LAHORE, Feb 17: The Lahore High Court on Monday ordered the release of two sons and a nephew of Dr Ahmad Javed Khwaja from the detention imposed under the Security of Pakistan Act 1952, but refused to grant the same relief to Dr Khwaja and his brother Ahmad Naveed Khwaja.

“The writ petition is partially accepted as Dr Umar Karar, Dr Khizar Ali, and Muhammad Usman are set at liberty at once, if not required in any other case. Petition to the extent of Dr Javed Khwaja and Ahmad Naveed Khwaja is dismissed,” read the short order of Justice M. Javed Buttar. The detailed judgment would be released later on.

The petitioners’ counsel Hamid Khan had argued before the court that the three younger Khwajas set free had not even been named in the reports of both federal and provincial governments submitted before the court concerning their detention. According to the counsel, the three detainees were also not implicated in the FIR registered against the other two elder Khwajas and should be released.

As disclosed by the counsel, the order of the LHC would be challenged before an appropriate forum to the extent of two elder Khwajas.

After the conclusion of arguments on the petition, the judge observed that the state had not produced any material before the court to substantiate the links of the detainees with Al Qaeda, nor had it made a formal request to the court in this regard.

“Throughout the hearing of this petition, the state has been refusing to produce the impugned material before (the) court, saying it was too sensitive to be disclosed,” observed the judge.

The Punjab Advocate General (AG), Syed Shabbar Raza Rizvi, provided the court with copies of certain foreign nationals’ passports allegedly recovered from the residence of the detainees.

When inquired as to whether these copies of passports and reports of both the federal and provincial governments on the detention were the only incriminating material available with the state, the AG replied in the affirmative.

However, the Deputy Attorney General (DAG) Sher Zaman Khan, tried to clarify the AG’s response, saying there was other material against the accused as well. “We also have supporting documentary evidence with us besides the one placed before the court,” the DAG claimed.

The court directed the AG to update it on Feb 24 regarding a question as to whether Chuhng sub-jail, where the Khwajas were currently detained, was a regular jail functioning under the instructions of superintendent Central Jail Lahore.

This question arose before the court when a petition was filed by the detainees on the last hearing, saying they were shifted from Central Jail to Chuhng sub-jail last week without any legal justification. The petition was kept pending by the court and would be heard on the next hearing.

Earlier, Hamid Khan argued before the court that the judgment of Supreme Court cited by the AG in support of his arguments regarding the satisfaction of the state on an action taken by it was not relevant to the impugned petition.

He submitted that this judgment was passed on the proclamation of emergency order of Oct 12, 1999, in which the satisfaction of the state on the enforcement of emergency was questioned. While this court was seized of a detention matter which could not be decided in the light of that judgment, argued the counsel.

It was further argued in rebuttal of submissions made by the DAG and AG that the validity of the detention orders should have been determined in the presence of the detainees before the court. Dr Ahmad Naveed Khwaja never visited Afghanistan in 1998. Rather it was Ahmad Javed Khwaja who went there on an official visa to provide medical aid to the injured Mujahideen, which did not constitute any anti-state activity, the counsel submitted.

He argued that even if for the sake of argument, the detainees were assumed to be the associates of Al Qaeda, they could not be termed terrorists since Al Qaeda was not a terrorist organisation.