LAHORE, Feb 27: A division bench of the Lahore High Court on Thursday directed an anti-terrorism court not to record any progress in the case against two elder Khwajas till March 7, and sought justification from the provincial government for holding the trial in jail.

Justice Tassadaq Hussain Jilani and Bashir Mujahid made it clear that they had not stayed the trial against Dr Ahmad Javed Khwaja and Ahmad Naveed Khwaja. On March 1, the next scheduled date of hearing, the court would simply adjourn the matter till March 7 without recording any progress.

The Khwajas had filed a petition in the LHC against ATC’s observation that the provincial home department was fully authorised to hold their trial in jail.

Earlier, the bench had ordered that “a status quo would be maintained by the ATC on the next date of hearing”. However, Punjab Advocate General Syed Shabbar Raza Rizvi opposed the order and requested that proceedings before the ATC should not be stayed.

The court amended its order, saying that the trial court would simply adjourn the proceedings till March 7, since the petition was likely to be decided on March 5.

“We have perused the judicial record along with the orders of provincial home department for holding the trial in jail, and are of the view that it has failed to specify any reasons for such orders,” observed the court. It directed the AG to file comments on the petition specifying as to whether the allegations levelled in the FIR warranted the trial of the accused in jail. The provincial government was further directed to update the court on the next hearing as to whether the home department was authorised to issue orders for trying the two Khwajas in jail without mentioning any reason.

However, the court ruled that the government had the authority to hold the trial of those arrested in security matters after specifying the reason. “Though no reasons have been mentioned in the order, yet one would expect that only the government decided the place of trial of those arrested under the provisions of Anti-Terrorism Act 1997, since the trial court cannot hold the proceedings in jail on its own,” observed the court.

The court pointed out that the petitioners had not appended the copy of home department’s order with the petition. Petitioners’ counsel Pervez Inayat Malik was directed to place a copy of the order on the judicial record. In response to another point raised by the AG, the court further directed the counsel to delete the name of AG from respondents’ list in the petition, saying that under Article 174, no state official could be arraigned as a respondent in his private capacity. It was further observed by the court that the petitioners had challenged ATC’s orders rather than the orders of provincial home department. “The ATC merely upheld the orders of home department and in the judicial review of these orders, we would like to see whether home secretary was authorised to order the trial in jail,” observed the court.

The petitioners’ counsel argued that home secretary was not authorised to pass such orders. Rather an application for holding the trial in jail should have been filed by the prosecution in the court — which had the sole discretion to decide the matter, he submitted.

He offered to withdraw the petition on condition that the court would allow general public and journalists to attend the trial proceedings on the jail premises. “The ATC had no jurisdiction to order in-camera proceedings without passing a special order,” argued the counsel.

The court dismissed the plea saying that the jurisdiction of the ATC with regard to in-camera proceedings had not been challenged by the petitioners.