be dealt with separately as noted earlier. All circumstances indicated that he
was no more in detention. This would,
however, not exclude the police or the Bhatta owners having confined him. The case would now come up tomorrow for appearance of the DSP and the remaining one detenu
namely Anwar (Paloos having already appeared is no more in detention). The case
regarding Hanif, as already stated,
now stands closed. In these proceedings
if Ahsanullah or any body else gives any information with regard to his fresh
detention that would be examined separately."
"Before this order could be signed, the
tragic death of the President of Pakistan took place. 18th to 20th August,
1988, has been declared as mourning holidays. Court will remain closed. The
case shall now come up on
21st August. 1988. The DSP who was to appear and produce Anwar on 18th shall do the same on 21st August, 1988."
ORDER (Dated 21-8-1988)
Anwar son of Mangoo has appeared with Nama a Jamadar.
The DSP has identified him, as the last alleged detenu. He says he is free
and under
no detention at present. This concludes 1st step in these proceedings to achieve reasonable
certainty that all the alleged detenues are at present free.""In addition to the presence as before, Ch.
Mohammad Zar, Director Punjab Social
Welfare Department with his team and Mr. Shahid Mahmood Nadeem reporter of Herald (the latter as a Social Worker in the field of forced labour) have also
appeared.""Further
statements and views heard and orders passed.""ORDER (Dated 21-8-1988)In
this first case of its type, namely, public interest litigation, the Supreme Court having taken cognizance of a case of public
importance for the enforcement of
fundamental rights, regarding bonded labour paractices, concluded the first part of the proceedings. All the 21 detenus, who
belong to brick kiln labour force and are of Christian community have
been released from the alleged detention. With regard to second part, namely,
prevention of the bonded labour practices in the
brick kiln industry, the Court gave directions for devising long term measures.
The reports have been called from the
Advocate General, Punjab, the PoliceInvestigating Agency, the concerned Labour Union, the
concerned Bhatta Owners Union,
the Director of the Punjab Labour Welfare Department, Lahore High Court Bar Association through Mr, Abdus
Sattar Najam, Advocate, and aseparate report which will be treated as confidential regarding women and
children concerned in this labour problem. It has also been directed that in addition to the efforts being made to
eradicate the rnal-practices in the field of labour employment in the brick kiln industry, a system
should be devised to avoid all
grievances/complaints of the nature dealt by the Supreme Court in this case. For that purpose, the first meeting
shall be held on Thursday the 25th August 1988 at 10.00 a.m. in the office and under the chirmanship
, of Advocate-General, Punjab; and in
his absence, by the Additional Advocate-General. The following shall attend that meeting: -
(/) Mr. Tanvir Ahmad, Additional
Advocate-General; (h) A Christian church representative of high order with
particularreference to the
territorial area concerned; (///) A Muslim scholar
Aalam/preacher having strong social influence inthe area:
(/v) Mr. Muhammad Zar, Director, Punjab Social
Welfare Department; (v) Mr Abdus Sattar Najam, Advocate;
(w) Mr. Shahid Mahmood Nadeem, Reporter of Herald
Magazine; (v/7) Kaila, a Christian
labourer belonging to the actual labour force inthe brick kiln industry; (viii)
Mst. Aziz
Begum, representing the women and children Christianlabour force in the brick kiln
industry.(ix) Mr. Ihsanullah, representing the Union for brick kiln
labour; (x) Mr. Niazi, representing the brick kiln owners association;
andany other person whom
the chairman of the meeting might think it proper to co-opt.
"2. The report about these deliberations and the
measures devised therein should
be with a view to enforce them from 28th August, 1988, in so far as day to day complaints are
concerned. The report shall be submitted by the Advocate General on the 27th August, 1988 and will be
treated as interim report.
He will separately sumbit his detailed report regarding long term measures."As it would appear from the last order
all labourers/detenus having been freed, it was thought necessary, to give enough time to all concerned to
prepare and make their submissions in writing in the form of reports. They were
allowed enough time. The matter was adjourned. During all this effort spread
over about three weeks,
prima-facie, it got establised that atleast in the Province of Punjab, to which the inquiry was primarily
directed, there existed the practice of bonded labour in brick kiln industry; though it was not on as
vast scale as it was stated to be in the neighbouring country. The level of
consciousness amongst the labourers and their organizational net work was so much that by and large the cases
of bonded labour and
resultant illegal detention were being brought to Courts of Magistrates - mostly in proceedings
under section 100 Cr.P.C. and before the High Court in the Habeas Corpus proceedings. The learned
Members of the Bar were
also playing a very active role. Rather it was one of the major complaints ofthe brick kiln owners
that they were being pressurised by the labour class through, what they said, "bailiff action."
They had also offered that if they are relieved of the so called bailiff action" they would give more concessions to
the labourers. It was noticed that wherever the pressure exerted by the
owner was not productive or was counter
productive, local police in selected cases was being mis-used by the owners
through illegal detention, torture in some cases and registration of false
cases in others. The Magistracy by and large it appears was not taking sides. Individual criminal cases of detention, illegal
arrest and/or false cases were being treated with sympathy for the labourers.
In this very case as in many other cases brought to the notice of the Court the
accused were promptly bailed out and subsequently
the cases were either withdrawn or concluded without reaching their logical
ends. They were- either found to be ill for release of the accused without further trial on account of the absence of evidence
and/or due to false implication. In
this case the District Magistrate took prompt action and passed the following
Order within about a week of the pioceedings:-"Mr. Qamar-uz-Zaman
Assistant District Attorney, Kasur for the state present. The petitioaer is
present with his counsel Mr. Jamshed Hussain Khokhar,
Advocate.
