Islamabad High Court on Wednesday granted bail to a Kulfi vendor Farmanullah – sole breadwinner of his seven-member family who was sent behind the bars 15 days ago when an officer of the Capital Development Authority (CDA) exercised powers illegally and awarded him three months rigorous imprisonment and half a million rupee fine. The vendor has been accused for operating cart without required permission in front of Faisal Mosque.
Farmanullah, father of five, including four with special needs, his arrest sparked an outcry over the harsh and extreme nature of punishment meted out to a street vendor. Special Magistrate of the CDA awarded him sentenced under Section 46-A of the CDA Ordinance 1960 and Martial Law Regulation (MLR) No 63.
Appearing before single-member bench of Justice Tariq Mahmood Jahangiri, counsel for the vendor Advocate Supreme Court Umer Ijaz Gilani termed arrest and conviction of Farmanullah as sheer violation of constitutional fundamental rights of the accused person. He apprised the court that a Special Magistrate of the CDA who being an employee of the Authority has no formal authority as Judicial Magistrate adding, the official misused his power and awarded imprisonment without framing charge which is also violation of due process of law.
In July 11, officials of the CDA’s Enforcement Directorate arrested Farmanullah for operating his cart in the parking lot of the popular Faisal Mosque alleging he was running business cart without a permission.
TLTP has learnt that some people at the helm of CDA enforcement department have been repeatedly alleged to misuse their formal authority for vested interests but decision makers are avoiding rule of law implementation in true letter and spirit due to reasons best known to them. Spreading of Kitchi Abadis adjacent to Margalla Town, Humak, Rawal Town, Chak Shahzad are manifestation of CDA enforcement negligence which failed to take action against encroachers since a long. Existence of encroachments and illegal constructions in the vicinities worsening law and order situation.
Assailing the conviction order before Additional Sessions Judge, Advocate Gilani apprised the court that Farmanullah was convicted within 24 hours of his arrest, without being given the opportunity to seek legal representation. However, the Sessions Court didn’t suspend the sentence. To which the counsels invoked IHC jurisdiction for remedy in the matter.
Advocate Supreme Court Umer Gilani contended before the single-member bench of the IHC saying CDA Special Magistrate failed to observe due process with the so-called ‘admission of guilt’ as his client was indicted even before charges were formally framed. The court was apprised that special magistrate asked Farmanullah if he had a cart in the Faisal Mosque, to which he replied that he did it to support his family.
In his statement before the CDA senior special magistrate, Farmanullah agreed to not make such a ‘mistake again’. He informed the court that he was a poor man. “I have to feed my family. There is no one to take care of them except me.” The IHC order from Wednesday observed that the trial court was bound to frame charges under Section 243 of the Criminal Procedure Code (CrPC). If the accused pleads guilty in response, then a show cause notice was to be issued after which the court was liable to convict, it continued.
The court went on to observe that “…in the instant case, no charge has been framed, even in the impugned order there is no word regarding the framing of charge or pleading of guilty…”. It noted that the order was in violation of relevant provisions of the law and ‘patently illegal’ and issued the order to be set aside.
After brief hearing of the matter, the bench suspended CDA magistrate illegal order while granting bail to Farmanullah, who was currently being held at Adiala Jail, against a surety bond of Rs5,000.
It is pertinent to mention that following Farmanullah’s conviction, members of the Islamabad administration had claimed that he was involved in extorting protection money from other vendors outside the mosque. However, the challan did not have any statements from the said vendor.
CDA Chairman Noorul Amin Mengal had insinuated the same in a tweet while responding to an article on the issue. “There are mafias who manage rehris (push-carts), parking, Gerry’s appointments, bus terminals allocations, Sunday Bazars stalls, land rehabilitation, etc.,” he wrote in response to a BBC story on the issue.
English Daily Express Tribune reported saying citizens told the paper that said CDA officials were involved in getting protection money from such vendors and kiosk owners across the city. One person who worked with the department said it was “very likely that this guy failed to pay his monthly bribe to the CDA and was punished to give a clear message to other vendors”.
