October 29, 2008	Wednesday	Shawwal 29, 1429

KARACHI, Oct 28: The Supreme Court asked the Faisal Cantonment Board on Tuesday to produce the notification that empowered cantonment boards to sanction building plans in civilian areas of the city and also issued a notice to the attorney-general to explain whether the power could be transferred under the law and the Constitution.

The order was passed by an SC bench comprising Justice Saiyed Saeed Ashhad, Justice Zia Pervez and Justice Sabihuddin Ahmed after hearing Advocate Anwar Mansoor Khan in a petition challenging unlawful construction on a plot in Block 10-A of Gulshan-i-Iqbal. The petitioner, Mst Kaniz Fatima, first questioned the construction, which also violated her right to light and air, in a petition before the Sindh High Court.

An SHC division bench dismissed the petition as the structure was being raised in accordance with a building plan approved by the Faisal Cantonment Board and the Karachi Building Control Authority confirmed that the plot did not fall within its jurisdiction according to a policy followed since 1992.

The petitioner assailed the dismissal of her petition and Advocate A.M. Khan, a former advocate-general, submitted on her behalf that her point was not fully explained to or understood by the high court. What the petitioner was actually challenging were the power and scope of jurisdiction of the cantonment board over civilian commercial residential area in a cantonment. He argued that the armed forces would have jurisdiction only over the area contemplated in Section 3 of the Cantonment Boards Act.

Referring to the 1983 and 2005 Supreme Court decisions in the cases of Rehmat Gill versus the Quetta Cantonment Board and Malir Cantonment Board versus Syed Tanvir Ali, the lawyer maintained that the civil authorities would continue to enjoy their powers and jurisdiction in the fields that fall within their purview. The site plans for construction of houses and buildings on plots belonging to civilians would be required to be approved by the civilian regulatory authority such as the KBCA. Such a power could not be made available to the cantonment boards under the law, the former AG argued.

However, he contended, the respondent Faisal Cantonment Board was exercising civilian building control authority in respect of approval of site plans in violation of the law. It had gone to the extent of promulgating ‘building bye-laws’ known as ‘Cantonment Board Faisal, Karachi, Bye-laws, 2008’. The bye-laws purport to apply to the entire cantonment area. The promulgation and enforcement of the bye-laws was repugnant to the relevant entry in the Federal Legislative List contained in the Constitution, the lawyer argued.

Replying to a court query, KBCA counsel Shahid Jamil Khan stated that the power to approve building plans in the area was exercised by the KBCA till 1992. Under a notification said to have been issued by the federal government, the power was transferred to the Faisal Cantonment Board. He conceded that despite his best efforts, he had not been able to lay his hands on the impugned notification.

Advocate Akhlaq Ahmed Siddiqui, the respondent board’s counsel, also expressed his ignorance about the notification. The bench asked him to produce the notification on the next date. A notice was issued to the attorney-general as the question involved interpretation of constitutional provisions.

Altaf Unar case

An SHC division bench comprising Justice Khilji Arif Hussain and Justice Qamaruddin Bohra, meanwhile, adjourned the hearing of former provincial minister Altaf Hussain Unnar’s plea for grant of facilities under the jail manual and medical treatment till Wednesday.

Hyderabad central prison superintendent Majeed Siddiqui appeared in response to the court notice and sought time through a provincial government law officer for filing his comments on the petition. Mr Unnar is being tried by an anti-terrorism court for allegedly firing at PPP MNA Dr Azra Pechoho’s car at a polling station. His son, Adil Altaf Unnar, says he was being kept in an isolated ward and was not being allowed to see his relatives. He was also being denied home-cooked food and medicines and treatment for his cardiac, kidney and diabetic treatment.

The petitioner’s counsel, Advocate Wasiq Ahmad Kehar, submitted that the ex-minister’s life was at risk. His medical check-up by senior government doctors confirmed that he suffered from serious ailments but the medical board, which examined him twice, failed to recommend his treatment outside the jail premises. The lawyer said Mr Unnar could only be given adequate treatment at the Kidney Centre or the Aga Khan Hospital. He called for his check-up by specialists serving in these institutions at his own expense.

Advocate Kehar opposed the law officer’s plea for a long adjournment, saying that a prominent politician’s life was at stake. The bench asked the jail superintendent and other respondents to submit their comments by Wednesday.

Confinement denied

Another division bench consisting of Justice Mrs Qaiser Iqbal and Syed Mahmood Alam Rizvi adjourned further hearing of a habeas corpus petition when the Rangers denied through federal government standing counsel Nasreen Kuki that Osama Waheed, an alleged detainee, was picked up by them.

According to petitioner Ajmal Waheed, Osama did not return home after he saw off their father, Abdul Waheed, at the cantonment railway station last month. The petitioner and the detainee are brothers of Dr Arshad Waheed and Dr Akmal Waheed, who were also detained for links with the outlawed militant outfit Jundullah.

Convicted exiles’ return

The bench comprising Justices Khilji and Bohra, meanwhile, adjourned the hearing of a petition moved on behalf of Qadir Bux Jatoi and Ali Haider Shah for their return home as free citizens. Advocate Zamir Ghumro, the petitioners’ counsel, submitted that the two were convicted by a military court in 1978 following a clash with military men during students’ protest against the alleged rape of Shirin Soomro, a student of the People’s Medical College, Nawabshah. A sepoy was killed and a lance naik injured in the clash and Jatoi and Shah were tried for murder and attempt to murder. They were handed down hard labour for long periods but were flown outside Pakistan in pursuance of the PIA plane hijacker’s demand in 1981.

Advocate Ghumro argued that the two were forcibly exiled and had lived in exile since 1981. They had already served out their sentences. In any event, military courts had no lawful authority to dispense justice as subsequently held by the Supreme Court. He requested the court to allow the petitioners to return home as free men.