The petitioner Rao Abdul Qayum son of Nazir
Khan Caste Rajput r/o Bhai Pheru moved an application for withdrawal of case FIR No.319 dated 23.6.1988 under section
406/420 PPC, PS Bhai Pheru registered at
the instance of said petitioner wherein he alleged that the petitioner entered into an agreement with the
respondents for the preparation of
earth made bricks at the @ Rs.32/- per thousand and he paid the respondent in advance individually but
the respondents failed to fulfil the
agreement and left the work after obtaining the amount in advance.Subsequently the parties
compromised through the intervention of the
respectables of the area and the complainant moved for the withdrawal of the case on 21.8.1988. After giving
the due notice to the prosecution and
obtaining their report the case is fixed for arguments. The arguments
were heard. Statement of the complainant was recorded. The complainant also filed an affidavit in support of his petition.I have examined the Judicial file and report by
the prosecution. Since the parties have compromised and the complainant
is no more interested in the prosecution of
the respondents the proceedings in the trial
would be an exercise in futility.In
view of the above, I accept the petition under section 494 Cr.P.C. and direct the prosecution to request the
trial Court concerned for withdrawal
of the case."Later on the
learned Magistrate who had taken cognizance of the case by his Order dated 13-9-1988 concluded the case after
noticing the proceedings under section
494 Cr.P.C. and also on account of reason that no case was made out against the accused.During the time that the reports were being prepared and the case stood adjourned, several applications were received
from both sides making complaintsagainst each other. The labourers complained
about individual forced labour and the
labour malpractices while the brick kiln owners complained against the labourer as well as the labour Union for cheating
mal-praclice and intimidation, particularly
putting them under pressure of allegedly false complaints with the High Court
and the Supreme Court. These complaints were also dealt with so as to understand the depth and extent of the
forced/bonded labour practice in the brick
kiln industry as also for keeping in view the causes to devise the means and measures through which a lasting solution could be
found.It may be mentioned here that
contrary to what had happened in the neighbouring country regarding
bonded labour, the Government neither at the Federal nor at the Provincial
level took sides with the employers-rather the Government agencies (other than local) particularly in the Law and
Labour Offices had sympathetic, and
one could say, loaded attitude in favour of the labourers. Though the local
executive some times did, like the police, help the brick kiln owners; yet on the matters being
reported to the Court they particularly the District Magistrates, by and large, adopted correct attitude.
However, a possibility cannot be
excluded that this response from the District Administration may have been due
to the prompt action which was being taken by the High Court in habeas corpus
jurisdiction. Otherwise a fear/possibility, which was strongly expressed
existed that left to themselves the District Administration would side with the employers, and is in the habit of
protecting the Police whenever it sides with them.Considerable
material on various aspects of the bonded labour practices in question became available in various reports which
in compliance with the directions of
the Court, were submitted duly. They are as follows:-Reports of Mr. Khalil
Ramdey, Advocate-General, Punjab, together with the report of Mr. Tanvir Ahmad Khan, Additional
Advocate-General, two reports of Mr. Abdus Sattar Najam, a representative of
Lahore High Court Bar Association; report of Mr. Ahsanullah Khan on
behalf of the labourers; report of Mr. Shoaib Niaiz
on behalf of the brick kiln owners; report of Director Labour Welfare Punjab; confidential report submitted by the DSP
concerned; a confidential report submitted
by Mrs. Asma Jehangir-particularly dealing with some matters in which an open report migh have prejudiced the
interest of some innocent persons and
another confidential report were, amongst others submitted to the Court. These reports be read as Schedule I (Page 1 to 107)
to this judgment. (A compilation of complaints from both sides although not
made part of this judgment like the
reports; yet they are useful as a back-ground material in order to understand the nature of this matter. They have
been compiled (Pages 1 to 205) by the office of this Court and in case
of need can be referred to as appendix I to this
judgment). The case again came up before me in Chambers for passing interim orders till the Court was able to
deal with the matter in Court in a larger Bench in due course.
All concerned were heard at length and
keeping in view about hundred complaints
which were brought to my notice; the proceedings in those cases; the proceedings in this case; the reports submitted in
writing; and the oral submissions
made by all concerned including individual labourers and brick kiln owners, the
following Orders were passed on 17/18-9-1988.In the Supreme Court of Pakistan
(Original jurisdiction) Present:Mr. Justice Muhammad Af/al Zullah.Mr. Khalil Ramday, Advocate-General
Punjab,
Mr.
Tanvir Ahmad Khan, Additional Advocate-General, Punjab.
Mian
Abdus Saltar Najam. Advocate.
Mr.
M.A. Hamidi, Deputy Director, Labour.
Mr.
Muhammad Ashraf, D.S.P. Pattoki and all other Police officials.
Mr.
Khalid Mahmood, Advocate for Labourers.
Mrs.
Asma Jehangir for Woman and Children.
Mr.
Zainul Abidin, Advocate, for Anjuman-i-Malkan Bhatta Khisht,
Punjab
with Mr. Muhammad Shoaib Niazi, Chairman of Anjuman.
Mr.
Ehsanullah, President, Bhatta Ma/door Mahaz. Kela Masih
Aziz
Begum and many other Labourers Bhatta Owners and Office
Bearers
of their Anjumans.
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(MBC)
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Orders accordingly.
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