The Sindh government on Friday through chief secretary submitted that order under review suffers from grave errors of law floating on the surface, and is based on grave misreading of the short order dated 22-03-2018 of the apex court.
The short order dated 22-03-2018, passed by former Chief Justice Mian Saqib Nisar, dismissed all the appeals and said: "The province of Sindh shall be entitled to make new laws conforming to the modern needs and also keeping in view the observation made in the impugned judgement (SHC)."
The Sindh government contended that in the short order, all the appeals were dismissed including CP No. 150 of 2018. The prayers sought in the said CP seeking 'police' to be declared as a concurrent subject as well as the revival of the Police Order 2002 was also dismissed.
It maintained that in essence, dismissal of all the appeals confirmed this Court's review that the subject of 'police is exclusively a provincial subject as held by the Sindh High Court judgement. However, the order in review holds 'police to be a concurrent subject.'
The reasons for a short order can only be in support of the short order and not in derogation of the same. The order in review not only travels beyond the scope of the short order but is directly in conflict with the same. The short order dismissed all the appeals whereas the order in review is tantamount to allowing CP No. 150/2018, maintained the Sindh government.
Justice Umer Atta Bandial in six-page detailed order on 21-01-2019 declared that police is a concurrent subject to the legislative and executive competence of the federation and the provinces in relation to the matters covered by Article 142(b) and Article 240 of the Constitution.
The verdict says it is necessary that the federal and provincial governments collaborate in appointments and transfers of police personnel on senior cadre posts and in any event with prospect to crime prevention, detection and investigation as well as prosecution and punishment of criminal offenders in the province.
The apex court did not agree to an SHC observation that police is not a concurrent subject as the Parliament lacks legislative competence in relation to it.
The Sindh High Court on 07-09-2017 declared that the legislative competence of police is in the exclusive provincial domain, but imposed restriction on the appointment, removal, transfer and posting of the inspector general of police. Moreover the SHC also put unlawful fetters on the provincial government to amend/repeal and promulgate new subordinate legislation, which is its constitutional duty and right, the petitioner further contended. The Sindh government aggrieved by the SHC verdict challenged it in the apex court.
The Supreme Court judgement noted that the SHC verdict whilst excluding police from the ambit of Article 142(b) failed to deal with certain crucial functions of police. Apart from matters regarding police organisation, the Police Act 1861 also addresses the maintenance of public order as functional purpose of the police.
For meeting the constitutional mandate of rule of law, the ruling says prevention, detection and investigation of crime and the prosecution and punishment of criminal offence in a society are equally important services rendered by the police.
In that context, Article 142(b) confers concurrent competence upon the federal government and the provinces in relation to crime prevention, detection and investigation of specified crimes so that the federal government carries out different policing function throughout Pakistan, including the territories of provinces, says the verdict.