SHC dismisses petition seeking Shaheed Act illegal

KARACHI: The Sindh High Court on Wednesday dismissed a petition seeking to declare the Sindh Shaheed Recognition and Compensation Act, 2014 as inconsistent and in derogation of fundamental rights.

The petition sought court’s direction for amendment in section 2 subsection (f) of the act by inserting words regarding any person who sacrifices his life by serving nation and performing his legitimate duties and dies as an unnatural death such.

Petitioner Rani Khaskahli’s husband Mushtaque Ahmed, serving as a police constable was deployed in Special Security Unit (SSU) Karachi. On March 4, 2015 while performing security duties in a high alert zone of Karachi he met with a fatal accident.

According to the petitioner, during funeral he was given the protocol of martyr and a compensation of Rs40,000 was also paid to his legal heirs.

Grievance of the petitioner was that though her husband lost his life in line of duty, he was not officially declared a “shaheed” in terms of section 2(f) of the Sindh Shaheed Recognition and Compensation Act, 2014.

The petitioner approached the high-ups in the department and went from pillar to post to declare the constable a martyr but to no avail.

A two-member bench headed by Chief Justice Ahmed Ali M Sheikh in its judgment held that a bare reading of the aforesaid section conjunctively with the preamble of the act of 2014 showed that the legislature had passed the law to honor and recognise the services of persons who sacrifice their lives in act of terrorism while performing duty and to provide compensation to their legal heirs. He added that the provincial government could declare those persons as martyrs who sacrifice their lives in line of duty in counter terrorism or becomes a victim of an act of terrorism operation or targeted and killed by the terrorists group.

“Admittedly, the constable met with an accident while was on duty, but could not be said to have sacrificed his life in the line of duty in counter terrorism or has been a victim of an act of terrorism operation or even targeted and killed by terrorists group,” read the judgment.

The bench noted that that in January, 2019, the petitioner had filed another petition seeking almost identical relief as in the instant petition except for declaring the act un-Islamic. The bench observed that another bench had then directed the government to assess the petitioner’s husband’s case afresh to determine whether his case falls within the ambit of the act. A report submitted by the government declared that the petitioner’s husband’s case did not fall within the ambit of the act.

With regard to declaring the act as repugnant to the injunction of Islam, the Holy Qur’an and Hadith, the bench held that under the Article 203-D, Chapter 3A, examining and declaring any provision of any statute as repugnant to the Injunctions of Islam was the exclusive domain of the Federal Shariat Court.

Additionally, the bench held, Article 203-G of the Constitution provided bar of jurisdiction of any court including the Supreme Court and a High Court.

So far as the prayer that alternatively direction be issued to the government to make necessary amendment in the act, the bench held that the same too could not be entertained.

The bench observed under the doctrine of “trichotomy of powers” between the legislature, the executive and the judicature, it is well settled that the legislative function does not fall within the domain of the high court and is the sole function of the parliament and assemblies.

“Following the said doctrine and the enunciations of the Honourable Supreme Court of Pakistan this court cannot step into the shoes of the legislature,” the bench held.